§ 1A-1. Rules of Civil Procedure.

The Rules of Civil Procedure are as follows:

Cross References.

As to civil procedure, see also Chapter 1 of the North Carolina General Statutes.

As to instructions, generally, see G.S. 1-181 , G.S. 1A-1 , Rule 51, and Rule 10(b) of the North Carolina Rules of Appellate Procedure.

Editor’s Note.

The Official Comments appearing under individual rules in this Chapter have been printed by the publisher as received, without editorial change, and relate to the Chapter as originally enacted. However, not all rules in this Chapter may carry Official Comments. Furthermore, Official Comments may or may not have been received or updated in conjunction with subsequent amendments to this Chapter and, therefore, may not reflect all changes to the rules under which they appear.

Where they appear in this Chapter, “Amended Comment” usually means that an error in the original comment has been corrected by a subsequent amendment, and “Supplemental Comment” pertains to a later development, such as an amendment to the rule text.

Chapter 1A of the General Statutes was added by Session Laws 1967, c. 954. Sections 5, 6 and 7 of c. 954 read as follows:

“Sec. 5. All those portions of chapter 1 of the General Statutes of North Carolina not repealed by this act, not amended by this act, or not in conflict with this act, are hereby reenacted.

“Sec. 6. All provisions of the General Statutes of North Carolina which refer to sections repealed or amended by this act shall be deemed, insofar as possible, to refer to those provisions of this act which accomplish the same or an equivalent purpose.

“Sec. 7. None of the provisions of this act providing for the repeal of certain sections of the General Statutes shall constitute a reenactment of the common law.”

Session Laws 1969, c. 803, amended Session Laws 1967, c. 954, s. 10, to read as follows: “Sec. 10. This act shall be in full force and effect on and after January 1, 1970, and shall apply to actions and proceedings pending on that date as well as to actions and proceedings commenced on and after that date.”

Legal Periodicals.

For survey of 1982 law on civil procedure, see 61 N.C.L. Rev. 991 (1983).

For note, “A New Route to Medical Malpractice in North Carolina?,” see 31 N.C. Cent. L. Rev. 198 (2009).

For article, “Three Myths about Twombly-Iqbal,” see 45 Wake Forest L. Rev. 1337 (2010).

For comment, “Beyond a Definition: Understanding the Nature of Void and Voidable Contracts,” see 33 Campbell L. Rev. 193 (2010).

For article, “Reasonableness in E-Discovery,” see 32 Campbell L. Rev. 435 (2010).

For article, “Proportionality in Discovery: A Cautionary Tale,” see 32 Campbell L. Rev. 455 (2010).

For article, “Fixing Faults in the Current Default Judgment Framework,” see 34 Campbell L. Rev. 155 (2011).

For article, “When Staying Discovery Stays Justice: Analyzing Motions to Stay Discovery When a Motion to Dismiss is Pending,” see 47 Wake Forest L. Rev. 71 (2012).

For article, “The Promise of a Cooperative and Proportional Discovery Process in North Carolina: House Bill 380 and the New State Electronic Discovery Rules,” see 34 Campbell L. Rev. 233 (2012).

For article, “Senate Bill 33 Grants Protection to Emergency Room Providers ... and Just About Everyone Else, Too,” see 91 N.C.L. Rev. 720 (2013).

For article, “E-Notice,” see 68 Duke L.J. 218 (2018).

Article 1. Scope of Rules—One Form of Action.

Rule 1. Scope of rules.

These rules shall govern the procedure in the superior and district courts of the State of North Carolina in all actions and proceedings of a civil nature except when a differing procedure is prescribed by statute. They shall also govern the procedure in tort actions brought before the Industrial Commission except when a differing procedure is prescribed by statute.

History. 1967, c. 954, s. 1; 1971, c. 818.

Comment

This rule gives literal expression to the scope of intended application, but that scope can be appreciated only by a consideration of the rules themselves and the new jurisdiction statute (G.S. 1-75.1 et seq.), the statutes left undisturbed by Session Laws 1967, c. 954, the statutes amended in s. 3 of c. 954, and those statutes repealed in s. 4 of c. 954. In general it can be said that to the extent a specialized procedure has heretofore governed, it will continue to do so.

Local Modification.

New Hanover: 1979, c. 354.

Legal Periodicals.

For article on the general scope and philosophy of the new rules, see 5 Wake Forest Intra. L. Rev. 1 (1969).

For article on the legislative changes to the new rules of civil procedure, see 6 Wake Forest Intra. L. Rev. 267 (1970).

For article on the former North Carolina Speedy Trial Act, see 17 Wake Forest L. Rev. 173 (1981).

For survey of 1982 law on civil procedure, see 61 N.C.L. Rev. 991 (1983).

For survey of 1982 law on torts, see 61 N.C.L. Rev. 1225 (1983).

For survey of North Carolina construction law, with particular reference to civil procedure and evidence, see 21 Wake Forest L. Rev. 633 (1986).

For article, “Expedited Trial Programs in Federal Court: Why Won’t Attorneys Get on the Fast Track?,” see 55 Wake Forest L. Rev. 525 (2020).

CASE NOTES

Applicability of Rules. —

The North Carolina Rules of Civil Procedure do not apply to actions brought pursuant to the provisions of G.S. 128-16 through 128-20. State ex rel. Leonard v. Huskey, 65 N.C. App. 550, 309 S.E.2d 726, 1983 N.C. App. LEXIS 3562 (1983).

While the North Carolina Rules of Civil Procedure govern civil proceedings generally, they do not apply when a differing procedure is prescribed by statute; a trial court’s denial of a corporation’s motion to intervene in a case seeking review of an annexation ordinance was proper, since the corporation failed to comply with G.S. 160A-50 procedures by moving to intervene six months after the ordinance was adopted. Gates Four Homeowners Ass'n v. City of Fayetteville, 170 N.C. App. 688, 613 S.E.2d 55, 2005 N.C. App. LEXIS 1088 (2005).

Trustee removal proceedings are held in an estate matter and not in a special proceeding or in a civil action, and clerks of court are not required to also make decisions regarding discovery and other issues of law arising during estate matters; instead, the clerks of superior courts hear the matters before them summarily, and are responsible for determining questions of fact rather than providing judgment in favor of one party or the other. In re Estate of Newton, 173 N.C. App. 530, 619 S.E.2d 571, 2005 N.C. App. LEXIS 2120 (2005).

Award of sanctions and attorney fees was proper in an estate proceeding because, pursuant to G.S. 1A-1-1 the North Carolina Rules of Civil Procedure applied to all actions and proceedings of a civil nature; the estate proceeding was a “proceeding of a civil nature,” and the North Carolina Rules of Civil Procedure applied. In re Estate of Rand, 183 N.C. App. 661, 645 S.E.2d 174, 2007 N.C. App. LEXIS 1091 (2007).

G.S. 1A-1 , N.C. R. Civ. P. 52 was inapplicable in a proceeding regarding attorney’s fees because G.S. 6-19.1 prescribed the procedure to be followed for awarding attorney fees in the very specific setting before the courts. Early v. County of Durham, Dep't of Soc. Servs., 193 N.C. App. 334, 667 S.E.2d 512, 2008 N.C. App. LEXIS 1818 (2008).

Because G.S. 105-258(a) prescribed a proceeding of a civil nature with its own specialized procedure under G.S. 1A-1 , N.C. R. Civ. P. 1, G.S. 105-528 supplanted the North Carolina Rules of Civil Procedure. In re Summons Issued to Ernst & Young, LLP, 363 N.C. 612 , 684 S.E.2d 151, 2009 N.C. LEXIS 897 (2009).

Voluntary dismissal rule does not apply to a petition for a writ of certiorari; therefore, property owners were not allowed to refile their petition that was seeking review of a decision from a board of adjustment within a year because this was not timely. Not all of the North Carolina Rules of Civil Procedure applied to certiorari proceedings. Henderson v. Cnty. of Onslow, 245 N.C. App. 151, 782 S.E.2d 57, 2016 N.C. App. LEXIS 137 (2016).

Timeliness. —

Father’s answer contained his motion to change venue and thus, the motion came almost two months after service of the complaint and summons, well outside the 30-day “time of answering” period; accordingly, any objection concerning venue has been waived. Chillari v. Chillari, 159 N.C. App. 670, 583 S.E.2d 367, 2003 N.C. App. LEXIS 1515 (2003).

Application of Rules to All Cases from Effective Date. —

The clear intent of the General Assembly in Session Laws 1969, c. 803, was to apply the new rules from the effective date to all civil cases, and not to permit the confusion which would be attendant upon trying to apply different procedures to cases begun before and to cases begun after the effective date. Schoolfield v. Collins, 281 N.C. 604 , 189 S.E.2d 208, 1972 N.C. LEXIS 1117 (1972).

The rules are the same in both district and superior courts and the inherent powers of these courts are the same as far as procedural matters are concerned. Johnson v. Johnson, 14 N.C. App. 40, 187 S.E.2d 420, 1972 N.C. App. LEXIS 2031 (1972).

The canon of interpretation of the rules is one of liberality, and the general policy of the rules is to disregard technicalities and form and determine the rights of litigants on the merits. Johnson v. Johnson, 14 N.C. App. 40, 187 S.E.2d 420, 1972 N.C. App. LEXIS 2031 (1972).

The North Carolina Rules of Civil Procedure are modeled after the federal rules. In most instances they are verbatim copies with the same enumerations. Sutton v. Duke, 277 N.C. 94 , 176 S.E.2d 161, 1970 N.C. LEXIS 510 (1970).

But Federal Rules and North Carolina Rules Not Always the Same. —

On dismissal of negligent employment and Civil Right Violation claims, defendants’ 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 N.C. App. LEXIS 117 (2000).

Consideration of Decisions Under Federal Rules and New York Rules. —

Since the federal and, presumably, the New York rules are the source of these rules, the Supreme Court will look to the decisions of those jurisdictions for enlightenment and guidance to develop the philosophy of the new rules. Brewer v. Harris, 279 N.C. 288 , 182 S.E.2d 345, 1971 N.C. LEXIS 776 (1971).

Although these rules differ somewhat from the federal rules, the federal rules are one of the sources of the North Carolina rules; and decisions under them are pertinent for guidance and enlightenment to develop the philosophy of the new rules. Johnson v. Johnson, 14 N.C. App. 40, 187 S.E.2d 420, 1972 N.C. App. LEXIS 2031 (1972).

G.S. 8-83 is not a “differing procedure” from that of G.S. 1A-1 , Rule 32 within the contemplation of the language of this rule. Nytco Leasing, Inc. v. Southeastern Motels, Inc., 40 N.C. App. 120, 252 S.E.2d 826, 1979 N.C. App. LEXIS 2614 (1979).

Actions for Alimony. —

Actions for permanent alimony are unquestionably of a civil nature, and there is no “differing procedure” prescribed by statute which governs the action. Quick v. Quick, 305 N.C. 446 , 290 S.E.2d 653, 1982 N.C. LEXIS 1335 (1982).

Revenue Proceedings. —

The Rules of Civil Procedure do not apply to proceedings before the State Board of Assessment (now Department of Revenue). In re Valuation of Property Located at 411-417 W. Fourth St., 282 N.C. 71 , 191 S.E.2d 692, 1972 N.C. LEXIS 887 (1972).

Foreclosure of Deed of Trust. —

Foreclosure of a deed of trust under the power of sale contained therein is not an action or proceeding subject to the Rules of Civil Procedure. Furst v. Loftin, 29 N.C. App. 248, 224 S.E.2d 641, 1976 N.C. App. LEXIS 2454 (1976).

Dismissal of a Teacher. —

The procedures prescribed by former G.S. 115-142 (now G.S. 115C-325 ) for the dismissal of a career teacher are essentially administrative rather than judicial. The board is not bound by the formal rules of evidence which would ordinarily obtain in a proceeding in a trial court; nor are the Rules of Civil Procedure applicable. Baxter v. Poe, 42 N.C. App. 404, 257 S.E.2d 71, 1979 N.C. App. LEXIS 2772 , cert. denied, 298 N.C. 293 , 259 S.E.2d 298, 1979 N.C. LEXIS 1566 (1979).

Adoption Proceedings. —

The Rules of Civil Procedure and the provisions of G.S. 1-393 et seq., apply to adoption proceedings. In re Clark, 95 N.C. App. 1, 381 S.E.2d 835, 1989 N.C. App. LEXIS 670 (1989), rev'd, 327 N.C. 61 , 393 S.E.2d 791, 1990 N.C. LEXIS 564 (1990).

Juvenile Proceedings. —

Actions under the Juvenile Code, § 7A-516 et seq. [see now G.S. 7B-100 ], are in the nature of civil actions. As such, proceedings in juvenile matters are to be governed by the Rules of Civil Procedure, unless otherwise provided by the Juvenile Code or some other statute. In re Bullabough, 89 N.C. App. 171, 365 S.E.2d 642, 1988 N.C. App. LEXIS 279 (1988).

Procedural validity of a dispositional order in a juvenile proceeding would be evaluated in light of the Rules of Civil Procedure and G.S. 7A-651 [see now G.S. 7B-905 and G.S. 7B-2512 ]. In re Bullabough, 89 N.C. App. 171, 365 S.E.2d 642, 1988 N.C. App. LEXIS 279 (1988).

Private Condemnation Proceedings. —

G.S. 40A-12 , together with G.S. 1-393 , gives trial courts clear authority to apply the Rules of Civil Procedure in private condemnation proceedings, at least to the extent that those rules do not directly conflict with procedures specifically mandated by Chapter 40A. VEPCO v. Tillett, 316 N.C. 73 , 340 S.E.2d 62, 1986 N.C. LEXIS 1912 (1986).

Appeals of Annexation Ordinances. —

Petitioners’ motion under G.S. 1A-1-24(a) to intervene in another party’s petition for review of an annexation ordinance was properly denied, because G.S. 1A-1-24(a) does not apply to appeals of annexation ordinances under G.S. 160A-50(a). Home Builders Ass'n of Fayetteville N.C. Inc. v. City of Fayetteville, 170 N.C. App. 625, 613 S.E.2d 521, 2005 N.C. App. LEXIS 1072 (2005).

Special Proceedings. —

Even where an action is a special proceeding, the Rules of Civil Procedure are made applicable by G.S. 1-393 , which provides that the Rules of Civil Procedure and the provisions of Chapter 1 on civil procedure are applicable to special proceedings, except as otherwise provided. VEPCO v. Tillett, 316 N.C. 73 , 340 S.E.2d 62, 1986 N.C. LEXIS 1912 (1986).

The Rules of Civil Procedure apply to special proceedings, just as they do to civil actions, unless the governing statute sets out a different procedure. Charns v. Brown, 129 N.C. App. 635, 502 S.E.2d 7, 1998 N.C. App. LEXIS 668 (1998).

Removal of Officers. —

The North Carolina Rules of Civil Procedure do not apply to actions brought pursuant to the provisions of G.S. 128-16 through 128-20, relating to removal of unfit officers. State ex rel. Leonard v. Huskey, 65 N.C. App. 550, 309 S.E.2d 726, 1983 N.C. App. LEXIS 3562 (1983).

Rules of Civil Procedure are not strictly applicable to proceedings under the Workers’ Compensation Act, G.S. 97-1 et seq. Hogan v. Cone Mills Corp., 315 N.C. 127 , 337 S.E.2d 477, 1985 N.C. LEXIS 2091 (1985).

Rule 2. One form of action.

There shall be in this State but one form of action for the enforcement or protection of private rights or the redress of private wrongs, which shall be denominated a civil action.

History. 1967, c. 954, s. 1.

Comment

This rule, drawn substantially without change from North Carolina Const., Art. IV, § 1, and from former § 1-9, preserves the fundamental reform of 1868, providing for the abolition of the forms of action and for the fusion of law and equity.

CASE NOTES

Analysis

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 Builders, Inc., 309 N.C. 182 , 305 S.E.2d 722, 1983 N.C. LEXIS 1319 (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 N.C. App. LEXIS 2833 (1983), aff'd in part and rev'd in part, 310 N.C. 707 , 314 S.E.2d 512, 1984 N.C. LEXIS 1696 (1984).

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 N.C. LEXIS 285 (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 N.C. LEXIS 23 (1875). See Kiff v. Weaver, 94 N.C. 274 , 1886 N.C. LEXIS 50 (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, 1915 U.S. Dist. LEXIS 1604 (D.N.C. 1915), rev'd, 231 F. 654, 1916 U.S. App. LEXIS 1685 (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 N.C. LEXIS 292 (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 N.C. LEXIS 228 (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 N.C. LEXIS 323 (1904).

Article 2. Commencement of Action; Service of Process, Pleadings, Motions, and Orders.

Rule 3. Commencement of action.

  1. A civil action is commenced by filing a complaint with the court. The clerk shall enter the date of filing on the original complaint, and such entry shall be prima facie evidence of the date of filing.A civil action may also be commenced by the issuance of a summons whenThe summons and the court’s order shall be served in accordance with the provisions of Rule 4. When the complaint is filed it shall be served in accordance with the provisions of Rule 4 or by registered mail if the plaintiff so elects. If the complaint is not filed within the period specified in the clerk’s order, the action shall abate. If electronic filing is available in the county of filing, attorneys shall file in accordance with Rule 5 of the General Rules of Practice for the Superior and District Courts. If electronic filing is available in the county of filing, self-represented litigants who are appropriately registered in the electronic filing system may file electronically in accordance with Rule 5 of the General Rules of Practice for the Superior and District Courts.

    A civil action may also be commenced by the issuance of a summons when

    The summons and the court’s order shall be served in accordance with the provisions of Rule 4. When the complaint is filed it shall be served in accordance with the provisions of Rule 4 or by registered mail if the plaintiff so elects. If the complaint is not filed within the period specified in the clerk’s order, the action shall abate. If electronic filing is available in the county of filing, attorneys shall file in accordance with Rule 5 of the General Rules of Practice for the Superior and District Courts. If electronic filing is available in the county of filing, self-represented litigants who are appropriately registered in the electronic filing system may file electronically in accordance with Rule 5 of the General Rules of Practice for the Superior and District Courts.

    A civil action may also be commenced by the issuance of a summons when

    1. A person makes application to the court stating the nature and purpose of his action and requesting permission to file his complaint within 20 days and
    2. The court makes an order stating the nature and purpose of the action and granting the requested permission.

      The summons and the court’s order shall be served in accordance with the provisions of Rule 4. When the complaint is filed it shall be served in accordance with the provisions of Rule 4 or by registered mail if the plaintiff so elects. If the complaint is not filed within the period specified in the clerk’s order, the action shall abate. If electronic filing is available in the county of filing, attorneys shall file in accordance with Rule 5 of the General Rules of Practice for the Superior and District Courts. If electronic filing is available in the county of filing, self-represented litigants who are appropriately registered in the electronic filing system may file electronically in accordance with Rule 5 of the General Rules of Practice for the Superior and District Courts.

  2. Repealed by Session Laws 2017-158, s. 20, effective July 21, 2017.

History. 1967, c. 954, s. 1; 1987, c. 859, s. 2; 2017-158, s. 20; 2020-46, s. 1.

Comment

Any system of procedure must provide an easily identifiable moment in time when it is possible definitely to say that an action has been “commenced.” Under prior practice, former §§ 1-14 and 1-88 combined to say that in most cases an action was commenced with the issuance of summons. The exceptions related to actions in which service of summons was made by publication or was made outside the State pursuant to former § 1-98 and 1-104. In those cases, actions were deemed commenced when the affidavit required by these sections was filed. Under the federal rules, an action is commenced with the filing of a complaint with the court.

As can be seen, the General Statutes Commission preferred for the usual case the federal rule. The commission did so because it wished to take away the special consideration then accorded out-of-state defendants. But more importantly the Commission wished to remove a potential trap for an unwary plaintiff in a North Carolina federal court. A recent case in the Eastern District is illustrative. A plaintiff filed a complaint in the federal court for wrongful death five days before the statute of limitations had run. Because of a failure to post the required bond, summons was not issued until over a month later. The defendant moved to dismiss, relying on the statute. The plaintiff, of course, was relying on the federal rule as he was plainly in time if that rule applied. But the federal court quite properly held that the federal rule did not apply and that North Carolina practice as to when an action was commenced would govern. Thus the action was dismissed. Rios v. Drennan, 209 F. Supp. 927 (E.D.N.C. 1962). The court was faithfully following the United States Supreme Court’s decision in Erie R.R. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, 114 A.L.R. 1487 (1938), and its progeny, particularly Ragan v. Merchants Transf. & Whse. Co., 337 U.S. 530, 69 S. Ct. 1233, 93 L. Ed. 1520 (1949). The basic notion of the Rios and Ragan cases is that a federal court, irrespective of the federal rules, cannot give to a claim in a diversity action a “longer life . . . than it would have had in the state court . . . .” While one may sympathize with the plaintiff in the Rios case in his reliance on the federal rule, still it is clear that his reliance was misplaced. The trap which ensnared him would exist so long as the federal and State practices varied. The Commission believed this variance should be eliminated.

The Commission was not unmindful of the fact that there may be emergencies in which there is no time to prepare a complaint. To take care of these situations, the Commission incorporated in the second paragraph the essence of the first part of former § 1-121, allowing the commencement of an action by the issuance of a summons on application for permission to delay filing of a complaint and an appropriate order by the clerk.

It will be observed that the Commission did not at this point make any provision for discovery prior to filing a complaint. That problem is dealt with in Rule 27 (b) which provides in appropriate cases for discovery without action.

The second sentence of the first paragraph provides the same method formerly provided by § 1-88.1 for making a prima facie case in respect to the date of filing of the complaint. Rule 4(a) makes that method available also in respect to the date of issuance of a summons.

Editor’s Note.

Session Laws 2020-46, s. 3, made the last two sentences of subsection (a) of this section, as added by Session Laws 2020-46, s. 1, effective October 1, 2020, and applicable to filings and service effected on or after that date.

Effect of Amendments.

Session Laws 2017-158, s. 20, effective July 21, 2017, deleted former subsection (b), which read: “The clerk shall maintain as prescribed by the Administrative Office of the Courts a separate index of all medical malpractice actions, as defined in G.S. 90-21.11. Upon the commencement of a medical malpractice action, the clerk shall provide a current copy of the index to the senior regular resident judge of the district in which the action is pending.”

Session Laws 2020-46, s. 1, added the last two sentences of subsection (a). For effective date and applicability, see editor’s note.

Legal Periodicals.

For case law survey on trial practice, see 43 N.C.L. Rev. 938 (1965).

For case law survey as to statutes of limitations, see 44 N.C.L. Rev. 906 (1966).

For article on the general scope and philosophy of the new rules, see 5 Wake Forest Intra. L. Rev. 1 (1969).

For article on jurisdiction and process, see 5 Wake Forest Intra. L. Rev. 46 (1969).

For article, “The 1980 Amendments to the Federal Rules of Civil Procedure and Proposals for North Carolina Practice,” see 16 Wake Forest L. Rev. 915 (1980).

For survey of 1980 law on civil procedure, see 59 N.C.L. Rev. 1049 (1981).

CASE NOTES

Analysis

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, 2004 U.S. Dist. LEXIS 20220 (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 N.C. App. LEXIS 2833 (1983), aff'd in part and rev'd in part, 310 N.C. 707 , 314 S.E.2d 512, 1984 N.C. LEXIS 1696 (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, 2004 U.S. Dist. LEXIS 19216 (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 N.C. App. LEXIS 3175 (1983).

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, 2004 U.S. Dist. LEXIS 20220 (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 N.C. App. LEXIS 3664 (1984).

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 N.C. App. LEXIS 3664 (1984).

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. International Bhd. of Teamsters Local 61, 11 N.C. App. 159, 180 S.E.2d 461, 1971 N.C. App. LEXIS 1472 , cert. denied, 278 N.C. 701 , 181 S.E.2d 601, 1971 N.C. LEXIS 1028 (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. International Bhd. of Teamsters Local 61, 11 N.C. App. 159, 180 S.E.2d 461, 1971 N.C. App. LEXIS 1472 , cert. denied, 278 N.C. 701 , 181 S.E.2d 601, 1971 N.C. LEXIS 1028 (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. International Bhd. of Teamsters Local 61, 11 N.C. App. 159, 180 S.E.2d 461, 1971 N.C. App. LEXIS 1472 , cert. denied, 278 N.C. 701 , 181 S.E.2d 601, 1971 N.C. LEXIS 1028 (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, 1972 U.S. Dist. LEXIS 11122 (W.D.N.C. 1972), rev'd, 472 F.2d 769, 1973 U.S. App. LEXIS 11990 (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. International Bhd. of Teamsters Local 61, 11 N.C. App. 159, 180 S.E.2d 461, 1971 N.C. App. LEXIS 1472 , cert. denied, 278 N.C. 701 , 181 S.E.2d 601, 1971 N.C. LEXIS 1028 (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 N.C. App. LEXIS 2060 (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 N.C. LEXIS 1286 (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 N.C. LEXIS 1319 (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, 1986 U.S. Dist. LEXIS 17956 (M.D.N.C. 1986), aff'd, 832 F.2d 303, 1987 U.S. App. LEXIS 14510 (4th Cir. 1987).

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 N.C. App. LEXIS 188 (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 N.C. App. LEXIS 1268 (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, 2001 U.S. Dist. LEXIS 23353 (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 N.C. App. LEXIS 685 (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, 1987 U.S. App. LEXIS 14510 (4th Cir. 1987).

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, 2004 U.S. Dist. LEXIS 18982 (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 N.C. App. LEXIS 922 (1993).

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 N.C. LEXIS 831 (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 N.C. App. LEXIS 282 (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 N.C. App. LEXIS 1135 (2018).

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 N.C. App. LEXIS 2053 (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 N.C. LEXIS 2103 (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 N.C. App. LEXIS 2053 (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, 1979 N.C. App. LEXIS 2607 , cert. denied, 297 N.C. 453 , 256 S.E.2d 806, 1979 N.C. LEXIS 1439 (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 N.C. App. LEXIS 3175 (1983).

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 N.C. App. LEXIS 2240 (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, 1979 N.C. App. LEXIS 2607 , cert. denied, 297 N.C. 453 , 256 S.E.2d 806, 1979 N.C. LEXIS 1439 (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, 1979 N.C. App. LEXIS 2607 , cert. denied, 297 N.C. 453 , 256 S.E.2d 806, 1979 N.C. LEXIS 1439 (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 N.C. App. LEXIS 3664 (1984).

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 N.C. App. LEXIS 2053 (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, 1999 N.C. App. LEXIS 612 (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 N.C. App. LEXIS 3664 (1984).

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 N.C. LEXIS 20 (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 N.C. App. LEXIS 1565 (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 N.C. LEXIS 578 (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 N.C. LEXIS 710 (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 N.C. LEXIS 710 (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 N.C. LEXIS 1122 (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 N.C. LEXIS 1122 (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, 1962 U.S. Dist. LEXIS 3572 (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 N.C. LEXIS 401 (2017).

Rule 4. Process.

  1. Summons — Issuance; who may serve. —  Upon the filing of the complaint, summons shall be issued forthwith, and in any event within five days. The complaint and summons shall be delivered to some proper person for service. In this State, such proper person shall be the sheriff of the county where service is to be made or some other person duly authorized by law to serve summons. Outside this State, such proper person shall be anyone who is not a party and is not less than 21 years of age or anyone duly authorized to serve summons by the law of the place where service is to be made. Upon request of the plaintiff separate or additional summons shall be issued against any defendants. A summons is issued when, after being filled out and dated, it is signed by the officer having authority to do so. The date the summons bears shall be prima facie evidence of the date of issue.
  2. Summons — Contents. —  The summons shall run in the name of the State and be dated and signed by the clerk, assistant clerk, or deputy clerk of the court in the county in which the action is commenced. It shall contain the title of the cause and the name of the court and county wherein the action has been commenced. It shall be directed to the defendant or defendants and shall notify each defendant to appear and answer within 30 days after its service upon him and further that if he fails so to appear, the plaintiff will apply to the court for the relief demanded in the complaint. It shall set forth the name and address of plaintiff ’s attorney, or if there be none, the name and address of plaintiff. If a request for admission is served with the summons, the summons shall so state.
  3. Summons — Return. —  Personal service or substituted personal service of summons as prescribed by Rules 4(j) and (j1) must be made within 60 days after the date of the issuance of summons. When a summons has been served upon every party named in the summons, it shall be returned immediately to the clerk who issued it, with notation thereon of its service.Failure to make service within the time allowed or failure to return a summons to the clerk after it has been served on every party named in the summons shall not invalidate the summons. If the summons is not served within the time allowed upon every party named in the summons, it shall be returned immediately upon the expiration of such time by the officer to the clerk of the court who issued it with notation thereon of its nonservice and the reasons therefor as to every such party not served, but failure to comply with this requirement shall not invalidate the summons.
  4. Summons — Extension; endorsement, alias and pluries. —  When any defendant in a civil action is not served within the time allowed for service, the action may be continued in existence as to such defendant by either of the following methods of extension:
    1. The plaintiff may secure an endorsement upon the original summons for an extension of time within which to complete service of process. Return of the summons so endorsed shall be in the same manner as the original process. Such endorsement may be secured within 90 days after the issuance of summons or the date of the last prior endorsement, or
    2. The plaintiff may sue out an alias or pluries summons returnable in the same manner as the original process. Such alias or pluries summons may be sued out 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. Provided, in tax and assessment foreclosures under G.S. 47-108.25 and G.S. 105-374 , the first endorsement may be made at any time within two years after the issuance of the original summons, and subsequent endorsements may thereafter be made as in other actions; or an alias or pluries summons may be sued out at any time within two years after the issuance of the original summons, and after the issuance of such alias or pluries summons, the chain of summonses may be kept up as in any other action.

      Provided, for service upon a defendant in a place not within the United States, the first endorsement may be made at any time within two years after the issuance of the original summons, and subsequent endorsements may thereafter be made at least once every two years; or an alias or pluries summons may be sued out at any time within two years after the issuance of the original summons, and after the issuance of such alias or pluries summons, the chain of summonses may be kept up as in any other action if sued out within two years of the last preceding summons in the chain of summonses or within two years of the last prior endorsement.

      Provided, further, the methods of extension may be used interchangeably in any case and regardless of the form of the preceding extension.

  5. Summons — Discontinuance. —  When there is neither endorsement by the clerk nor issuance of alias or pluries summons within the time specified in Rule 4(d), the action is discontinued as to any defendant not theretofore served with summons within the time allowed. Thereafter, alias or pluries summons may issue, or an extension be endorsed by the clerk, but, as to such defendant, the action shall be deemed to have commenced on the date of such issuance or endorsement.
  6. Summons — Date of multiple summonses. —  If the plaintiff shall cause separate or additional summonses to be issued as provided in Rule 4(a), the date of issuance of such separate or additional summonses shall be considered the same as that of the original summons for purposes of endorsement or alias summons under Rule 4(d).
  7. Summons — Docketing by clerk. —  The clerk shall keep a record in which he shall note the day and hour of issuance of every summons, whether original, alias, pluries, or endorsement thereon. When the summons is returned, the clerk shall note on the record the date of the return and the fact as to service or non-service.
  8. Summons — When proper officer not available. —  If at any time there is not in a county a proper officer, capable of executing process, to whom summons or other process can be delivered for service, or if a proper officer refuses or neglects to execute such process, or if such officer is a party to or otherwise interested in the action or proceeding, the clerk of the issuing court, upon the facts being verified before him by written affidavit of the plaintiff or his agent or attorney, shall appoint some suitable person who, after he accepts such process for service, shall execute such process in the same manner, with like effect, and subject to the same liabilities, as if such person were a proper officer regularly serving process in that county.

    (h1) Summons — When process returned unexecuted. — If a proper officer returns a summons or other process unexecuted, the plaintiff or his agent or attorney may cause service to be made by anyone who is not less than 21 years of age, who is not a party to the action, and who is not related by blood or marriage to a party to the action or to a person upon whom service is to be made. Except for claims severed by a magistrate pursuant to G.S. 7A-223(b1), this subsection shall not apply to executions pursuant to Article 28 of Chapter 1 or summary ejectment pursuant to Article 3 of Chapter 42 of the General Statutes.

  9. Summons — Amendment. —  At any time, before or after judgment, in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to substantial rights of the party against whom the process issued.
  10. Process — Manner of service to exercise personal jurisdiction. —  In any action commenced in a court of this State having jurisdiction of the subject matter and grounds for personal jurisdiction as provided in G.S. 1-75.4 , the manner of service of process within or without the State shall be as follows:
    1. Natural Person. —  Except as provided in subdivision (2) below, upon a natural person by one of the following:
      1. By delivering a copy of the summons and of the complaint to the natural person or by leaving copies thereof at the defendant's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.
      2. By delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to be served or to accept service of process or by serving process upon such agent or the party in a manner specified by any statute.
      3. By mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to the party to be served, and delivering to the addressee.
      4. By depositing with a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) a copy of the summons and complaint, addressed to the party to be served, delivering to the addressee, and obtaining a delivery receipt. As used in this sub-subdivision, “delivery receipt” includes an electronic or facsimile receipt.
      5. By mailing a copy of the summons and of the complaint by signature confirmation as provided by the United States Postal Service, addressed to the party to be served, and delivering to the addressee.
    2. Natural Person under Disability. —  Upon a natural person under disability by serving process in any manner prescribed in this section (j) for service upon a natural person and, in addition, where required by paragraph a or b below, upon a person therein designated.
      1. Where the person under disability is a minor, process shall be served separately in any manner prescribed for service upon a natural person upon a parent or guardian having custody of the child, or if there be none, upon any other person having the care and control of the child. If there is no parent, guardian, or other person having care and control of the child when service is made upon the child, then service of process must also be made upon a guardian ad litem who has been appointed pursuant to Rule 17.
      2. If the plaintiff actually knows that a person under disability is under guardianship of any kind, process shall be served separately upon his guardian in any manner applicable and appropriate under this section (j). If the plaintiff does not actually know that a guardian has been appointed when service is made upon a person known to him to be incompetent to have charge of his affairs, then service of process must be made upon a guardian ad litem who has been appointed pursuant to Rule 17.
    3. The State. —   Upon the State by personally delivering a copy of the summons and of the complaint to the Attorney General or to a deputy or assistant attorney general; by mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to the Attorney General or to a deputy or assistant attorney general; or by depositing with a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) a copy of the summons and complaint, addressed to the Attorney General or to a deputy or assistant attorney general, delivering to the addressee, and obtaining a delivery receipt. As used in this subdivision, "delivery receipt" includes an electronic or facsimile receipt.
    4. An Agency of the State. —
      1. Upon an agency of the State by personally delivering a copy of the summons and of the complaint to the process agent appointed by the agency in the manner hereinafter provided; by mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to said process agent; or by depositing with a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) a copy of the summons and complaint, addressed to the process agent, delivering to the addressee, and obtaining a delivery receipt. As used in this sub-subdivision, “delivery receipt” includes an electronic or facsimile receipt.
      2. Every agency of the State shall appoint a process agent by filing with the Attorney General the name and address of an agent upon whom process may be served.
      3. If any agency of the State fails to comply with paragraph b above, then service upon such agency may be made by personally delivering a copy of the summons and of the complaint to the Attorney General or to a deputy or assistant attorney general; by mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to the Attorney General, or to a deputy or assistant attorney general; or by depositing with a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) a copy of the summons and complaint, addressed to the Attorney General or to a deputy or assistant attorney general, delivering to the addressee, and obtaining a delivery receipt. As used in this sub-subdivision, “delivery receipt” includes an electronic or facsimile receipt.
      4. For purposes of this rule, the term “agency of the State” includes every agency, institution, board, commission, bureau, department, division, council, member of Council of State, or officer of the State government of the State of North Carolina, but does not include counties, cities, towns, villages, other municipal corporations or political subdivisions of the State, county or city boards of education, other local public districts, units, or bodies of any kind, or private corporations created by act of the General Assembly.
    5. Counties, Cities, Towns, Villages and Other Local Public Bodies. —
      1. Upon a city, town, or village by personally delivering a copy of the summons and of the complaint to its mayor, city manager or clerk; by mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to its mayor, city manager or clerk; or by depositing with a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) a copy of the summons and complaint, addressed to the mayor, city manager, or clerk, delivering to the addressee, and obtaining a delivery receipt. As used in this sub-subdivision, “delivery receipt” includes an electronic or facsimile receipt.
      2. Upon a county by personally delivering a copy of the summons and of the complaint to its county manager or to the chairman, clerk or any member of the board of commissioners for such county; by mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to its county manager or to the chairman, clerk, or any member of this board of commissioners for such county; or by depositing with a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) a copy of the summons and complaint, addressed to the county manager or to the chairman, clerk, or any member of the board of commissioners of that county, delivering to the addressee, and obtaining a delivery receipt. As used in this sub-subdivision, “delivery receipt” includes an electronic or facsimile receipt.
      3. Upon any other political subdivision of the State, any county or city board of education, or other local public district, unit, or body of any kind (i) by personally delivering a copy of the summons and of the complaint to an officer or director thereof, (ii) by personally delivering a copy of the summons and of the complaint to an agent or attorney-in-fact authorized by appointment or by statute to be served or to accept service in its behalf, (iii) by mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to the officer, director, agent, or attorney-in-fact as specified in (i) and (ii), or (iv) by depositing with a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) a copy of the summons and complaint, addressed to the officer, director, agent, or attorney-in-fact as specified in (i) and (ii), delivering to the addressee, and obtaining a delivery receipt. As used in this sub-subdivision, “delivery receipt” includes an electronic or facsimile receipt.
      4. In any case where none of the officials, officers or directors specified in paragraphs a, b and c can, after due diligence, be found in the State, and that fact appears by affidavit to the satisfaction of the court, or a judge thereof, such court or judge may grant an order that service upon the party sought to be served may be made by personally delivering a copy of the summons and of the complaint to the Attorney General or any deputy or assistant attorney general of the State of North Carolina; by mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to the Attorney General or any deputy or assistant attorney general of the State of North Carolina; or by depositing with a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) a copy of the summons and complaint, addressed to the Attorney General or any deputy or assistant attorney general of the State of North Carolina, delivering to the addressee, and obtaining a delivery receipt. As used in this sub-subdivision, “delivery receipt” includes an electronic or facsimile receipt.
    6. Domestic or Foreign Corporation. —   Upon a domestic or foreign corporation by one of the following:
      1. By delivering a copy of the summons and of the complaint to an officer, director, or managing agent of the corporation or by leaving copies thereof in the office of such officer, director, or managing agent with the person who is apparently in charge of the office.
      2. By delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to be served or to accept service of process or by serving process upon such agent or the party in a manner specified by any statute.
      3. By mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to the officer, director or agent to be served as specified in paragraphs a and b.
      4. By depositing with a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) a copy of the summons and complaint, addressed to the officer, director, or agent to be served as specified in paragraphs a. and b., delivering to the addressee, and obtaining a delivery receipt. As used in this sub-subdivision, "delivery receipt" includes an electronic or facsimile receipt.
    7. Partnerships. —  Upon a general or limited partnership:
      1. By delivering a copy of the summons and of the complaint to any general partner, or to any attorney-in-fact or agent authorized by appointment or by law to be served or to accept service of process in its behalf; by mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to any general partner, or to any attorney-in-fact or agent authorized by appointment or by law to be served or to accept service of process in its behalf; or by depositing with a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) a copy of the summons and complaint, addressed to any general partner or to any attorney-in-fact or agent authorized by appointment or by law to be served or to accept service of process in its behalf, delivering to the addressee, and obtaining a delivery receipt; or by leaving copies thereof in the office of such general partner, attorney-in-fact or agent with the person who is apparently in charge of the office. As used in this sub-subdivision, "delivery receipt" includes an electronic or facsimile receipt.
      2. If relief is sought against a partner specifically, a copy of the summons and of the complaint must be served on such partner as provided in this section (j).
    8. Other Unincorporated Associations and Their Officers. —  Upon any unincorporated association, organization, or society other than a partnership by one of the following:
      1. By delivering a copy of the summons and of the complaint to an officer, director, managing agent or member of the governing body of the unincorporated association, organization or society, or by leaving copies thereof in the office of such officer, director, managing agent or member of the governing body with the person who is apparently in charge of the office.
      2. By delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to be served or to accept service of process or by serving process upon such agent or the party in a manner specified by any statute.
      3. By mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to the officer, director, agent or member of the governing body to be served as specified in paragraphs a and b.
      4. By depositing with a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) a copy of the summons and complaint, addressed to the officer, director, agent, or member of the governing body to be served as specified in paragraphs a. and b., delivering to the addressee, and obtaining a delivery receipt. As used in this sub-subdivision, “delivery receipt” includes an electronic or facsimile receipt.
    9. Foreign States and Their Political Subdivisions, Agencies, and Instrumentalities. —  Upon a foreign state or a political subdivision, agency, or instrumentality thereof, pursuant to 28 U.S.C. § 1608. (j1) Service by publication on party that cannot otherwise be served. — A party that cannot with due diligence be served by personal delivery, registered or certified mail, or by a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) may be served by publication. Except in actions involving jurisdiction in rem or quasi in rem as provided in section (k), service of process by publication shall consist of publishing a notice of service of process by publication once a week for three successive weeks in a newspaper that is qualified for legal advertising in accordance with G.S. 1-597 and G.S. 1-598 and circulated in the area where the party to be served is believed by the serving party to be located, or if there is no reliable information concerning the location of the party then in a newspaper circulated in the county where the action is pending. If the party’s post-office address is known or can with reasonable diligence be ascertained, there shall be mailed to the party at or immediately prior to the first publication a copy of the notice of service of process by publication. The mailing may be omitted if the post-office address cannot be ascertained with reasonable diligence. Upon completion of such service there shall be filed with the court an affidavit showing the publication and mailing in accordance with the requirements of G.S. 1-75.10 (a)(2), the circumstances warranting the use of service by publication, and information, if any, regarding the location of the party served.The notice of service of process by publication shall (i) designate the court in which the action has been commenced and the title of the action, which title may be indicated sufficiently by the name of the first plaintiff and the first defendant; (ii) be directed to the defendant sought to be served; (iii) state either that a pleading seeking relief against the person to be served has been filed or has been required to be filed therein not later than a date specified in the notice; (iv) state the nature of the relief being sought; (v) require the defendant being so served to make defense to such pleading within 40 days after a date stated in the notice, exclusive of such date, which date so stated shall be the date of the first publication of notice, or the date when the complaint is required to be filed, whichever is later, and notify the defendant that upon his failure to do so the party seeking service of process by publication will apply to the court for the relief sought; (vi) in cases of attachment, state the information required by G.S. 1-440.14 ; (vii) be subscribed by the party seeking service or his attorney and give the post-office address of such party or his attorney; and (viii) be substantially in the following form:

      Click to view

      (j2) Proof of service. — Proof of service of process shall be as follows:

      (1) Personal Service. — Before judgment by default may be had on personal service, proof of service must be provided in accordance with the requirements of G.S. 1-75.10 (a)(1).

      (2) Registered or Certified Mail, Signature Confirmation, or Designated Delivery Service. — Before judgment by default may be had on service by registered or certified mail, signature confirmation, or by a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) with delivery receipt, the serving party shall file an affidavit with the court showing proof of such service in accordance with the requirements of G.S. 1-75.10(a)(4), 1-75.10(a)(5), or 1-75.10(a)(6), as appropriate. This affidavit together with the return receipt, copy of the proof of delivery provided by the United States Postal Service, or delivery receipt, signed by the person who received the mail or delivery if not the addressee raises a presumption that the person who received the mail or delivery and signed the receipt was an agent of the addressee authorized by appointment or by law to be served or to accept service of process or was a person of suitable age and discretion residing in the addressee's dwelling house or usual place of abode. In the event the presumption described in the preceding sentence is rebutted by proof that 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, the statute of limitation may not be pleaded as a defense if the action was initially commenced within the period of limitation and service of process is completed within 60 days from the date the service is declared invalid. Service shall be complete on the day the summons and complaint are delivered to the address. As used in this subdivision, "delivery receipt" includes an electronic or facsimile receipt provided by a designated delivery service.

      (3) Publication. — Before judgment by default may be had on service by publication, the serving party shall file an affidavit with the court showing the circumstances warranting the use of service by publication, information, if any, regarding the location of the party served which was used in determining the area in which service by publication was printed and proof of service in accordance with G.S. 1-75.10(a)(2).

      (j3) Service in a foreign country. — Unless otherwise provided by federal law, service upon a defendant, other than an infant or an incompetent person, may be effected in a place not within the United States:

      (1) By any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents; or

      (2) If there is no internationally agreed means of service or the applicable international agreement allows other means of service, provided that service is reasonably calculated to give notice:

      1. In the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction;
      2. As directed by the foreign authority in response to a letter rogatory or letter of request; or
      3. Unless prohibited by the law of the foreign country, by
        1. Delivery to the individual personally of a copy of the summons and the complaint and, upon a corporation, partnership, association or other such entity, by delivery to an officer or a managing or general agent;
        2. Any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served; or

          (3) By other means not prohibited by international agreement as may be directed by the court.Service under subdivision (2)c.1. or (3) of this subsection may be made by any person authorized by subsection (a) of this Rule or who is designated by order of the court or by the foreign court.On request, the clerk shall deliver the summons to the plaintiff for transmission to the person or the foreign court or officer who will make the service. Proof of service may be made as prescribed in G.S. 1-75.10, by the order of the court, or by the law of the foreign country.Proof of service by mail shall include an affidavit or certificate of addressing and mailing by the clerk of court.

          (j4) Process or judgment by default not to be attacked on certain grounds. — No party may attack service of process or a judgment of default on the basis that service should or could have been effected by personal service rather than service by registered or certified mail. No party that receives timely actual notice may attack a judgment by default on the basis that the statutory requirement of due diligence as a condition precedent to service by publication was not met.

          (j5) Personal jurisdiction by acceptance of service. — Any party personally, or through the persons provided in Rule 4(j), may accept service of process by notation of acceptance of service together with the signature of the party accepting service and the date thereof on an original or copy of a summons, and such acceptance shall have the same force and effect as would exist had the process been served by delivery of copy and summons and complaint to the person signing said acceptance.

          (j6) Service by electronic mailing not authorized. — Nothing in subsection (j) of this section authorizes the use of electronic mailing for service on the party to be served.

  11. Process — Manner of service to exercise jurisdiction in rem or quasi in rem. —  In any action commenced in a court of this State having jurisdiction of the subject matter and grounds for the exercise of jurisdiction in rem or quasi in rem as provided in G.S. 1-75.8 , the manner of service of process shall be as follows:
    1. Defendant Known. —  If the defendant is known, he may be served in the appropriate manner prescribed for service of process in section (j), or, if otherwise appropriate section (j1); except that the requirement for service by publication in (j1) shall be satisfied if made in the county where the action is pending and proof of service is made in accordance with section (j2).
    2. Defendant Unknown. —  If the defendant is unknown, he may be designated by description and process may be served by publication in the manner provided in section (j1), except that the requirement for service by publication in (j1) shall be satisfied if made in the county where the action is pending and proof of service is made in accordance with section (j2).

NOTICE OF SERVICE OF PROCESS BY PUBLICATION STATE OF NORTH CAROLINA COUNTY In the Court [Title of action or special proceeding] [To Person to be served]: Take notice that a pleading seeking relief against you (has been filed) (is required to be filed not later than , ) in the above-entitled (action) (special proceeding). The nature of the relief being sought is as follows: (State nature.) You are required to make defense to such pleading not later than (, ) and upon your failure to do so the party seeking service against you will apply to the court for the relief sought. This, the day of , (Attorney) (Party) (Address)

History. 1967, c. 954, s. 1; 1969, c. 895, ss. 1-4; 1971, c. 962; c. 1156, s. 2; 1975, cc. 408, 609; 1977, c. 910, ss. 1-3; 1981, c. 384, s. 3; c. 540, ss. 1-8; 1983, c. 679, ss. 1, 2; 1989, c. 330; c. 575, ss. 1, 2; 1995, c. 275, s. 1; c. 389, ss. 2, 3; c. 509, s. 135.1(e), (f); 1997-469, s. 1; 1999-456, s. 59; 2001-379, ss. 1, 2, 2.1, 2.2; 2005-221, ss. 1, 2; 2008-36, ss. 1-3, 5; 2011-332, s. 3.1; 2017-143, s. 3.

Comment

Preliminarily, it should be remarked that this rule is complementary to the jurisdiction statute (G.S. 1-75.1 et seq.) which the General Statutes Commission proposed for consideration contemporaneously with these rules. Both the statute and this rule are designed to take full advantage of the fairly recent developments in the law of jurisdiction. Generally, the statute prescribes the occasions on which North Carolina courts may exercise jurisdiction or, in other words, the grounds of jurisdiction. This rule, on the other hand, deals with the manner in which jurisdiction is exercised or asserted.

Section (a). — This section contemplates a continuance of the present practice of ordinarily having summons issue simultaneously with the filing of the complaint. The five-day period was inserted to mark the outer limits of tolerance in respect to delay in issuing the summons.

The first two sentences avoid any suggestion that the clerk shall personally deliver the summons to a process officer. North Carolina has operated successfully heretofore under language similar to that in the section and presumably will continue to be able to do so. The words “be issued” are inserted in lieu of the word “issue” for consistency.

Since under section (b) the summons is to be directed to the defendant rather than to a process officer, it is incumbent on the plaintiff to select the appropriate process officer. It will further be observed that no change is made as to who is a process officer in North Carolina.

For service outside the State, it seemed that the Commission might safely rely on the law of the place where service is attempted. Thus, in New York, where private service of process is permissible, a North Carolina plaintiff could employ a private person to serve process.

It should be noticed that no formalities of any kind are necessary to authorize service anywhere, in or out of the State.

Section (b). — The Commission has mentioned already the principal change in the content of the summons; that is, that it shall be directed to the defendant rather than to a process officer. This makes it possible for one version of the summons to suffice wherever it is served, whether in this State or beyond its bounds. Service, however, must still be made by a proper person as defined by section (a).

Other changes are minor. The Commission abandoned the requirement contained in former § 1-89 that summons operative outside the county of issuance bear the seal of the issuing court. The Commission added specific requirements that summons bear the title of the action, the name of the issuing court, and the name and address of the plaintiff ’s attorney or, if there is no attorney, the name and address of the plaintiff.

Section (c). — The provisions for the return of summons are the same as those now prescribed except that the Commission extended the time in which a summons may be served to thirty (30) days [Now 60 days] whereas former § 1-89 prescribed a period of only twenty (20) days. The Commission entertained some question of whether or not the period for service might be still further enlarged but in any event it agreed that it would serve the interest of convenience for the summons to retain its full effectiveness for at least thirty (30) days. Thereby, the unnecessary exertion of securing an alias or pluries summons can frequently be avoided.

Section (d). — This section preserves unchanged the essence of former § 1-95. Alternative methods, either endorsement or the issuance of alias or pluries summons, are provided for continuing the life of an action after the time for service of summons has expired. The same time limits for securing the endorsement or alias or pluries summons are prescribed and the special treatment accorded tax suits is retained.

Section (e). — This section is similar to former § 1-96. Accordingly, an action will be discontinued under the new rules just as formerly. It will be observed that while under Rule 3 the commencement of an action is ordinarily tied to the filing of a complaint, the discontinuance of an action is tied to the failure in apt time to secure an endorsement or an alias or pluries summons. Further, it will be observed that in the special case of an action in which endorsement or the issuance of an alias or pluries summons is secured after the ninety (90) day period, in that case the action will be deemed commenced with the endorsement or the issuance of summons rather than with the filing of a complaint.

Section (f). — Self-explanatory.

Section (g). — Self-explanatory.

Section (h). — This section deals with the problem of the proper person to make service when for stated reasons action by the sheriff in a particular county may not be satisfactory. Formerly, § 1-91 provided for service by the sheriff of an adjoining county when there was not in the county where service was expected to be made a “proper officer” for service or in the case where a sheriff “neglects or refuses” to make service. Section 152-8 empowers the coroner when there is no person “qualified to act as sheriff ” to execute all process. While the Commission proposed to leave § 152-8 in effect (§ 1-91 is repealed) it believed that the problem could be taken care of generally by the simple provisions of this section. The procedure outlined by the section does not differ in kind from that prescribed by § 152-8 when the coroner is interested in any action.

Section (i). — This section, in terms, does not provide for any greater liberality of amendment than did former § 1-163, which authorized the court to “amend any . . . process . . . by correcting a mistake in the name of a party, or a mistake in any other respect. . . .” But it does direct attention to what in the Commission’s judgment should be the controlling factor: Is there material prejudice to substantial rights?

Section (j). — Some substantial changes were proposed in respect to the manner of service to exercise personal jurisdiction and they cannot be fully understood without considering the jurisdiction statute (G.S. 1-75.1 et seq.) and the ideas advanced in the commentary thereto. But it perhaps bears emphasis that in the vast majority of cases service is accomplished just as it then was; that is, by a sheriff or his deputy personally delivering a copy of the summons to the defendant and to an officer, director, managing agent or process agent when a partnership or corporation is the defendant.

Subsection (1)a. — This deals with natural persons except those under a disability. As indicated above, the normal procedure, when service is made within this State, will be delivery of summons and complaint to the defendant personally by the sheriff or other proper person as defined in section (a). When service is made outside the State, then service will be accomplished on delivery to the defendant personally of a copy of the summons and complaint by one authorized to serve process under the law of the place of service. Thus, if grounds exist under the jurisdiction statute (G.S. 1-75.1 et seq.) for the exercise or jurisdiction by a court of this State and if the defendant is in New York, since New York permits service by anyone over 18 years of age, the summons and complaint can be effectively served in New York by such a person. In the familiar case of the nonresident motorist, for example, the plaintiff ’s lawyer would simply place the summons and complaint in the hands of a New York process server. No special prayer for permission to make service in this manner is required nor is there any requirement that service be made on any functionary in North Carolina.

Subsection (1)b. — Here there is limited authorization for substituted service. While no permission of the court is required for resort to this type of service, it cannot be overemphasized that this type of service is available only when service cannot “with reasonable diligence” be made under paragraph a. A party would thus, if at all possible, prefer to effect service under paragraph a. If he does not, he faces the hazard in those cases where the defendant makes no appearance that a court will later find that service could “with reasonable diligence” have been made under paragraph a and the voiding of any judgment obtained. But although a party is faced with some uncertainty when he resorts to paragraph b, he surely would prefer this uncertainty to not being able to sue at all. Nor, in the absence of the defendant, is it possible altogether to relieve the uncertainty.

Subsection (1)c. — This is a continuation of the basic theme of giving the best notice to a defendant consistent with “reasonable diligence.” If service may not be had under either paragraph a or paragraph b, then resort may be had to publication and mailing. Again, it is not necessary to have the court’s permission for such service, but there must be filed with the court an affidavit that the defendant cannot be served under paragraphs a or b.

It will be observed that the defendant has until forty days after publication of the notice to answer. This will be the controlling time regulation, irrespective of Rule 12(a). The action will have commenced, of course, with the filing of the complaint.

Subsection (1)d. — Self-explanatory.

Subsection (2). — This subsection attempts to insure that a person under disability and anyone who may have custody of such person shall both be served except in the case of a minor 14 years of age and older. Paragraph b is an attempt to alleviate the situation where there is an unknown guardian. This section requires of the plaintiff what current decisions of the Supreme Court of the United States do. See Covey v. Town of Somers, 351 U.S. 141, 76 S. Ct. 724, 100 L. Ed. 1021 (1956).

Subsection (3). — Self-explanatory.

Subsection (4). — The Commission here proposed that State agencies be required to appoint process agents. The utility of this requirement is obvious. The definition of the term “agency of the State” gave the Commission some difficulty but the Commission believes the definition arrived at is a workable one.

Subsection (5). — Only paragraph d would seem to require comment. Isolated cases had been reported to the Commission where such a provision would be useful.

Subsection (6). — It should be emphasized that this subsection, along with the rest of this rule, is to be read in conjunction with the jurisdiction statute (G.S. 1-75.1 et seq.). Here we are dealing only with the manner of asserting jurisdiction. Service of a corporate officer within this State or elsewhere will not suffice to give jurisdiction unless there is a ground for jurisdiction as specified by the jurisdiction statute.

Paragraphs c and d in essence make available all present methods of obtaining service.

Subsection (7). — Self-explanatory.

Subsection (8). — It perhaps should be said here that this subsection does not deal in any way with the problem of capacity to be sued.

Section (k). — Here it will be seen that for in rem jurisdiction, as well as for in personam jurisdiction, the Commission proposed the best notice possible to the defendant consistent with “reasonable diligence.” Thus, personal service is required where reasonably possible. If it is not reasonably possible, then substituted service may be resorted to. If substituted service is not possible, then service by publication may be had.

OFFICIAL COMMENT

Comment to 1969 Amendment.

These amendments are designed to simplify service of process especially substituted service upon parties outside this State.

Section (a). — Personal service outside the State is generally made by someone authorized by the law of the place where service is made. This section now also permits service outside the State to be made by anyone not a party and not less than 21 years of age. Sometimes a party (or his attorney) will find it more convenient to make service himself or through an agent rather than to employ a foreign process server. The option is given, since there is no constitutional impediment. It should be exercised with discretion, however, since the word of a disinterested official would probably be given more credence in a dispute as to whether service was validly made.

Section (j). — This section, which governs the specific manner in which service upon a party is to be made, has been substantially amended with respect to substituted service upon parties outside this State. The section is divided into eight subsections, each of which details the manner of service upon a particular type of party. A new ninth subsection governs all service outside this State.

Subsection (1)a. — A process server is no longer required to make a diligent effort to serve a natural person personally. If the party is not at home, copies of the summons and the complaint may be left at his abode with some person of suitable age and discretion then residing therein.

Subsection (1)b. — This subsection now provides that a party or his agent may alternatively be served in any manner specified by any statute.

Subsection (2). — The exception to this subsection for a minor 14 years of age or older has been excised. Thus, all minors are persons under disability for purposes of the subsection.

Subsection (6)b. — This subsection now provides that a corporation or its agent may alternatively be served in a manner specified by any statute.

Subsection (8)b. — See comment to subsection (6)b.

Subsection (9). — This subsection governs all service of process upon parties not inhabitant of or found within this State or which cannot otherwise be diligently served within this State. Such parties may, at the option of the party seeking to make service, be served personally outside this State, as provided in paragraph a, or be served by registered mail as provided in paragraph b. If the party’s address, whereabouts, dwelling house or usual place of abode is unknown and cannot with due diligence be ascertained, or there has been a diligent but unsuccessful attempt to serve the party personally or by registered mail, the party may alternatively be served by publication as provided in paragraph c. When service is to be made in a foreign country, the alternative provisions of paragraph d may be employed. Except as provided in paragraph d, permission of the court to make service outside this State is never required.

Subsection (9)a. — Personal service outside this State is to be made in the same way as personal service within this State. Before judgment by default may be had on such service, the party seeking the judgment must file an affidavit with the court containing proof of such service and showing the circumstances warranting its usage.

Subsection (9)b. — This paragraph replaces, in effect, the service provisions of the now repealed nonresident motor vehicles act. It applies, however, to all parties and not just to nonresident motor vehicle tort-feasors. Copies of the summons and the complaint are to be sent registered mail, return receipt requested, directly to the party to be served, and not to any state official or other intermediary. Service by registered mail is not effected unless the letter is actually delivered to the party. Ordinarily, proof of delivery will be the signed returned receipt itself. Any other evidence of actual delivery is also acceptable. If the mailing is returned stamped “delivery refused,” “letter unclaimed,” “addressee unknown at the address,” or “addressee moved and left no forwarding address,” service has not been effected. Before judgment by default may be had on such service, the party seeking the judgment must file with the court an affidavit containing proof of such service and showing the circumstances warranting its usage.

Subsection (9)c. — The mechanics of service by publication have not been substantially changed. The notice is to be published in a newspaper that is qualified for legal advertising in accordance with N.C.G.S. §§ 1-579 [now repealed], 1-598 and is published in the county where the action is pending. If no newspaper in the county qualifies, a qualified newspaper in an adjoining county or the same judicial district may be chosen. If the party’s address is known or can with reasonable diligence be ascertained, a copy of the published notice is to be mailed to him. Upon completion of the publication, an affidavit containing proof of such service and showing the circumstances warranting its usage is to be filed with the court.

Subsection (9)d. — This paragraph establishes alternative procedures when service is to be made in a foreign country. It is based upon rule 4(i) of the Federal Rules of Civil Procedure, which is itself drawn from Section 2.01 of the Uniform Interstate and International Procedure Act. Under this paragraph one may enlist the assistance of a foreign government and its laws in making service on a defendant found within its territory, in order to insure the validity of the service and to avoid any objection by the foreign government that efforts to make service there constitute an encroachment on its sovereignty.

Subsection (9)e. — This paragraph prohibits a direct or collateral attack upon a default judgment obtained after service under this subsection (9) on the grounds that the subsection, or any other provision of section (j), required a different method of substituted or personal service. Since the various methods of substituted service provided for are all reasonably calculated to give notice of the pendency of the action, a party is not constitutionally entitled to be served under one rather than another, even though the statute itself so requires. Thus, to challenge an incorrect choice of a method of service under the statute, the party must appear in the action before judgment by default is rendered. Otherwise, the error is waived. Since this paragraph does not seek to bar constitutional objections to the service of process, it should be accorded full faith and credit by other states.

Editor’s Note.

The subdivision (j)(9) designation was assigned by the Revisor of Statutes, the designation in Session Laws 1995, c. 389, s. 2 having been (j)(10).

Session Laws 2017-210, s. 1(a), enacted a new provision pertaining to electronic notice for notices required to be published by the governing board of Guilford County, effective December 1, 2017, applicable to notices published on or after that date, and applicable only to Guilford County and any municipality located wholly or partly in Guilford County.

Session Laws 2017-210, s. 2(a), enacted a new provision pertaining to publication via county-maintained Web site, effective December 1, 2017, applicable to notices published on or after that date, and applicable to Guilford County only.

Effect of Amendments.

Session Laws 2008-36, ss. 1, 2, 3, and 5, effective October 1, 2008, and applicable to receipts given on or after that date, in subdivision (j)(1), substituted “subdivision (2)” for “subsection (2)” in the introductory paragraph, in sub-subdivision (j)(1)d., added the last sentence, and in sub-subdivision (j)(1)e., deleted the former last sentence, which read: “Nothing in this sub-subdivision authorizes the use of electronic mailing for service on the party to be served.”; in subdivision (j)(3) and sub-subdivisions (j)(4)a., (j)(4)c., (j)(5)a. through (j)(5)d., (j)(6)d., (j)(7)a., and (j)(8)d., added the last sentence; rewrote subdivision (j)(9); in subdivision (j1), in the last sentence of the first paragraph, substituted “G.S. 1-75.10(a)(2)” for “G.S. 1-75.10(2)”; in subdivision (j2)(1), substituted “G.S. 1-75.10(a)(1)” for “G.S. 1-75.10(1)”; in subdivision (j2)(2), substituted “G.S. 1-75.10(a)(4), 1-75.10(a)(5), or 1-75.10(a)(6)” for “G.S. 1-75.10(4), 1-75.10(5), or 1-75.10(6)” in the first sentence, substituted “receipt, copy of the proof of delivery provided by the United States Postal Service, or delivery receipt” for “or delivery receipt or copy of the proof of delivery provided by the United States Postal Service” in the second sentence, and added the last sentence; in subdivision (j2)(3), substituted “G.S. 1-75.10(a)(2)” for “G.S. 1-75.10(2)”; and added subsection (j6).

Session Laws 2017-143, s. 3, effective October 1, 2017, in subsection (h1), added “Except for claims severed by a magistrate pursuant to G.S. 7A-223(b1),” at the beginning of the second sentence and made a stylistic change.

Legal Periodicals.

For article on jurisdiction and process, see 5 Wake Forest Intra. L. Rev. 46 (1969).

For article on legislative changes to the new rules of civil procedure, see 6 Wake Forest Intra. L. Rev. 267 (1970).

For note on constitutionality of constructive service of process on missing defendants, see 48 N.C.L. Rev. 616 (1970).

For article on modern statutory approaches to service of process outside the state, see 49 N.C.L. Rev. 235 (1971).

For survey of 1976 case law on civil procedure, see 55 N.C.L. Rev. 914 (1977).

For survey of 1977 law on civil procedure, see 56 N.C.L. Rev. 874 (1978).

For survey of 1978 law on civil procedure, see 57 N.C.L. Rev. 891 (1979).

For note on Rule 4(b) and service of process on a corporate defendant, see 15 Wake Forest L. Rev. 105 (1979).

For article, “Foreign Corporations in North Carolina: The ‘Doing Business’ Standards of Qualification, Taxation, and Jurisdiction,” see 16 Wake Forest L. Rev. 711 (1980).

For article, “The 1980 Amendments to the Federal Rules of Civil Procedure and Proposals for North Carolina Practice,” see 16 Wake Forest L. Rev. 915 (1980).

For comment on jurisdiction based upon attachment, see 16 Wake Forest L. Rev. 377 (1980).

For survey of 1980 law on civil procedure, see 59 N.C.L. Rev. 1041 (1981).

For survey of 1981 law on civil procedure, see 60 N.C.L. Rev. 1214 (1982).

For survey of 1982 law on civil procedure, see 61 N.C.L. Rev. 991 (1983).

For article analyzing the 1983 amendments to Rules 6, 7, 11, 16, 26, 52, 53 and 67, FRCP, comparing these rules with North Carolina practice, and suggesting changes in certain state and federal rules, see 20 Wake Forest L. Rev. 819 (1984).

For note, “The North Carolina Court of Appeals Provides a Solution to the Business Name Game,” see 66 N.C.L. Rev. 1064 (1988).

For article, “Service of Process under Lemons v. Old Hickory Council, Boy Scouts of America Inc.: Exalting Procedure Over Precedent?,” see 67 N.C.L. Rev. 1211 (1989).

For 1997 legislative survey, see 20 Campbell L. Rev. 399.

For article, “Beyond Bias in Diversity Jurisdiction,” see 69 Duke L.J. 267 (2019).

CASE NOTES

Analysis

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 N.C. App. LEXIS 3175 (1983).

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 N.C. App. LEXIS 1204 (1970), cert. denied, 277 N.C. 725 , 178 S.E.2d 831, 1971 N.C. LEXIS 1074 (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 N.C. App. LEXIS 2188 (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 N.C. App. LEXIS 3243 (1983), rev'd, 311 N.C. 536 , 319 S.E.2d 912, 1984 N.C. LEXIS 1758 (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 N.C. LEXIS 2103 (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, 2004 U.S. Dist. LEXIS 20220 (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 N.C. LEXIS 948 (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 N.C. App. LEXIS 3314 , cert. denied, 313 N.C. 596 , 332 S.E.2d 177, 1985 N.C. LEXIS 1790 (1985).

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, 2004 U.S. Dist. LEXIS 20220 (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, 1998 N.C. App. LEXIS 668 (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 N.C. LEXIS 857 (1977); Cromer v. Cromer, 49 N.C. App. 403, 271 S.E.2d 541, 1980 N.C. App. LEXIS 3397 (1980), rev'd, 303 N.C. 307 , 278 S.E.2d 518, 1981 N.C. LEXIS 1098 (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 N.C. App. LEXIS 2643 (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 N.C. App. LEXIS 2496 (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 N.C. App. LEXIS 3175 (1983).

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 N.C. App. LEXIS 3540 (1984). But see Harris v. Maready, 311 N.C. 536 , 319 S.E.2d 912, 1984 N.C. LEXIS 1758 (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, 1984 U.S. Dist. LEXIS 17542 (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 N.C. LEXIS 1758 (1984).

Owner of a company was entitled to a default judgment against a co-owner regarding ownership and management of the company because the co-owner had not appeared in the action by either filing an answer or responsive pleading, the procedural requirements for default judgment had been met by way of an affidavit demonstrating that the co-owner was subject to personal jurisdiction in the court, and that the co-owner promised to perform services on real property in North Carolina for the benefit of the owner. Pres. Point Dev., LLC v. Land Partners of Am., LLC, 2022 NCBC LEXIS 12 (N.C. Super. Ct. Feb. 15, 2022).

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 N.C. App. LEXIS 2563 (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, 1992 N.C. App. LEXIS 1 (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 N.C. App. LEXIS 1925 (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 N.C. App. LEXIS 2842 (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, 1992 N.C. App. LEXIS 1 (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, 1992 N.C. App. LEXIS 1 (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 N.C. App. LEXIS 1325 (2008).

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 N.C. App. LEXIS 1668 (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 N.C. App. LEXIS 12 (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 N.C. App. LEXIS 12 (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 N.C. App. LEXIS 1161 (2013), sub. op., 233 N.C. App. 412, 761 S.E.2d 650, 2014 N.C. App. LEXIS 303 (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 N.C. App. LEXIS 1921 (2005), aff'd, 360 N.C. 360 , 625 S.E.2d 779, 2006 N.C. LEXIS 12 (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 N.C. App. LEXIS 2643 (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 N.C. App. LEXIS 3175 (1983).

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 N.C. App. LEXIS 4007 (1984).

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 N.C. App. LEXIS 4010 (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, 2008 U.S. Dist. LEXIS 9312 (W.D.N.C. Jan. 23, 2008), amended, 2008 U.S. Dist. LEXIS 24195 (W.D.N.C. Mar. 3, 2008), rev'd in part, 392 Fed. Appx. 185, 2010 U.S. App. LEXIS 17626 (4th Cir. 2010).

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, 1994 N.C. App. LEXIS 116 (1994).

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, 2009 N.C. LEXIS 626 (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 N.C. App. LEXIS 1161 (2013), sub. op., 233 N.C. App. 412, 761 S.E.2d 650, 2014 N.C. App. LEXIS 303 (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 N.C. App. LEXIS 1685 (2007).

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 N.C. LEXIS 857 (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 N.C. LEXIS 857 (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 N.C. App. LEXIS 1258 (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 N.C. LEXIS 857 (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 N.C. LEXIS 1166 (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 N.C. App. LEXIS 2855 (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 N.C. App. LEXIS 989 (1997).

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 N.C. App. LEXIS 3074 (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 N.C. LEXIS 1758 (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 N.C. LEXIS 1758 (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 N.C. App. LEXIS 21 (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 N.C. LEXIS 1758 (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 N.C. App. LEXIS 3074 (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 N.C. App. LEXIS 2752 (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 N.C. App. LEXIS 2752 (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, 1979 N.C. App. LEXIS 2263 (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 N.C. LEXIS 1112 (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 N.C. LEXIS 1112 (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 N.C. App. LEXIS 2418 (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 N.C. App. LEXIS 1307 (1999), cert. denied, 351 N.C. 479 , 543 S.E.2d 509, 2000 N.C. LEXIS 265 (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 N.C. App. LEXIS 317 (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 N.C. App. LEXIS 317 (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, 1980 N.C. App. LEXIS 2638 (1980).

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, 1980 N.C. App. LEXIS 2638 (1980).

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 Shamp, 82 N.C. App. 606, 347 S.E.2d 848, 1986 N.C. App. LEXIS 2608 (1986).

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 N.C. App. LEXIS 372 (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 N.C. LEXIS 926 (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 N.C. App. LEXIS 3664 (1984).

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 N.C. App. LEXIS 3664 (1984).

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 N.C. App. LEXIS 3664 (1984).

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 N.C. App. LEXIS 2466 (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, 1983 N.C. App. LEXIS 3125 (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 N.C. App. LEXIS 3664 (1984).

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, 1996 U.S. Dist. LEXIS 20532 (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 N.C. App. LEXIS 303 (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 N.C. App. LEXIS 10 (1994), aff'd, 339 N.C. 608 , 453 S.E.2d 165, 1995 N.C. LEXIS 13 (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 N.C. App. LEXIS 449 (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, 2012 U.S. Dist. LEXIS 16398 (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, 2006 U.S. Dist. LEXIS 54422 (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 N.C. App. LEXIS 3971 (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 N.C. App. LEXIS 4010 (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 N.C. App. LEXIS 472 (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 N.C. App. LEXIS 203 (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, 1992 N.C. App. LEXIS 336 (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 N.C. App. LEXIS 327 (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 N.C. App. LEXIS 303 (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 N.C. App. LEXIS 1165 (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 N.C. App. LEXIS 1056 (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 N.C. App. LEXIS 303 (2014).

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, 1983 N.C. App. LEXIS 3125 (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 N.C. App. LEXIS 1181 (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 N.C. App. LEXIS 3243 (1983), rev'd, 311 N.C. 536 , 319 S.E.2d 912, 1984 N.C. LEXIS 1758 (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 N.C. App. LEXIS 1926 (1976), rev'd, 293 N.C. 67 , 235 S.E.2d 146, 1977 N.C. LEXIS 857 (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 N.C. App. LEXIS 1926 (1976), rev'd, 293 N.C. 67 , 235 S.E.2d 146, 1977 N.C. LEXIS 857 (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 N.C. App. LEXIS 1086 (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 N.C. App. LEXIS 1313 (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 N.C. App. LEXIS 989 (1997).

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 N.C. App. LEXIS 871 (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 N.C. LEXIS 2504 (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 N.C. App. LEXIS 1098 (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 N.C. LEXIS 2504 (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 N.C. App. LEXIS 989 (1997).

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 N.C. App. LEXIS 2496 (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, 1986 N.C. App. LEXIS 2442 , cert. denied, 318 N.C. 511 , 349 S.E.2d 873, 1986 N.C. LEXIS 2705 (1986).

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, 1986 N.C. App. LEXIS 2442 , cert. denied, 318 N.C. 511 , 349 S.E.2d 873, 1986 N.C. LEXIS 2705 (1986).

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, 1986 N.C. App. LEXIS 2442 , cert. denied, 318 N.C. 511 , 349 S.E.2d 873, 1986 N.C. LEXIS 2705 (1986).

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 N.C. App. LEXIS 1166 (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, 1986 N.C. App. LEXIS 2442 , cert. denied, 318 N.C. 511 , 349 S.E.2d 873, 1986 N.C. LEXIS 2705 (1986).

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, 1986 N.C. App. LEXIS 2442 , cert. denied, 318 N.C. 511 , 349 S.E.2d 873, 1986 N.C. LEXIS 2705 (1986).

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, 1988 N.C. App. LEXIS 634 (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 N.C. App. LEXIS 717 (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, 1988 N.C. App. LEXIS 634 (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 N.C. LEXIS 1758 (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 N.C. LEXIS 1758 (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, 1972 U.S. Dist. LEXIS 13774 (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 N.C. App. LEXIS 2183 (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, 1986 N.C. App. LEXIS 2336 (1986).

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 N.C. App. LEXIS 1220 (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 N.C. App. LEXIS 2327 (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 N.C. App. LEXIS 292 (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 Ga. App. LEXIS 1063 (2011), cert. denied, 2012 Ga. LEXIS 403 (Ga. Apr. 24, 2012).

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 N.C. App. LEXIS 1575 (2002).

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, 1986 U.S. Dist. LEXIS 19154 (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 N.C. App. LEXIS 175 (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 N.C. App. LEXIS 23 (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 N.C. App. LEXIS 378 (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 N.C. App. LEXIS 1161 (2013), sub. op., 233 N.C. App. 412, 761 S.E.2d 650, 2014 N.C. App. LEXIS 303 (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 N.C. App. LEXIS 1161 (2013), sub. op., 233 N.C. App. 412, 761 S.E.2d 650, 2014 N.C. App. LEXIS 303 (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 N.C. App. LEXIS 250 (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 N.C. LEXIS 162 (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 N.C. App. LEXIS 2024 (2004).

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 N.C. App. LEXIS 376 (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 N.C. App. LEXIS 819 (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, 255N.C. App. 284, 255 N.C. App. 284, 804 S.E.2d 794, 2017 N.C. App. LEXIS 750 (2017), aff'd, 370 N.C. 594 , 811 S.E.2d 143, 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 N.C. App. LEXIS 1135 (2018).

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 N.C. App. LEXIS 156 (2019), rev'd in part, aff'd, 377 N.C. 129 , 856 S.E.2d 483, 2021- NCSC-35, 2021 N.C. LEXIS 325 (2021).

B.Delivery to Person Residing at Defendant’s Usual Abode

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 N.C. LEXIS 857 (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 N.C. App. LEXIS 1188 (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 N.C. App. LEXIS 1732 (1975).

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 N.C. App. LEXIS 2183 (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 N.C. App. LEXIS 1732 (1975).

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 N.C. App. LEXIS 3135 (1979), cert. denied, 299 N.C. 330 , 265 S.E.2d 395, 1980 N.C. LEXIS 1008 (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 N.C. App. LEXIS 1784 (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 N.C. App. LEXIS 3165 (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 N.C. App. LEXIS 2506 (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 N.C. App. LEXIS 2563 (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 N.C. App. LEXIS 1496 (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, 267 N.C. App. 254, 833 S.E.2d 198, 2019 N.C. App. LEXIS 726 (2019).

C.Service by Registered or Certified Mail

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 N.C. LEXIS 1127 (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, 1980 N.C. App. LEXIS 2621 (1980), rev'd, 301 N.C. 621 , 272 S.E.2d 834, 1981 N.C. LEXIS 1009 (1981).

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, 1984 U.S. Dist. LEXIS 17542 (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, 1974 N.C. App. LEXIS 1780 , aff'd, 285 N.C. 700 , 208 S.E.2d 676, 1974 N.C. LEXIS 1127 (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 N.C. App. LEXIS 1090 (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 N.C. App. LEXIS 364 (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 N.C. LEXIS 233 (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 N.C. App. LEXIS 857 (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 N.C. App. LEXIS 1983 (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 N.C. App. LEXIS 1479 (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 N.C. App. LEXIS 374 (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 N.C. App. LEXIS 327 (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 N.C. App. LEXIS 1148 (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 N.C. App. LEXIS 1826 (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 N.C. App. LEXIS 1164 (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, 2012 U.S. Dist. LEXIS 17385 (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, 1974 U.S. Dist. LEXIS 8127 (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, 2011 U.S. Dist. LEXIS 92666 (E.D.N.C. Aug. 17, 2011).

III.Service on Counties, Municipalities and Other Local Public Bodies.

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, 2004 U.S. Dist. LEXIS 25403 (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, 2004 U.S. Dist. LEXIS 25403 (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 N.C. App. LEXIS 300 (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 N.C. App. LEXIS 151 (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 N.C. App. LEXIS 2329 (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, 2004 U.S. Dist. LEXIS 25403 (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, 1985 U.S. Dist. LEXIS 23287 (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 N.C. App. LEXIS 2454 (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 N.C. App. LEXIS 297 (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 N.C. App. LEXIS 1173 (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, 2011 U.S. Dist. LEXIS 100085 (E.D.N.C. Sept. 1, 2011), aff'd, 554 Fed. Appx. 219, 2014 U.S. App. LEXIS 2629 (4th Cir. 2014).

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 N.C. App. LEXIS 1161 (2013), sub. op., 233 N.C. App. 412, 761 S.E.2d 650, 2014 N.C. App. LEXIS 303 (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 N.C. App. LEXIS 303 (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. 2015 Bankr. LEXIS 736 (Bankr. W.D.N.C. Mar. 10, 2015).

IV.Service on Corporations

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, 1974 U.S. Dist. LEXIS 8858 (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, 1974 U.S. Dist. LEXIS 8858 (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 N.C. App. LEXIS 3075 (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 N.C. LEXIS 929 (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 N.C. App. LEXIS 3243 (1983), rev'd, 311 N.C. 536 , 319 S.E.2d 912, 1984 N.C. LEXIS 1758 (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 N.C. App. LEXIS 977 (2000), aff'd, 353 N.C. 362 , 543 S.E.2d 480, 2001 N.C. LEXIS 275 (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 N.C. App. LEXIS 537 (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., 2008 U.S. Dist. LEXIS 58299 (W.D.N.C. July 7, 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 N.C. LEXIS 1758 (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 N.C. App. LEXIS 1813 (1973), rev'd, 285 N.C. 145 , 203 S.E.2d 769, 1974 N.C. LEXIS 929 (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 N.C. App. LEXIS 1813 (1973), rev'd, 285 N.C. 145 , 203 S.E.2d 769, 1974 N.C. LEXIS 929 (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 N.C. App. LEXIS 2855 (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 N.C. LEXIS 899 (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 N.C. App. LEXIS 2855 (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, 1974 U.S. Dist. LEXIS 8858 (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, 1974 U.S. Dist. LEXIS 8858 (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, 1974 U.S. Dist. LEXIS 8858 (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 N.C. App. LEXIS 1813 (1973), rev'd, 285 N.C. 145 , 203 S.E.2d 769, 1974 N.C. LEXIS 929 (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 N.C. App. LEXIS 1069 (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 N.C. App. LEXIS 3251 (1979), cert. denied, 299 N.C. 329 , 265 S.E.2d 394, 1980 N.C. LEXIS 1007 (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 N.C. App. LEXIS 154 (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 N.C. App. LEXIS 356 (2014).

Service as a Nominal Defendant.—

In a dispute between members of an LCC asserting direct and derivative claims rooted in allegations of fraud and mismanagement, the superior court held that dismissal was the wrong remedy for plaintiffs’ failure to timely serve defendant LCC in accordance with N.C. R. Civ. P. 4(d). To avoid more disruption and delay, the superior court held that the better course was to order that the LCC be served as a nominal defendant; rather than dismiss it and rejoin it later, because no prejudice would result. Wright v. Lorusso, 2022 NCBC 18, 2022 NCBC LEXIS 33 (N.C. Super. Ct. Apr. 22, 2022).

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, 2000 U.S. Dist. LEXIS 5123 (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., 2004 U.S. Dist. LEXIS 9146 (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 N.C. App. LEXIS 1156 (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 N.C. App. LEXIS 3165 (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 N.C. App. LEXIS 863 (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 N.C. App. LEXIS 684 (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., 2010 U.S. Dist. LEXIS 77002 (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 N.C. App. LEXIS 367 (2017), rev'd, 371 N.C. 354 , 817 S.E.2d 571, 2018 N.C. LEXIS 618 (2018).

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 N.C. App. LEXIS 2188 (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 N.C. App. LEXIS 3423 (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 N.C. App. LEXIS 2609 (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 N.C. App. LEXIS 2188 (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, 1979 N.C. App. LEXIS 2263 (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 N.C. App. LEXIS 12 (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 N.C. App. LEXIS 418 (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 N.C. App. LEXIS 1104 (2012).

Jurisdiction was lacking where the district attorney’s objection and request for a temporary protective order to keep the media coalition from accessing documents relating to the State’s investigation of the death of an inmate was not initiated in accordance with the North Carolina Rules of Civil Procedure. Specifically, neither the newspaper that filed the original voluntary public records request nor any other member of the media coalition was named as a party or was notified to appear and answer, no summons was issued, nor was the state agency named as party to the action. In re Public Records Request, 2022-NCCOA-284, 2022 N.C. App. LEXIS 327 (May 3, 2022).

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 N.C. App. LEXIS 2466 (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 N.C. App. LEXIS 425 (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 N.C. App. LEXIS 425 (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 N.C. App. LEXIS 2466 (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 N.C. App. LEXIS 1067 (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, 1987 U.S. Dist. LEXIS 10726 (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, 1987 U.S. Dist. LEXIS 10726 (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, 1987 N.C. App. LEXIS 2712 (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, 1986 U.S. Dist. LEXIS 18818 (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 N.C. App. LEXIS 2595 (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 N.C. App. LEXIS 1255 , cert. denied, 360 N.C. 66 , 621 S.E.2d 877, 2005 N.C. LEXIS 1403 (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 N.C. App. LEXIS 626 (2015).

V.Service by Publication

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 N.C. App. LEXIS 1181 (1971); Sink v. Easter, 284 N.C. 555 , 202 S.E.2d 138, 1974 N.C. LEXIS 1286 (1974) (1974); Emanuel v. Fellows, 47 N.C. App. 340, 267 S.E.2d 368, 1980 N.C. App. LEXIS 3079 (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 N.C. App. LEXIS 3540 (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 N.C. App. LEXIS 1181 (1971); Sink v. Easter, 284 N.C. 555 , 202 S.E.2d 138, 1974 N.C. LEXIS 1286 (1974) (1974); Emanuel v. Fellows, 47 N.C. App. 340, 267 S.E.2d 368, 1980 N.C. App. LEXIS 3079 (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, 1985 N.C. App. LEXIS 3721 (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 N.C. App. LEXIS 175 (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 N.C. App. LEXIS 359 (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 N.C. App. LEXIS 2386 (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 N.C. App. LEXIS 4010 (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 N.C. LEXIS 1286 (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 N.C. LEXIS 1286 (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 N.C. App. LEXIS 1181 (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 N.C. App. LEXIS 1181 (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 N.C. App. LEXIS 1929 (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 N.C. App. LEXIS 2190 (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 N.C. LEXIS 1286 (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 N.C. App. LEXIS 721 (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, 1985 N.C. App. LEXIS 3721 (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 N.C. App. LEXIS 438 (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 N.C. App. LEXIS 438 (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 N.C. App. LEXIS 1778 (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 N.C. App. LEXIS 3146 (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 N.C. App. LEXIS 3639 (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 N.C. App. LEXIS 1242 (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 N.C. App. LEXIS 2495 (1980); In re Clark, 76 N.C. App. 83, 332 S.E.2d 196, 1985 N.C. App. LEXIS 3721 (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 N.C. App. LEXIS 856 (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 N.C. App. LEXIS 1074 (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 N.C. App. LEXIS 721 (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 N.C. App. LEXIS 721 (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 N.C. App. LEXIS 1242 (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 N.C. App. LEXIS 955 (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 N.C. App. LEXIS 804 (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, 264 N.C. App. 363, 826 S.E.2d 475, 2019 N.C. App. LEXIS 223 (2019).

In a tax foreclosure case, plaintiff did not exercise due diligence in serving defendant by publication, as it had defendant’s email address but did not attempt to contact her via email. Cnty. of Mecklenburg v. Ryan, 2022-NCCOA-90, 2022 N.C. App. LEXIS 113 .

VI.Amendment of Summons

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 N.C. App. LEXIS 1826 (1974).

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 N.C. App. LEXIS 1158 (1994), aff'd, 342 N.C. 404 , 464 S.E.2d 46, 1995 N.C. LEXIS 693 (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 N.C. App. LEXIS 2298 (1976).

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 N.C. App. LEXIS 1826 (1974).

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 N.C. App. LEXIS 1158 (1994), aff'd, 342 N.C. 404 , 464 S.E.2d 46, 1995 N.C. LEXIS 693 (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 N.C. App. LEXIS 1161 (2013), sub. op., 233 N.C. App. 412, 761 S.E.2d 650, 2014 N.C. App. LEXIS 303 (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 N.C. App. LEXIS 303 (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 N.C. App. LEXIS 3243 (1983), rev'd, 311 N.C. 536 , 319 S.E.2d 912, 1984 N.C. LEXIS 1758 (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 N.C. LEXIS 20 (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 N.C. App. LEXIS 51 (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 N.C. App. LEXIS 282 (2012).

VII.Discontinuance and Extensions

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, 1992 N.C. App. LEXIS 1 (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 N.C. App. LEXIS 2042 (2003).

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, 267 N.C. App. 254, 833 S.E.2d 198, 2019 N.C. App. LEXIS 726 (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 N.C. LEXIS 2394 (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, 1988 N.C. LEXIS 286 (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, 1988 N.C. LEXIS 286 (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, 1972 N.C. App. LEXIS 2244 , aff'd, 281 N.C. 577 , 189 S.E.2d 165, 1972 N.C. LEXIS 1112 (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 N.C. App. LEXIS 892 (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 N.C. App. LEXIS 892 (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 N.C. App. LEXIS 892 (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 N.C. App. LEXIS 2240 (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 N.C. LEXIS 525 (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, 1980 N.C. App. LEXIS 3214 (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, 1980 N.C. App. LEXIS 3214 (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 N.C. App. LEXIS 2622 (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 N.C. App. LEXIS 3393 (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 N.C. App. LEXIS 2468 (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 N.C. App. LEXIS 756 (1998), aff'd, 350 N.C. 60 , 510 S.E.2d 374, 1999 N.C. LEXIS 1 (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 N.C. App. LEXIS 1784 (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 N.C. LEXIS 525 (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 N.C. App. LEXIS 2203 (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 N.C. App. LEXIS 708 (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, 1980 N.C. App. LEXIS 2665 (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 N.C. App. LEXIS 2568 (1976); Brown v. Overby, 61 N.C. App. 329, 300 S.E.2d 565, 1983 N.C. App. LEXIS 2622 (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 N.C. App. LEXIS 1981 (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 N.C. App. LEXIS 600 (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, 270 N.C. App. 812, 842 S.E.2d 621, 2020 N.C. App. LEXIS 252 (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 N.C. App. LEXIS 2643 (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 N.C. App. LEXIS 154 (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 N.C. App. LEXIS 173 (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 N.C. App. LEXIS 2257 (2007), aff'd, 362 N.C. 345 , 661 S.E.2d 734, 2008 N.C. LEXIS 492 (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, 1979 N.C. App. LEXIS 2283 , cert. denied, 297 N.C. 610 , 257 S.E.2d 218, 1979 N.C. LEXIS 1500 (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 N.C. LEXIS 162 (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 N.C. LEXIS 2394 (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 N.C. App. LEXIS 2197 (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 N.C. App. LEXIS 2440 (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 N.C. App. LEXIS 2197 (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 N.C. App. LEXIS 922 (1993).

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 N.C. App. LEXIS 1058 (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, 2008 U.S. Dist. LEXIS 9312 (W.D.N.C. Jan. 23, 2008), amended, 2008 U.S. Dist. LEXIS 24195 (W.D.N.C. Mar. 3, 2008), rev'd in part, 392 Fed. Appx. 185, 2010 U.S. App. LEXIS 17626 (4th Cir. 2010).

VIII.Decisions under Prior Law

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 N.C. LEXIS 1122 (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 N.C. LEXIS 495 (1959) (citing) Jester v. Baltimore Steam Packet Co., 131 N.C. 54 , 42 S.E. 447, 1902 N.C. LEXIS 230 (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 N.C. LEXIS 612 (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 N.C. LEXIS 1122 (1966).

As to service by rural policeman for sheriff, see Griffin v. Barnes, 242 N.C. 306 , 87 S.E.2d 560, 1955 N.C. LEXIS 509 (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 N.C. LEXIS 495 (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 N.C. LEXIS 495 (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 N.C. LEXIS 495 (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 N.C. LEXIS 710 (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 N.C. LEXIS 710 (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 N.C. LEXIS 260 (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 N.C. LEXIS 641 (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, 1966 U.S. App. LEXIS 5921 (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 N.C. LEXIS 940 (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 N.C. LEXIS 612 (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 N.C. LEXIS 1253 (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 N.C. LEXIS 495 (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 N.C. LEXIS 241 (1907); Powell v. Dail, 172 N.C. 261 , 90 S.E. 194, 1916 N.C. LEXIS 279 (1916); McGuire v. Montvale Lumber Co., 190 N.C. 806 , 131 S.E. 274, 1925 N.C. LEXIS 174 (1925). See also, Green v. Chrismon, 223 N.C. 724 , 28 S.E.2d 215, 1943 N.C. LEXIS 181 (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 N.C. LEXIS 462 (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 N.C. LEXIS 462 (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 N.C. LEXIS 181 (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 N.C. LEXIS 181 (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 N.C. LEXIS 422 (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 N.C. LEXIS 324 (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 N.C. LEXIS 181 (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 N.C. LEXIS 765 (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 N.C. LEXIS 578 (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 N.C. LEXIS 422 (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 N.C. LEXIS 591 (1951).

A discontinuance occurs only when the summons has not been served. Rogerson v. Leggett, 145 N.C. 7 , 58 S.E. 596, 1907 N.C. LEXIS 241 (1907); Gomer v. Clayton, 214 N.C. 309 , 199 S.E. 77, 1938 N.C. LEXIS 330 (1938), different results reached on reh'g, 215 N.C. 82 , 1 S.E.2d 133, 1939 N.C. LEXIS 200 (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 N.C. LEXIS 369 (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 N.C. LEXIS 422 (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 N.C. LEXIS 422 (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 N.C. LEXIS 422 (1950); Williams v. Bray, 273 N.C. 198 , 159 S.E.2d 556, 1968 N.C. LEXIS 578 (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 N.C. LEXIS 422 (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 N.C. LEXIS 1253 (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 N.C. LEXIS 543 (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. Op. Att'y Gen. 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. Op. Att'y Gen. 26 (1985).

Service of process pursuant to G.S. 1-105 and G.S. 1-105.1 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. Op. Att'y Gen. 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. Op. Att'y Gen. 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).

Rule 5. Service and filing of pleadings and other papers.

  1. Service of orders, subsequent pleadings, discovery papers, written motions, written notices, and other similar papers — When required. —  Every order required by its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment and similar paper shall be served upon each of the parties, but no service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in Rule 4.

    (a1) Service of briefs or memoranda in support or opposition of certain dispositive motions. — In actions in superior court, every brief or memorandum in support of or in opposition to a motion to dismiss, a motion for judgment on the pleadings, a motion for summary judgment, or any other motion seeking a final determination of the rights of the parties as to one or more of the claims or parties in the action shall be served upon each of the parties at least two days before the hearing on the motion. If the brief or memorandum is not served on the other parties at least two days before the hearing on the motion, the court may continue the matter for a reasonable period to allow the responding party to prepare a response, proceed with the matter without considering the untimely served brief or memorandum, or take such other action as the ends of justice require. The parties may, by consent, alter the period of time for service. For the purpose of this two-day requirement only, service shall mean personal delivery, facsimile transmission, electronic (e-mail) delivery, or other means such that the party actually receives the brief within the required time.

  2. Service — How made. —  A pleading setting forth a counterclaim or cross claim shall be filed with the court and a copy thereof shall be served on the party against whom it is asserted or on the party’s attorney of record as provided by this subsection.With respect to all pleadings subsequent to the original complaint and other papers required or permitted to be served, service shall be made upon the party’s attorney of record and, if ordered by the court, also upon the party. If the party has no attorney of record, service shall be made upon the party.Service is made under this subsection if performed through the court’s electronic filing system. When service through the court’s electronic filing system is not available, or the party is not registered to receive service through the court’s electronic filing system, service may be made as follows:
    1. Upon a party’s attorney of record:
      1. By delivering a copy to the attorney. Delivery of a copy within this sub-subdivision means handing it to the attorney, leaving it at the attorney’s office with a partner or employee, or sending it to the attorney’s office by a confirmed telefacsimile transmittal for receipt by 5:00 P.M. Eastern Time on a regular business day, as evidenced by a telefacsimile receipt confirmation. If receipt of delivery by telefacsimile is after 5:00 P.M., service will be deemed to have been completed on the next business day. Service may also be made on the attorney by electronic mail (e-mail) to an e-mail address of record with the court in the case. Such e-mail must be sent by 5:00 P.M. Eastern Time on a regular business day. If the e-mail is sent after 5:00 P.M., it will be deemed to have been sent on the next business day.
      2. By mailing a copy to the attorney’s office.
      3. In the manner provided in Rule 4 for service and return of process.
    2. Upon a party:
      1. By delivering a copy to the party. Delivery of a copy within this sub-subdivision means handing it to the party.
      2. By mailing a copy to the party at the party’s last known address or, if no address is known, by filing it with the clerk of court.
      3. Service may also be made on the party by electronic mail (e-mail) if the party has consented to receive e-mail service in the case at a particular e-mail address, and a copy of the consent is filed with the court by any party. Such e-mail must be sent by 5:00 P.M. Eastern Time on a regular business day. If the e-mail is sent after 5:00 P.M. Eastern Time, it will be deemed to have been sent on the next business day.
      4. In the manner provided in Rule 4 for service and return of process.

        Service by mail shall be complete upon deposit of the pleading or paper enclosed in a post-paid, properly addressed wrapper in a post office or official depository under the exclusive care and custody of the United States Postal Service.

        (b1) Service — Certificate of Service. — A certificate of service shall accompany every pleading and every paper required to be served on any party or nonparty to the litigation, except with respect to pleadings and papers whose service is governed by Rule 4. The certificate shall show the date and method of service or the date of acceptance of service and shall show the name and service address of each person upon whom the paper has been served. If one or more persons are served by facsimile transmission or electronic mail (e-mail), the certificate shall also show the telefacsimile number or e-mail address of each person so served in that manner. Each certificate of service shall be signed in accordance with and subject to Rule 11 of these rules. With respect to persons served through the court’s electronic filing systems, an automated certificate of service generated by that system satisfies the requirements of this rule.

  3. Service — Numerous defendants. —  In any action in which there are unusually large numbers of defendants, the court, upon motion or of its own initiative, may order that service of the pleadings of the defendants and replies thereto need not be made as between the defendants and that any crossclaim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties and that the filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties. A copy of every such order shall be served upon the parties in such manner and form as the court directs.
  4. Filing. —  The following papers shall be filed with the court, either before service or within five days after service:
    1. All pleadings, as defined by Rule 7(a) of these rules, subsequent to the complaint, whether such pleadings are original or amended.
    2. Written motions and all notices of hearing.
    3. Any other application to the court for an order that may affect the rights of or in any way commands any individual, business entity, governmental agency, association, or partnership to act or to forego action of any kind.
    4. Notices of appearance.
    5. Any other paper required by rule or statute to be filed.
    6. Any other paper so ordered by the court.
    7. All orders issued by the court.

      All other papers, regardless of whether these rules require them to be served upon a party, should not be filed with the court unless (i) the filing is agreed to by all parties, or (ii) the papers are submitted to the court in relation to a motion or other request for relief, or (iii) the filing is permitted by another rule or statute. Briefs or memoranda provided to the court may not be filed with the clerk of court unless ordered by the court. The party taking a deposition or obtaining material through discovery is responsible for its preservation and delivery to the court if needed or so ordered.

    1. Filing with the court defined. —  The filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk.
    2. Filing by electronic means. —  If electronic filing is available in the county of filing, filing shall be made in accordance with Rule 5 of the General Rules of Practice for the Superior and District Courts.
    3. The failure to affix a date stamp or file stamp on any order or judgment filed in a civil action, estate proceeding, or special proceeding shall not affect the sufficiency, validity, or enforceability of the order or judgment if the clerk or the court, after giving the parties adequate notice and opportunity to be heard, enters the order or judgment nunc pro tunc to the date of filing.

History. 1967, c. 954, s. 1; 1971, c. 538; c. 1156, s. 2.5; 1975, c. 762, s. 1; 1983, c. 201, s. 1; 1985, c. 546; 1991, c. 168, s. 1; 2000-127, s. 1; 2001-379, s. 3; 2001-388, s. 1; 2001-487, s. 107.5(a); 2004-199, s. 5(a); 2005-138, ss. 1, 2; 2006-187, s. 2(a); 2011-332, s. 4.2; 2017-158, s. 1; 2020-46, s. 2.

Comment

Section (a). This section is based upon the federal rule and incorporates part of the West Virginia rule.

Former § 1-125 required that a copy of the answer be mailed to the plaintiff or his attorney of record by the clerk and prohibited the clerk from allowing the answer to be filed without a copy for that purpose. Former § 1-140 stated that if no copy of an answer containing a counterclaim was served upon the plaintiff or his attorney, the allegations in the counterclaim should be denied as a matter of law. Other statutes dealing with serving of notice included: former § 1-578, providing that no motion might be heard and no orders in the cause might be made outside the county where the action was pending unless notice of motion was served on the opposing party in accordance with the provisions of § 1-581; former § 1-568.13, service of order upon person to be examined under adverse party examination statutes; former § 1-568.14, notice to all other parties; former § 8-89, inspection of writings; former § 8-90, production of documents; former §§ 8-71 and 72, depositions; former § 1-153, motion to strike; and § 40-17, notice to parties in eminent domain proceedings.

This section is intended to include all such motions and orders. The phrase “and similar paper” indicates that the enumeration of papers is not exhaustive.

Section (b). — This section is based upon the federal rule but does not track the exact language of the federal rule. The section preserves the requirement of former § 1-140 that a counterclaim or crossclaim be served on the party against whom it is asserted or on his attorney of record.

Former §§ 1-585, 586, and 587 prescribed the form of notices and method of service, which was similar to this section. These provisions permit service upon a party or his attorney unless otherwise provided.

No statutory provision providing heretofore for notice by mail has been found, but such notice by mail was upheld by the court in a case where defendant filed a written motion to strike portions of the complaint and the court found that copies of the motion had been mailed to and received by plaintiff ’s attorneys. The court said in such circumstances plaintiff was not entitled to have notice of the motion to strike served on her by an officer. Heffner v. Jefferson Std. Life Ins. Co., 214 N.C. 359 , 199 S.E. 293 (1938).

Section (c). — This section tracks the language of the federal rule. It should be pointed out that the rule is permissive and applies only when the court makes an order under the rule. If such an order is made, a copy of the order must be served upon all parties. If such an order is made, each defendant prepares his answer to the complaint in which he may state his defenses to the complaint, counterclaims against the plaintiff, and cross actions against any or all of the defendants. Each defendant must serve his answer upon the plaintiff within the time prescribed by Rule 12 (a) and file it with the court. The plaintiff is not required to serve and file replies to counterclaims stated in any of the answers of the defendants, and no defendant need serve and file an answer to a crossclaim asserted against him in any of the answers of the defendants. Any counterclaim, crossclaim, or matter constituting an avoidance or affirmative defense contained in any of the answers of the defendants shall be deemed denied. It should be noted that this section dispenses with service of replies to counterclaims and answers to crossclaims only. Other pleadings and all motions must be served as in other cases.

This section also provides that “the filing of any such pleading and service thereof on the plaintiff constitutes due notice of it to the parties.” In all cases where an order is entered under the provisions of this section the defendant or his attorney would be required to examine the court file to determine if any crossclaim had been filed against him.

Former § 1-140 provided that if an answer containing a counterclaim was not served on the plaintiff or his attorney, the counterclaim should be deemed denied. The second paragraph of the same statute provided that if a defendant asserted a crossclaim against a codefendant, no judgment by default might be entered against such codefendant unless he had been served with a notice together with a copy of such crossclaim. Thus, the statute did not require that a counterclaim or crossclaim be “served” ; it merely denied certain kinds of relief (default judgment) if such was not served.

Default provisions such as Rule 55 would obviously be inoperative if the judge made an order under this section.

Section (d). — Although this section incorporates most of the federal rule, federal Rule 5 (d) was deemed insufficient for North Carolina practice. Consequently, this section is more detailed than the federal rule. The section also incorporates part of the West Virginia rule but does not track the language of that rule. There is no provision in the federal rule with respect to acceptance of service or of a certificate indicating the method of service. It is believed that this section is more in line with North Carolina practice with respect to service or acceptance of service of summons and other process.

This section will not affect the provisions of certain other rules with respect to filing of papers, such as Rule 3, which requires the complaint to be filed before service.

In substance, this section requires the filing with the court of all papers which are required to be served. There are also papers which are not required to be served, which must also be filed, such as motions which may be heard ex parte. Good practice would indicate that all papers relating to the action should be filed with the court whether required by these rules or not.

Section (e). — This section tracks the federal rule. It reflects prior North Carolina practice.

OFFICIAL COMMENT

Comment to the 1975 Amendment.

The amendment adds the words “every paper relating to discovery required to be served upon a party unless the court otherwise orders.” It, therefore, makes it clear that all papers relating to discovery required to be served on any party must be served on all parties, unless the court orders otherwise. The language of the former rule expressly included notices and demands, but was not explicit as to answers or responses under Rules 33, 34, and 36. The court is given the power to vary the requirement if in a given case it proves needlessly onerous, such as where the papers are voluminous or where there are numerous parties.

OFFICIAL COMMENT

Comment to the 2000 Amendment.

The rule does not require any party to submit a brief or memorandum; it only applies in certain instances in which a party intends to submit a brief or memorandum to the court. The rule would not preclude a party from providing the judge with copies of cases or statutes at a hearing.

Editor’s Note.

G.S.1-581 and G.S. 40-17, referred to in the Comment to this Rule as originally enacted, set out above, have been repealed. For general information regarding the official comments to the North Carolina Rules of Civil Procedure, see the Editor’s Note under the heading for this Chapter.

Session Laws 2000-127, s. 3, provides that the 2000 addition to the Official Comment shall only be for annotation purposes and shall not be construed to be the law.

Session Laws 2020-46, s. 3, made the amendment of this section by Session Laws 2020-46, s. 2, effective October 1, 2020, and applicable to filings and service effected on or after that date.

Effect of Amendments.

Session Laws 2006-187, s. 2(a), effective August 3, 2006, in subdivision (e)(2), substituted “electronic means” for “telefacsimile transmission” in the subheading and in the subdivision, inserted “costs,” following “rules, regulations”, and substituted “electronic means” for “transmission.” See Editor’s note for applicability.

Session Laws 2017-158, s. 1, effective July 21, 2017, added “pursuant to the rules promulgated under G.S. 7A-109 or subdivision (2) of this section” in subdivision (e)(1); added “G.S. 7A-49.5” and made a related stylistic change in subdivision (e)(2); and added subdivision (e)(3).

Session Laws 2020-46, s. 2, added “electronic (e-mail) delivery” in the last sentence of subsection (a1); in subsection (b), substituted “Service is made under this subsection if performed through the court’s electronic filing system. When service through the court’s electronic filing system is not available, or the party is not registered to receive service through the court’s electronic filing system, service may be made as follows:” for “With respect to such other pleadings and papers, service with due return may be made in a manner provided for service and return of process in Rule 4. Service under this subsection may also be made by one of the following methods:”; added the last two sentences in sub-subdivision (b)(1)a.; added sub-subdivision (b)(1)c.; added sub-subdivision (b)(2)c. and (b)(2)d.; in subsection (b1), substituted “transmission or electronic mail (e-mail), the certificate shall also show the telefacsimile number or e-mail address of each person so served in that manner” for “transmission, the certificate shall also show the telefacsimile number of each person so served” in the third sentence, and added the last sentence; deleted “pursuant to the rules promulgated under G.S. 7A-109 or subdivision (2) of this section” preceding “except that the judge” in subdivision (e)(1); rewrote subdivision (e)(2); and made minor stylistic changes. For effective date and applicability, see editor’s note.

Legal Periodicals.

For article, “The 1980 Amendments to the Federal Rules of Civil Procedure and Proposals for North Carolina Practice,” see 16 Wake Forest L. Rev. 915 (1980).

For survey of 1980 law on civil procedure, see 59 N.C.L. Rev. 1049 (1981).

For article analyzing the 1983 amendments to Rules 6, 7, 11, 16, 26, 52, 53 and 67, FRCP, comparing these rules with North Carolina practice, and suggesting changes in certain state and federal rules, see 20 Wake Forest L. Rev. 819 (1984).

For a survey of 1996 development in civil procedure law, see 75 N.C.L. Rev. 2229 (1997).

CASE NOTES

This rule is not applicable to motions of counsel to withdraw. Hensgen v. Hensgen, 53 N.C. App. 331, 280 S.E.2d 766, 1981 N.C. App. LEXIS 2599 (1981).

This rule has no applicability to service of case on appeal. Thurston v. Salisbury Zoning Bd. of Adjustment, 24 N.C. App. 288, 210 S.E.2d 275, 1974 N.C. App. LEXIS 1980 (1974).

Rule Has No Applicability to Service By Publication. —

G.S. 1A-1 , N.C. R. Civ. P. 5, is not applicable to service of a complaint by publication because it is intended to address orders, pleadings, and other papers subsequent to the original complaint. Jones v. Wallis, 211 N.C. App. 353, 712 S.E.2d 180, 2011 N.C. App. LEXIS 721 (2011).

Section (b) applies to the service of notice of appeal from a magistrate to the district court. Ball Photo Supply Co. v. McClaim, 30 N.C. App. 132, 226 S.E.2d 178, 1976 N.C. App. LEXIS 2168 (1976).

Written motion to set aside a default judgment is not one which might be heard ex parte. Doxol Gas of Angier, Inc. v. Barefoot, 10 N.C. App. 703, 179 S.E.2d 890, 1971 N.C. App. LEXIS 1702 (1971).

A report of commissioners is a “similar paper” within the contemplation of this rule and must be “served” upon each of the interested parties. Macon v. Edinger, 303 N.C. 274 , 278 S.E.2d 256, 1981 N.C. LEXIS 1096 (1981).

Sufficient notice of the filing of a report of commissioners is given to a party to a partition proceeding when a copy of the report is duly mailed as provided by section (b) of this rule. Macon v. Edinger, 303 N.C. 274 , 278 S.E.2d 256, 1981 N.C. LEXIS 1096 (1981).

Where the report of the commissioners in a partition proceeding became final, in that all errors were waived if exceptions were not filed within 10 days after filing, the report was held to be a “similar paper” under this rule, which had to be served upon each of the parties, since it is the purpose of this rule that every party be given due process and a reasonable opportunity to be heard. Macon v. Edinger, 49 N.C. App. 624, 272 S.E.2d 411, 1980 N.C. App. LEXIS 3438 (1980), rev'd, 303 N.C. 274 , 278 S.E.2d 256, 1981 N.C. LEXIS 1096 (1981).

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 G.S. 1A-1 , Rule 4. The service pursuant to this rule 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, 1980 N.C. App. LEXIS 2638 (1980).

Service of the motion and proposed complaint pursuant to this rule 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, 1980 N.C. App. LEXIS 2638 (1980).

Service, pursuant to this rule, of the motion accompanied with the pleading 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 are met. In re Shamp, 82 N.C. App. 606, 347 S.E.2d 848, 1986 N.C. App. LEXIS 2608 (1986).

Time for Service. —

G.S. 1A-1 , Rule 59(b), when construed with section (a) of this rule, means that service must be made within 10 days when service is required. Hennessee v. Cogburn, 39 N.C. App. 627, 251 S.E.2d 623, 1979 N.C. App. LEXIS 2543 , cert. denied, 297 N.C. 300 , 254 S.E.2d 919, 1979 N.C. LEXIS 1307 (1979).

Service Proper. —

Corporation’s requests for admissions were properly served under G.S. 1A-1-5 as its counsel was aware defendants’ counsel moved offices; corporation’s counsel explained that counsel sent the pleadings to an alternate address because counsel was personally aware defendants’ counsel had moved. J.M. Parker & Sons, Inc. v. William Barber, Inc., 208 N.C. App. 682, 704 S.E.2d 64, 2010 N.C. App. LEXIS 2410 (2010).

Rule 5(a) Violated. —

All of the orders of commission issued in response to defendant’s motions were procedurally flawed under G.S. 1A-1 , N.C. R. Civ. P. 5(a) and many were issued upon a mistake of fact where: (1) defendant failed to serve plaintiff with any of its motions for commissions and the trial court issued all of the commissions ex parte and without any notice to plaintiff; (2) many, but not all, of defendant’s motions for commission falsely stated that they were made upon the consent of all interested parties; and (3) defendant made no effort to confer with plaintiff about the motions and plaintiff had not consented to them. Capital Res., LLC v. Chelda, Inc., 223 N.C. App. 227, 735 S.E.2d 203, 2012 N.C. App. LEXIS 1251 (2012), cert. denied, 366 N.C. 436 , 736 S.E.2d 191, 2013 N.C. LEXIS 79 (2013).

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 G.S. 1A-1 , Rule 4 for the service of summons. First Union Nat'l Bank v. Rolfe, 83 N.C. App. 625, 351 S.E.2d 117, 1986 N.C. App. LEXIS 2752 (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 N.C. App. LEXIS 2752 (1986).

Failure of Tenant in Common to Answer Not Cause for Entry of Default. —

Where a respondent in a partition proceeding failed to answer the petition for partition because he was satisfied that the interests of the tenants in common were correctly alleged and was satisfied that the relief prayed for was appropriate, his rights were not adversely affected by his failure to plead, and petitioners were not entitled to an entry of default; respondents were therefore not “in default” under G.S. 1A-1 , Rule 55, and the provision of section (a) of this rule, which obviates the need for service on parties who are “in default,” did not apply. Macon v. Edinger, 49 N.C. App. 624, 272 S.E.2d 411, 1980 N.C. App. LEXIS 3438 (1980), rev'd, 303 N.C. 274 , 278 S.E.2d 256, 1981 N.C. LEXIS 1096 (1981).

Notice may be served on the attorney of record, and such notice is notice to the party. Griffith v. Griffith, 38 N.C. App. 25, 247 S.E.2d 30, 1978 N.C. App. LEXIS 2076 , cert. denied, 296 N.C. 106 , 249 S.E.2d 804, 1978 N.C. LEXIS 1167 (1978).

Henderson County Department of Social Services’ petition to terminate a mother’s parental rights was properly served where it was served upon her attorney of record. In re H.T., 180 N.C. App. 611, 637 S.E.2d 923, 2006 N.C. App. LEXIS 2497 (2006).

Failure to Send Notice to Attorney Not Violation. —

Although attorney should have honored defense counsel’s request to be notified of calendar notices and instead served defendants directly, he did not violate the Code of Professional Responsibility or the Rules of Civil Procedure. Williams v. Hinton, 127 N.C. App. 421, 490 S.E.2d 239, 1997 N.C. App. LEXIS 884 (1997).

Applicability of Service By Mail to the Mailbox Rule. —

G.S. 1A-1-5(b) strictly governs service of a complaint upon a defendant and should not be used to require a business or an individual to take mail directly to the post office or place it in an official depository to take advantage of the mailbox rule, which creates a rebuttable presumption that an envelope sent via the postal service with proper postage was delivered to the intended party. Nationwide Prop. & Cas. Ins. Co. v. Martinson, 208 N.C. App. 104, 701 S.E.2d 390, 2010 N.C. App. LEXIS 2078 (2010).

Service Upon Attorney Representing Party in Another Matter Insufficient. —

The trial court abused its discretion in denying a seller’s motion to set the preliminary injunction aside because the seller never received notice of the buyer’s intention to seek a preliminary injunction; the lack of notice affected the seller’s substantial rights, and the seller’s purported attorney of record did not represent the seller in the instant action, thus making service on the attorney insufficient to provide notice to the seller. Perry v. Baxley Dev., Inc., 188 N.C. App. 158, 655 S.E.2d 460, 2008 N.C. App. LEXIS 88 (2008).

The relationship between a party and his attorney of record continues so long as the opposing party may enter a motion in the matter or apply to the court for further relief. Griffith v. Griffith, 38 N.C. App. 25, 247 S.E.2d 30, 1978 N.C. App. LEXIS 2076 , cert. denied, 296 N.C. 106 , 249 S.E.2d 804, 1978 N.C. LEXIS 1167 (1978).

Last Known Address. —

Where plaintiff mailed notice of hearing on her motion for default to an address other than that provided on defendant’s filed response, notice was ineffective. Barnett v. King, 134 N.C. App. 348, 517 S.E.2d 397, 1999 N.C. App. LEXIS 754 (1999).

Service on Defendant At Last-Known Address After Attorney Withdrew Was Proper. —

Where defendant’s attorney was allowed to withdraw, plaintiffs mailed their motion for summary judgment to defendant’s last known address, and defendant never argued that it was not at that address, service was proper under G. S. 1A-1, Rule 5(b). Dixon v. Hill, 174 N.C. App. 252, 620 S.E.2d 715, 2005 N.C. App. LEXIS 2393 (2005), cert. denied, 548 U.S. 906, 126 S. Ct. 2972, 165 L. Ed. 2d 954, 2006 U.S. LEXIS 4950 (2006).

Serving Notice Of Service Of Process By Publication Not Required. —

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 complied with both G.S. 1A-1 , N.C. R. Civ. P. 4 and 5 based upon the plain language of those statutes, and plaintiff was not required to serve the notice of service of process by publication as to one defendant upon other defendants; the 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 because 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 N.C. App. LEXIS 721 (2011).

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 N.C. LEXIS 233 (1999).

Service of Contempt Order in Alimony Action by Delivery to Attorney. —

By filing an answer and counterclaim, defendant made a general appearance in an alimony and child custody and support action, and a contempt show cause order was properly served on him by hand delivery to his attorney. Brown v. Brown, 47 N.C. App. 323, 267 S.E.2d 345, 1980 N.C. App. LEXIS 3090 (1980).

Service of Defendant’s Attorney with 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, subsection (b) of this rule 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 N.C. App. LEXIS 372 (1990).

Service of defendant’s attorney of record in divorce case in 1976 with copies of motion for assignment of wages and show cause order of 1988 was proper, despite defendant’s contention that attorney was hired only to protect defendant’s interest in the dissolution of his marriage in 1976. Miller v. Miller, 98 N.C. App. 221, 390 S.E.2d 352, 1990 N.C. App. LEXIS 372 (1990).

Service on Attorney of Motion to Reduce Support Payments to Judgment. —

Defendant in an action for unpaid child support could not complain of inadequate notice of plaintiff ’s motion to reduce to judgment support payments alleged to be in arrears where defendant’s attorney of record was properly served with notice. Griffith v. Griffith, 38 N.C. App. 25, 247 S.E.2d 30, 1978 N.C. App. LEXIS 2076 , cert. denied, 296 N.C. 106 , 249 S.E.2d 804, 1978 N.C. LEXIS 1167 (1978).

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 N.C. App. LEXIS 374 (2015).

Where motion for alimony did not specify a date for a 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 N.C. LEXIS 1223 (1976).

Failure to Serve Motion. —

Trial court did not err in refusing to consider appellant’s procedurally defective motion to dismiss which appellant filed prior to a civil no-contact hearing because the motion to dismiss was a document appended to appellant’s written answer. Although the answer was filed with the county district court, the record contained no indication, nor did appellant claim, that the motion to dismiss was ever served upon appellee. Angarita v. Edwards, 278 N.C. App. 621, 863 S.E.2d 796, 2021- NCCOA-397, 2021 N.C. App. LEXIS 408 , dismissed, 379 N.C. 159 , 863 S.E.2d 601, 2021 N.C. LEXIS 1066 (2021).

Trial court did not err in refusing to consider appellant’s procedurally defective motion to dismiss which appellant filed prior to a civil no-contact hearing because the motion to dismiss was a document appended to appellant’s written answer. Although the answer was filed with the county district court, the record contained no indication, nor did appellant claim, that the motion to dismiss was ever served upon appellee. Angarita v. Edwards, 278 N.C. App. 621, 863 S.E.2d 796, 2021- NCCOA-397, 2021 N.C. App. LEXIS 408 , dismissed, 379 N.C. 159 , 863 S.E.2d 601, 2021 N.C. LEXIS 1066 (2021).

Effect of Failure to Serve Copy of Answer. —

The requirement in section (b) that a counterclaim or cross claim be filed with the court and a copy sent to the opposing party does not make a new or separate litigation out of a counterclaim or cross claim which arises out of the same transaction or occurrence that is the subject matter of the opposing party’s claim. Therefore, whatever other consequences may flow from failure to serve a copy of the answer, such failure does not result in causing the statute of limitations to run against the claim until such service is accomplished. In re Foreclosure of Deed of Trust, 20 N.C. App. 610, 202 S.E.2d 318, 1974 N.C. App. LEXIS 2504 (1974).

Filing of Answer Within 30 Days Not Required Under Section (d). —

While G.S. 1A-1 , Rule 12(a)(1) requires that the defendant serve his answer within 30 days, there is nothing in section (d) of this rule that requires the defendant to file his answer with the court within 30 days as well. Section (d) does not provide any period in which the filing must take place. Quaker Furn. House, Inc. v. Ball, 31 N.C. App. 140, 228 S.E.2d 475, 1976 N.C. App. LEXIS 1925 (1976).

Termination of Parental Rights Actions. —

Trial court erred in terminating the parental rights of parents to their minor children; the notice of the action required by G.S. 7B-1106.1 provided to the parents by an agency failed to meet the statutory requirements for such a notice, the service of the notice was made mandatory by G.S. 7B-1102 and G.S. 1A-1 , Rule 5(b), and the agency’s failure to provide a proper notice was reversible error. Orange County Dep't of Soc. Servs. v. Alexander, 158 N.C. App. 522, 581 S.E.2d 466, 2003 N.C. App. LEXIS 1180 (2003).

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 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 N.C. App. LEXIS 1921 (2005), aff'd, 360 N.C. 360 , 625 S.E.2d 779, 2006 N.C. LEXIS 12 (2006).

Henderson County Department of Social Services’ petition to terminate a mother’s parental rights was properly served where two years from the date of the original petition alleging neglect fell on a Sunday; thus, the next Monday was the end of the statutory period, and the petition had been served on that day. In re H.T., 180 N.C. App. 611, 637 S.E.2d 923, 2006 N.C. App. LEXIS 2497 (2006).

Failure to Serve Father in Neglect Proceeding Required New Hearing. —

Adjudication of neglect as to the father was error, where it was based in large part on the father’s failure to appear and the father was not served with several relevant documents after waiving the right to counsel. In re H.D.F., 197 N.C. App. 480, 677 S.E.2d 877, 2009 N.C. App. LEXIS 755 (2009).

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 subdivision (d) of this rule. Cottle v. Thompson, 123 N.C. App. 147, 472 S.E.2d 189, 1996 N.C. App. LEXIS 581 (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 N.C. App. LEXIS 581 (1996).

A request for a statement of monetary relief sought cannot be considered a discovery document of the type specifically excepted in subdivision (d) of this rule. Cottle v. Thompson, 123 N.C. App. 147, 472 S.E.2d 189, 1996 N.C. App. LEXIS 581 (1996).

Affidavit Served Prior to Hearing. —

Plaintiff’s affidavit was served on defendant’s attorney within the meaning of subsection (b), when it was mailed prior to hearing even though opposition did not see it until at the hearing. Hedrick v. Rains, 344 N.C. 729 , 477 S.E.2d 171, 1996 N.C. LEXIS 513 (1996).

Admission of Unserved Affidavits Held Proper. —

In a foreclosure action, the trial court did not abuse its discretion in admitting unserved affidavits that were identical to earlier affidavits admitted into evidence at a hearing before the clerk, and which contained no new assertions which the debtors could “contradict” through further investigation. In re Foreclosure of Real Prop. Under Deed of Trust from Brown, 156 N.C. App. 477, 577 S.E.2d 398, 2003 N.C. App. LEXIS 179 (2003).

Court Found That Failure to Serve Pleadings Resulted From Excusable Neglect. —

Where the trial court’s findings of fact tended to show that the husband had a documented history of domestic abuse against the wife and that the husband violated G.S. 1A-1 , N.C. R. Civ. P. 5 by failing to serve the requests for admissions and subsequent pleadings on all defendants, the trial court properly concluded that the wife’s failure to notify the court of her change of address constituted excusable neglect under G.S. 1A-1 , N.C. R. Civ. P. 60(b)(1). Elliott v. Elliott, 200 N.C. App. 259, 683 S.E.2d 405, 2009 N.C. App. LEXIS 1619 (2009).

Notice of Voluntary Dismissal Not Required. —

Because an owner was not a party to the lawsuit a limited liability company (LLC) brought against an individual, the LLC was not required to serve its notice of voluntary dismissal upon the owner; the trial court consolidated the LLC’s action against the individual and the owner’s action against the individual for trial, and although the actions were to be tried together for the sake of convenience and judicial economy, they did not become one action but remained separate suits. Tog Props., LLC v. Pugh (Apr. 6, 2021).

Rule 6. Time.

  1. Computation. —  In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, including rules, orders or statutes respecting publication of notices, the day of the act, event, default or publication after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or a legal holiday when the courthouse is closed for transactions, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or a legal holiday when the courthouse is closed for transactions. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays, and holidays shall be excluded in the computation. A half holiday shall be considered as other days and not as a holiday.
  2. Enlargement. —  When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order. Upon motion made after the expiration of the specified period, the judge may permit the act to be done where the failure to act was the result of excusable neglect. Notwithstanding any other provisions of this rule, the parties may enter into binding stipulations without approval of the court enlarging the time, not to exceed in the aggregate 30 days, within which an act is required or allowed to be done under these rules, provided, however, that neither the court nor the parties may extend the time for taking any action under Rules 50(b), 52, 59(b), (d), (e), 60(b), except to the extent and under the conditions stated in them.
  3. Unaffected by expiration of session. —  The period of time provided for the doing of any act or the taking of any proceeding is not affected or limited by the continued existence or expiration of a session of court. The continued existence or expiration of a session of court in no way affects the power of a court to do any act or take any proceeding, but no issue of fact shall be submitted to a jury out of session.
  4. For motions, affidavits. —  A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than five days before the time specified for the hearing, unless a different period is fixed by these rules or by order of the court. Such an order may for cause shown be made on ex parte application. When a motion is supported by affidavit, the affidavit shall be served with the motion; and except as otherwise provided in Rule 59(c), opposing affidavits shall be served at least two days before the hearing. If the opposing affidavit is not served on the other parties at least two days before the hearing on the motion, the court may continue the matter for a reasonable period to allow the responding party to prepare a response, proceed with the matter without considering the untimely served affidavit, or take such other action as the ends of justice require. For the purpose of this two-day requirement only, service shall mean personal delivery, facsimile transmission, or other means such that the party actually receives the affidavit within the required time.
  5. Additional time after service by mail. —  Whenever a party has the right to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, three days shall be added to the prescribed period.
  6. Additional time for Address Confidentiality Program participants. —  Whenever a person participating in the Address Confidentiality Program established by Chapter 15C of the General Statutes has a legal right to act within a prescribed period of 10 days or less after the service of a notice or other paper upon the program participant, and the notice or paper is served upon the program participant by mail, five days shall be added to the prescribed period.

History. 1967, c. 954, s. 1; 2000-127, s. 5; 2002-171, s. 2; 2003-337, s. 2.

Comment

Section (a). — The basic rule of excluding the first and including the last day is presently embodied in § 1-593 as to the time within which an act is to be done, and in § 1-594 as to publication of notices. Section 1-593 excludes the last day if it is a Sunday or a legal holiday. The federal rule and this section also exclude Saturdays. This section also conforms publication period time requirements to other time computations.

One other significant change is wrought by adoption of this provision. Formerly, intermediate Saturdays, Sundays, and holidays were included in computing the time, no matter how short the period was. The federal rule makes allowance for the shorter periods of time by providing that if the period is seven days or less, intermediate Saturdays, Sundays or holidays shall not be included.

Section (b). — This section, based upon the federal rule, is more detailed than former statutory provisions. However, there is no basic change in procedure. Former § 1-125 permitted the clerk to extend the time for filing answer or demurrer for a period of time not exceeding 20 days. Former § 1-152 permitted the judge in his discretion to enlarge the time for the doing of any act. Former § 1-220 permitted the clerk or the judge to relieve a party from a judgment, order, verdict or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect, and to supply an omission in any proceeding.

Section (c). — Self-explanatory.

Section (d). — Former § 1-581 provided for 10 days’ notice of motion. Thus, adoption of this section results in halving the normal period of notice.

Section (e). — There is no present statutory equivalent to this section. As to service of notice, the statutes do not contemplate service by mail. However, service of notice on plaintiff ’s attorneys by mail was upheld in Heffner v. Jefferson Std. Life Ins. Co., 214 N.C. 359 , 199 S.E. 293 (1938). There are other instances in which service by mail is possible.

Legal Periodicals.

For article on modern statutory approaches to service of process outside the State, see 49 N.C.L. Rev. 235 (1971).

For article, “The 1980 Amendments to the Federal Rules of Civil Procedure and Proposals for North Carolina Practice,” see 16 Wake Forest L. Rev. 915 (1980).

For note on a default not constituting an admission of facts for purposes of summary judgment, see 17 Wake Forest L. Rev. 49 (1981).

For article analyzing the 1983 amendments to Rules 6, 7, 11, 16, 26, 52, 53 and 67, FRCP, comparing these rules with North Carolina practice, and suggesting changes in certain state and federal rules, see 20 Wake Forest L. Rev. 819 (1984).

For article, “Service of Process under Lemons v. Old Hickory Council, Boy Scouts of America Inc.: Exalting Procedure over Precedent?,” see 67 N.C.L. Rev. 1211 (1989).

For a survey of 1996 development in civil procedure law, see 75 N.C.L. Rev. 2229 (1997).

CASE NOTES

Analysis

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 N.C. App. LEXIS 2852 (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 N.C. App. LEXIS 1273 (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 N.C. App. LEXIS 503 (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 N.C. App. LEXIS 1297 (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 N.C. LEXIS 1048 (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 N.C. App. LEXIS 533 (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 N.C. App. LEXIS 692 (2008).

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 N.C. App. LEXIS 1567 (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 N.C. App. LEXIS 12 (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 N.C. App. LEXIS 12 (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 N.C. App. LEXIS 1504 (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 N.C. App. LEXIS 1567 (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 N.C. App. LEXIS 2140 (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, 1988 N.C. LEXIS 286 (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 N.C. App. LEXIS 533 (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 N.C. App. LEXIS 990 (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, 1988 N.C. LEXIS 286 (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, 1988 N.C. LEXIS 286 (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, 270 N.C. App. 812, 842 S.E.2d 621, 2020 N.C. App. LEXIS 252 (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 N.C. App. LEXIS 2042 (2003).

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 N.C. App. LEXIS 4066 (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 N.C. App. LEXIS 964 (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 N.C. App. LEXIS 2856 (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 N.C. App. LEXIS 3263 (1982), aff'd in part, modified, 308 N.C. 536 , 302 S.E.2d 809, 1983 N.C. LEXIS 1222 (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 N.C. App. LEXIS 685 (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 N.C. App. LEXIS 1736 (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 N.C. App. LEXIS 1567 (1972); Johnson v. Hooks, 21 N.C. App. 585, 205 S.E.2d 796, 1974 N.C. App. LEXIS 1880 , cert. denied, 285 N.C. 660 , 207 S.E.2d 754, 1974 N.C. LEXIS 1077 (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 N.C. App. LEXIS 1736 (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 N.C. App. LEXIS 2856 (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 N.C. LEXIS 1105 (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 N.C. LEXIS 1126 (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 N.C. LEXIS 2405 (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. Moseley v. Branch Banking & Trust Co., 19 N.C. App. 137, 198 S.E.2d 36, 1973 N.C. App. LEXIS 1597 , cert. denied, 284 N.C. 121 , 199 S.E.2d 659, 1973 N.C. LEXIS 791 (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, 1973 N.C. App. LEXIS 1597 , cert. denied, 284 N.C. 121 , 199 S.E.2d 659, 1973 N.C. LEXIS 791 (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, 1981 N.C. App. LEXIS 2522 , cert. denied, 304 N.C. 196 , 285 S.E.2d 101, 1981 N.C. LEXIS 1446 (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 N.C. App. LEXIS 1433 (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 N.C. LEXIS 1336 (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 N.C. App. LEXIS 245 (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, 2001 N.C. App. LEXIS 327 (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 N.C. App. LEXIS 1925 (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 N.C. App. LEXIS 48 (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 N.C. LEXIS 1175 (1980); Pinckney v. Van Damme, 116 N.C. App. 139, 447 S.E.2d 825, 1994 N.C. App. LEXIS 920 (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 N.C. App. LEXIS 1075 (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 N.C. App. LEXIS 1075 (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 N.C. App. LEXIS 1372 (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 N.C. App. LEXIS 1053 (2017), cert. denied, 139 S. Ct. 2674, 204 L. Ed. 2d 1069, 2019 U.S. LEXIS 3810 (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 N.C. App. LEXIS 3180 (1979), rev'd, 301 N.C. 294 , 271 S.E.2d 385, 1980 N.C. LEXIS 1175 (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 N.C. LEXIS 731 (1994).

IV.Service of Motions and Affidavits

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 N.C. App. LEXIS 1003 (1991).

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 N.C. App. LEXIS 1797 (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 N.C. App. LEXIS 1650 (1971); Jenkins v. Jenkins, 27 N.C. App. 205, 218 S.E.2d 518, 1975 N.C. App. LEXIS 1797 (1975); Story v. Story, 27 N.C. App. 349, 219 S.E.2d 245, 1975 N.C. App. LEXIS 1848 (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 N.C. App. LEXIS 1015 (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 N.C. App. LEXIS 1650 (1971); Story v. Story, 27 N.C. App. 349, 219 S.E.2d 245, 1975 N.C. App. LEXIS 1848 (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 N.C. App. LEXIS 82 (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 N.C. App. LEXIS 1736 (1974) (distinguishing) Millsaps v. Wilkes Contracting Co., 14 N.C. App. 321, 188 S.E.2d 663, 1972 N.C. App. LEXIS 2125 , 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 N.C. App. LEXIS 3643 (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 N.C. App. LEXIS 2162 (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 N.C. App. LEXIS 1085 (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 N.C. App. LEXIS 537 (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 N.C. App. LEXIS 708 (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 N.C. App. LEXIS 708 (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 N.C. App. LEXIS 708 (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 N.C. App. LEXIS 187 (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 N.C. App. LEXIS 1650 (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 N.C. App. LEXIS 1646 (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 N.C. App. LEXIS 1705 (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 N.C. App. LEXIS 1685 (2007).

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 N.C. App. LEXIS 225 (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 N.C. App. LEXIS 1314 (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 N.C. LEXIS 1223 (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 N.C. LEXIS 1126 (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 N.C. LEXIS 1126 (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 N.C. App. LEXIS 3278 (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 N.C. App. LEXIS 2440 (2006).

V.Additional Time after Service by Mail

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 N.C. App. LEXIS 1406 (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 N.C. App. LEXIS 3286 (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 N.C. App. LEXIS 818 (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 N.C. App. LEXIS 824 (1992).

VI.Decisions under Prior Law

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 N.C. LEXIS 133 (1882); Rich v. Norfolk S. Ry., 244 N.C. 175 , 92 S.E.2d 768, 1956 N.C. LEXIS 670 (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 N.C. LEXIS 488 (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 N.C. LEXIS 1101 (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 N.C. LEXIS 521 (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 N.C. LEXIS 606 (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 N.C. LEXIS 178 (1927); Harmon v. Harmon, 245 N.C. 83 , 95 S.E.2d 355, 1956 N.C. LEXIS 541 (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 N.C. LEXIS 610 (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 N.C. LEXIS 1111 (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 N.C. LEXIS 1101 (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 N.C. LEXIS 27 (1885); Best v. British & Am. Mtg. Co., 131 N.C. 70 , 42 S.E. 456, 1902 N.C. LEXIS 234 (1902); Wilmington v. McDonald, 133 N.C. 548 , 45 S.E. 864, 1903 N.C. LEXIS 92 (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 N.C. LEXIS 81 (1912); Early v. Eley, 243 N.C. 695 , 91 S.E.2d 919, 1956 N.C. LEXIS 606 (1956); Harmon v. Harmon, 245 N.C. 83 , 95 S.E.2d 355, 1956 N.C. LEXIS 541 (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 N.C. LEXIS 1101 (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 N.C. LEXIS 1101 (1967).

Article 3. Pleadings and Motions.

Rule 7. Pleadings allowed; motions.

  1. Pleadings. —  There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a crossclaim, if the answer contains a crossclaim; a third-party complaint if a person who was not an original party is summoned under the provisions of Rule 14; and a third-party answer, if a third-party complaint is served. If the answer alleges contributory negligence, a party may serve a reply alleging last clear chance. No other pleading shall be allowed except that the court may order a reply to an answer or a third-party answer.
  2. Motions and other papers. —
    1. An application to the court for an order shall be by motion which, unless made during a hearing or trial or at a session at which a cause is on the calendar for that session, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.
    2. The rules applicable to captions, signing, and other matters of form of pleadings apply to all motions and other papers provided for by these rules.
    3. A motion to transfer under G.S. 7A-258 shall comply with the directives therein specified but the relief thereby obtainable may also be sought in a responsive pleading pursuant to Rule 12(b).
    4. A motion in a civil action in a county that is part of a multicounty judicial district may be heard in another county which is part of that same judicial district with the permission of the senior resident superior court judge of that district or of that judge’s designee. Except for emergencies as determined by the senior resident superior court judge or that judge’s designee, a motion in a civil action to be heard outside the county in which the case is filed shall be heard at a civil session of court.
  3. Demurrers, pleas, etc., abolished. —  Demurrers, pleas, and exceptions for insufficiency shall not be used.
  4. Pleadings not read to jury. —  Unless otherwise ordered by the judge, pleadings shall not be read to the jury.

History. 1967, c. 954, s. 1; 1971, c. 1156, s. 1; 2000-127, s. 2; 2005-163, s. 1; 2011-317, s. 1.

Comment

Section (a). — This section defines the total permissible range of pleadings, following long established code procedure by making the reply the terminal permissible pleading in the traditional exchange between plaintiff and defendant. Furthermore, this section makes specific that which has been evolved without literal sanction under the Code, that an answer is to be filed to a crossclaim and that where additional defendants are summoned, third party complaint and answer are to be filed. The only time reply is actually required, aside from when ordered by the court, is to a counterclaim actually so denominated. This is an improvement over code procedure, which requires a reply to any counterclaim at peril of admitting its allegations, thereby putting an unjustifiable burden on the plaintiff to ascertain at his peril whether answers containing affirmative defenses may be construed to involve counterclaims. Whether or not a reply is necessary is presently extremely difficult to determine in other contexts. Compare, e.g. Little v. Stevens, 267 N.C. 328 , 148 S.E.2d 201 (1966), and former § 1-159. Finally, following code practice, authority is given the courts to order replies to noncounterclaiming answers and third party answers, thus rounding out the total list of permissible pleadings under all circumstances.

Section (b)(1). — This section makes more explicit as a matter of literal statement the motion practice actually followed under present code practice. The specification that written motions shall state their grounds and the relief sought is a helpful directive. And the provision for combining the motion with the notice thereof actually gives literal sanction to a procedure of convenience frequently indulged in State court practice without such direct authorization.

Section (c). — This section rounds out the exclusive listing of pleadings and motions allowable under this approach, by making explicit what a long tradition might have resisted, that those other traditional pretrial stage procedural devices, the demurrer and the special pleas, are abolished from the practice. There are to be only the listed pleadings, and motions shaped functionally to accomplish various specific pretrial purposes formerly served by motions, demurrers and pleas. The abolition of these devices by name does not, of course, automatically do away with the possibility that the functions served by these shall continue to be served. This section must be read in the light of Rule 12, wherein the new procedure by which these functions are served is spelled out.

Section (d). — The purpose of this section is to end the practice of reading pleadings to the jury. The Commission contemplated that a brief opening statement would generally be substituted.

OFFICIAL COMMENT

Comment to the 2000 Amendment.

The 2000 amendment conforms the North Carolina rule to federal Rule 7(b). The federal courts do not apply the particularity requirement as a procedural technicality to deny otherwise meritorious motions. Rather, the federal courts apply the rule to protect parties from prejudice, to assure that opposing parties can comprehend the basis for the motion and have a fair opportunity to respond.

Editor’s Note.

Session Laws 2000-127, s. 4, provides that the 2000 addition to the Official Comment shall only be for annotation purposes and shall not be construed to be the law.

Legal Periodicals.

For article on the general scope and philosophy of the new rules, see 5 Wake Forest Intra. L. Rev. 1 (1969).

For article on pleadings and motions, see 5 Wake Forest Intra. L. Rev. 70 (1969).

For survey of 1977 law on civil procedure, see 56 N.C.L. Rev. 874 (1978).

For article, “The 1980 Amendments to the Federal Rules of Civil Procedure and Proposals for North Carolina Practice,” see 16 Wake Forest L. Rev. 915 (1980).

For note on default not constituting an admission of facts for purposes of summary judgment, see 17 Wake Forest L. Rev. 49 (1981).

For survey of 1982 law on civil procedure, see 61 N.C.L. Rev. 991 (1983).

For article analyzing the 1983 amendments to Rules 6, 7, 11, 16, 26, 52, 53 and 67, FRCP, comparing these rules with North Carolina practice, and suggesting changes in certain state and federal rules, see 20 Wake Forest L. Rev. 819 (1984).

For comment, “Two Tiers of Plaintiffs: How North Carolina’s Tort Reform Efforts Discriminate Against Low-Income Plaintiffs,” see 96 N.C.L. Rev. 512 (2018).

CASE NOTES

Analysis

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 N.C. App. LEXIS 3713 (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 N.C. App. LEXIS 1898 (1972).

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, 1984 N.C. App. LEXIS 3391 (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 N.C. App. LEXIS 56 (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 N.C. LEXIS 1223 (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 N.C. App. LEXIS 1735 (2007), aff'd, 362 N.C. 171 , 655 S.E.2d 350, 2008 N.C. LEXIS 27 (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 N.C. App. LEXIS 3237 (1979).

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 N.C. App. LEXIS 559 (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 N.C. App. LEXIS 2195 (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 N.C. LEXIS 1229 (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 N.C. LEXIS 1229 (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 N.C. LEXIS 1229 (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 N.C. App. LEXIS 3603 (1985), aff'd, 315 N.C. 383 , 337 S.E.2d 851, 1986 N.C. LEXIS 1875 (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 N.C. App. LEXIS 3713 (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 N.C. App. LEXIS 2097 (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 N.C. App. LEXIS 2031 (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 N.C. App. LEXIS 1209 (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 N.C. LEXIS 1549 (1982).

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 N.C. App. LEXIS 108 (2009).

III.Motions and Other Papers

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 N.C. LEXIS 1223 (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, 1973 N.C. App. LEXIS 1779 , cert. denied, 283 N.C. 665 , 197 S.E.2d 874, 1973 N.C. LEXIS 1035 (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 N.C. App. LEXIS 1372 (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 N.C. LEXIS 1126 (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 N.C. LEXIS 1126 (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, 1973 N.C. App. LEXIS 1992 , cert. denied, 283 N.C. 754 , 198 S.E.2d 723, 1973 N.C. LEXIS 1075 (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 N.C. LEXIS 1126 (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 N.C. App. LEXIS 703 (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 N.C. App. LEXIS 1047 (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 N.C. App. LEXIS 537 (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 N.C. App. LEXIS 1376 (2012), cert. denied, 571 U.S. 1012, 134 S. Ct. 623, 187 L. Ed. 2d 404, 2013 U.S. LEXIS 8148 (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 N.C. App. LEXIS 1376 (2012), cert. denied, 571 U.S. 1012, 134 S. Ct. 623, 187 L. Ed. 2d 404, 2013 U.S. LEXIS 8148 (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 N.C. App. LEXIS 1156 (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 N.C. App. LEXIS 3217 (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 N.C. App. LEXIS 1191 (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 N.C. App. LEXIS 1373 (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 N.C. App. LEXIS 3461 (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, 1991 N.C. App. LEXIS 26 (1991).

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 N.C. App. LEXIS 233 (2016), aff'd, 369 N.C. 585 , 799 S.E.2d 612, 2017 N.C. LEXIS 392 (2017).

Motion to Stay. —

Even if a mother’s letter was considered a proper motion to stay proceedings, because the trial court never entered an order ruling the mother’s “motion to stay” letter, the court of appeals not have jurisdiction to determine whether the trial court abused its discretion by not granting a stay under the Uniform Child Custody Jurisdiction and Enforcement Act; the letter was not filed stamped or served on the father’s counsel prior to the hearing and did not identify any legal basis for the stay. Waly v. Alkamary, 2021-NCCOA-429, 279 N.C. App. 73, 864 S.E.2d 763, 2021- NCCOA-429, 2021 N.C. App. LEXIS 439 (2021).

Even if a mother’s letter was considered a proper motion to stay proceedings, because the trial court never entered an order ruling the mother’s “motion to stay” letter, the court of appeals not have jurisdiction to determine whether the trial court abused its discretion by not granting a stay under the Uniform Child Custody Jurisdiction and Enforcement Act; the letter was not filed stamped or served on the father’s counsel prior to the hearing and did not identify any legal basis for the stay. Waly v. Alkamary, 2021-NCCOA-429, 279 N.C. App. 73, 864 S.E.2d 763, 2021- NCCOA-429, 2021 N.C. App. LEXIS 439 (2021).

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 N.C. App. LEXIS 3217 (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 N.C. App. LEXIS 3217 (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 N.C. App. LEXIS 1105 (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 N.C. App. LEXIS 2251 (2008), rev'd, 363 N.C. 366 , 677 S.E.2d 454, 2009 N.C. LEXIS 602 (2009).

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, 1991 N.C. App. LEXIS 26 (1991).

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 N.C. App. LEXIS 800 (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 N.C. LEXIS 106 (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 N.C. App. LEXIS 117 (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 N.C. App. LEXIS 1780 (2004).

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 N.C. App. LEXIS 239 (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 N.C. App. LEXIS 2252 (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 N.C. App. LEXIS 1185 (1970); Forrester v. Garrett, 280 N.C. 117 , 184 S.E.2d 858, 1971 N.C. LEXIS 1100 (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, 1971 N.C. App. LEXIS 1357 , cert. denied, 279 N.C. 619 , 184 S.E.2d 113, 1971 N.C. LEXIS 899 (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 N.C. LEXIS 510 (1970); Forrester v. Garrett, 280 N.C. 117 , 184 S.E.2d 858, 1971 N.C. LEXIS 1100 (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 N.C. LEXIS 510 (1970); Forrester v. Garrett, 280 N.C. 117 , 184 S.E.2d 858, 1971 N.C. LEXIS 1100 (1971).

Rule 8. General rules of pleadings.

  1. Claims for relief. —  A pleading which sets forth a claim for relief, whether an original claim, counterclaim, crossclaim, or third-party claim shall contain
    1. A short and plain statement of the claim sufficiently particular to give 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, and
    2. A demand for judgment for the relief to which he deems himself entitled. Relief in the alternative or of several different types may be demanded. In all actions involving a material issue related to any of the subjects listed in G.S. 7A-45.4(a)(1), (2), (3), (4), (5), or (8), the pleading shall state whether or not relief is demanded for damages incurred or to be incurred in an amount equal to or exceeding five million dollars ($5,000,000). In all negligence actions, and in all claims for punitive damages in any civil action, wherein the matter in controversy exceeds the sum or value of twenty-five thousand dollars ($25,000), the pleading shall not state the demand for monetary relief, but shall state that the relief demanded is for damages incurred or to be incurred in excess of twenty-five thousand dollars ($25,000). However, at any time after service of the claim for relief, any party may request of the claimant a written statement of the monetary relief sought, and the claimant shall, within 30 days after such service, provide such statement, which shall not be filed with the clerk until the action has been called for trial or entry of default entered. Such statement may be amended in the manner and at times as provided by Rule 15.
  2. Defenses; form of denials. —  A party shall state in short and plain terms his defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If he is without knowledge or information sufficient to form a belief as to the truth of an averment, he shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part of or a qualification of an averment, he shall specify so much of it as is true and material and shall deny only the remainder. Unless the pleader intends in good faith to controvert all the averments of the preceding pleading, he may make his denials as specific denials of designated averments or paragraphs, or he may generally deny all the averments except such designated averments or paragraphs as he expressly admits; but, when he does so intend to controvert all its averments, he may do so by general denial subject to the obligations set forth in Rule 11.
  3. Affirmative defenses. —  In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, truth in actions for defamation, usury, waiver, and any other matter constituting an avoidance or affirmative defense. Such pleading shall contain a short and plain statement of any matter constituting an avoidance or affirmative defense sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court, on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.
  4. Effect of failure to deny. —  Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.
  5. Pleading to be concise and direct; consistency. —
    1. Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.
    2. A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as he has regardless of consistency and whether based on legal or on equitable grounds or on both. All statements shall be made subject to the obligations set forth in Rule 11.
  6. Construction of pleadings. —  All pleadings shall be so construed as to do substantial justice.

History. 1967, c. 954, s. 1; 1975, 2nd Sess., c. 977, s. 5; 1979, ch. 654, s. 4; 1985 (Reg. Sess., 1986), c. 1027, s. 56; 1989 (Reg. Sess., 1990), c. 995, s. 1; 2014-102, s. 7; 2014-115, s. 18.5.

Comment

Section (a). — In prescribing what a complaint is to contain, it will be observed that while the Commission abandoned the code formulation of “a plain and concise statement of the facts constituting a cause of action,” it did not adopt without change the federal rules formula, “a short and plain statement of the claim showing that the pleader is entitled to relief.” The statement must be “sufficiently particular to give the court and the parties notice of the transactions or occurrences, intended to be proved. . . .”

The Commission’s objective may be summarized as follows: 1. By omitting any requirement in terms that a complaint state “facts,” the Commission sought to put behind it the sterile dispute as to whether an allegation states evidentiary or ultimate facts or conclusions of law. Of course, in order to show that he is entitled to relief, a pleader will be compelled to be factual, but the new formulation saved him from foundering on the ancient distinctions.

2. By omitting any reference to “cause of action,” and directing attention to the notice-giving functions served by the complaint, the Commission sought a new start on the problem of how much specificity is desirable in a complaint. It can fairly be argued, of course, that when the Commission substituted “claim” for “cause of action” that it was merely exchanging one conundrum for another. But changing the formulation does have the advantage of enabling the courts to approach the problem of specificity unembarrassed by prior decisions and with an eye to the functions that pleading can properly serve. Moreover, the new approach can take into account other procedures provided by these rules — the pretrial conference, the broadened discovery, the summary judgment.

3. By specifically requiring a degree of particularity the Commission sought to put at rest any notion that the mere assertion of a grievance will be sufficient under these rules. In this connection, the forms provided in Rule 84 should be examined. The Commission’s prescription suggests that not only is it permissible under these rules for a pleader to so plead as to obviate the need for a pretrial conference or resort to the discovery procedures but that it will frequently be his duty to do so.

Section (b). — This section sets forth the basic directive for defensive pleading. It follows the basic code pattern of requiring either denials or admissions of all specific averments of the claimant for affirmative relief, or the pleading of affirmative defenses in avoidance. It is interesting to reflect that here, too, is a plain indication that Rule § 1A-1, 8(a) contemplates factual pleading, else the directive to admit or deny averments is meaningless. Sanction is given as in existing State practice to obtain the effect of a denial by stating lack of sufficient knowledge or information to form a belief. The traditional prohibition against negative pregnant pleading is stated in terms of fairly meeting the substance of averments denied.

The fairly detailed specification of the different forms that partial denials and admissions may take is a helpful one and does not appear in the code. An innovation from the standpoint of existing State practice is involved in the allowance of a true general denial, or a qualified general denial not directed specifically to each separate paragraph, which is the largest unit that may be generally denied under judicial interpretation of the Code.

Section (c) contains a helpful specific listing of numerous traditional defenses which must be specially pleaded. This enumeration is beneficial in avoiding questions as to whether this or that defense is an “affirmative defense” required to be pleaded to allow evidence in its proof. At least one change in existing law is involved in the inclusion of the defense of statute of frauds in this listing. Added to the federal listing are truth in defamation actions, and usury, to reflect existing State practice.

Section (d) states existing State practice.

Section (e)(1) contains a general homily eschewing the old technical forms of pleading and admonishing directness rather than the pomposity which frequently creeps into common law and Code pleading.

Section (e)(2) directly sanctions alternative and hypothetical pleadings, which are not literally sanctioned under the code, but generally permitted within limits. More significantly this rule directly authorizes the pleading of inconsistent claims as well as defenses. While inconsistent defenses are now permissible under the code, inconsistent affirmative claims of some types have been held to require election when their underlying legal theories (as opposed to factual theories) were substantively inconsistent.

Section (f) states a homily similarly expressed under the Code in former § 1-151.

Editor’s Note.

Session Laws 1979, c. 654, which inserted reference to actions against product manufacturers, wholesalers or retailers for recovery of damages for personal injury, death or damage to property based upon or arising out of alleged defects or failures in subsection (a)(2), provided in s. 6: “The provisions of this act shall not be construed to amend or repeal the provisions of G.S. 1-17 .”

Effect of Amendments.

Session Laws 2014-102, s. 7, inserted the third sentence in subdivision (a)(2). For effective date and applicability, see Editor’s note.

Session Laws 2014-115, s. 18.5, effective August 11, 2014, substituted “twenty-five thousand dollars ($25,000)” for “ten thousand dollars ($10,000)” twice in the fourth sentence of subdivision (a)(2).

Legal Periodicals.

For note on specificity in pleading under subsection (a)(1) of this rule, see 48 N.C.L. Rev. 636 (1970).

For survey of decisions under the North Carolina Rules of Civil Procedure, see 50 N.C.L. Rev. 729 (1972).

For survey of 1977 law on civil procedure, see 56 N.C.L. Rev. 874 (1978).

For survey of 1979 commercial law, see 58 N.C.L. Rev. 1290 (1980).

For article, “North Carolina’s New Products Liability Act: A Critical Analysis,” see 16 Wake Forest L. Rev. 171 (1980).

For note on the presumption of a wife’s gratuitous services, see 16 Wake Forest L. Rev. 235 (1980).

For survey of 1980 law on civil procedure, see 59 N.C.L. Rev. 1043 (1981).

For note on default not constituting an admission of facts for purposes of summary judgment, see 17 Wake Forest L. Rev. 49 (1981).

For survey of 1981 law on civil procedure, see 60 N.C.L. Rev. 1214 (1982).

For survey of 1982 law on civil procedure, see 61 N.C.L. Rev. 991 (1983).

For survey of 1983 law on civil procedure, see 62 N.C.L. Rev. 1107 (1984).

For article, “The American Medical Association vs. The American Tort System,” see 8 Campbell L. Rev. 241 (1986).

For article, “Tinkering with the Ad Damnum Clause in Tort Cases: Tort Reform or Proliferation of New Tort Claims?,” see 17 N.C. Cent. L.J. 62 (1988).

For article, “Proving Violations or Proving Affirmative Defenses under the Occupational Safety and Health Act of North Carolina,” see 18 N.C. Cent. L.J. 99 (1989).

CASE NOTES

Analysis

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 N.C. App. LEXIS 2316 (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 N.C. App. LEXIS 876 (1992).

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 N.C. LEXIS 728 (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 N.C. App. LEXIS 2031 (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, 1986 N.C. App. LEXIS 2226 (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 N.C. App. LEXIS 2091 (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 N.C. App. LEXIS 2091 (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 N.C. App. LEXIS 1660 (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 N.C. App. LEXIS 1450 (1971). See Alston v. Monk, 92 N.C. App. 59, 373 S.E.2d 463, 1988 N.C. App. LEXIS 987 (1988).

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 N.C. LEXIS 1223 (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 N.C. App. LEXIS 917 (1994).

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 N.C. App. LEXIS 935 (2001), aff'd, 355 N.C. 346 , 560 S.E.2d 792, 2002 N.C. LEXIS 331 (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, 2000 U.S. Dist. LEXIS 3777 (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, 2003 U.S. Dist. LEXIS 3706 (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, 2003 U.S. Dist. LEXIS 9956 (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 N.C. App. LEXIS 1644 (2011), rev'd, 366 N.C. 43 , 727 S.E.2d 866, 2012 N.C. LEXIS 408 (2012).

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 N.C. App. LEXIS 2091 (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 N.C. App. LEXIS 2226 (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 N.C. App. LEXIS 532 (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 N.C. LEXIS 510 (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 N.C. LEXIS 510 (1970); Manning v. Manning, 20 N.C. App. 149, 201 S.E.2d 46, 1973 N.C. App. LEXIS 1497 (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 N.C. LEXIS 510 (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 N.C. LEXIS 1039 (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 N.C. App. LEXIS 2010 (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, 1987 N.C. App. LEXIS 2459 , aff'd, 321 N.C. 60 , 361 S.E.2d 571, 1987 N.C. LEXIS 2492 (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 N.C. LEXIS 16 (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 N.C. App. LEXIS 2091 (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, 1988 N.C. App. LEXIS 244 (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 N.C. LEXIS 510 (1970); Cassels v. Ford Motor Co., 10 N.C. App. 51, 178 S.E.2d 12, 1970 N.C. App. LEXIS 1185 (1970); Madigan v. Jenkins, 31 N.C. App. 391, 229 S.E.2d 213, 1976 N.C. App. LEXIS 2010 (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 N.C. App. LEXIS 2460 (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 N.C. LEXIS 510 (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 N.C. LEXIS 776 (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 N.C. App. LEXIS 571 (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 N.C. LEXIS 1039 (1971); Roberts v. William N. & Kate B. Reynolds Mem. Park, 281 N.C. 48 , 187 S.E.2d 721, 1972 N.C. LEXIS 1004 (1972); Lewis v. Gastonia Air Serv., Inc., 16 N.C. App. 317, 192 S.E.2d 6, 1972 N.C. App. LEXIS 1694 (1972); Patterson v. Weatherspoon, 17 N.C. App. 236, 193 S.E.2d 585, 1972 N.C. App. LEXIS 1631 (1972); Randolph v. Schuyler, 18 N.C. App. 393, 197 S.E.2d 3, 1973 N.C. App. LEXIS 1883 (1973), rev'd, 284 N.C. 496 , 201 S.E.2d 833, 1974 N.C. LEXIS 1279 (1974); Luther v. Hauser, 24 N.C. App. 71, 210 S.E.2d 218, 1974 N.C. App. LEXIS 1930 (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 N.C. LEXIS 510 (1970); Cassels v. Ford Motor Co., 10 N.C. App. 51, 178 S.E.2d 12, 1970 N.C. App. LEXIS 1185 (1970); Lewis v. Gastonia Air Serv., Inc., 16 N.C. App. 317, 192 S.E.2d 6, 1972 N.C. App. LEXIS 1694 (1972); Patterson v. Weatherspoon, 17 N.C. App. 236, 193 S.E.2d 585, 1972 N.C. App. LEXIS 1631 (1972); Roberts v. Whitley, 17 N.C. App. 554, 195 S.E.2d 62, 1973 N.C. App. LEXIS 1403 (1973); Stanback v. Stanback, 297 N.C. 181 , 254 S.E.2d 611, 1979 N.C. LEXIS 1249 (1979); Henry v. Deen, 61 N.C. App. 189, 300 S.E.2d 707, 1983 N.C. App. LEXIS 2639 (1983), rev'd, 310 N.C. 75 , 310 S.E.2d 326, 1984 N.C. LEXIS 1560 (1984); Huff v. Chrismon, 68 N.C. App. 525, 315 S.E.2d 711, 1984 N.C. App. LEXIS 3420 (1984); Brad Ragan, Inc. v. Callicut Enters., Inc., 73 N.C. App. 134, 326 S.E.2d 62, 1985 N.C. App. LEXIS 3187 (1985); Buchanan v. Hunter Douglas, Inc., 87 N.C. App. 84, 359 S.E.2d 271, 1987 N.C. App. LEXIS 2958 (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 N.C. App. LEXIS 1566 (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 N.C. App. LEXIS 1497 (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 N.C. LEXIS 1291 (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, 1985 N.C. App. LEXIS 3262 (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, 1984 N.C. App. LEXIS 3420 (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 N.C. App. LEXIS 2662 (1986), aff'd, 319 N.C. 455 , 355 S.E.2d 138, 1987 N.C. LEXIS 2029 (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, 1987 N.C. App. LEXIS 2459 , aff'd, 321 N.C. 60 , 361 S.E.2d 571, 1987 N.C. LEXIS 2492 (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 N.C. LEXIS 16 (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 N.C. App. LEXIS 772 (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 N.C. App. LEXIS 115 (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 N.C. App. LEXIS 475 (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 N.C. App. LEXIS 189 (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, 2014 N.C. App. LEXIS 897 (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 N.C. App. LEXIS 820 (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 N.C. App. LEXIS 297 (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, 266 N.C. App. 296, 832 S.E.2d 191, 2019 N.C. App. LEXIS 624 (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, 271 N.C. App. 249, 844 S.E.2d 26, 2020 N.C. App. LEXIS 346 (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 N.C. LEXIS 776 (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 N.C. App. LEXIS 3574 (1985), aff'd, 318 N.C. 352 , 348 S.E.2d 772, 1986 N.C. LEXIS 2651 (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, 1979 N.C. App. LEXIS 2438 , rev'd, 298 N.C. 778 , 260 S.E.2d 626, 1979 N.C. LEXIS 1419 (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 N.C. App. LEXIS 1497 (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. N.C. Dep't of Human Resources, 58 N.C. App. 748, 294 S.E.2d 377, 1982 N.C. App. LEXIS 2816 (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 N.C. App. LEXIS 532 (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 N.C. LEXIS 510 (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 N.C. LEXIS 1249 (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, 1993 N.C. App. LEXIS 83 , aff'd in part, 334 N.C. 682 , 435 S.E.2d 71, 1993 N.C. LEXIS 466 (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 N.C. App. LEXIS 913 (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 N.C. App. LEXIS 913 (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 N.C. LEXIS 1100 (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 N.C. App. LEXIS 1346 (1970).

Allegations must be liberally construed. Gore v. George J. Ball, Inc., 279 N.C. 192 , 182 S.E.2d 389, 1971 N.C. LEXIS 769 (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, 1987 N.C. App. LEXIS 2459 , aff'd, 321 N.C. 60 , 361 S.E.2d 571, 1987 N.C. LEXIS 2492 (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 N.C. LEXIS 1039 (1971).

But vague and conclusory pleading is not encouraged or commended. Smith v. State, 289 N.C. 303 , 222 S.E.2d 412, 1976 N.C. LEXIS 1289 (1976), limited, Whitfield v. Gilchrist, 126 N.C. App. 241, 485 S.E.2d 61, 1997 N.C. App. LEXIS 346 (1997).

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 N.C. App. LEXIS 2063 (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, 1979 N.C. App. LEXIS 2690 , 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 N.C. App. LEXIS 2778 (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 N.C. LEXIS 510 (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 N.C. LEXIS 728 (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 N.C. LEXIS 728 (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 N.C. LEXIS 1249 (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 N.C. LEXIS 1249 (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 N.C. LEXIS 1074 (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 N.C. LEXIS 1074 (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, 1972 N.C. App. LEXIS 1646 , cert. denied, 282 N.C. 304 , 192 S.E.2d 194, 1972 N.C. LEXIS 941 (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 N.C. LEXIS 1039 (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 N.C. App. LEXIS 1346 (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 N.C. App. LEXIS 2482 (1983); Harris v. Maready, 64 N.C. App. 1, 306 S.E.2d 799, 1983 N.C. App. LEXIS 3243 (1983), rev'd, 311 N.C. 536 , 319 S.E.2d 912, 1984 N.C. LEXIS 1758 (1984); Biggs v. Cumberland County Hosp. Sys., 69 N.C. App. 547, 317 S.E.2d 421, 1984 N.C. App. LEXIS 3496 (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 N.C. App. LEXIS 3496 (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 N.C. LEXIS 1758 (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, 1985 U.S. Dist. LEXIS 21297 (E.D.N.C. 1985).

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, 1993 U.S. Dist. LEXIS 6387 (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 N.C. App. LEXIS 140 , cert. denied, 371 N.C. 446 , 817 S.E.2d 388, 2018 N.C. LEXIS 660 (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 N.C. App. LEXIS 2482 (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 N.C. App. LEXIS 4007 (1984).

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 N.C. LEXIS 1758 (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 N.C. App. LEXIS 2455 (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 N.C. App. LEXIS 2455 (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 N.C. App. LEXIS 554 (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 N.C. App. LEXIS 3400 (1983).

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 N.C. App. LEXIS 2872 (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 N.C. App. LEXIS 181 (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 N.C. App. LEXIS 1497 (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 N.C. App. LEXIS 532 (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 N.C. App. LEXIS 1163 (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 N.C. App. LEXIS 1930 (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, 1985 N.C. App. LEXIS 3710 (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 N.C. App. LEXIS 815 (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 N.C. App. LEXIS 2503 (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, 1989 U.S. Dist. LEXIS 6340 (M.D.N.C.), sub. op., 713 F. Supp. 893, 1989 U.S. Dist. LEXIS 6366 (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 N.C. App. LEXIS 414 (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 N.C. LEXIS 510 (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, 1974 N.C. App. LEXIS 1803 , cert. denied, 285 N.C. 590 , 206 S.E.2d 863, 1974 N.C. LEXIS 1027 (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, 1987 N.C. App. LEXIS 2459 , aff'd, 321 N.C. 60 , 361 S.E.2d 571, 1987 N.C. LEXIS 2492 (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 N.C. LEXIS 16 (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, 1987 N.C. App. LEXIS 2958 (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 N.C. App. LEXIS 16 (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 N.C. App. LEXIS 581 (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 N.C. App. LEXIS 581 (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 N.C. App. LEXIS 581 (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, 266 N.C. App. 296, 832 S.E.2d 191, 2019 N.C. App. LEXIS 624 (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, 271 N.C. App. 249, 844 S.E.2d 26, 2020 N.C. App. LEXIS 346 (2020).

III.Affirmative Defenses

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 N.C. App. LEXIS 3087 (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 N.C. App. LEXIS 2293 (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 N.C. App. LEXIS 1768 (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 N.C. App. LEXIS 2187 (2003), rev'd, 358 N.C. 529 , 597 S.E.2d 763, 2004 N.C. LEXIS 674 (2004).

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, 1984 N.C. App. LEXIS 3004 (1984); Alston v. Monk, 92 N.C. App. 59, 373 S.E.2d 463, 1988 N.C. App. LEXIS 987 (1988); Duke Univ. v. St. Paul Mercury Ins. Co., 95 N.C. App. 663, 384 S.E.2d 36, 1989 N.C. App. LEXIS 867 (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 N.C. App. LEXIS 805 (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 N.C. App. LEXIS 2414 (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., 274 N.C. App. 258, 852 S.E.2d 413, 2020 N.C. App. LEXIS 804 (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 N.C. App. LEXIS 1297 (2000), aff'd, 353 N.C. 521 , 546 S.E.2d 87, 2001 N.C. LEXIS 531 (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 N.C. App. LEXIS 1104 (2012).

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 N.C. App. LEXIS 823 (1990).

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 N.C. App. LEXIS 818 (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 N.C. App. LEXIS 1209 (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 N.C. LEXIS 1136 (1973); Collins v. Davis, 68 N.C. App. 588, 315 S.E.2d 759, 1984 N.C. App. LEXIS 3437 , aff'd, 312 N.C. 324 , 321 S.E.2d 892, 1984 N.C. LEXIS 2322 (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 N.C. LEXIS 1248 (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 N.C. App. LEXIS 1813 (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 N.C. App. LEXIS 3115 (1979); Larsen v. Sedberry, 54 N.C. App. 166, 282 S.E.2d 551, 1981 N.C. App. LEXIS 2803 (1981).

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 N.C. App. LEXIS 2223 (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 N.C. App. LEXIS 3183 (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, 1984 N.C. App. LEXIS 3607 (1984), rev'd, 313 N.C. 320 , 327 S.E.2d 878, 1985 N.C. LEXIS 1536 (1985).

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., 467 B.R. 853, 2012 Bankr. LEXIS 1197 (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 N.C. App. LEXIS 2130 (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, 1986 N.C. App. LEXIS 2226 (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 N.C. App. LEXIS 1926 (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 N.C. LEXIS 1136 (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 N.C. App. LEXIS 2297 (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 N.C. App. LEXIS 867 (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 N.C. App. LEXIS 1041 (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 N.C. App. LEXIS 2758 (1986), rev'd, 321 N.C. 78 , 361 S.E.2d 568, 1987 N.C. LEXIS 2491 (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, 1988 N.C. App. LEXIS 244 (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, 2005 U.S. Dist. LEXIS 840 (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 N.C. App. LEXIS 1793 (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 N.C. App. LEXIS 1698 (1975), cert. denied, 289 N.C. 298 , 222 S.E.2d 703, 1976 N.C. LEXIS 1269 (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 N.C. App. LEXIS 589 (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, 1977 N.C. App. LEXIS 1593 , cert. denied, 293 N.C. 740 , 241 S.E.2d 513, 1977 N.C. LEXIS 1024 (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, 1981 N.C. App. LEXIS 2544 , cert. denied, 304 N.C. 194 , 285 S.E.2d 97, 1981 N.C. LEXIS 1432 (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 N.C. App. LEXIS 1697 (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, 1994 N.C. App. LEXIS 6 (1994).

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 N.C. App. LEXIS 1488 (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 N.C. App. LEXIS 1073 (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 N.C. App. LEXIS 809 (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 N.C. App. LEXIS 3240 (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 N.C. App. LEXIS 1014 (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 N.C. App. LEXIS 2717 (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 N.C. App. LEXIS 643 (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 N.C. App. LEXIS 2316 (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 N.C. App. LEXIS 2316 (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, 1977 N.C. App. LEXIS 1593 , cert. denied, 293 N.C. 740 , 241 S.E.2d 513, 1977 N.C. LEXIS 1024 (1977); Barrett, Robert & Woods, Inc. v. Armi, 59 N.C. App. 134, 296 S.E.2d 10, 1982 N.C. App. LEXIS 3069 (1982); C.C. Walker Grading & Hauling, Inc. v. S.R.F. Mgt. Corp., 66 N.C. App. 170, 310 S.E.2d 615, 1984 N.C. App. LEXIS 2830 , rev'd, 311 N.C. 170 , 316 S.E.2d 298, 1984 N.C. LEXIS 1733 (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 N.C. App. LEXIS 1472 (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 N.C. App. LEXIS 2710 (1980), aff'd in part and rev'd in part, 302 N.C. 437 , 276 S.E.2d 325, 1981 N.C. LEXIS 1073 (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 N.C. App. LEXIS 2979 (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 N.C. App. LEXIS 3643 (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 N.C. LEXIS 1073 (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 N.C. App. LEXIS 2195 (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, 1982 N.C. App. LEXIS 3069 (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 N.C. App. LEXIS 48 (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 N.C. App. LEXIS 746 (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 N.C. App. LEXIS 118 (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 N.C. LEXIS 9 (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 N.C. App. LEXIS 1414 (2006), aff'd, 361 N.C. 586 , 650 S.E.2d 593, 2007 N.C. LEXIS 1010 (2007).

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 N.C. App. LEXIS 67 (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 N.C. App. LEXIS 1288 (2000), cert. denied, 353 N.C. 398 , 547 S.E.2d 431, 2001 N.C. LEXIS 211 (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, 1971 N.C. App. LEXIS 1443 , cert. denied, 279 N.C. 348 , 182 S.E.2d 580, 1971 N.C. LEXIS 787 (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 N.C. App. LEXIS 1887 (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 N.C. App. LEXIS 56 (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 N.C. App. LEXIS 1948 (2007), aff'd, 362 N.C. 231 , 657 S.E.2d 354, 2008 N.C. LEXIS 140 (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 N.C. App. LEXIS 3237 (1979).

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 N.C. App. LEXIS 2489 (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, 270 N.C. App. 396, 841 S.E.2d 580, 2020 N.C. App. LEXIS 209 (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 N.C. App. LEXIS 2480 (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 N.C. App. LEXIS 2480 (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 N.C. App. LEXIS 1735 (2007), aff'd, 362 N.C. 171 , 655 S.E.2d 350, 2008 N.C. LEXIS 27 (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 N.C. App. LEXIS 2097 (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 N.C. App. LEXIS 3117 (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 N.C. App. LEXIS 559 (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 N.C. App. LEXIS 559 (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 N.C. LEXIS 1255 (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 N.C. App. LEXIS 335 (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, 1986 N.C. App. LEXIS 2123 , cert. denied, 317 N.C. 333 , 346 S.E.2d 137, 1986 N.C. LEXIS 2331 (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 N.C. App. LEXIS 4372 (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 N.C. App. LEXIS 730 (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, 1974 N.C. App. LEXIS 2436 , cert. denied, 285 N.C. 85 , 203 S.E.2d 57, 1974 N.C. LEXIS 904 (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 N.C. App. LEXIS 59 (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 N.C. App. LEXIS 59 (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 N.C. App. LEXIS 825 (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 N.C. App. LEXIS 825 (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 N.C. App. LEXIS 55 (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 N.C. LEXIS 78 (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 N.C. LEXIS 301 (1958); Givens v. Sellars, 273 N.C. 44 , 159 S.E.2d 530, 1968 N.C. LEXIS 555 (1968); Clemmons v. Life Ins. Co., 1 N.C. App. 215, 161 S.E.2d 55, 1968 N.C. App. LEXIS 1045 , aff'd, 274 N.C. 416 , 163 S.E.2d 761, 1968 N.C. LEXIS 795 (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 N.C. LEXIS 492 (1964); Powell v. Powell, 271 N.C. 420 , 156 S.E.2d 691, 1967 N.C. LEXIS 1209 (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 N.C. LEXIS 362 (1944).

The pleadings must be liberally construed, with a view to present the case upon its real merits. Lyon v. Atlantic C.L.R.R., 165 N.C. 143 , 81 S.E. 1, 1914 N.C. LEXIS 235 (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 N.C. LEXIS 190 (1943). See also, Sandlin v. Yancey, 224 N.C. 519 , 31 S.E.2d 532, 1944 N.C. LEXIS 417 (1944); Ferrell v. Worthington, 226 N.C. 609 , 39 S.E.2d 812, 1946 N.C. LEXIS 297 (1946); Winston v. Williams & McKeithan Lumber Co., 227 N.C. 339 , 42 S.E.2d 218, 1947 N.C. LEXIS 418 (1947); McCampbell v. Valdese Bldg. & Loan Ass'n, 231 N.C. 647 , 58 S.E.2d 617, 1950 N.C. LEXIS 362 (1950); Peoples Oil Co. v. Richardson, 271 N.C. 696 , 157 S.E.2d 369, 1967 N.C. LEXIS 1266 (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 N.C. LEXIS 795 (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 N.C. App. LEXIS 814 (1968); Joyner v. Woodard, 201 N.C. 315 , 160 S.E. 288, 1931 N.C. LEXIS 228 (1931); Bailey v. Roberts, 208 N.C. 532 , 181 S.E. 754, 1935 N.C. LEXIS 73 (1935); Leach v. Page, 211 N.C. 622 , 191 S.E. 349, 1937 N.C. LEXIS 161 (1937); Anthony v. Knight, 211 N.C. 637 , 191 S.E. 323, 1937 N.C. LEXIS 168 (1937); Anderson Cotton Mills v. Royal Mfg. Co., 218 N.C. 560 , 11 S.E.2d 550, 1940 N.C. LEXIS 43 (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 N.C. LEXIS 14 (1892); Foy v. Stephens, 168 N.C. 438 , 84 S.E. 758, 1915 N.C. LEXIS 79 (1915); State ex rel. N.C. Corp. Comm'n v. Harnett County Trust Co., 192 N.C. 246 , 134 S.E. 656, 1926 N.C. LEXIS 272 (1926); North Carolina Corp. Comm'n v. Citizens Bank & Trust Co., 193 N.C. 513 , 137 S.E. 587, 1927 N.C. LEXIS 390 (1927); Seawell v. Chas. Cole & Co., 194 N.C. 1450 , 194 N.C. 1450 a, 194 N.C. 546 , 140 S.E. 85, 1927 N.C. LEXIS 14 6 (1927); Enloe v. Ragle, 195 N.C. 38 , 141 S.E. 477, 1928 N.C. LEXIS 14 (1928); Presnell v. Beshears, 227 N.C. 279 , 41 S.E.2d 835, 1947 N.C. LEXIS 401 (1947). See Bryant v. Little River Ice Co., 233 N.C. 266 , 63 S.E.2d 547, 1951 N.C. LEXIS 573 (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 N.C. LEXIS 492 (1964); Powell v. Powell, 271 N.C. 420 , 156 S.E.2d 691, 1967 N.C. LEXIS 1209 (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 N.C. LEXIS 424 (1919); Pridgen v. Pridgen, 190 N.C. 102 , 129 S.E. 419, 1925 N.C. LEXIS 16 (1925). See also Farrell v. Thomas & Howard Co., 204 N.C. 631 , 169 S.E. 224, 1933 N.C. LEXIS 217 (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 N.C. LEXIS 464 (1934); Ramsey v. Nash Furn. Co., 209 N.C. 165 , 183 S.E. 536, 1936 N.C. LEXIS 41 5 (1936); Cummings v. Dunning, 210 N.C. 156 , 185 S.E. 653, 1936 N.C. LEXIS 41 (1936); Avery County v. Braswell, 215 N.C. 270 , 1 S.E.2d 864, 1939 N.C. LEXIS 247 (1939); Vincent v. Powell, 215 N.C. 336 , 1 S.E.2d 826, 1939 N.C. LEXIS 261 (1939); Dickensheets v. Taylor, 223 N.C. 570 , 27 S.E.2d 618, 1943 N.C. LEXIS 325 (1943) (citing) Anderson Cotton Mills v. Royal Mfg. Co., 218 N.C. 560 , 11 S.E.2d 550, 1940 N.C. LEXIS 43 (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 N.C. LEXIS 555 (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 N.C. LEXIS 16 (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 N.C. LEXIS 96 (1918); Dixon v. Green, 178 N.C. 205 , 100 S.E. 262, 1919 N.C. LEXIS 424 (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 N.C. LEXIS 137 (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 N.C. LEXIS 363 (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 N.C. LEXIS 120 (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 N.C. LEXIS 309 (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 N.C. LEXIS 353 (1904). See also, Fairbanks, Morse & Co. v. J.A. Murdock Co., 207 N.C. 348 , 177 S.E. 122, 1934 N.C. LEXIS 464 (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 N.C. LEXIS 551 (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 N.C. LEXIS 795 (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 N.C. LEXIS 555 (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 N.C. LEXIS 208 (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, 1968 N.C. App. LEXIS 1045 , aff'd, 274 N.C. 416 , 163 S.E.2d 761, 1968 N.C. LEXIS 795 (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 N.C. LEXIS 104 (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 N.C. App. LEXIS 1590 (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 N.C. App. LEXIS 1626 (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 N.C. LEXIS 194 (1922), writ of error dismissed, 261 U.S. 606, 43 S. Ct. 363, 67 L. Ed. 823, 1923 U.S. LEXIS 2598 (1923), cert. denied, 261 U.S. 618, 43 S. Ct. 363, 67 L. Ed. 829, 1923 U.S. LEXIS 3160 (1923); United States Bank Nat'l Ass'n v. Pinkney, 369 N.C. 723 , 800 S.E.2d 412, 2017 N.C. LEXIS 401 (2017).

Rule 9. Pleading special matters.

  1. Capacity. —  Any party not a natural person shall make an affirmative averment showing its legal existence and capacity to sue. Any party suing in any representative capacity shall make an affirmative averment showing his capacity and authority to sue. When a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, he shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader’s knowledge.
  2. Fraud, duress, mistake, condition of the mind. —  In all averments of fraud, duress or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.
  3. Conditions precedent. —  In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.
  4. Official document or act. —  In pleading an official document or official act it is sufficient to aver that the document was issued or the act done in compliance with law.
  5. Judgment. —  In pleading a judgment, decision or ruling of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment, decision or ruling without setting forth matter showing jurisdiction to render it.
  6. Time and place. —  For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter.
  7. Special damage. —  When items of special damage are claimed each shall be averred.
  8. Private statutes.—  In pleading a private statute or right derived therefrom it is sufficient to refer to the statute by its title or the day of its ratification if ratified before January 1, 1996, or the date it becomes law if it becomes law on or after January 1, 1996, and the court shall thereupon take judicial notice of it.
  9. Libel and slander. —
    1. In an action for libel or slander it is not necessary to state in the complaint any extrinsic facts for the purpose of showing the application to the plaintiff of the defamatory matter out of which the claim for relief arose, but it is sufficient to state generally that the same was published or spoken concerning the plaintiff, and if such allegation is controverted, the plaintiff is bound to establish on trial that it was so published or spoken.
    2. The defendant may in his answer allege both the truth of the matter charged as defamatory, and any mitigating circumstances to reduce the amount of damages; and whether he proves the justification or not, he may give in evidence the mitigating circumstances.
  10. Medical malpractice. —  Any complaint alleging medical malpractice by a health care provider pursuant to G.S. 90-21.11(2)a. in failing to comply with the applicable standard of care under G.S. 90-21.12 shall be dismissed unless:
    1. The pleading specifically asserts that the medical care and all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry have been reviewed by a person who is reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care;
    2. The pleading specifically asserts that the medical care and all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry have been reviewed by a person that the complainant will seek to have qualified as an expert witness by motion under Rule 702(e) of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care, and the motion is filed with the complaint; or
    3. The pleading alleges facts establishing negligence under the existing common-law doctrine of res ipsa loquitur. Upon motion by the complainant prior to the expiration of the applicable statute of limitations, a resident judge of the superior court for a judicial district in which venue for the cause of action is appropriate under G.S. 1-82 or, if no resident judge for that judicial district is physically present in that judicial district, otherwise available, or able or willing to consider the motion, then any presiding judge of the superior court for that judicial district may allow a motion to extend the statute of limitations for a period not to exceed 120 days to file a complaint in a medical malpractice action in order to comply with this Rule, upon a determination that good cause exists for the granting of the motion and that the ends of justice would be served by an extension. The plaintiff shall provide, at the request of the defendant, proof of compliance with this subsection through up to ten written interrogatories, the answers to which shall be verified by the expert required under this subsection. These interrogatories do not count against the interrogatory limit under Rule 33.
  11. Punitive damages. —  A demand for punitive damages shall be specifically stated, except for the amount, and the aggravating factor that supports the award of punitive damages shall be averred with particularity. The amount of damages shall be pled in accordance with Rule 8.

History. 1967, c. 954, s. 1; 1995, c. 20, s. 10; c. 309, s. 2; c. 514, s. 3; 1998-217, s. 61; 2001-121, s. 1; 2011-400, s. 3.

Comment

This rule is designed to lay down some special rules for pleading in typically recurring contexts which have traditionally caused trouble when no codified directive existed.

Section (a). — This section deals with the problem of putting in issue the legal existence, the capacity or the authority of parties. The rule as presented here requires that parties plaintiff who are not natural persons shall affirmatively aver their legal existence and capacity and that parties plaintiff suing in representative capacities shall affirmatively plead to show capacity and authority. However, the further requirement is laid down that any party actually desiring to put any of these concepts in issue shall negatively aver their nonexistence and support the averment. This section departs from federal Rule 9, which has no requirement that capacity, legal existence or representative authority be affirmatively averred. The Code nowhere deals specifically with the question whether capacity, etc., must be affirmatively pleaded. It did, of course, provide for demurrer to a complaint which affirmatively disclosed lack of capacity. Former § 1-127(2). Monfils v. Hazlewood, 218 N.C. 215 , 10 S.E.2d 673 (1940) (complaint in wrongful death action affirmatively showing plaintiff a foreign administratrix). Capacity and existence are customarily pleaded affirmatively in North Carolina practice in any context where they might possibly be in issue, e.g., by parties suing in representative capacities; by corporations. There is no present Code requirement that their nonexistence or noncapacity be specifically averred and supported by pleading in order to put this in issue, and the rule does require this. This is an improvement, since it deprives parties of the easy ability, without real basis in fact, to put the opponent to needless proof of these matters.

Section (b). — This section codifies a rule applied without specific Code directive in existing State practice. See, e.g., Calloway v. Wyatt, 246 N.C. 129 , 97 S.E.2d 881 (1957).

Section (c). — This section is an approximate counterpart to former § 1-155. The rule is, however, more precise on two aspects, and thereby an improvement. First it is made plain that the license to plead generally extends to “occurrence” as well as to “performance” of conditions precedent. Second, the rule requires that the party desiring to controvert performance or occurrence must specify and particularize rather than merely deny the general allegation.

Section (d). — This section had no counterpart in existing law, but is a helpful sanction to plead generally and in conclusory terms the official character of document issuance and particular acts — “facts” not logically subject to “ultimate fact” pleading.

Section (e). — This section is an approximate counterpart to former § 1-154, but makes precise some things not spelled out in that statute, i.e., that it relates to judgments of foreign as well as domestic courts and to the decisions of quasi-judicial tribunals as well as those of traditional courts of law and judicial officers.

Section (f). — This section varies the usual rule under the Code that allegations of time and place are immaterial, but in only one narrow respect, viz., that for purposes of testing the sufficiency of a pleading, i.e., on motion to dismiss or for judgment on the pleadings, such allegations are considered material. The main purpose of this is to allow the early raising of issues as to the bar of the statute of limitations. This section would actually solidify a trend in North Carolina practice toward pretrial resolutions of the issue, notwithstanding it may not technically be raised by an attack by demurrer on the pleading itself, but must be affirmatively pleaded by the party relying on the defense. Section 1-15. The practice has already evolved, however, of resolving the issue after answer filed, on pretrial motion or motion for judgment on the pleading. See, e.g., Rowland v. Beauchamp, 253 N.C. 231 , 116 S.E.2d 720 (1960); Gillikin v. Bell, 254 N.C. 244 , 118 S.E.2d 609 (1961). This section would carry the process one step further and allow the issue to be raised prior to filing of answer by motion to dismiss. For all other purposes, however, allegations of time and place ordinarily remain immaterial, so far as limiting proof is concerned. Of course, any question of materiality is customarily avoided by the “on or about” or “at or near” type allegation.

Section (g). — This section codifies, without attempting elaboration, the rule generally stated and followed under North Carolina Code practice. It attempts no specification of what amounts to “special damage” in particular context, so that developed case precedent on this would continue to apply. See, on this point, Brandis and Trotter, Some Observations on Pleading Damages in North Carolina, 31 N.C.L. Rev. 249 (1953).

Section (h). — This section has no counterpart in the federal rules, but is taken from former § 1-157.

Section (i). — This section has no counterpart in the federal rules, but is taken from former § 1-158.

Editor’s Note.

Session Laws 1995, c. 20, s. 17 provided that sections 1 through 16 of this act would become effective only if the constitutional amendments proposed by Session Laws 1995, c. 5, ss. 1-2 were approved as provided by Session Laws 1995, c. 5, ss. 3-4, and if so approved, sections 1 through 16 would become effective with respect to bills and joint resolutions passed in either house of the General Assembly on or after January 1, 1997. The constitutional amendments were approved.

Session Laws 1995, c. 309, which amended this section by adding subsection (j), in s. 3, provides that the amendment to this section is not intended, and shall not be construed, to enlarge or diminish the doctrine of res ipsa loquitur in medical malpractice claims.

Effect of Amendments.

Session Laws 2011-400, s. 3, effective October 1, 2011, and applicable to actions commenced on or after that date, in the introductory paragraph of subsection (j), substituted “health care provided pursuant to G.S. 90-21.11(2)a.” for “health care provider as defined in G.S. 90-21.11,” and in subdivisions (j)(1) and (j)(2), substituted “medical care and all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry have been reviewed” for “medical care has been reviewed.”

Legal Periodicals.

For survey of 1981 law on civil procedure, see 60 N.C.L. Rev. 1214 (1982).

For note, “Keith v. Northern Hospital District of Surry County and Rule 9(j): Preventing Frivolous Medical Malpractice Claims at the Expense of North Carolina Courts’ Equitable Powers,” see 77 N.C. L. Rev. 2303 (1999).

For a discussion of the interaction between Civ. Procedure Rules 9(j) and 41(a)(1) in medical malpractice actions, see 79 N.C.L. Rev. 855 (2001).

For note, “Rule 9(j) — Is Requiring a Plaintiff in a Medical Malpractice Action to Certify His or Her Claim Before Filing Unconstitutional? — The Issue in Anderson v. Assimos,” 25 Campbell L. Rev. 219 (2003).

For article, “Law Between the Lines,” 25 Campbell L. Rev. 151 (2003).

For comment, “Punitive Damages in Medical Malpractice: An Economic Evaluation,” see 81 N.C.L. Rev. 2371 (2003).

For comment, “Two Tiers of Plaintiffs: How North Carolina’s Tort Reform Efforts Discriminate Against Low-Income Plaintiffs,” see 96 N.C.L. Rev. 512 (2018).

CASE NOTES

Analysis

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 N.C. App. LEXIS 2304 (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 N.C. App. LEXIS 3092 (1984).

Intent and knowledge may be averred generally. Carver v. Roberts, 78 N.C. App. 511, 337 S.E.2d 126, 1985 N.C. App. LEXIS 4334 (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 N.C. App. LEXIS 2662 (1986), aff'd, 319 N.C. 455 , 355 S.E.2d 138, 1987 N.C. LEXIS 2029 (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 N.C. LEXIS 1019 (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, 2016 N.C. App. LEXIS 653 (N.C. Ct. App. June 21, 2016), sub. op., 251 N.C. App. 494, 795 S.E.2d 781, 2016 N.C. App. LEXIS 1349 (2016).

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, 2016 N.C. App. LEXIS 653 (N.C. Ct. App. June 21, 2016), sub. op., 251 N.C. App. 494, 795 S.E.2d 781, 2016 N.C. App. LEXIS 1349 (2016).

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 N.C. LEXIS 1443 (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 N.C. App. LEXIS 370 (2009).

Plaintiffs were required only to make an affirmative averment showing their capacity and authority to sue, and having done so by alleging they were trustees of the church, the court took the verified allegations as true at this stage. McKnight ex rel. Wakefield Missionary Baptist Church v. Wakefield Missionary Baptist Church, Inc., 2021 NCBC 35, 2021 NCBC LEXIS 54 (N.C. Super. Ct. June 14, 2021).

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 N.C. LEXIS 1443 (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 N.C. App. LEXIS 2992 (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 N.C. LEXIS 1933 (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 N.C. App. LEXIS 702 (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 N.C. App. LEXIS 900 (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, 2005 U.S. Dist. LEXIS 17878 (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 N.C. App. LEXIS 1164 (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 N.C. App. LEXIS 2564 (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 N.C. App. LEXIS 2226 (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, 1979 N.C. App. LEXIS 2690 , 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 N.C. App. LEXIS 2778 (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, 1985 N.C. App. LEXIS 3869 (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 N.C. App. LEXIS 3092 (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 N.C. App. LEXIS 2257 (2003).

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, 1979 N.C. App. LEXIS 2690 , 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 N.C. LEXIS 1033 (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 N.C. App. LEXIS 2837 (1980), rev'd, 302 N.C. 77 , 273 S.E.2d 674, 1981 N.C. LEXIS 1033 (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 N.C. App. LEXIS 3578 (1985), aff'd in part and rev'd in part, 317 N.C. 110 , 343 S.E.2d 879, 1986 N.C. LEXIS 2407 (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 N.C. LEXIS 1008 (1972); In re Estate of Loftin v. Loftin, 21 N.C. App. 627, 205 S.E.2d 574, 1974 N.C. App. LEXIS 1888 , aff'd, 285 N.C. 717 , 208 S.E.2d 670, 1974 N.C. LEXIS 1129 (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, 1994 U.S. App. LEXIS 1455 (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 N.C. App. LEXIS 2263 (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 N.C. LEXIS 1033 (1981); Watts v. Cumberland County Hosp. Sys., 75 N.C. App. 1, 330 S.E.2d 242, 1985 N.C. App. LEXIS 3577 (1985), rev'd, 317 N.C. 321 , 345 S.E.2d 201, 1986 N.C. LEXIS 2791 (1986); Lackey v. Bressler, 86 N.C. App. 486, 358 S.E.2d 560, 1987 N.C. App. LEXIS 2745 (1987); Powell v. Wold, 88 N.C. App. 61, 362 S.E.2d 796, 1987 N.C. App. LEXIS 3450 (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 N.C. App. LEXIS 2383 (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 N.C. App. LEXIS 2226 (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, 1985 N.C. App. LEXIS 3594 (1985); Chesapeake Microfilm, Inc. v. Eastern Microfilm Sales & Serv., Inc., 91 N.C. App. 539, 372 S.E.2d 901, 1988 N.C. App. LEXIS 900 (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 N.C. App. LEXIS 139 (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 N.C. App. LEXIS 493 (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 N.C. App. LEXIS 2449 (2007).

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 N.C. App. LEXIS 1104 (2012).

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 N.C. App. LEXIS 3092 (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 N.C. App. LEXIS 3092 (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 N.C. LEXIS 1033 (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 N.C. App. LEXIS 2263 (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 N.C. App. LEXIS 3578 (1985), aff'd in part and rev'd in part, 317 N.C. 110 , 343 S.E.2d 879, 1986 N.C. LEXIS 2407 (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 N.C. App. LEXIS 198 (1988).

Defendant failed to assert a sufficient allegation and showing of any reasonable reliance upon false representations by plaintiff to constitute actual fraud to overcome plaintiff’s motion for summary judgment, and thus the trial court did not err in denying defendant’s motion to amend. Murray v. Deerfield Mobile Home Park, LLC, 277 N.C. App. 480, 860 S.E.2d 323, 2021- NCCOA-213, 2021 N.C. App. LEXIS 223 (2021).

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, 1989 N.C. App. LEXIS 152 (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 N.C. App. LEXIS 769 (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 N.C. App. LEXIS 2383 (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 N.C. App. LEXIS 2383 (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 N.C. App. LEXIS 1196 (1994).

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, 1988 N.C. App. LEXIS 627 (1988), aff'd, 326 N.C. 387 , 390 S.E.2d 150, 1990 N.C. LEXIS 165 (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 N.C. App. LEXIS 2564 (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, 1974 N.C. App. LEXIS 1888 , aff'd, 285 N.C. 717 , 208 S.E.2d 670, 1974 N.C. LEXIS 1129 (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 N.C. App. LEXIS 900 (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 N.C. App. LEXIS 703 (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 N.C. App. LEXIS 1572 (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 N.C. App. LEXIS 581 (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 NCBC 51, 2013 NCBC LEXIS 48 (N.C. Super. Ct. Oct. 30, 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 N.C. App. LEXIS 671 (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 N.C. App. LEXIS 671 (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 N.C. App. LEXIS 180 (2018).

Because proposed allegations did not satisfy the pleading requirements, an employee’s motion to amend as to the claim for fraudulent concealment was denied; without more specificity in the pleading, the uncertainty of the time and place of alleged omissions made it difficult for a professional limited liability company, an officer, and a member to specifically address the allegations in adverse pleadings, and the amendment failed to specify a member’s involvement with sufficient detail. Hartsell v. Mindpath Care Ctrs., 2022 NCBC LEXIS 27 (N.C. Super. Ct. Apr. 8, 2022).

IV.Conditions Precedent

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 N.C. LEXIS 1248 (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, 1974 N.C. App. LEXIS 2523 , cert. denied, 285 N.C. 235 , 204 S.E.2d 25, 1974 N.C. LEXIS 952 (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 N.C. LEXIS 1039 (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 N.C. App. LEXIS 1207 (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 N.C. App. LEXIS 2004 (2003).

V.Special Damages

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, 1980 N.C. App. LEXIS 2861 , cert. denied, 301 N.C. 95 , 1980 N.C. LEXIS 1287 (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 N.C. App. LEXIS 2867 (1981); Johnson v. Bollinger, 86 N.C. App. 1, 356 S.E.2d 378, 1987 N.C. App. LEXIS 2664 (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 N.C. App. LEXIS 2664 (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 N.C. LEXIS 1249 (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 N.C. App. LEXIS 1641 (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 N.C. App. LEXIS 716 (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 N.C. App. LEXIS 289 (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 N.C. App. LEXIS 1314 (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 N.C. App. LEXIS 2304 (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, 1976 N.C. App. LEXIS 2181 , cert. denied, 291 N.C. 176 , 229 S.E.2d 690, 1976 N.C. LEXIS 953 (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 N.C. App. LEXIS 1810 (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 N.C. App. LEXIS 2664 (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 N.C. App. LEXIS 1288 (2000), cert. denied, 353 N.C. 398 , 547 S.E.2d 431, 2001 N.C. LEXIS 211 (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 N.C. App. LEXIS 1513 (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 N.C. App. LEXIS 1104 (2012).

VI.Libel and Slander

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 N.C. App. LEXIS 2998 (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, 1974 N.C. App. LEXIS 2436 , cert. denied, 285 N.C. 85 , 203 S.E.2d 57, 1974 N.C. LEXIS 904 (1974).

VII.Medical Malpractice

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 N.C. LEXIS 1117 (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., 270 N.C. App. 267, 841 S.E.2d 307, 2020 N.C. App. LEXIS 173 (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., 270 N.C. App. 267, 841 S.E.2d 307, 2020 N.C. App. LEXIS 173 (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., 270 N.C. App. 267, 841 S.E.2d 307, 2020 N.C. App. LEXIS 173 (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 N.C. App. LEXIS 629 (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 N.C. App. LEXIS 1005 (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 N.C. LEXIS 272 (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 N.C. LEXIS 272 (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 N.C. App. LEXIS 496 (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 N.C. App. LEXIS 137 (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 N.C. App. LEXIS 62 (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 N.C. App. LEXIS 1252 (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 N.C. LEXIS 1117 (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 N.C. App. LEXIS 2503 (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 N.C. App. LEXIS 691 (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 N.C. App. LEXIS 1089 (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 N.C. App. LEXIS 1487 (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, 2011 U.S. Dist. LEXIS 12409 (E.D.N.C. Feb. 8, 2011), aff'd, 440 Fed. Appx. 207, 2011 U.S. App. LEXIS 15336 (4th Cir. 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 N.C. App. LEXIS 1900 (2011), aff'd in part, 366 N.C. 25 , 726 S.E.2d 812, 2012 N.C. LEXIS 411 (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, 2011 U.S. Dist. LEXIS 9658 (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 N.C. App. LEXIS 1900 (2011), aff'd in part, 366 N.C. 25 , 726 S.E.2d 812, 2012 N.C. LEXIS 411 (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, 2011 U.S. Dist. LEXIS 104322 (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 N.C. App. LEXIS 762 (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 N.C. LEXIS 411 (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 N.C. LEXIS 411 (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 N.C. App. LEXIS 1247 (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 N.C. App. LEXIS 1399 (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 N.C. App. LEXIS 562 (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 N.C. App. LEXIS 39 (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 N.C. App. LEXIS 39 (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 N.C. App. LEXIS 299 (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 N.C. App. LEXIS 1162 (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 N.C. LEXIS 623 (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 N.C. LEXIS 623 (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 N.C. LEXIS 623 (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 N.C. App. LEXIS 962 (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 N.C. LEXIS 272 (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 N.C. App. LEXIS 151 (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 N.C. App. LEXIS 1162 (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 N.C. App. LEXIS 367 (2017), rev'd, 371 N.C. 354 , 817 S.E.2d 571, 2018 N.C. LEXIS 618 (2018).

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 N.C. App. LEXIS 2717 (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 N.C. App. LEXIS 885 (2013).

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, 2001 N.C. App. LEXIS 346 (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 N.C. App. LEXIS 478 (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 N.C. App. LEXIS 603 (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 N.C. App. LEXIS 603 (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 N.C. App. LEXIS 1019 (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 N.C. LEXIS 272 (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 N.C. App. LEXIS 885 (2013).

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 N.C. App. LEXIS 885 (2013).

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 N.C. App. LEXIS 885 (2013).

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, 209 F. Supp. 3d 835, 2016 U.S. Dist. LEXIS 95144 (M.D.N.C. 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 N.C. App. LEXIS 562 (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 N.C. App. LEXIS 901 (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 N.C. App. LEXIS 1900 (2011), aff'd in part, 366 N.C. 25 , 726 S.E.2d 812, 2012 N.C. LEXIS 411 (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 N.C. App. LEXIS 600 (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 N.C. App. LEXIS 1019 (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 N.C. App. LEXIS 299 (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 N.C. App. LEXIS 296 , dismissed, 368 N.C. 917 , 787 S.E.2d 374, 2016 N.C. LEXIS 488 (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, 272 N.C. App. 610, 847 S.E.2d 58, 2020 N.C. App. LEXIS 572 (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 N.C. App. LEXIS 557 (1998), limited, Thigpen v. Ngo, 143 N.C. App. 209, 545 S.E.2d 477, 2001 N.C. App. LEXIS 273 (2001).

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 N.C. App. LEXIS 1009 (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 N.C. LEXIS 354 (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 N.C. App. LEXIS 903 (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 N.C. LEXIS 17 (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, 2004 U.S. Dist. LEXIS 4289 (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 N.C. App. LEXIS 2753 (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 N.C. App. LEXIS 2753 (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 N.C. App. LEXIS 1801 (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 N.C. App. LEXIS 2256 (2007).

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 N.C. App. LEXIS 2363 (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 N.C. App. LEXIS 216 (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 N.C. App. LEXIS 1657 (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, 2010 N.C. LEXIS 348 (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, 2010 N.C. App. LEXIS 800 (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, 2011 U.S. Dist. LEXIS 92666 (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 N.C. App. LEXIS 1019 (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 N.C. App. LEXIS 1019 (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 N.C. App. LEXIS 446 (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 N.C. App. LEXIS 240 (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, 268 N.C. App. 516, 835 S.E.2d 878, 2019 N.C. App. LEXIS 979 (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 N.C. App. LEXIS 1371 (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 N.C. App. LEXIS 1042 (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, 2013 U.S. Dist. LEXIS 7674 (E.D.N.C. Jan. 18, 2013), aff'd, 645 Fed. Appx. 266, 2016 U.S. App. LEXIS 7031 (4th Cir. 2016).

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 N.C. App. LEXIS 240 (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 N.C. App. LEXIS 296 , dismissed, 368 N.C. 917 , 787 S.E.2d 374, 2016 N.C. LEXIS 488 (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 N.C. App. LEXIS 1162 (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 N.C. App. LEXIS 1358 (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 N.C. App. LEXIS 346 (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 N.C. App. LEXIS 421 (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 N.C. LEXIS 272 (2020).

VIII.Pleading and Practice

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 N.C. App. LEXIS 2872 (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 N.C. App. LEXIS 3092 (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 N.C. App. LEXIS 745 , aff'd, 357 N.C. 567 , 597 S.E.2d 673, 2003 N.C. LEXIS 1271 (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 N.C. App. LEXIS 2454 (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., 271 N.C. App. 61, 843 S.E.2d 265, 2020 N.C. App. LEXIS 302 (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 N.C. App. LEXIS 1609 (2002).

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 N.C. App. LEXIS 1044 (2003), rev'd, 358 N.C. 144 , 592 S.E.2d 687, 2004 N.C. LEXIS 172 (2004).

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 N.C. App. LEXIS 1395 (1998), aff'd, 351 N.C. 47 , 519 S.E.2d 316, 1999 N.C. LEXIS 1012 (1999).

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 N.C. App. LEXIS 1614 (2002), aff'd, 357 N.C. 576 , 597 S.E.2d 669, 2003 N.C. LEXIS 1258 (2003).

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 N.C. App. LEXIS 1222 (2006), aff'd, 361 N.C. 215 , 639 S.E.2d 443, 2007 N.C. LEXIS 32 (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 N.C. App. LEXIS 1165 (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 N.C. App. LEXIS 1460 (2012).

IX.Time and Place

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 N.C. App. LEXIS 1259 (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 N.C. App. LEXIS 2091 (1986).

X.Decisions Under Prior Law

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 N.C. LEXIS 217 (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 N.C. LEXIS 4 (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 N.C. LEXIS 493 (1932).

Rule 10. Form of pleadings.

  1. Caption; names of parties. —  Every pleading shall contain a caption setting forth the division of the court in which the action is filed, the title of the action, and a designation as in Rule 7(a). In the complaint the title of the action shall include the names of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties.
  2. Paragraphs; separate statement. —  All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all succeeding pleadings. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth.
  3. Adoption by reference; exhibits. —  Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion in the action. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.

History. 1967, c. 954, s. 1.

Comment

Section (a). — This section dealing with the formal caption and designation of parties in the pleadings generally approximates the corresponding directive found in former § 1-122(1), although the latter actually dealt literally only with the caption and party designation in the complaint. The rule literally sanctions the practice customarily followed of shortening the listing of multiple parties in all pleadings subsequent to the complaint.

Section (b). — This section deals basically with the requirement that pleadings be drafted in a format designed to promote the clear definition of fact issues — the required separate statement in numbered paragraphs of practically manageable aggregates of factual averments, each generally referable to a separate substantive concept likely to lead to one manageable issue if controverted. This is a key innovation in the Code “fact-pleading” reform in reaction to the formulary pleading of common law. Thus, comparable provisions were found in former §§ 1-122(2) (complaint) and 1-138 (answer). By carrying forward this scheme, it is made abundantly clear that these rules are designed just as are the codes to cause factual issues clearly to emerge in the unsupervised exchange of pleadings where skilled and honest pleaders are aligned in opposition. That this is the design of these rules, particularly as exemplified in Rule 10(b), see Mr. Justice Jackson’s analysis and admonition in O’Donnell v. Elgin, J. & E. Ry., 338 U.S. 384, 70 S. Ct. 200, 94 L. Ed. 187, 16 A.L.R.2d 646 (1949) (“We no longer insist upon technical rules of pleading, but it will ever be difficult in a jury trial to segregate issues which counsel do not separate in their pleading, preparation or thinking”). It can be stated quite confidently that this rule contemplates a continuation of the issue-defining fact pleading approach of the Code.

Section (c). — This section’s first sentence involves a change from present practice which is controlled by a rule of the Supreme Court and does not permit adoption of portions of pleadings by reference into other parts of the cause or other pleadings. Of course, this presents a critical policy question of the propriety of adopting statutes in direct conflict with existing court rules. However, the practice sanctioned in this rule is believed an improvement, all things considered. The second sentence, directly sanctioning the incorporation of attached exhibits involves no change in procedure. The phrase “for all purposes” is apt to avoid the type of decision which quibbles over whether mere attachment of an exhibit without express words purporting to incorporate particular aspects as direct allegations does have this effect.

CASE NOTES

Letter Deemed an Answer. —

Where letter raised no defenses to plaintiff’s claims, nor answered the allegations, but offered partial payment and promised to repay the balance of the principal in question, the letter was an answer sufficient to satisfy the Rules of Civil Procedure. Brown v. American Messenger Servs., Inc., 129 N.C. App. 207, 498 S.E.2d 384, 1998 N.C. App. LEXIS 414 (1998).

Treatment of Pleading as Counterclaim. —

Defendant’s failure to affirmatively allege facts within his pleading does not preclude the pleading from being treated as a counterclaim where the answer begins, “the defendant . . . alleges and says:” and then admits the allegations of the complaint. McCarley v. McCarley, 289 N.C. 109 , 221 S.E.2d 490, 1976 N.C. LEXIS 1223 (1976).

To require defendant who solemnly admits the truth of the allegations of the complaint upon which he then bases his prayer for relief to repeat them in his own pleading as a prerequisite to treating his pleading as a counterclaim seeking affirmative relief would be a triumph of form over substance. McCarley v. McCarley, 289 N.C. 109 , 221 S.E.2d 490, 1976 N.C. LEXIS 1223 (1976).

Section (c) of this rule permits an incorporation by reference of statements made in other parts of a pleading. FCX, Inc. v. Bailey, 14 N.C. App. 149, 187 S.E.2d 381, 1972 N.C. App. LEXIS 2063 (1972).

Where affidavits considered by the trial court were not incorporated by reference into the pleadings pursuant to subdivision (c) of this rule, a motion to dismiss was converted into a motion for summary judgment. Richland Run Homeowners Ass'n v. CHC Durham Corp., 123 N.C. App. 345, 473 S.E.2d 649, 1996 N.C. App. LEXIS 726 (1996), rev'd, 346 N.C. 170 , 484 S.E.2d 527, 1997 N.C. LEXIS 216 (1997).

Incorporation of Federal Court Case Complaint. —

Where complaint incorporated by reference, as an exhibit, a complaint in a federal court action, the complaint in the federal court action was not a matter outside the pleadings so as to convert a G.S. 1A-1 , Rule 12(b)(6) motion to dismiss into a Rule 56 motion for summary judgment, since section (c) of this rule provides that such an exhibit is a part of the pleading for all purposes. Stanback v. Stanback, 297 N.C. 181 , 254 S.E.2d 611, 1979 N.C. LEXIS 1249 (1979).

Impermissible Amending or Judicial Rewriting of Pleadings. —

Shareholder’s derivative claim was alleged so specifically it failed to put a corporate officer on notice of any derivative claims against him; although the shareholder was entitled to incorporate factual allegations by reference into his claim, even under a liberal construction, to interpret the derivative claim as effectively incorporating by reference every other individual claim asserted in the complaint would amount to impermissible judicial amending or rewriting of pleadings. Spoor v. Barth, 257 N.C. App. 721, 811 S.E.2d 609, 2018 N.C. App. LEXIS 93 (2018).

Rule 11. Signing and verification of pleadings.

  1. Signing by Attorney. —  Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading, motion, or other paper and state his address. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.
  2. Verification of pleadings by a party. —  In any case in which verification of a pleading shall be required by these rules or by statute, it shall state in substance that the contents of the pleading verified are true to the knowledge of the person making the verification, except as to those matters stated on information and belief, and as to those matters he believes them to be true. Such verification shall be by affidavit of the party, or if there are several parties united in interest and pleading together, by at least one of such parties acquainted with the facts and capable of making the affidavit. Such affidavit may be made by the agent or attorney of a party in the cases and in the manner provided in section (c) of this rule.
  3. Verification of pleadings by an agent or attorney. —  Such verification may be made by the agent or attorney of a party for whom the pleading is filed, if the action or defense is founded upon a written instrument for the payment of money only and the instrument or a true copy thereof is in the possession of the agent or attorney, or if all the material allegations of the pleadings are within the personal knowledge of the agent or attorney. When the pleading is verified by such agent or attorney, he shall set forth in the affidavit:
    1. That the action or defense is founded upon a written instrument for the payment of money only and the instrument or a true copy thereof is in his possession, or
      1. That all the material allegations of the pleadings are true to his personal knowledge and
      2. The reasons why the affidavit is not made by the party.
  4. Verification by corporation or the State. —  When a corporation is a party the verification may be made by any officer, or managing or local agent thereof upon whom summons might be served; and when the State or any officer thereof in its behalf is a party, the verification may be made by any person acquainted with the facts.

History. 1967, c. 954, s. 1; 1985 (Reg. Sess., 1986), c. 1027, s. 55.

Comment

This rule is in form an amalgamation of federal Rule 11 and basic North Carolina statutes concerned with signing and verification of pleadings. The provision common to both, that every pleading must be signed either by a party or his attorney of record, is retained. The requirement that every pleading subsequent to a verified pleading must be verified is abandoned, and the only time any pleading must be verified is when some statute specifically requires it, as in actions for divorce (G.S. 50-8). As an alternative to the verification control on truth, the federal approach of constituting an attorney’s signature to any pleading a certificate of good faith in its preparation is adopted. However, the severe explicit federal rule sanction of disciplinary action against an attorney violating this rule is dropped, retaining only the sanction of striking as sham.

Sections (b), (c), and (d) are not found in the corresponding federal rule, but are lifted as substantial counterparts from former §§ 1-145, 1-146, and 1-147.

Cross References.

As to affidavit for arrest in civil action, see G.S. 1-411 .

As to affidavit or verified complaint for attachment, see G.S. 1-440.11 .

As to affidavit for claim and delivery, see G.S. 1-473 .

For requirement that complaints in secondary actions by shareholders be verified by oath, see G.S. 1A-1 , Rule 23.

For provision requiring affidavit or verified complaint for temporary restraining order, see G.S. 1A-1 , Rule 65.

As to requirement for plaintiff ’s affidavit to be filed with complaint in divorce action, see G.S. 50-8 .

Legal Periodicals.

For case law survey as to verification of pleading, see 44 N.C.L. Rev. 897 (1966).

For article, “The 1980 Amendments to the Federal Rules of Civil Procedure and Proposals for North Carolina Practice,” see 16 Wake Forest L. Rev. 915 (1980).

For article analyzing the 1983 amendments to Rules 6, 7, 11, 16, 26, 52, 53 and 67, FRCP, comparing these rules with North Carolina practice, and suggesting changes in certain state and federal rules, see 20 Wake Forest L. Rev. 819 (1984).

For article, “Practice and Procedure Under Amended Rule 11 of the Federal Rules of Civil Procedure,” see 9 Campbell L. Rev. 11 (1986).

For article, “Discretion or Law: Appellate Review of Determinations That Rule 11 Has Been Violated or That Nonmutual Issue Preclusion Will Be Imposed Offensively,” see 68 N.C.L. Rev. (1990).

For note, “Lawyers Take Heed! A De Novo Review of Rule 11 in North Carolina — Turner v. Duke Univ.,” regarding Federal Rule 11, see 12 Campbell L. Rev. 293 (1990).

For comment,“Rule (11)a of the North Carolina Rules of Civil Procedure: Turner v. Duke University, The New Standards of Judicial Review,” see 19 N.C. Cent. L.J. 67 (1990).

For survey of developments in North Carolina law (1992), see 71 N.C.L. Rev. 1893 (1993).

For comment, “Creating the Legal Monster: The Expansion and Effect of Legal Malpractice Liability in North Carolina,” see 18 Campbell L. Rev. 121 (1996).

For an article discussing “reverse bad faith,” the concept of allowing an insurer to assert a counterclaim for affirmative relief against an insured who brings a frivolous, bad faith action, see 19 Campbell L. Rev. 43 (1996).

For a survey of 1996 developments in civil procedure law, see 75 N.C.L. Rev. 2229 (1997).

For note, “To Sanction of Not to Sanction: Why Arguing Against the Court’s Precedent Is Not an Automatic Rule 11 Violation According to Hunter v. Earthgrains Co. Bakery,” 25 Campbell L. Rev. 115 (2002).

For note, “Rule 9(j) — Is Requiring a Plaintiff in a Medical Malpractice Action to Certify His or Her Claim Before Filing Unconstitutional? — The Issue in Anderson v. Assimos,” 25 Campbell L. Rev. 219 (2003).

CASE NOTES

Analysis

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 N.C. App. LEXIS 2447 (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 N.C. App. LEXIS 282 (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 N.C. App. LEXIS 640 (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, 1979 N.C. App. LEXIS 2537 , cert. denied, 297 N.C. 300 , 254 S.E.2d 920, 1979 N.C. LEXIS 1306 (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 N.C. LEXIS 1117 (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 N.C. LEXIS 1117 (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, 1971 N.C. App. LEXIS 1443 , cert. denied, 279 N.C. 348 , 182 S.E.2d 580, 1971 N.C. LEXIS 787 (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 N.C. LEXIS 175 (2016).

As to insufficient basis to impeach verification, see Skinner v. Skinner, 28 N.C. App. 412, 222 S.E.2d 258, 1976 N.C. App. LEXIS 2719 , cert. denied, 289 N.C. 726 , 224 S.E.2d 674, 1976 N.C. LEXIS 1377 (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 N.C. App. LEXIS 338 (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 N.C. App. LEXIS 2239 (2006).

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 N.C. App. LEXIS 2239 (2006).

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 N.C. LEXIS 2103 (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 N.C. LEXIS 2103 (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, 1986 N.C. App. LEXIS 2442 , cert. denied, 318 N.C. 511 , 349 S.E.2d 873, 1986 N.C. LEXIS 2705 (1986).

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 N.C. App. LEXIS 2687 (1986).

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 N.C. App. LEXIS 1500 (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 N.C. App. LEXIS 369 (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 N.C. App. LEXIS 2098 (2005), aff'd, 360 N.C. 588 , 636 S.E.2d 787, 2006 N.C. LEXIS 1193 (2006).

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 N.C. App. LEXIS 710 (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 N.C. App. LEXIS 169 (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 N.C. App. LEXIS 978 (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 N.C. App. LEXIS 917 (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 N.C. LEXIS 343 (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 N.C. LEXIS 58 (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, 1994 N.C. App. LEXIS 449 (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 N.C. App. LEXIS 884 (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 N.C. App. LEXIS 978 (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, 1994 N.C. App. LEXIS 449 (1994); Page v. Roscoe, 128 N.C. App. 678, 497 S.E.2d 422, 1998 N.C. App. LEXIS 169 (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 N.C. App. LEXIS 110 (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 N.C. LEXIS 58 (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 N.C. App. LEXIS 338 (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 N.C. App. LEXIS 326 (1992).

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 N.C. App. LEXIS 631 (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 N.C. App. LEXIS 1057 (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 N.C. App. LEXIS 1057 (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 N.C. App. LEXIS 631 (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 N.C. App. LEXIS 326 (1992).

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 N.C. App. LEXIS 978 (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 N.C. App. LEXIS 1156 (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 N.C. App. LEXIS 631 (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 N.C. App. LEXIS 631 (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 N.C. App. LEXIS 205 (1991), aff'd in part and rev'd in part, 330 N.C. 644 , 412 S.E.2d 327, 1992 N.C. LEXIS 58 (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 N.C. App. LEXIS 631 (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 N.C. App. LEXIS 229 (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 N.C. App. LEXIS 308 (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 N.C. App. LEXIS 631 (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 N.C. App. LEXIS 602 (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 N.C. App. LEXIS 205 (1991), aff'd in part and rev'd in part, 330 N.C. 644 , 412 S.E.2d 327, 1992 N.C. LEXIS 58 (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 N.C. App. LEXIS 205 (1991), aff'd in part and rev'd in part, 330 N.C. 644 , 412 S.E.2d 327, 1992 N.C. LEXIS 58 (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 N.C. App. LEXIS 298 (1991).

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, 1991 N.C. App. LEXIS 568 (1991).

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 N.C. App. LEXIS 77 (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 N.C. App. LEXIS 77 (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 N.C. App. LEXIS 631 (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 N.C. App. LEXIS 326 (1992).

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 N.C. App. LEXIS 205 (1991), aff'd in part and rev'd in part, 330 N.C. 644 , 412 S.E.2d 327, 1992 N.C. LEXIS 58 (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 N.C. App. LEXIS 308 (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 N.C. App. LEXIS 205 (1991), aff'd in part and rev'd in part, 330 N.C. 644 , 412 S.E.2d 327, 1992 N.C. LEXIS 58 (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 N.C. App. LEXIS 205 (1991), aff'd in part and rev'd in part, 330 N.C. 644 , 412 S.E.2d 327, 1992 N.C. LEXIS 58 (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 N.C. App. LEXIS 205 (1991), aff'd in part and rev'd in part, 330 N.C. 644 , 412 S.E.2d 327, 1992 N.C. LEXIS 58 (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 N.C. App. LEXIS 205 (1991), aff'd in part and rev'd in part, 330 N.C. 644 , 412 S.E.2d 327, 1992 N.C. LEXIS 58 (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 N.C. App. LEXIS 205 (1991), aff'd in part and rev'd in part, 330 N.C. 644 , 412 S.E.2d 327, 1992 N.C. LEXIS 58 (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 N.C. App. LEXIS 205 (1991), aff'd in part and rev'd in part, 330 N.C. 644 , 412 S.E.2d 327, 1992 N.C. LEXIS 58 (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 N.C. LEXIS 387 (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 B.R. 318, 1999 Bankr. LEXIS 1214 (Bankr. E.D.N.C. 1999).

B.Grounds

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 N.C. App. LEXIS 192 (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 N.C. App. LEXIS 981 (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 to participate in arbitration hearing in good faith and meaningful manner; the failure or refusal to participate in an arbitration proceeding in a good faith and meaningful manner was subject to sanctions by the court on motion of a party, or report of the arbitrator. Bledsole v. Johnson, 150 N.C. App. 619, 564 S.E.2d 902, 2002 N.C. App. LEXIS 652 (2002), rev'd, 357 N.C. 133 , 579 S.E.2d 379, 2003 N.C. LEXIS 418 (2003).

Sanctions Where Party Knew Pleadings Not Factually Plausible. —

Where judge announced the rendering of an absolute divorce in open court while defendant was present with counsel, when defendant’s motion to dismiss based on lack of service was later filed defendant knew that the pleading was not factually plausible because he had made a general appearance; therefore, the trial court’s imposition of sanctions under this rule was proper. Bumgardner v. Bumgardner, 113 N.C. App. 314, 438 S.E.2d 471, 1994 N.C. App. LEXIS 24 (1994).

Sanctions were not appropriate for alienation of affections claim. Brown v. Hurley, 124 N.C. App. 377, 477 S.E.2d 234, 1996 N.C. App. LEXIS 1057 (1996).

C.Procedure

Timeliness of Motion for Sanctions. —

While the court will impose no explicit time limit for filing a motion under this rule, a party should make such a motion within a reasonable time after he discovers an alleged impropriety. Rice v. Danas, Inc., 132 N.C. App. 736, 514 S.E.2d 97, 1999 N.C. App. LEXIS 271 (1999).

Motion for Sanctions Was Timely. —

Motion for sanctions was timely filed, as the impropriety of plaintiff’s claims only came into focus during discovery, and the motion was filed after plaintiff refused to respond to a settlement inquiry made within weeks of the discovery of the absence of any factual basis to plaintiff’s complaint. Static Control Components, Inc. v. Vogler, 152 N.C. App. 599, 568 S.E.2d 305, 2002 N.C. App. LEXIS 978 (2002).

Motion for Sanctions Not Timely. —

Employer’s motion for sanctions was not filed within a reasonable time, where it was filed six months after a judgment in the employer’s favor, and the pleadings and other documents of the former employee to which the employer referred in its motion were signed months before trial. Rice v. Danas, Inc., 132 N.C. App. 736, 514 S.E.2d 97, 1999 N.C. App. LEXIS 271 (1999).

Because plaintiff waited over 13 months after the North Carolina Supreme Court denied defendants’ petition for discretionary review to file his motion for sanctions under this rule, plaintiff failed to file within a reasonable time of detecting the alleged impropriety. Griffin v. Sweet, 136 N.C. App. 762, 525 S.E.2d 504, 2000 N.C. App. LEXIS 145 (2000).

Sua sponte imposition of sanctions against an attorney without notice of the bases for the sanctions violated the attorney’s due process rights. Griffin v. Griffin, 348 N.C. 278 , 500 S.E.2d 437, 1998 N.C. LEXIS 219 (1998).

Sanctions Imposed Without Jury Trial. —

Trial court does not violate a person’s right to a trial by imposing G.S. 1A-1 , N.C. R. Civ. P. 11 sanctions without a jury. Dalenko v. Collier, 191 N.C. App. 713, 664 S.E.2d 425, 2008 N.C. App. LEXIS 1500 (2008).

Burdens of Proof and Persuasion. —

When a motion is made for sanctions pursuant to this rule and the nature of the alleged violation is legal, rather than factual, this rule requires a two-part analysis. In such cases, the court should first scrutinize the challenged paper. If, on its face, the paper states a plausible legal theory (either under existing law or a good faith argument for a change in the law), there is no need for further inquiry. Only if the court concludes that the paper is not facially plausible in its legal analysis is there a need for further scrutiny into the actual conduct of the signer in researching or otherwise gathering the law. The movant bears the burden of persuasion on the first prong of the two-part analysis and the burdens of proof and persuasion on the second prong. Bryson v. Sullivan, 102 N.C. App. 1, 401 S.E.2d 645, 1991 N.C. App. LEXIS 205 (1991), aff'd in part and rev'd in part, 330 N.C. 644 , 412 S.E.2d 327, 1992 N.C. LEXIS 58 (1992).

While there may be valid and plausible reasons for adopting a clear, cogent and convincing evidence standard for determining G.S. 1A-1 , N.C. R. Civ. P. 11 sanctions, the Court of Appeals of North Carolina adheres to the general rule that a preponderance of the evidence quantum of proof governs in civil cases, unless changed by the North Carolina General Assembly or Supreme Court of North Carolina; thus, the preponderance of the evidence quantum of proof should be utilized in determining whether a Rule 11 violation has occurred. Adams v. Bank United of Tex. FSB, 167 N.C. App. 395, 606 S.E.2d 149, 2004 N.C. App. LEXIS 2384 (2004).

Sanctions Following Voluntary Dismissal. —

Absent a rule to the contrary, sanctions motions may appropriately be filed after a voluntary dismissal. Renner v. Hawk, 125 N.C. App. 483, 481 S.E.2d 370, 1997 N.C. App. LEXIS 127 (1997).

When a party files a motion which is virtually identical to a previously denied motion, sanctions under this rule may be appropriate. Overcash v. Blue Cross & Blue Shield, 94 N.C. App. 602, 381 S.E.2d 330, 1989 N.C. App. LEXIS 631 (1989).

Sanctions Not Required Based on Sequential Filing of Two Summary Judgment Motions. —

Trial court properly refused to award a patient sanctions against a hospital pursuant to G.S. 1A-1 , N.C. R. Civ. P. 11; the hospital’s second motion for summary judgment sought judgment on liability due in part to defendants’ therapeutic justification argument, and on an additional issue, that of punitive damages, and even assuming that the second motion on liability was not well grounded, there was no evidence in the record that the motion was interposed for any improper purpose. Fox v. Green, 161 N.C. App. 460, 588 S.E.2d 899, 2003 N.C. App. LEXIS 2193 (2003).

D.Sanctions Appropriate

Sanctions Held Appropriate. —

Sufficient evidence existed to support trial court’s findings that plaintiff corporation’s complaint was facially implausible, not well-grounded in fact and interposed for the improper purpose of harassing defendants. Polygenex Int'l, Inc. v. Polyzen, Inc., 133 N.C. App. 245, 515 S.E.2d 457, 1999 N.C. App. LEXIS 410 (1999).

Sanctions were not appropriate where plaintiff/wife had grounds for seeking to register a foreign state’s support order pursuant to the Uniform Interstate Family Support Act. Twaddell v. Anderson, 136 N.C. App. 56, 523 S.E.2d 710, 1999 N.C. App. LEXIS 1306 (1999).

This section was not violated, although the court determined that the statute of limitations had run on a consent judgment barring the plaintiff’s recovery, where there was a legitimate question of whether the plaintiff’s consent judgment could be considered a judgment or a contract whose breach was discovered after the judgment, in which case the statute would not have run. Grover v. Norris, 137 N.C. App. 487, 529 S.E.2d 231, 2000 N.C. App. LEXIS 429 (2000).

The trial court did not err in denying defendants’ motion for sanctions although the plaintiff failed to prevail on any of its claims where the plaintiff challenged the arbitrator’s award on the basis that the arbitrator failed to rule on estoppel, election, and parol evidence issues and made no findings of fact or conclusions of law; and on the basis that the defendant was awarded the right to arbitrate under a contract that the arbitrator then found not to be binding on the defendant. Sholar Bus. Assocs., Inc. v. Davis, 138 N.C. App. 298, 531 S.E.2d 236, 2000 N.C. App. LEXIS 607 (2000).

District court had jurisdiction to issue sanctions under G.S. 1A-1 , Rule 11 against lessors by requiring the lessors to pay attorney’s fees to the lessees after a magistrate had dismissed the underlying summary ejectment action brought by the lessors. Chandak v. Elec. Interconnect Corp., 144 N.C. App. 258, 550 S.E.2d 25, 2001 N.C. App. LEXIS 413 (2001).

Although an attorney challenged the propriety of a trial court imposing sanctions against him under G.S. 1A-1-11, he provided no authority, as required under N.C. R. App. P. 28(b)(6), to support his contention that the judge, by expressing personal opinions regarding the case during a hearing, violated N.C. Code Jud. Conduct 5(E) by improperly assuming the role of a mediator, and therefore was stripped of the authority to impose sanctions. Dunn v. Canoy, 180 N.C. App. 30, 636 S.E.2d 243, 2006 N.C. App. LEXIS 2239 (2006).

Although an attorney challenged the propriety of a trial court imposing sanctions against him under G.S. 1A-1-11 and the process by which the sanctions were imposed under N.C. Code Jud. Conduct 3(C)(1)(a), he submitted no affidavits providing evidence of the judge’s personal bias, prejudice, or interest, but instead he argued that the judge’s annoyance with his disruption of settlement proceedings warranted recusal; the attorney failed to demonstrate that his motion for recusal should have been granted. Dunn v. Canoy, 180 N.C. App. 30, 636 S.E.2d 243, 2006 N.C. App. LEXIS 2239 (2006).

Trial court properly imposed sanctions against an attorney pursuant to G.S. 1A-1-11 because a charging lien filed by the attorney against the judgment of equitable distribution in favor of appellee in a divorce action failed to meet the legal sufficiency requirement of Rule 11, as the charging lien was filed before the attorney had received permission from the trial court to formally withdraw from the case, and the attorney filed the charging lien before the final judgment was entered. Wilson v. Wilson, 183 N.C. App. 267, 644 S.E.2d 379, 2007 N.C. App. LEXIS 1042 (2007).

Award of sanctions and attorney fees was proper in an estate proceeding because, pursuant to G.S. 1A-1-1 the North Carolina Rules of Civil Procedure applied to all actions and proceedings of a civil nature; the estate proceeding was a “proceeding of a civil nature,” and the North Carolina Rules of Civil Procedure applied. In re Estate of Rand, 183 N.C. App. 661, 645 S.E.2d 174, 2007 N.C. App. LEXIS 1091 (2007).

Sanctioning the father in the form of an attorney’s fee award to the mother was proper because the father’s allegations against the mother did not rise to the level of legal sufficiency needed to allege criminal contempt in court. Jackson v. Jackson, 192 N.C. App. 455, 665 S.E.2d 545, 2008 N.C. App. LEXIS 1631 (2008).

Judge sufficiently satisfies requirement for findings in support of imposing sanctions when the order finds as fact that the amount of attorney’s fees awarded to defendant was appropriate based upon the amount of work required by the case and the experience of defendant’s attorneys. Dalenko v. Collier, 191 N.C. App. 713, 664 S.E.2d 425, 2008 N.C. App. LEXIS 1500 (2008).

G.S. 1A-1 , N.C. R. Civ. P. 11 sanctions are properly imposed after the trial court finds that plaintiff’s claims are frivolous and have no basis in law or fact and that plaintiff’s claims are barred by the doctrine of collateral estoppel. Dalenko v. Collier, 191 N.C. App. 713, 664 S.E.2d 425, 2008 N.C. App. LEXIS 1500 (2008).

Trial court, after the dismissal of the tenant’s complaint for failure to state a cause of action, properly granted the landlord attorney’s fees and costs under G.S. 1A-1 , N.C. R. Civ. P. 11(a) because the tenant’s claims against the landlord were not warranted by existing law and were filed with an improper purpose. Ward v. Jett Props., LLC, 191 N.C. App. 605, 663 S.E.2d 862, 2008 N.C. App. LEXIS 1490 (2008).

Law firm’s objection to the appointment of a guardian ad litem for a client’s step-daughter was not legally sufficient for G.S. 1A-1 , N.C. R. Civ. P. 11 purposes since the firm failed to cite authority to support its argument, even though the firm claimed to have made a reasonable inquiry, and the firm did not show that derogatory comments about the client’s wife and step-daughter were relevant. Johns v. Johns, 195 N.C. App. 201, 672 S.E.2d 34, 2009 N.C. App. LEXIS 110 (2009).

Law firm’s objection to the appointment of a guardian ad litem for a client’s step-daughter was filed for an improper purpose for G.S. 1A-1 , N.C. R. Civ. P. 11 purposes since the firm did not show that derogatory comments about the client’s wife and step-daughter were relevant, and the client did not have personal knowledge of much of the information that the client purported to verify; it could reasonably be concluded that the firm’s purpose was to gain an advantage in other aspects of the dispute between the client and his wife. The objection was filed for the improper purpose of harassing and humiliating the wife, and the firm’s claim that the client should have been awarded fees did not make the filing of the improper objection warranted. Johns v. Johns, 195 N.C. App. 201, 672 S.E.2d 34, 2009 N.C. App. LEXIS 110 (2009).

Where a former wife’s complaint alleging that her former husband breached a separation agreement was dismissed as a sanction for her failure to file timely responses to his discovery requests, and where the wife’s motions for reconsideration of the dismissal order were denied, sanctions were properly imposed under G.S. 1A-1 , N.C. R. Civ. P. 11(a) because the district court made appropriate factual findings supporting its conclusion that the wife’s motions for reconsideration did not assert any substantive bases for relief. Batlle v. Sabates, 198 N.C. App. 407, 681 S.E.2d 788, 2009 N.C. App. LEXIS 1355 (2009).

Court had authority to impose sanctions under G.S. 1A-1-11 against an heir under a former will for filing a revocation petition under G.S. 28A-9-1 that was not well-grounded in law; heir did not have standing to seek executors’ removal because the will had been admitted to probate, and there was no evidence of undue influence. In re Will of Durham, 206 N.C. App. 67, 698 S.E.2d 112, 2010 N.C. App. LEXIS 1448 (2010).

When defendant filed a motion for emergency custody on the day that plaintiff’s five-week summer visitation was to begin, alleging the parties’ child was exposed to a substantial risk of bodily injury or sexual abuse, and an immediate order curtailing plaintiff’s visitation was necessary pursuant to G.S. 50-13.5(d)(3), trial court did not err in imposing G.S. 1A-1-11(a) sanctions against defendant because defendant presented no evidence to substantiate the allegations of sexual abuse and had filed the motion for the improper purpose of blocking plaintiff’s scheduled summer visitation. Lamm v. Lamm, 210 N.C. App. 181, 707 S.E.2d 685, 2011 N.C. App. LEXIS 314 (2011).

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 N.C. App. LEXIS 1376 (2012), cert. denied, 571 U.S. 1012, 134 S. Ct. 623, 187 L. Ed. 2d 404, 2013 U.S. LEXIS 8148 (2013).

Sanctions were properly granted against plaintiff for filing a motion for sanctions under G.S. 1A-1 , N.C. R. Civ. P. 11(a) against defendant where: (1) plaintiff alleged numerous discovery violations and other alleged misconduct, but had not filed a motion to compel until after summary judgment had been entered and his claims were dismissed and the summary judgment was appealed; (2) although plaintiff challenged defendant’s motion for a protective order, that motion properly challenged plaintiff’s notice of deposition as seeking testimony on topics beyond the scope of G.S. 1A-1 , N.C. R. Civ. P. 26; (3) the trial court’s findings that plaintiff attempted to create a discovery dispute and that his arguments about discovery violations were improper were supported; and (4) and the finding that plaintiff’s motion was filed for the improper purpose of costing defendant unnecessary time and expense was supported. Fatta v. M & M Props. Mgmt., 224 N.C. App. 18, 735 S.E.2d 836, 2012 N.C. App. LEXIS 1376 (2012), cert. denied, 571 U.S. 1012, 134 S. Ct. 623, 187 L. Ed. 2d 404, 2013 U.S. LEXIS 8148 (2013).

G.S. 1A-1 , N.C. R. Civ. P. 11 sanction of a gatekeeper provision against plaintiff was proper as: (1) the trial court entered findings of fact explaining its reasons for entering the provision, including that plaintiff had exhibited conduct showing such a disregard for the rules and laws of procedure that if he had been a licensed attorney, he would have had to have been reported to the North Carolina State Bar for questioning as to his fitness to practice; (2) the gatekeeper provision was narrowly tailored and limited in scope to preclude plaintiff from filing or submitting to the specific county superior court any further motion, pleading, or other document unless it was signed by a North Carolina licensed attorney; and (3) before the 14 October 2011 hearing, plaintiff had notice of defendant’s 12 August 2011 motion to strike and motion for Rule 11 sanctions against plaintiff and plaintiff had ample opportunity to be heard at the hearing on defendant’s Rule 11 motion. Fatta v. M & M Props. Mgmt., 224 N.C. App. 18, 735 S.E.2d 836, 2012 N.C. App. LEXIS 1376 (2012), cert. denied, 571 U.S. 1012, 134 S. Ct. 623, 187 L. Ed. 2d 404, 2013 U.S. LEXIS 8148 (2013).

Order imposing N.C. R. Civ. P. 11 sanctions against plaintiff’s attorney in a divorce suit was affirmed because the trial court’s findings and conclusions supported the order, no credible evidence supported material allegations or conclusions in a motion to recuse filed by plaintiff’s attorney, and the motion to recuse and amended motion did not meet the factual sufficiency requirement of Rule 11(a); however, the trial court erred in awarding attorneys’ fees because it failed to explain how its arrived at much-reduced figure of $2,500 after finding that fees of $20,993 were incurred as result of motion to recuse and amended motion. O'Neal v. O'Neal, 226 N.C. App. 71, 739 S.E.2d 190, 2013 N.C. App. LEXIS 281 (2013).

As defendants violated court orders they disagreed with and attempted to re-litigate title issues that had already been decided, the trial court properly sanctioned them under N.C. R. Civ. P. 11 for filing meritless motions. Adams Creek Assocs. v. Davis, 227 N.C. App. 457, 746 S.E.2d 1, 2013 N.C. App. LEXIS 618 (2013).

Trial court properly ordered sanctions against a husband because there was sufficient evidence that he filed the challenged motions in an attempt to delay the equitable distribution hearing; the husband had more than ample opportunity to refute the wife’s evidence, but he failed to do so during the pretrial order process, at the pretrial order hearing, or within a reasonable time after the wife’s deposition. Chafin v. Chafin, 250 N.C. App. 19, 791 S.E.2d 693, 2016 N.C. App. LEXIS 1063 (2016).

Plaintiffs’ motion for sanctions was granted because It was undisputed that defendant attorney forwarded the false emails to her counsel to produce with discovery responses, and that counsel, relying on her representation that the emails were authentic, produced them in discovery. Ford v. Jurgens, 2022 NCBC 9, 2022 NCBC LEXIS 13 (N.C. Super. Ct. Feb. 16, 2022).

Imposition of Sanctions Upheld. —

In a malpractice case where defendant university failed to identify doctor in response to other discovery requests, where doctor’s depositions threatened to cause a needless increase in the cost of litigation and an unnecessary delay, and where the depositions were noticed for an improper purpose, that is, to disrupt counsel’s trial preparation, university’s conduct was sufficient to trigger the mandatory sanctions clause of section (a) of this rule. Turner v. Duke Univ., 325 N.C. 152 , 381 S.E.2d 706, 1989 N.C. LEXIS 370 (1989).

E.Sanctions Not Appropriate

Sanctions Were Not Appropriate. —

It was improper for the trial court to impose Rule 11 sanctions on attorney, based on his conduct in failing to timely notify the court and defense counsel of a scheduling conflict since it does not involve the filing of a pleading, motion or other paper. Williams v. Hinton, 127 N.C. App. 421, 490 S.E.2d 239, 1997 N.C. App. LEXIS 884 (1997).

When a mother sued the adoptive parents of the mother’s children for (1) return of the children because the mother’s consent to the children’s adoption was obtained by fraud, (2) specific performance of an open adoption agreement with the adoptive parents, and (3) visitation with the children, it was error to impose sanctions on the mother for filing the complaint, even though the complaint was properly dismissed, because the issues raised by the complaint were issues of first impression in North Carolina. Quets v. Needham, 198 N.C. App. 241, 682 S.E.2d 214, 2009 N.C. App. LEXIS 1169 (2009).

Although attorney should have honored defense counsel’s request to be notified of calendar notices and instead served defendants directly, he did not violate the Code of Professional Responsibility or the Rules of Civil Procedure. Williams v. Hinton, 127 N.C. App. 421, 490 S.E.2d 239, 1997 N.C. App. LEXIS 884 (1997).

Petitioner, non-party corporate officer who verified complaint on behalf of his company, but who was never a party to the litigation, was not subject to the court’s jurisdiction, and had no notice or opportunity to be heard in his individual capacity, could not be sanctioned under this section. Polygenex Int'l, Inc. v. Polyzen, Inc., 133 N.C. App. 245, 515 S.E.2d 457, 1999 N.C. App. LEXIS 410 (1999).

Sanctions were inappropriate where there was no evidence of either “legal insufficiency” or “improper purpose” and where the issue raised by plaintiff’s complaint, namely, whether a stranger to an insurance contract could seek a declaratory judgment as to the construction of its provisions, was one of first impression. DeMent v. Nationwide Mut. Ins. Co., 142 N.C. App. 598, 544 S.E.2d 797, 2001 N.C. App. LEXIS 189 (2001).

G.S. 1A-1-11 did not support an attorney fees award as the argument upon which it was based did not appear in any pleading, motion, or other paper, but was an argument made by defense counsel at a hearing. Watts v. N.C. Dep't of Env't & Natural Res., 182 N.C. App. 178, 641 S.E.2d 811, 2007 N.C. App. LEXIS 595 (2007), aff'd in part, modified, 362 N.C. 497 , 666 S.E.2d 752, 2008 N.C. LEXIS 806 (2008).

Where a student’s due process and equal protection suit against a county board of education was barred by res judicata, sanctions were inappropriate because (1) the trial court mischaracterized the student’s claim, (2) the student’s attorneys performed a reasonable inquiry into the facts, and (3) at the time the complaint was filed, no case had specifically held that a dismissal on grounds of sovereign immunity was a final adjudication on the merits barring subsequent actions. Herring v. Winston-Salem/Forsyth County Bd. of Educ., 188 N.C. App. 441, 656 S.E.2d 307, 2008 N.C. App. LEXIS 231 (2008).

Imposition of sanctions against incorporators based on a suit brought against a church and its officers was improper because the allegations were warranted by North Carolina statutes and common law and were not prohibited by the First Amendment. Johnson v. Antioch United Holy Church, Inc., 214 N.C. App. 507, 714 S.E.2d 806, 2011 N.C. App. LEXIS 1751 (2011).

Trial court erred in sanctioning appellant, given that certain motions were never properly ruled on because orders had not been entered, and the failed entry of one order prevented appellant from timely filing a written notice of appeal, and appellant had a proper purpose and legal basis to file another motion. In re Thompson, 232 N.C. App. 224, 754 S.E.2d 168, 2014 N.C. App. LEXIS 152 (2014).

Trial court did not err in denying G.S. 1A-1 , N.C. R. Civ. P. 11(a), sanctions where the state law claims brought by plaintiff’s son were not barred by the statute of limitations or res judicata, and there was no evidence that the voluntary dismissal of all claims except the conversion claims against the sheriff deputies were taken in bad faith. Bishop v. Cnty. of Macon, 250 N.C. App. 519, 794 S.E.2d 542, 2016 N.C. App. LEXIS 1242 (2016).

Trial court erred in sanctioning the father for filing motions for a new trial because the father acted on the advice of counsel and there was no evidence that he misled counsel as to the relevant facts or posture of the case, and there was no evidence that the father filed the motions in bad faith. Jonna v. Yaramada, 273 N.C. App. 93, 848 S.E.2d 33, 2020 N.C. App. LEXIS 605 (2020).

Findings and Conclusions Insufficient to Support Sanctions. —

Court’s findings and conclusions were insufficient to support an award of sanctions, where the order recited that “sanctions are imposed against plaintiff for violation of the legal provision and improper purpose provision” of Rule 11, but contained no findings or conclusions explaining how plaintiff’s conduct violated these provisions, or to explain the appropriateness of the sanction imposed or award of attorney’s fees, or to indicate how the court arrived at the amount. Davis v. Wrenn, 121 N.C. App. 156, 464 S.E.2d 708, 1995 N.C. App. LEXIS 1046 (1995), cert. denied, 343 N.C. 305 , 471 S.E.2d 69, 1996 N.C. LEXIS 298 (1996), overruled in part, Forbis v. Neal, 361 N.C. 519 , 649 S.E.2d 382, 2007 N.C. LEXIS 813 (2007).

Although there was some evidence in the record which would support an award of attorney fees in favor of the competitors, an attorney fees award to the competitors under G.S. 1A-1-11 and G.S. 75-16.1 was error, as the order contained no findings of fact or conclusions of law, even though it summarily granted all of the attorney fees and costs requested by the competitors, and it failed to indicate what portion of the fees granted was based on G.S. 1A-1-11 and what portion was based on G.S. 75-16.1 . Blyth v. McCrary, 184 N.C. App. 654, 646 S.E.2d 813, 2007 N.C. App. LEXIS 1626 (2007).

Trial court’s imposition of sanctions against property owners, for filing three actions for an improper purpose, was inappropriate because the evidence was insufficient to support the imposition of sanctions under the improper purpose prong of G.S. 1A-1 , N.C. R. Civ. P. 11(a). Coventry Woods Neighborhood Ass'n v. City of Charlotte, 213 N.C. App. 236, 713 S.E.2d 162, 2011 N.C. App. LEXIS 1403 (2011).

Findings did not address the factual sufficiency of the tenant’s motion as required. Auto. Group, LLC v. A-1 Auto Charlotte, LLC, 230 N.C. App. 443, 750 S.E.2d 562, 2013 N.C. App. LEXIS 1216 (2013).

To the extent findings addressed legal sufficiency and improper purpose, they did not support a sanction for violating the rule; the tenant filed a legally sufficient motion for a new trial that alleged an error of law because the trial court improperly admitted evidence and heard the merits over the tenant’s res judicata objection, and the findings related only to the tenant’s repeated attempts to reargue the res judicata issue and were insufficient to support a finding that a violation occurred. Auto. Group, LLC v. A-1 Auto Charlotte, LLC, 230 N.C. App. 443, 750 S.E.2d 562, 2013 N.C. App. LEXIS 1216 (2013).

Insufficient Notice of Sanctions. —

Wife had insufficient notice of sanctions, under G.S. 50-21(e), because: (1) no motion was filed; (2) no required scheduling or pretrial conferences were held; and (3) a deadline the wife allegedly violated was set in the wife’s absence. Green v. Green, 236 N.C. App. 526, 763 S.E.2d 540, 2014 N.C. App. LEXIS 1033 (2014).

Sanctions Not Merited. —

Where there was no indication at trial that the grandparents in fact did not wish to obtain custody of the children or that their claim was made in bad faith, the fact that the grandparents had originally asked for visitation does not make their later claim for custody violative of this rule. Kerns v. Southern, 100 N.C. App. 664, 397 S.E.2d 651, 1990 N.C. App. LEXIS 1129 (1990).

Although claimant was explicitly told by an employee of the Employment Security Commission (now Division of Employment Security (DES) of the Department of Commerce) that she was not required to conduct a job search during her temporary recall, because there were grounds for the Commission’s holding, under G.S. 96-18(g)(2), that claimant repay the sum, received as benefits, based on failure to conduct a job search, sanctions could not be imposed. Gilliam v. Employment Sec. Comm'n, 110 N.C. App. 796, 431 S.E.2d 772, 1993 N.C. App. LEXIS 909 (1993).

Attorney made a “reasonable inquiry” into the factual bases for the allegations contained in the complaint regarding conspiracy, an auto theft-drug ring, and intentional infliction of emotional distress; therefore, the sanctions imposed against attorney were not warranted. Pugh v. Pugh, 111 N.C. App. 118, 431 S.E.2d 873, 1993 N.C. App. LEXIS 715 (1993).

It was improper for the trial court to impose Rule 11 sanctions on plaintiff for his failure to promptly serve the summons and complaint, as it did not involve the filing of a pleading or other paper and was therefore beyond the scope of this Rule. Ward v. Lyall, 125 N.C. App. 732, 482 S.E.2d 740, 1997 N.C. App. LEXIS 233 (1997).

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 G.S. 1A-1 , Rule 8(e)(1) or subsection (a) of this rule as G.S. 1A-1 , Rule 8(e)(2) permitted pleading in the alternative. Castle Worldwide, Inc. v. Southtrust Bank, 157 N.C. App. 518, 579 S.E.2d 478, 2003 N.C. App. LEXIS 730 (2003).

Denial of Sanctions Upheld. —

Motion brought by plaintiffs who sought sanctions under G.S. 1A-1 , Rule 56(g) on the grounds that defendant filed an affidavit in support of summary judgment that was not based on his personal knowledge, because it used a phrase with which he was unacquainted, in bad faith, was not so unwarranted by existing case law as to merit sanctions under G.S. 1A-1 , Rule 11. Johnson v. Harris, 149 N.C. App. 928, 563 S.E.2d 224, 2002 N.C. App. LEXIS 383 (2002).

Where complaint stated that defendant, a postal service employee, earned income of about $5,000 or more per week, and contended that wife needed $3,000 per week while wife’s affidavit alleged expenses of only $779.00 per month, and where claims for costs and attorneys’ fees were unconscionable, the consistent use of inflated figures in complaint, after the opportunity to amend, was sufficient evidence for the trial court to impose sanctions under this rule. Shook v. Shook, 95 N.C. App. 578, 383 S.E.2d 405, 1989 N.C. App. LEXIS 810 (1989).

Abuse of the Declaratory Judgment Act, G.S. 1-253 et seq., by prospective defendant in an anticipated enforcement action by the State under Chapter 75 by attempting to prelitigate its defenses and seek to determine the scope of prosecutorial discretion constituted grounds for trial court’s holding that attorney violated this rule in signing and filing pleadings which were not warranted by existing law or a good faith argument for modification or reversal of existing law. Central Carolina Nissan, Inc. v. Sturgis, 98 N.C. App. 253, 390 S.E.2d 730, 1990 N.C. App. LEXIS 414 (1990).

Striking of the notice of the taking of a deposition and prohibiting its further use was a reasonable sanction for a deposition procured in violation of deposition rules, even though it was defendant’s counsel, and not defendant itself, who committed the acts giving rise to the sanction. Turner v. Duke Univ., 101 N.C. App. 276, 399 S.E.2d 402, 1991 N.C. App. LEXIS 22 (1991).

Insured and insured’s attorney were properly assessed costs and expenses incurred by holder of security interest in insured’s vehicle for improperly naming holder as a party in an action against vehicle’s insurer, despite plaintiff’s contention that holder was named in pleadings to give it notice as a lienholder. Lassiter v. North Carolina Farm Bureau Mut. Ins. Co., 106 N.C. App. 66, 415 S.E.2d 212, 1992 N.C. App. LEXIS 357 (1992).

A superior court award of $2,918.82 to reimburse plaintiff for attorneys’ fees and expenses and an order to defendant to pay $1,000 to the clerk of superior court as an additional sanction for filing frivolous and vexatious motions to dismiss and for summary judgment was not an abuse of discretion where defendant persisted in advancing arguments which had been previously rejected by the courts. Lowder v. All Star Mills, Inc., 103 N.C. App. 500, 405 S.E.2d 774, 1991 N.C. App. LEXIS 798 (1991), cert. denied, 330 N.C. 196 , 409 S.E.2d 595, 1991 N.C. LEXIS 855 (1991), cert. denied, 330 N.C. 196 , 412 S.E.2d 679, 1991 N.C. LEXIS 854 (1991), writ denied, 330 N.C. 196 (1991), cert. denied, 332 N.C. 484 , 421 S.E.2d 349, 1992 N.C. LEXIS 560 (1992).

Where a motion to dismiss and a motion for summary judgment were based on the same grounds that had proven baseless in past motions and appeals, and were patently frivolous, the trial judge had more than ample basis for imposition of sanctions. Lowder v. All Star Mills, Inc., 103 N.C. App. 500, 405 S.E.2d 774, 1991 N.C. App. LEXIS 798 (1991), cert. denied, 330 N.C. 196 , 409 S.E.2d 595, 1991 N.C. LEXIS 855 (1991), cert. denied, 330 N.C. 196 , 412 S.E.2d 679, 1991 N.C. LEXIS 854 (1991), writ denied, 330 N.C. 196 (1991), cert. denied, 332 N.C. 484 , 421 S.E.2d 349, 1992 N.C. LEXIS 560 (1992).

Co-counsel for corporate defendant, almost 19 months after corporation employees’ counsel gave notice that she was serving as co-counsel, and only two weeks before trial, signed and filed a motion for disqualification of counsel; neither his co-counsel nor his client signed it, and there was no evidence that co-counsel even knew that the motion was being filed, the late date on which the motion was filed indicated an attempt to interrupt opposing counsel’s trial preparation and increase litigation costs. Therefore, Rule 11 sanctions were appropriate. Harrison v. Edison Bros. Apparel Stores, 146 F.R.D. 142, 1993 U.S. Dist. LEXIS 2509 (M.D.N.C. 1993).

There was no abuse of discretion in the court’s imposition of $931 in sanctions; the court found as a fact that defendant incurred $931.00 as a necessary consequence of plaintiff’s notice of appeal following a voluntary dismissal and that the rate was reasonable. Dodd v. Steele, 114 N.C. App. 632, 442 S.E.2d 363, 1994 N.C. App. LEXIS 449 (1994).

Where the Employment Commission’s signing of order remanding the matter to a hearing officer just three days prior to the date by which the Commission was to have entered a final order could be calculated as an attempt to delay the litigation or increase its cost, sanctions would apply. Gilliam v. Employment Sec. Comm'n, 110 N.C. App. 796, 431 S.E.2d 772, 1993 N.C. App. LEXIS 909 (1993).

Where ex-husband filed a complaint to harass ex-wife and needlessly increase the costs of litigation, where senseless litigation initiated by ex-husband had persisted since the parties’ separation in 1986, while ex-husband claimed the litigation was part and parcel of his attempts to increase visitation privileges with his son, but he had done nothing constructive to further that objective, and testimony indicated that he has spent $20,000 trying to recover $10,000 in attorney’s fees, the trial did not err in imposing $15,000 sanction against the ex-husband. Brown v. Brown, 112 N.C. App. 614, 436 S.E.2d 404, 1993 N.C. App. LEXIS 1194 (1993).

Sanctions were properly imposed where the plaintiff’s brief in opposition to defendant’s motion to dismiss ignored well-established precedent and failed to argue for reversal or modification of well-established law. Sharp v. Miller, 121 N.C. App. 616, 468 S.E.2d 799, 1996 N.C. App. LEXIS 119 (1996).

Evidence overwhelmingly supported the trial court’s finding that attorneys’ actions in obtaining medical records were improper and the trial court’s conclusion of law that the imposition of sanctions was appropriate. Bass v. Sides, 120 N.C. App. 485, 462 S.E.2d 838, 1995 N.C. App. LEXIS 886 (1995), cert. denied, 342 N.C. 651 , 467 S.E.2d 703, 1996 N.C. LEXIS 96 (1996).

Sanctions against plaintiff’s attorney were upheld where the evidence showed that attorney was familiar with the separation agreement before filing the signed complaint that was not well-grounded in fact or law. Taylor v. Collins, 128 N.C. App. 46, 493 S.E.2d 475, 1997 N.C. App. LEXIS 1198 (1997).

Trial court did not err in denying the one child’s request for a jury trial on the one child’s motion for sanctions against the second child and wife regarding the counterclaim that they filed; the motion for sanctions was not an action regarding a property right, and thus the one child did not have a constitutional right to a jury, and in any event the trial court’s denial of an award of sanctions was proper, as the evidence did not support the entry of sanctions. Hill v. Hill, 181 N.C. App. 69, 638 S.E.2d 601, 2007 N.C. App. LEXIS 65 (2007).

Because the shareholders failed to show that the trial court manifestly abused its discretion and because sanctions were appropriate based on the complaint, the trial court properly denied their motion for attorney’s fees and expenses under G.S. 6-21.5 and G.S. 1A-1 , N.C. R. Civ. P. 11. Egelhof v. Szulik, 193 N.C. App. 612, 668 S.E.2d 367, 2008 N.C. App. LEXIS 2026 (2008).

Trial court did not err in denying buyers’ motion for sanctions pursuant to G.S. 1A-1 , N.C. R. Civ. P. 11 because a contractor’s breach of contract complaint was not filed for an improper purpose, and the evidence supported the trial court’s findings that the contractor undertook a reasonable inquiry into the facts and reasonably believed that the complaint was well grounded in fact; the trial court’s finding that the contractor filed its complaint for the purpose of putting its claims of rights under the parties’ contract to a proper test was binding on the court of appeals under N.C. R. App. P. 10(a) because the buyers did not assign error to that finding. Persis Nova Constr. v. Edwards, 195 N.C. App. 55, 671 S.E.2d 23, 2009 N.C. App. LEXIS 61 (2009).

Trial court did not err in failing to assess costs against daughters because nothing of record in the appeal gave rise to an inference that the trial court abused its discretion in refusing to tax the costs of the action against the daughters, who were the prevailing parties; the daughters’ success on the merits belied the assertion that maintenance of their claims was improper. Harris v. Gilchrist, 246 N.C. App. 67, 785 S.E.2d 119, 2016 N.C. App. LEXIS 234 (2016).

Sanctions against plaintiff were improper where plaintiff in good faith relied on his attorney regarding the legal sufficiency of his claims and thus met his duty of making a “reasonable inquiry”. Taylor v. Collins, 128 N.C. App. 46, 493 S.E.2d 475, 1997 N.C. App. LEXIS 1198 (1997).

F.Review of Sanctions

Appellate court lacked jurisdiction over interlocutory order.—

In a divorce proceeding where the court rejected defendant’s argument that North Carolina lacked jurisdiction to proceed because plaintiff was not a resident of Mecklenburg County, his appeal of the trial court’s sanctions order was dismissed because it was interlocutory; the sanction order requiring defendant to pay plaintiff $15,000 was imposed to address and deter defendant’s conduct, not as a signifier of the disposal of an issue underlying the parties’ original divorce litigation. Because the sanctions order did not affect defendant’s substantial rights, the appellate court lacked jurisdiction to hear his interlocutory appeal. Preston v. Preston, 2022-NCCOA-207, 2022 N.C. App. LEXIS 252 (April 5, 2022).

Standard of Review. —

Imposition of sanctions under this rule is reviewable de novo; however, but the choice of sanction is reviewable under an abuse of discretion standard. Crutchfield v. Crutchfield, 132 N.C. App. 193, 511 S.E.2d 31, 1999 N.C. App. LEXIS 96 (1999).

An abuse of discretion could not be found where a party did not offer evidence in support of the party’s motion for sanctions. N.C. State Bar v. Gilbert, 189 N.C. App. 320, 663 S.E.2d 1, 2008 N.C. App. LEXIS 541 (2008).

Clearly Erroneous Standard Is Not Applicable. —

In a malpractice case, Court of Appeals erred in employing a “clearly erroneous” standard in reviewing the trial court’s denial of plaintiff’s motion for sanctions under section (a) of this rule. Turner v. Duke Univ., 325 N.C. 152 , 381 S.E.2d 706, 1989 N.C. LEXIS 370 (1989).

The standard to be applied in assessing an attorney’s conduct under section (a) of this rule is “objective reasonableness under the circumstances.” Central Carolina Nissan, Inc. v. Sturgis, 98 N.C. App. 253, 390 S.E.2d 730, 1990 N.C. App. LEXIS 414 (1990).

The proper standard for reviewing the appropriateness of the sanction imposed in a given case is whether the trial court has abused its discretion. Central Carolina Nissan, Inc. v. Sturgis, 98 N.C. App. 253, 390 S.E.2d 730, 1990 N.C. App. LEXIS 414 (1990).

Remand for Findings and Conclusions. —

A remand to the trial court was required so that the trial court could render findings and conclusions to support its denial of sanctions against plaintiff buyer under G.S. 1A-1 , Rule 11 for making allegedly unsupported allegations in complaint regarding the closing value of a home which defendant seller built and sold to plaintiff, as plaintiff’s own admissions during discovery indicated that plaintiff’s statement regarding the home’s value at closing was based on an unsupported estimate and was contrary to a lender’s appraisal and to plaintiff’s own belief as to value at the time of closing. Tucker v. The Blvd. at Piper Glen LLC, 150 N.C. App. 150, 564 S.E.2d 248, 2002 N.C. App. LEXIS 409 (2002).

Trial court’s order imposing sanctions for the filing of a complaint that was not grounded in the law and in fact was reversed and remanded for further proceedings to determine the validity of the complaint; because the trial court erroneously concluded that the complaint was not legally sufficient, the trial court did not render appropriate findings of fact to support its conclusions of law that the complaint was not well grounded in fact, and the trial court did not address the movants’ allegations that the complaint was brought for an improper purpose. Adams v. Bank United of Tex. FSB, 167 N.C. App. 395, 606 S.E.2d 149, 2004 N.C. App. LEXIS 2384 (2004).

Where defendant filed a motion for sanctions under G.S. 1A-1 , N.C. R. Civ. P.11 in response to plaintiffs’ motion for new trial, and plaintiffs responded with their own Rule 11 motion, because the trial court failed to make findings of fact or conclusions of law before dismissing plaintiffs’ Rule 11 motion, and it appeared defendant’s Rule 11 motion might have lacked a sufficient factual basis and might have been filed for an improper purpose, remand for entry of findings and conclusion was required. Krantz v. Owens, 168 N.C. App. 384, 607 S.E.2d 337, 2005 N.C. App. LEXIS 264 (2005).

De Novo Review of Sanctions. —

Court of Appeals exercises de novo review of the question of whether to impose Rule 11 sanctions; if sanctions were warranted, the court must review the actual sanctions imposed under an abuse of discretion standard. Dodd v. Steele, 114 N.C. App. 632, 442 S.E.2d 363, 1994 N.C. App. LEXIS 449 (1994).

On appeal, the trial court’s decision whether to impose sanctions for a violation of Rule 11 is reviewable de novo as a legal issue. Static Control Components, Inc. v. Vogler, 152 N.C. App. 599, 568 S.E.2d 305, 2002 N.C. App. LEXIS 978 (2002).

Trial court’s decision to impose or not to impose mandatory sanctions under section (a) of this rule is reviewable de novo as a legal issue; in the de novo review, the appellate court will determine (1) whether the trial court’s conclusions of law support its judgment or determination, (2) whether the trial court’s conclusions of law are supported by its findings of fact, and (3) whether the findings of fact are supported by a sufficiency of the evidence; if the appellate court makes these three determinations in the affirmative, it must uphold the trial court’s decision to impose or deny the imposition of mandatory sanctions under section (a). Turner v. Duke Univ., 325 N.C. 152 , 381 S.E.2d 706, 1989 N.C. LEXIS 370 (1989); Williams v. Garrison, 105 N.C. App. 79, 411 S.E.2d 633, 1992 N.C. App. LEXIS 7 (1992).

Certiorari. —

As defendant could seek sanctions under N.C. R. Civ. P. 11 before a trial court for any inappropriate conduct by plaintiff, its petition for a writ of certiorari, undertaking a review of the trial court’s order denying defendant’s motion for sanctions, was denied. Hous. Auth. v. Sparks Eng'g, PLLC, 212 N.C. App. 184, 711 S.E.2d 180, 2011 N.C. App. LEXIS 950 (2011).

III.Attorney’s Fees

Motion Based on ERISA Action. —

Where although defendant’s post-trial motion also sought fees under this rule, the motion was based upon his Employee Retirement Income Security Act action, any award of attorneys’ fees would be governed by 29 U.S.C. § 1132(g). Overcash v. Blue Cross & Blue Shield, 94 N.C. App. 602, 381 S.E.2d 330, 1989 N.C. App. LEXIS 631 (1989).

After a voluntary dismissal the broad limitation on the trial court’s power to enter orders does not extend so far as to bar the trial court from awarding attorney’s fees pursuant to subsection (a) of this Rule or G.S. 6-21.5 . VSD Communications, Inc. v. Lone Wolf Publishing Group, Inc., 124 N.C. App. 642, 478 S.E.2d 214, 1996 N.C. App. LEXIS 1218 (1996).

Reduction of Award Held Error. —

Trial court which found as fact that petitioners had expended a reasonable attorneys’ fee of $14,400 in defending action signed and filed by respondent, but reduced that figure to $4,800 because it found the professional damages to have been “mitigated considerably by the extremely honest, candid and competent representation” of respondent by his attorney in G.S. 1A-1 , Rule 11 hearing, abused its discretion in basing its reduction on that factor. Central Carolina Nissan, Inc. v. Sturgis, 98 N.C. App. 253, 390 S.E.2d 730, 1990 N.C. App. LEXIS 414 (1990).

Award of Attorneys’ Fees Upheld. —

Trial court did not err by ordering defendant’s counsel to pay plaintiffs’ attorneys’ fees where the trial court found as a fact that defendant’s counsel had raised nonjusticiable issues in the motion in the cause, and had failed to make a reasonable inquiry, as required by this rule, before filing the motion, and where the evidence did not support defendant’s contention that the trial court directed him to file the motion in the cause after dismissing his earlier action. H. McBride Realty, Inc. v. Myers, 94 N.C. App. 511, 380 S.E.2d 586, 1989 N.C. App. LEXIS 549 (1989).

Where plaintiff had violated this section, the trial court acted within its discretion in awarding reasonable attorney’s fees as an appropriate sanction. VSD Communications, Inc. v. Lone Wolf Publishing Group, Inc., 124 N.C. App. 642, 478 S.E.2d 214, 1996 N.C. App. LEXIS 1218 (1996).

Since findings of fact were superfluous in summary judgment orders, the trial court properly ordered the payment of attorney’s fees as a sanction under G.S. 1A-1-11 in response to a company’s motion to amend the summary judgment order to include findings of fact and conclusions of law. Phelps-Dickson Builders, L.L.C. v. Amerimann Partners, 172 N.C. App. 427, 617 S.E.2d 664, 2005 N.C. App. LEXIS 1791 (2005).

In sanctioning defendants, the trial court did not abuse its discretion in awarding plaintiff the attorney’s fees it incurred to defend defendants’ meritless motions. Adams Creek Assocs. v. Davis, 227 N.C. App. 457, 746 S.E.2d 1, 2013 N.C. App. LEXIS 618 (2013).

Award of fees was well supported by extensive factual findings based on affidavits regarding the amount of work performed, the degree of skill required, and the reasonableness of the rates charged, and the trial court did not err or abuse its discretion in calculating the amount of sanctions it awarded as attorney fees in conjunction with the business’s frivolous lawsuit. ACC Constr. v. SunTrust Mortg., Inc., 239 N.C. App. 252, 769 S.E.2d 200, 2015 N.C. App. LEXIS 77 (2015).

Trial court did not abuse its discretion in awarding a mother attorneys’ fees because the court found that the father’s complaint for child support was frivolous and that there were numerous errors in the complaint, the father failed to take action to correct the errors, and the mother’s counsel had to expend considerable time in investigating the father’s claims and false accusations in the complaint. The trial court reasonably and properly considered the evidence of the mother’s fees in calculating the award. Durham Cty. v. Adams, 258 N.C. App. 395, 812 S.E.2d 885, 2018 N.C. App. LEXIS 276 (2018).

Award of Attorney Fees Not Upheld. —

In sanctioning an attorney $5,000, the trial court did not make the findings of fact necessary to explain why the figure of $5,000 was selected or why the trial court considered it an appropriate sanction; as a result, the appellate court could not determine from the face of the order the precise nature of the sanction; consequently, while the trial court properly imposed sanctions against the attorney, further findings of fact were necessary on the issue of the extent of the sanction. Dunn v. Canoy, 180 N.C. App. 30, 636 S.E.2d 243, 2006 N.C. App. LEXIS 2239 (2006).

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 N.C. App. LEXIS 1156 (2016).

Denial of Attorney’s Fees Upheld. —

In a dispute over a former employer’s failure to pay an employee under a severance agreement, the employee’s request for attorney’s fees as a sanction was properly denied because the employer’s counterclaim was factually sufficient, legally sufficient, and not filed for an improper purpose. McKinnon v. CV Indus., 228 N.C. App. 190, 745 S.E.2d 343, 2013 N.C. App. LEXIS 722 (2013).

Collateral Issues. —

Attorneys’ fee requests under this rule raise collateral issues which often require consideration by the trial court after the action has been terminated, and a voluntary dismissal under G.S. 1A-1 , Rule 41(a) does not deprive the trial court of jurisdiction to determine these collateral issues. Higgins v. Patton, 102 N.C. App. 301, 401 S.E.2d 854, 1991 N.C. App. LEXIS 298 (1991).

Voluntary Dismissal. —

Where the plaintiffs filed a voluntary dismissal with prejudice pursuant to G.S. 1A-1 , Rule 41(a)(1), the trial court was not deprived of jurisdiction to determine the appropriateness of attorneys’ fees under this rule or G.S. 6-21.5 . Bryson v. Sullivan, 102 N.C. App. 1, 401 S.E.2d 645, 1991 N.C. App. LEXIS 205 (1991), aff'd in part and rev'd in part, 330 N.C. 644 , 412 S.E.2d 327, 1992 N.C. LEXIS 58 (1992).

Motion for Attorney’s Fees. —

Petitioner’s motion for attorney’s fees, filed well before final judgment, was timely; therefore, the trial court had jurisdiction to hear the matter. Whiteco Indus., Inc. v. Harrelson, 111 N.C. App. 815, 434 S.E.2d 229, 1993 N.C. App. LEXIS 941 (1993); Whiteco Indus., Inc. v. Harrington, 111 N.C. App. 839, 434 S.E.2d 234, 1993 N.C. App. LEXIS 943 (1993).

IV.Decisions Under Prior Law

Editor’s Note. —

The cases cited below were decided under former G.S. 1-144 through 1-147.

The object of verification is that if the defendant does not deny the allegations, the cause shall stand as if the jury had been empaneled, and the allegations put in proof without denial, the purpose being to avoid the delay of trial upon uncontroverted points. Griffin v. Asheville Light & Power Co., 111 N.C. 434 , 16 S.E. 423, 1892 N.C. LEXIS 202 (1892); Rich v. Norfolk S. Ry., 244 N.C. 175 , 92 S.E.2d 768, 1956 N.C. LEXIS 670 (1956).

A motion is not a pleading, and therefore judgment by default may not be entered pending the hearing of a motion to strike on the ground that the motion was not verified. Williams v. Denning, 260 N.C. 539 , 133 S.E.2d 150, 1963 N.C. LEXIS 744 (1963).

The requirement as to verification may be waived, except in those cases where the form and substance of the verification is made an essential part of the pleading. Sisk v. Perkins, 264 N.C. 43 , 140 S.E.2d 753, 1965 N.C. LEXIS 1106 (1965).

Whether plaintiff verifies his complaint is optional with him unless some statute requires verification as a condition to the maintenance of the action. Levy v. Meir, 248 N.C. 328 , 103 S.E.2d 288, 1958 N.C. LEXIS 375 (1958).

Where the plaintiff ’s verification does not meet requirements, defendant is not required to verify his answer. Levy v. Meir, 248 N.C. 328 , 103 S.E.2d 288, 1958 N.C. LEXIS 375 (1958).

Effect of Attempted But Unnecessary Verification. —

Where plaintiff can maintain his action without verifying the complaint, an attempted verification, which is a nullity, cannot defeat that right. Levy v. Meir, 248 N.C. 328 , 103 S.E.2d 288, 1958 N.C. LEXIS 375 (1958).

Affiant is not required to subscribe the affidavit. State v. Higgins, 266 N.C. 589 , 146 S.E.2d 681, 1966 N.C. LEXIS 1391 (1966).

It is sufficient if the oath is administered by one authorized to administer oaths. State v. Higgins, 266 N.C. 589 , 146 S.E.2d 681, 1966 N.C. LEXIS 1391 (1966).

No Literal Formula Required. —

Verification must be in “substance” as prescribed, and hence a verbal and literal following of the formula prescribed is not necessary. McLamb v. McPhail, 126 N.C. 218 , 35 S.E. 426, 1900 N.C. LEXIS 219 (1900).

But Following Words of Statute Is Advisable. —

While it is not necessary to follow the exact words of the statute, it is always safe to do so, and such course is advisable in preference to mere experimental practice, which is always dangerous. Cole v. Boyd, 125 N.C. 496 , 34 S.E. 557, 1899 N.C. LEXIS 248 (1899).

As to verification by an agent or attorney, see Hammerslaugh v. Farrior, 95 N.C. 135 , 1886 N.C. LEXIS 224 (1886); Griffin v. Asheville Light & Power Co., 111 N.C. 434 , 16 S.E. 423, 1892 N.C. LEXIS 202 (1892).

Verification by Corporate Officer Need Not State Knowledge or Grounds for Belief. —

Verification to a complaint made by an officer of a corporation need not set forth “his knowledge or the grounds of his belief on the subject and the reason why it was not made by the party.” A corporation acts only through its officers and agents, and such verification is the verification of the corporation itself. Bank v. Hutchison & Hutchison, 87 N.C. 22 , 1882 N.C. LEXIS 8 (1882).

Verification by Corporate Officers Not Verification by Individual Defendants. —

Verification by the vice-president and secretary of the corporate defendant, unchallenged as a proper verification as to the corporate defendant, was not verification by or in behalf of the individual defendants. Rich v. Norfolk S. Ry., 244 N.C. 175 , 92 S.E.2d 768, 1956 N.C. LEXIS 670 (1956).

Managing director of a foreign corporation may verify its pleadings. Best v. British & Am. Mtg. Co., 131 N.C. 70 , 42 S.E. 456, 1902 N.C. LEXIS 234 (1902).

City manager of a municipal corporation is its “managing or local agent” and is authorized to verify the municipality’s answer in an action instituted against it. Grimes v. Lexington, 216 N.C. 735 , 6 S.E.2d 505, 1940 N.C. LEXIS 377 (1940).

Verification Held Sufficient. —

Verification to a complaint, made by an agent or attorney of a nonresident, to the effect that the claim sued on was in writing and in his possession for collection, giving facts in his personal knowledge and sources of other information, met the substantial statutory requirements. Johnson, Clark & Co. v. Maxwell, 87 N.C. 18 , 1882 N.C. LEXIS 7 (1882).

Verification of answer in the words “The foregoing answer of the defendant is true of his own knowledge, except those matters stated on information and belief, and he believes those to be true” is a substantial compliance. McLamb v. McPhail, 126 N.C. 218 , 35 S.E. 426, 1900 N.C. LEXIS 219 (1900).

An allegation that plaintiff has “reason to believe,” and therefore “alleges,” etc., is sufficient compliance with requirement that matter be alleged as of plaintiff ’s knowledge or upon “information and belief.” Ware-Kramer Tobacco Co. v. American Tobacco Co., 180 F. 160, 1910 U.S. App. LEXIS 5459 (C.C.D.N.C. 1910), dismissed, 196 F. 1004, 1912 U.S. App. LEXIS 1569 (4th Cir. 1912).

A petition in proceedings for contempt which is verified in accordance with the prescribed form is sufficient to give the court jurisdiction of the persons named when the facts set forth in the petition constituting a sufficient basis for judgment of contempt are stated to be within the knowledge of affiant and not upon information and belief. Safie Mfg. Co. v. Arnold, 228 N.C. 375 , 45 S.E.2d 577, 1947 N.C. LEXIS 347 (1947).

Verification Held Insufficient. —

Verification of a complaint made by an attorney of the plaintiff, setting forth in the affidavit that the facts set forth as of his own knowledge were true and that those stated on information and belief he believed to be true; that the action was based on a written instrument for the payment of money; and that the instrument was in his possession, did not comply with the requisites of the statute, and was defective in not stating the grounds of the affiant’s belief and the reason why the party himself did not make the verification. Miller v. Curl, 162 N.C. 1 , 77 S.E. 952, 1913 N.C. LEXIS 301 (1913).

In a proceeding to restore certain records destroyed by fire, an affidavit by the agent of the petitioner that the facts set forth in the complaint were true to the best of his knowledge, information and belief was an insufficient verification. Cowles v. Hardin, 79 N.C. 577 , 1878 N.C. LEXIS 122 (1878).

OPINIONS OF ATTORNEY GENERAL

Notarization of Verification in Divorce Proceedings by Partner in Firm of Plaintiff’s Counsel. — When one partner of Firm A appears as attorney for a plaintiff in a divorce proceeding, the other partners in the firm also “appear,” and they could be prohibited under former G.S. 47-8 from notarizing the verification of the client. This would be true whether or not the firm appears as “of counsel” to the individual partner on the face of the complaint or answer. Therefore, such practice should be avoided, and an attorney/notary who acts in this fashion proceeds at his own risk. See opinion of Attorney General to Mr. James Lee Knight, Notary Public, Guilford County, 58 N.C. Op. Att'y Gen. 35 (1988).

Notarization of Verification in Divorce Proceedings by Partner in Firm of Plaintiff’s Counsel. — It is not advisable for a notary who is also a partner in a law firm acting of counsel to an attorney filing a divorce complaint to notarize the verification of the client. A divorce complaint which is not properly notarized is subject to dismissal. See opinion of Attorney General to Mr. James Lee Knight, Notary Public, Guilford County, 58 N.C. Op. Att'y Gen. 35 (1988).

Pleadings not requiring verification by one of the parties are not subject to dismissal if they are verified anyway and a partner of the firm representing that client acts as the notary. However, former G.S. 47-8 would still seem to say that partner is without power to act as a notary in that situation. The signature of the attorney signing the pleadings would be adequate under section (a) of this rule. See opinion of Attorney General to Mr. James Lee Knight, Notary Public, Guilford County, 58 N.C. Op. Att'y Gen. 35 (1988).

Rule 12. Defenses and objections; when and how presented; by pleading or motion; motion for judgment on pleading.

    1. When Presented. —  A defendant shall serve his answer within 30 days after service of the summons and complaint upon him. A party served with a pleading stating a crossclaim against him shall serve an answer thereto within 30 days after service upon him. The plaintiff shall serve his reply to a counterclaim in the answer within 30 days after service of the answer or, if a reply is ordered by the court, within 30 days after service of the order, unless the order otherwise directs. Service of a motion permitted under this rule alters these periods of time as follows, unless a different time is fixed by order of the court:
      1. The responsive pleading shall be served within 20 days after notice of the court’s action in ruling on the motion or postponing its disposition until the trial on the merits;
      2. If the court grants a motion for a more definite statement, the responsive pleading shall be served within 20 days after service of the more definite statement.
    2. Cases Removed to United States District Court. —  Upon the filing in a district court of the United States of a petition for the removal of a civil action or proceeding from a court in this State and the filing of a copy of the petition in the State court, the State court shall proceed no further therein unless and until the case is remanded. If it shall be finally determined in the United States courts that the action or proceeding was not removable or was improperly removed, or for other reason should be remanded, and a final order is entered remanding the action or proceeding to the State court, the defendant or defendants, or any other party who would have been permitted or required to file a pleading had the proceedings to remove not been instituted, shall have 30 days after the filing in such State court of a certified copy of the order of remand to file motions and to answer or otherwise plead.
  2. How Presented. —  Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, crossclaim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:
    1. Lack of jurisdiction over the subject matter,
    2. Lack of jurisdiction over the person,
    3. Improper venue or division,
    4. Insufficiency of process,
    5. Insufficiency of service of process,
    6. Failure to state a claim upon which relief can be granted,
    7. Failure to join a necessary party.A motion making any of these defenses shall be made before pleading if a further pleading is permitted. The consequences of failure to make such a motion shall be as provided in sections (g) and (h). No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. Obtaining an extension of time within which to answer or otherwise plead shall not constitute a waiver of any defense herein set forth. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (6), to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
  3. Motion for judgment on the pleadings. —  After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
  4. Preliminary hearings. —  The defenses specifically enumerated (1) through (7) in section (b) of this rule, whether made in a pleading or by motion, and the motion for judgment on the pleadings mentioned in section (c) of this rule shall be heard and determined before trial on application of any party, unless the judge orders that the hearing and determination thereof be deferred until the trial.
  5. Motion for more definite statement. —  If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, he may move for a more definite statement before interposing his responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the judge is not obeyed within 20 days after notice of the order or within such other time as the judge may fix, the judge may strike the pleading to which the motion was directed or make such orders as he deems just.
  6. Motion to strike. —  Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within 30 days after the service of the pleading upon him or upon the judge’s own initiative at any time, the judge may order stricken from any pleading any insufficient defense or any redundant, irrelevant, immaterial, impertinent, or scandalous matter.
  7. Consolidation of defenses in motion. —  A party who makes a motion under this rule may join with it any other motions herein provided for and then available to him. If a party makes a motion under this rule but omits therefrom any defense or objection then available to him which this rule permits to be raised by motion, he shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in section (h)(2) hereof on any of the grounds there stated.
  8. Waiver or preservation of certain defenses. —
    1. A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (i) if omitted from a motion in the circumstances described in section (g), or (ii) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.
    2. A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a necessary party, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits.
    3. Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.

History. 1967, c. 954, s. 1; 1971, c. 1236; 1975, c. 76, s. 2.

Comment

This rule deals comprehensively with the whole mechanism, including timetables, for raising all the various defenses and objections traditionally available to defensively aligned parties at some pretrial stage, including those based merely on objections to form of pleadings, those traditionally characterized as dilatory defenses, and those based upon defenses on the merits.

Section (a) is a straightforward timetable for the filing of the traditional defensive pleadings, the answer, and the reply. The 30-day period rather than the federal rule 20-day period is adopted. All other considerations of timeliness in raising the various possible objections and defenses by other devices are related to the times for filing these responsive pleadings.

The remaining sections deal in closely interrelated fashion with the whole problem of an orderly staging of the various traditional objections and defenses, worked out to guard against dilatoriness and to encourage economy of effort and early potential raising and determination of defenses likely to be decisive, either as to the abatement of the particular action, or on the merits. The key conceptions, involving some fairly drastic changes from the Code practice, are these: (1) Only two kinds of procedural devices — the traditional defensive pleadings and functionally shaped motions — shall be utilized to raise all the objections and defenses made available. This has been presaged in the provisions of Rule 7(c), abolishing demurrers and pleas, and thus leaving only pleadings and the motion remaining as available devices out of the traditional arsenal. (2) Except for the possible objections to mere forms of pleadings, all the traditional defenses, whether characterized as merely formal, dilatory, or on the merits, may be raised together, and for the first time, in the required responsive pleadings. This departs from the traditional Code approach which required certain defenses, both dilatory and on the merits, to be raised, at peril of waiver, by demurrer, when they appear on the face of the pleading (former §§ 1-127, 1-133). Taking a different approach, this rule instead merely gives the option to any defensive pleader to raise seven enumerated objections and defenses by motion prior to filing his responsive pleading [Rule 12(b)]; and the option to either party to then have such motion-raised defenses heard preliminarily unless the court defers consideration of them to trial time [Rule 12(d)].

The third sentence in section (b) has as its purpose the clarification of the preceding sentence. Ordinarily, of course, a motion making any of the listed defenses should be made before pleading. But the failure to do so is not preclusive in all circumstances and as to all defenses, as sections (g) and (h) of this rule make clear.

The only ones of the traditional objections to mere form which are retained are the motion to make more definite and certain and the motion to strike. It must be assumed that in the context of the federal pleading approach the motion to make more definite and certain will be utilized with much more restraint, generally only when such ambiguity exists that the responsive pleader cannot reasonably be required to plead to the pleading under attack. See generally 2 Moore’s Federal Practice Pars. 12.18 and 12.20.

The most direct analogue to the Code demurrer for failure to state facts sufficient to constitute a cause of action, which is abolished under this procedure, is the motion to dismiss for failure to state a claim upon which relief can be granted. [Rule 12(b)(6)]. In a general way it can be said that this motion is typically honored in federal practice under the same circumstances that a demurrer is sustained and action dismissed in State practice because the pleading attacked contains a “statement of a defective cause of action,” as opposed merely to a “defective statement of good cause of action.” Compare, for example, Turner v. Gastonia City Bd. of Educ., 250 N.C. 456 , 109 S.E.2d 211 (1959), illustrating application of the “defective cause” rule under existing State demurrer practice, with DeLoach v. Crawley’s, Inc., 128 F.2d 378 (5th Cir. 1942), illustrating dismissal rule on motion to dismiss under federal Rule 12(b)(6). Unlike the State practice demurrer, this motion to dismiss may “speak.” [Rule 12(b), last sentence].

The waiver provisions of Rule 12(h) provide in effect that the defenses of failure to state a claim, or failure to join a necessary party may be raised at any time before verdict. After verdict however, the defenses of failure to state a claim and failure to join a necessary party cannot then be raised or noted for the first time. Lack of jurisdiction of the subject matter, of course, cannot be waived and is always available as a defense.

In addition to the motion to dismiss, analogous in a limited way to the demurrer as above stated, a motion for judgment on the pleadings is likewise provided in Rule 12(c). It too has “speaking” capacities.

Legal Periodicals.

For note on specificity in pleading under G.S. 1A-1 , Rule 8(a)(1), see 48 N.C.L. Rev. 636 (1970).

For survey of decisions under the North Carolina Rules of Civil Procedure, see 50 N.C.L. Rev. 729 (1972).

For survey of 1977 law on civil procedure, see 56 N.C.L. Rev. 874 (1978).

For article, “The 1980 Amendments to the Federal Rules of Civil Procedure and Proposals for North Carolina Practice,” see 16 Wake Forest L. Rev. 915 (1980).

For survey of 1980 law on civil procedure, see 59 N.C.L. Rev. 1067 (1981).

For note on default not constituting an admission of facts for purposes of summary judgment, see 17 Wake Forest L. Rev. 49 (1981).

For survey of 1982 law on civil procedure, see 61 N.C.L. Rev. 991 (1983).

For article analyzing the 1983 amendments to Rules 6, 7, 11, 16, 26, 52, 53 and 67, FRCP, comparing these rules with North Carolina practice, and suggesting changes in certain state and federal rules, see 20 Wake Forest L. Rev. 819 (1984).

For note on the North Carolina Supreme Court’s rejection of the minimum contacts analysis under the “transient rule” of jurisdiction, see 66 N.C.L. Rev. 1051 (1988).

For note, “The North Carolina Court of Appeals Provides a Solution to the Business Name Game,” see 66 N.C.L. Rev. 1064 (1988).

For note on the expansion of the viable fetus wrongful death action, see 11 Campbell L. Rev. 91 (1988).

For article, “Functions of Rule 12(b)(6) in the Federal Rules of Civil Procedure: A Categorization Approach,” see 15 Campbell L. Rev. 119 (1993).

For note, “Do You Need ‘Will Insurance’? Let the Testator Beware — Hargett v. Holland,” see 21 N.C. Cent. L.J. 353 (1995).

For article, “Functus Officio: Authority of the Trial Court after Notice of Appeal,” see 81 N.C.L. Rev. 2331 (2003).

For comment, “‘Even in These Days of Notice Pleadings’: Factual Pleading Requirements in the Fourth Circuit,” see 82 N.C.L. Rev. 1167 (2004).

CASE NOTES

Analysis

I.In General

Rule 12 of the Federal Rules of Civil Procedure is essentially the same as this rule. Spartan Leasing, Inc. v. Brown, 14 N.C. App. 383, 188 S.E.2d 574, 1972 N.C. App. LEXIS 2136 (1972). See also, Dale v. Lattimore, 12 N.C. App. 348, 183 S.E.2d 417, 1971 N.C. App. LEXIS 1357 , cert. denied, 279 N.C. 619 , 184 S.E.2d 113, 1971 N.C. LEXIS 899 (1971).

Section (b) of this rule is essentially a verbatim copy of FRCP, Rule 12(b). Sutton v. Duke, 277 N.C. 94 , 176 S.E.2d 161, 1970 N.C. LEXIS 510 (1970).

Subsection (h)(3) of this rule is virtually identical to FRCP, Rule 12(h)(3). Dale v. Lattimore, 12 N.C. App. 348, 183 S.E.2d 417, 1971 N.C. App. LEXIS 1357 , cert. denied, 279 N.C. 619 , 184 S.E.2d 113, 1971 N.C. LEXIS 899 (1971).

Taken together, subsection (b)(6) of this rule and G.S. 1A-1 , Rule 8(a) 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 N.C. App. LEXIS 876 (1992).

Construction with G.S. 1A-1 , Rule 15(a). —

Specific requirements of G.S. 1A-1 , Rule 12(a)(1)(b) control where in conflict with the general requirements of G.S. 1A-1 , Rule 15(a); thus, a response to an amended complaint following a motion for a more definite statement was due within 20 days, however, because the answer was filed, albeit late, before default was entered and because there was no prejudice, it was not improper to deny a motion to strike the response. Broughton v. McClatchy Newspapers, Inc., 161 N.C. App. 20, 588 S.E.2d 20, 2003 N.C. App. LEXIS 1983 (2003).

An order entered out of session without the parties’ consent is null and void and must be vacated pursuant to subsection (h)(3) of this rule. Turner v. Hatchett, 104 N.C. App. 487, 409 S.E.2d 747, 1991 N.C. App. LEXIS 1066 (1991).

Subject Matter Jurisdiction of Court. —

Superior court could not dismiss complaint with prejudice for failure to state a claim where the court lacked subject matter jurisdiction over plaintiffs’ claim. Flowers v. Blackbeard Sailing Club, Ltd., 115 N.C. App. 349, 444 S.E.2d 636, 1994 N.C. App. LEXIS 608 (1994).

Motions under subsection (b)(6) and section (c) of this rule can be treated as summary judgment motions, the difference being that under subsections (b)(6) and section (c) the motion is decided on the pleadings alone, while under G.S. 1A-1 , Rule 56 the court may receive and consider various kinds of evidence. Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971).

Distinction Between Motion to Dismiss and Motion for Summary Judgment. —

The distinction between a motion to dismiss under subdivision (b)(6) of this rule and a motion for summary judgment is more than a mere technicality. When considering a motion to dismiss, the trial court need only look to the face of the complaint to determine whether it reveals an insurmountable bar to plaintiff’s recovery. By contrast, when considering a summary judgment motion, the trial court must look at more than the pleadings; it must also consider additional matters such as affidavits, depositions and other specified matter outside the pleadings. Locus v. Fayetteville State Univ., 102 N.C. App. 522, 402 S.E.2d 862, 1991 N.C. App. LEXIS 450 (1991).

Superior court judge’s summary judgment ruling was proper because another superior court judge first concluded, pursuant to a motion to dismiss, that the factual allegations in North Carolina counties’ complaints were legally sufficient so as to not preclude their claims for recovery of taxes from online travel companies. Thereafter, the judge concluded, on the summary judgment motion, that the counties failed to provide any authority that the companies had a legal duty to collect the taxes. Wake County v. Hotels.com, L.P., 235 N.C. App. 633, 762 S.E.2d 477, 2014 N.C. App. LEXIS 897 (2014).

Justiciable Controversy. —

The mere filing of an affirmative defense, without more, is not sufficient to establish the absence of a justiciable issue, nor is the grant of a motion under subdivision (b)(6) of this rule, nor the entry of summary judgment. These events may only be evidence of the absence of a justiciable issue. However, action by the losing party which perpetuated litigation in the face of events substantially establishing that the pleadings no longer presented a justiciable controversy may also serve as evidence for purposes of G.S. 6-21.5 . Sunamerica Fin. Corp. v. Bonham, 328 N.C. 254 , 400 S.E.2d 435, 1991 N.C. LEXIS 106 (1991).

Action by a former student athlete at a state university, who aspired to a career as a professional athlete, was dismissed because the athlete did not raise justiciable claims, after the athlete was declared ineligible to play intercollegiate athletics when the athlete received academic assistance that was adjudged to be unwarranted, in that the athlete did not sustain any injury in fact as the athlete’s scholarship was never terminated, the athlete accomplished the athlete’s goal of playing professionally, and the remedies which the athlete sought, both in compensation and declaratory judgment, were hypothetical in nature. McAdoo v. Univ. of N.C. at Chapel Hill, 225 N.C. App. 50, 736 S.E.2d 811, 2013 N.C. App. LEXIS 70 (2013).

Failure to obtain certificate of authority to transact business in State. —

Trial court properly dismissed, pursuant to G.S. 1A-1 , N.C. R. Civ. P. 12, plaintiff’s action seeking to recover money allegedly owed to plaintiff by defendants from the sale and consignment of jewelry; pursuant to G.S. 55-15-02 , a foreign corporation that transacted business in North Carolina was barred from maintaining an action in any state court unless it had obtained a certificate of authority to transact business prior to trial, plaintiff’s actions of selling and consigning jewelry to North Carolina jewelers constituted transaction of business pursuant to G.S. 55-15-01(b), the trial court acted within its discretion when it addressed this issue pursuant to G.S. 1A-1 , N.C. R. Civ. P. 16 prior to trial as the issue was dispositive of the action, and the trial court was not required by G.S. 55-15-02 to continue the case to allow plaintiff to obtain a certificate of authority. Harold Lang Jewelers, Inc. v. Johnson, 156 N.C. App. 187, 576 S.E.2d 360, 2003 N.C. App. LEXIS 73 (2003).

Whether sovereign immunity is a question of subject matter jurisdiction or personal jurisdiction is an unsettled area of the law in this State. The distinction is important because the denial of a motion to dismiss for lack of subject matter jurisdiction pursuant to subsection (b)(1) of this rule is nonappealable, but the denial of a motion challenging the jurisdiction of the court over the person of the defendant pursuant to subsection (b)(2) is immediately appealable. Zimmer v. North Carolina Dep't of Transp., 87 N.C. App. 132, 360 S.E.2d 115, 1987 N.C. App. LEXIS 3073 (1987).

NCDOT’s Motion to Dismiss Was Incorrectly Denied Because It Did Not Waive Its Sovereign Immunity. —

When the North Carolina Department of Transportation (NCDOT) entered into an agreement with a developer to jointly fund a roadway to be built to state specifications by a contractor selected by the developer, which NCDOT approved, due to the involvement of public funds in the project, and the developer did not pay the contractor, NCDOT was not liable to the contractor because it did not contract with the contractor and, therefore, did not waive its sovereign immunity as to the contractor; NCDOT’s motion to dismiss under G.S. 1A-1 , Rule 12(b)(1), (b)(2), (b)(6), and (h)(3) was incorrectly denied. Rifenburg Constr., Inc. v. Brier Creek Assocs., L.P., 160 N.C. App. 626, 586 S.E.2d 812, 2003 N.C. App. LEXIS 1926 (2003), aff'd, 358 N.C. 218 , 593 S.E.2d 585, 2004 N.C. LEXIS 196 (2004).

Pleadings are to be liberally construed. Benton v. W.H. Weaver Constr. Co., 28 N.C. App. 91, 220 S.E.2d 417, 1975 N.C. App. LEXIS 1682 (1975).

Failure to plead the particulars of jurisdiction is not fatal to a claim, so long as the facts alleged permit the inference of jurisdiction under the statute. Williams v. Institute for Computational Studies, 85 N.C. App. 421, 355 S.E.2d 177, 1987 N.C. App. LEXIS 2615 (1987).

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 N.C. App. LEXIS 2717 (2005).

Consideration of Matters Outside the Pleadings. —

In deciding a motion to dismiss under G.S. 1A-1 , N.C. R. Civ. P. 12(b)(1), a trial court may consider and weigh matters outside the pleadings. Yeager v. Yeager, 228 N.C. App. 562, 746 S.E.2d 427, 2013 N.C. App. LEXIS 821 (2013).

Memorandum to Withdraw a Claim Can Be Considered at Summary Judgment. —

As a document properly served and filed in a case, the trial court was entitled to consider a memorandum in which the plaintiff withdrew one of its causes of action as a matter outside the pleading when it ruled on a motion for summary judgment. Shroyer v. County of Mecklenburg, 154 N.C. App. 163, 571 S.E.2d 849, 2002 N.C. App. LEXIS 1402 (2002).

Denial of Motion to Dismiss Pro Se Complaint Held Proper. —

Trial court did not err in denying healthcare providers’ motion to dismiss an estate’s wrongful death complaint, which was signed, pro se, by the administrator of the estate. Reid v. Cole, 187 N.C. App. 299, 653 S.E.2d 164, 2007 N.C. App. LEXIS 2321 (2007).

Standard of Review. —

Under the appellate standard of review as to G.S. 1A-1 , N.C. R. Civ. P. 12(b)(2) motions, an appellate court had to take defendant’s assertions as true because defendant provided an affidavit which presented evidence, and plaintiff submitted no evidence opposing the defendant’s showing. Dailey v. Popma, 191 N.C. App. 64, 662 S.E.2d 12, 2008 N.C. App. LEXIS 1134 (2008).

No appeal lies as a matter of right from denial of a motion under section (d) of this rule. Raines v. Thompson, 62 N.C. App. 752, 303 S.E.2d 413, 1983 N.C. App. LEXIS 2974 (1983).

Appeal of Dismissal. —

Although order dismissing class action without prejudice did not determine the controversy and was interlocutory, the order affected a substantial right of the unnamed plaintiffs and was immediately appealable. Crow v. Citicorp Acceptance Co., 79 N.C. App. 447, 339 S.E.2d 437, 1986 N.C. App. LEXIS 2069 (1986), rev'd, 319 N.C. 274 , 354 S.E.2d 459, 1987 N.C. LEXIS 1933 (1987).

Denial of a motion to dismiss was non-reviewable after final judgment on the merits. Shadow Group v. Heather Hills Home Owners Ass'n, 156 N.C. App. 197, 579 S.E.2d 285, 2003 N.C. App. LEXIS 154 (2003).

Dismissals Based on Lack of Standing Not on Merits. —

Trial court did not exceed its authority in dismissing a complaint at a temporary restraining order hearing where neither of the grounds given by the trial court, failure to state a claim because of lack of standing under G.S. 1A-1 , N.C. R. Civ. P. 12(b)(6), nor lack of subject matter jurisdiction because of lack of standing under Rule 12(b)(1), were on the merits. State Emples. Ass'n of N.C. Inc. v. State, 154 N.C. App. 207, 573 S.E.2d 525, 2002 N.C. App. LEXIS 1451 (2002), rev'd, 357 N.C. 239 , 580 S.E.2d 693, 2003 N.C. LEXIS 599 (2003).

Attorney had standing to bring an action seeking interpretation of the North Carolina statutes on concurrent jurisdiction for a court to discipline attorneys’ misconduct. Boyce v. N.C. State Bar, 258 N.C. App. 567, 814 S.E.2d 127, 2018 N.C. App. LEXIS 329 (2018).

Attorney lacked standing to bring claims for declaratory relief based on the North Carolina State Bar’s refusal to pursue disciplinary action against another attorney, allegedly due to the Bar’s conflict of interest, because the attorney did not allege a cognizable legal injury in the case. After reporting the alleged attorney misconduct to the Bar, the attorney’s interest in the case going forward was the same as all other members of the public-to see a state agency protect the public from attorney misconduct by pursuing discipline. Boyce v. N.C. State Bar, 258 N.C. App. 567, 814 S.E.2d 127, 2018 N.C. App. LEXIS 329 (2018).

Procedure and Discovery in Shareholders’ Derivative Actions. —

For a case discussing interplay of rules and statutes governing procedure and discovery in shareholders’ derivative action, particularly with respect to former G.S. 55-55(c) (see now G.S. 55-7-40 ), this rule, and G.S. 1A-1 , Rules 23 and 56, see Alford v. Shaw, 327 N.C. 526 , 398 S.E.2d 445, 1990 N.C. LEXIS 1009 (1990).

Motion to Dismiss Affected by Law Handed Down While Appeal Was Pending. —

Where the court below granted the defendant’s 12(b)(6) motion to dismiss based on a willful and wanton standard for licensees, and where the North Carolina Supreme Court changed the appropriate standard of duty owed to licensees to one of reasonable care while the case was pending on appeal, the decision had to be vacated. Alexander v. Quattlebaum, 135 N.C. App. 622, 522 S.E.2d 88, 1999 N.C. App. LEXIS 1183 (1999).

Failure to Satisfy Shareholder Derivative Action Demand Requirements. —

The trial court properly dismissed plaintiff’s claims pursuant to G.S. 1A-1 , Rule 12(b)(6) for failure to satisfy the shareholder derivative action demand requirement of G.S. 55-7-42 where he was not excused from meeting the requirements because the enactment of G.S. 55-7-42 abolished the futility exception under North Carolina law. Allen v. Ferrera, 141 N.C. App. 284, 540 S.E.2d 761, 2000 N.C. App. LEXIS 1404 (2000).

Declaratory Judgment as to a Personal Guaranty. —

The court erred in dismissing the shareholder plaintiff’s individual claim under this section; declaratory judgment is not unavailable where plaintiff seeks to have his personal guaranty declared invalid instead of merely interpreted by the court. Allen v. Ferrera, 141 N.C. App. 284, 540 S.E.2d 761, 2000 N.C. App. LEXIS 1404 (2000).

Dissent Erred in Claiming that Issue of Waiver Ex Mero Motu Could Be Addressed. —

Dissent erred in raising an issue as to the waiver of sovereign immunity under G.S. 9-32 as the claim was not raised by the parties; the dissent’s claim that issue of waiver ex mero motu could be addressed because the North Carolina Board of Nursing moved to dismiss the complaint pursuant to N.C. R. Civ. P. 12(b)(1) and 12(b)(2) was rejected as: (1) the Board only moved to dismiss a negligent infliction of emotional distress claim pursuant to Rule 12(b)(1) and 12(b)(2), (2) the Board moved to dismiss the violation of G.S. 9-32 claim pursuant to N.C. R. Civ. P. 12(b)(6), and (3) the parties stipulated that the trial court had both subject matter jurisdiction and personal jurisdiction. Abbott v. N.C. Bd. of Nursing, 177 N.C. App. 45, 627 S.E.2d 482, 2006 N.C. App. LEXIS 714 (2006).

Dismissal of Refiled Medical Malpractice Case was Error. —

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 within one year, 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, and no basis existed for dismissal of the re-filed action pursuant to N.C. R. Civ. P. 12(b)(6). Ford v. McCain, 192 N.C. App. 667, 666 S.E.2d 153, 2008 N.C. App. LEXIS 1657 (2008).

II.Answers and Time Therefor

Commencement of Time for Filing. —

Failure of owners of condemned land to comply with statutory judicial review requirements was sufficient cause to affirm denial of their counterclaims, where the time for filing their counterclaims commenced to run upon notice of final environmental impact statement by publication. DOT v. Blue, 147 N.C. App. 596, 556 S.E.2d 609, 2001 N.C. App. LEXIS 1235 (2001).

Service of Motion Alters Time Period for Answering. —

Although the motions provided for in section (b) of this rule are not pleadings under G.S. 1A-1 , Rule 7(a), section (a) of this rule provides that the service of such a motion results in a postponement of the time for serving an answer, and consequently no default results pending disposition of these motions. Moseley v. Branch Banking & Trust Co., 19 N.C. App. 137, 198 S.E.2d 36, 1973 N.C. App. LEXIS 1597 , cert. denied, 284 N.C. 121 , 199 S.E.2d 659, 1973 N.C. LEXIS 791 (1973).

Time to Answer Not Extended. —

Plaintiffs’ motions for entry of default and default judgment were made after defendant’s time to answer had expired, where 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 defendant had under this rule 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 N.C. App. LEXIS 818 (1989).

Pre-answer motion to dismiss was not a responsive pleading within the confines of this rule, 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 N.C. App. LEXIS 1047 (1995).

Substantive Response May Constitute 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 N.C. App. LEXIS 414 (1998).

Letter Deemed an Answer. —

Where letter raised no defenses to plaintiff’s claims, nor answered the allegations, but offered partial payment and promised to repay the balance of the principal in question, the letter was an answer sufficient to satisfy the Rules of Civil Procedure. Brown v. American Messenger Servs., Inc., 129 N.C. App. 207, 498 S.E.2d 384, 1998 N.C. App. LEXIS 414 (1998).

Untimely Answer in Proceeding to Terminate Parental Rights. —

Where a mother sought to terminate the father’s parental rights and the father filed a last minute response to the petition in violation of G.S. 1A-1 , N.C. R. Civ. P. 12(a)(1) and contrary to G.S. 7B-1107 , the trial court erred under G.S. 7B-1108(b) in failing to appoint a guardian ad litem for the child; it was improper to punish the child for the father’s late response. In re J.L.S., 168 N.C. App. 721, 608 S.E.2d 823, 2005 N.C. App. LEXIS 453 (2005).

III.Preservation and Waiver of Defenses, Generally

Under section (b) of this rule, every defense, including a defense in the nature of the old plea in abatement, may be raised by responsive pleading. Lehrer v. Edgecombe Mfg. Co., 13 N.C. App. 412, 185 S.E.2d 727, 1972 N.C. App. LEXIS 2252 (1972).

Motions Under Subsections (b)(2), (b)(4) and (b)(5) Distinguished. —

A challenge to the court’s jurisdiction over the person under subsection (b)(2) of this rule concerns whether the court has power, assuming it is properly invoked, to require the defendant to come into court to adjudicate the claim, a test which has come to be known as “minimum contacts.” Challenges to sufficiency of process and service do not concern the State’s fundamental power to bring a defendant before its courts for trial; instead they concern the means by which a court gives notice to the defendant and asserts jurisdiction over him. Love v. Moore, 305 N.C. 575 , 291 S.E.2d 141, 1982 N.C. LEXIS 1339 (1982); Sigman v. R.R. Tydings, Inc., 59 N.C. App. 346, 296 S.E.2d 659, 1982 N.C. App. LEXIS 3112 (1982).

A subsection 12(b) defense contained in an answer is not the same as a 12(b) defense raised in a motion, and affidavits filed in support of a 12(b) defense contained in an answer is not governed by the time constraints found in 1A-1, Rule 6(d). Ryals v. Hall-Lane Moving & Storage Co., 122 N.C. App. 242, 468 S.E.2d 600, 1996 N.C. App. LEXIS 245 (1996).

Dismissal of Less Than All Claims Permitted. —

Section (b) of this rule permits assertion by motion of a defense to “a claim for relief in any pleading.” It does not require that the assertion be to “the claims for relief.” Thus, it appears that the clear intent of the rule is to permit dismissal of some claims without requiring dismissal of all. Morrow v. Kings Dep't Stores, Inc., 57 N.C. App. 13, 290 S.E.2d 732, 1982 N.C. App. LEXIS 2591 (1982).

A similar action pending in the courts of any other jurisdiction will not abate an action between the same parties in the North Carolina courts if raised as a defense under section (b) of this rule. Lehrer v. Edgecombe Mfg. Co., 13 N.C. App. 412, 185 S.E.2d 727, 1972 N.C. App. LEXIS 2252 (1972).

But Court in Second Forum May Stay or Continue Action. —

A prior action pending outside the jurisdiction, if raised as a defense under section (b) of this rule, is not grounds for the abatement of an action begun in the courts of the state in question, but this does not preclude the court in the second forum from staying or continuing the progress of the second action pending determination of the first. Such a stay or continuance is discretionary and not a matter of right. Lehrer v. Edgecombe Mfg. Co., 13 N.C. App. 412, 185 S.E.2d 727, 1972 N.C. App. LEXIS 2252 (1972).

Application of Waiver Provisions of Rule. —

The waiver provisions of this rule apply only to those motions enumerated under section (b) and not excepted under section (h). Sims v. Oakwood Trailer Sales Corp., 18 N.C. App. 726, 198 S.E.2d 73, 1973 N.C. App. LEXIS 1992 , cert. denied, 283 N.C. 754 , 198 S.E.2d 723, 1973 N.C. LEXIS 1075 (1973).

Out-of-state seller, by failing to include a motion to dismiss for lack of personal jurisdiction under G.S. 1A-1-12(b)(2) with its motion to dismiss for lack of subject matter jurisdiction under G.S. 1A-1-12(b)(1), waived any challenge to personal jurisdiction. Evangelistic Outreach Ctr. v. Gen. Steel Corp., 181 N.C. App. 723, 640 S.E.2d 840, 2007 N.C. App. LEXIS 399 (2007).

General Appearance by Defendant. —

Even if the court had not already obtained jurisdiction over defendant by serving him with process by registered mail in compliance with G.S. 1A-1 , Rule 4, 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 N.C. App. LEXIS 717 (1988).

Subsection (b)(2) Waived Where Raised for First Time on Appeal. —

Defendant waived his right to raise subsection (b)(2) of this rule as a defense because he failed to raise it in his answer or motions but presented it for the first time on appeal. Shores v. Shores, 91 N.C. App. 435, 371 S.E.2d 747, 1988 N.C. App. LEXIS 886 (1988).

Lack of jurisdiction can never be waived by the parties, nor may such jurisdiction be conferred on a court by consent of the parties, except where a valid statute may allow jurisdiction to be so conferred. Dale v. Lattimore, 12 N.C. App. 348, 183 S.E.2d 417, 1971 N.C. App. LEXIS 1357 , cert. denied, 279 N.C. 619 , 184 S.E.2d 113, 1971 N.C. LEXIS 899 (1971).

Waiver of Claim of Lack of Jurisdiction in Action to Terminate Parental Rights. —

Trial court had jurisdiction over a mother in a termination of parental rights action; the mother failed to raise the defenses of lack of personal jurisdiction, insufficiency of process, and insufficiency of service of process as required by G.S. 1A-1 , N.C. R. Civ. P. 12(h), and those issues were therefore waived, and because the mother made a general appearance in the termination hearing and prior hearings and filed an answer to the termination petition, the trial court had jurisdiction. In re Howell, 161 N.C. App. 650, 589 S.E.2d 157, 2003 N.C. App. LEXIS 2262 (2003).

Waiver of Venue in Custody and Support Modification Proceeding. —

Waiver of venue occurs when a custody and support modification request is filed with the district court in an improper county and there is no timely demand that the trial be conducted in the proper county. In such event, the district court in the improper county appropriately adjudicates the modification request. Brooks v. Brooks, 107 N.C. App. 44, 418 S.E.2d 534, 1992 N.C. App. LEXIS 625 (1992).

Filing of Motion to Transfer. —

Trial court properly denied a corporation’s motion to dismiss claims against it, including negligence and breach of express and implied warranties, because G.S. 1A-1 , N.C. R. Civ. P. 12 and G.S. 7A-258(f) established that the corporation, by filing a motion to transfer two months prior to its Rule 12(b)(2) motion, waived defenses under Rule 12(b)(2). State Farm Fire & Cas. Co. v. Durapro, 212 N.C. App. 216, 713 S.E.2d 1, 2011 N.C. App. LEXIS 949 (2011).

Failure to Assert Affirmative Defense of Sovereign Immunity. —

In an appeal brought by the North Carolina Department of Correction (NCDOC) (now Division of Adult Correction of the Department of Public Safety), an assistant superintendent, and a superintendent, the superintendent’s appeal was dismissed as improperly before the court for review as the superintendent never asserted in any of his pleadings the affirmative defense of sovereign immunity. As a result, the denial of the superintendent’s motion for summary judgment was not immediately appealable on the same grounds as those for the NCDOC and the assistant superintendent, therefore, the superintendent was barred from raising the same for the first time on appeal. Demurry v. N.C. Dep't of Corr., 195 N.C. App. 485, 673 S.E.2d 374, 2009 N.C. App. LEXIS 204 (2009).

Trial court did not err in denying motion to dismiss default judgment that was entered before the motion to dismiss and set aside was filed because this was deemed waived after the pleading stage under G.S. 1A-1 , N.C. R. Civ. P. 12; the buyer could have moved for relief from the judgment pursuant to G.S. 1A-1 , N.C. R. Civ. P. 60(b), but buyer’s failure to address a motion to set aside in its brief meant that the motion was not before the appellate court. Autec, Inc. v. Southlake Holdings, Inc., 169 N.C. App. 232, 609 S.E.2d 485, 2005 N.C. App. LEXIS 510 , dismissed, 171 N.C. App. 147, 613 S.E.2d 727, 2005 N.C. App. LEXIS 1162 (2005).

IV.Subject Matter Jurisdiction

Lack of jurisdiction of the subject matter may always be raised by a party, or the court may raise such defect on its own initiative. Dale v. Lattimore, 12 N.C. App. 348, 183 S.E.2d 417, 1971 N.C. App. LEXIS 1357 , cert. denied, 279 N.C. 619 , 184 S.E.2d 113, 1971 N.C. LEXIS 899 (1971).

Lack of subject matter jurisdiction may always be raised by a party, or the court may raise such defect on its own initiative, even after an answer has been filed. Jackson County ex rel. Child Support Enforcement Agency v. Swayney, 75 N.C. App. 629, 331 S.E.2d 145, 1985 N.C. App. LEXIS 3681 (1985), aff'd in part and rev'd in part, 319 N.C. 52 , 352 S.E.2d 413, 1987 N.C. LEXIS 1828 (1987).

Failure to join a necessary party does not result in a lack of jurisdiction over the subject matter of the proceeding. Stancil v. Bruce Stancil Refrigeration, Inc., 81 N.C. App. 567, 344 S.E.2d 789, 1986 N.C. App. LEXIS 2336 (1986).

Mootness of Claim. —

Because a moot claim is not justiciable, and a trial court does not have subject matter jurisdiction over a non-justiciable claim, mootness is properly raised through a motion under G.S. 1A-1 , N.C. R. Civ. P. 12(b)(1). Yeager v. Yeager, 228 N.C. App. 562, 746 S.E.2d 427, 2013 N.C. App. LEXIS 821 (2013).

An objection to subject matter jurisdiction may be made at any time during the course of the action. Vance Constr. Co. v. Duane White Land Corp., 127 N.C. App. 493, 490 S.E.2d 588, 1997 N.C. App. LEXIS 986 (1997).

The question of subject matter jurisdiction may be raised at any point in a proceeding under the Uniform Child Custody Jurisdiction Act, G.S. 50A-1 et seq., and such jurisdiction cannot be conferred by waiver, estoppel or consent. Sloop v. Friberg, 70 N.C. App. 690, 320 S.E.2d 921, 1984 N.C. App. LEXIS 3889 (1984).

The district courts of this State do undoubtedly possess general subject matter jurisdiction over child custody disputes. Such matters are in no wise reserved by the Constitution or laws of North Carolina to the exclusive consideration of another tribunal. Therefore the real question under the Uniform Child Custody Jurisdiction Act, G.S. 50A-1 et seq., is whether jurisdiction is properly exercised according to the statutory requirements in a particular case. Sloop v. Friberg, 70 N.C. App. 690, 320 S.E.2d 921, 1984 N.C. App. LEXIS 3889 (1984).

The question of subject matter jurisdiction may properly be raised for the first time on appeal. Bache Halsey Stuart, Inc. v. Hunsucker, 38 N.C. App. 414, 248 S.E.2d 567, 1978 N.C. App. LEXIS 2213 (1978), cert. denied, 296 N.C. 583 , 254 S.E.2d 32, 1979 N.C. LEXIS 1205 (1979).

And the Court of Appeals may raise the question of subject matter jurisdiction on its own motion, even when it was not argued by the parties in their briefs. Bache Halsey Stuart, Inc. v. Hunsucker, 38 N.C. App. 414, 248 S.E.2d 567, 1978 N.C. App. LEXIS 2213 (1978), cert. denied, 296 N.C. 583 , 254 S.E.2d 32, 1979 N.C. LEXIS 1205 (1979).

Standard of review on a motion to dismiss under G.S. 1A-1 , Rule 12(b)(1) for lack of jurisdiction is de novo. Country Club of Johnston County, Inc. v. United States Fid. & Guar. Co., 150 N.C. App. 231, 563 S.E.2d 269, 2002 N.C. App. LEXIS 499 (2002).

A dismissal for lack of subject matter jurisdiction is not on the merits and thus is not given res judicata effect. Cline v. Teich, 92 N.C. App. 257, 374 S.E.2d 462, 1988 N.C. App. LEXIS 1039 (1988).

Timber Companies Paying Excise Taxes on Behalf of Landowners. —

Timber companies that paid excise tax on timber on behalf of landowners who sold timber were not taxpayers under G.S. 105-228.30 , and the trial court properly dismissed the companies’ lawsuit against the State of North Carolina seeking reimbursement of the tax because the companies did not have standing to sue. Am. Woodland Indus. v. Tolson, 155 N.C. App. 624, 574 S.E.2d 55, 2002 N.C. App. LEXIS 1584 (2002).

Failure to State Claim Does Not Constitute Lack of Subject Matter Jurisdiction. —

The failure of the complaint to state a claim upon which relief can be granted does not constitute a lack of jurisdiction of the subject matter. Dale v. Lattimore, 12 N.C. App. 348, 183 S.E.2d 417, 1971 N.C. App. LEXIS 1357 , cert. denied, 279 N.C. 619 , 184 S.E.2d 113, 1971 N.C. LEXIS 899 (1971).

And a motion to dismiss for lack of subject matter jurisdiction is not viewed in the same manner as a motion to dismiss for failure to state a claim upon which relief can be granted. Matters outside the pleadings may be considered and weighed by the court in determining the existence of jurisdiction over the subject matter. Tart v. Walker, 38 N.C. App. 500, 248 S.E.2d 736, 1978 N.C. App. LEXIS 2226 (1978).

Failure to properly file a petition for writ of certiorari with the superior court which would have allowed the court to exercise its jurisdiction following administrative hearing justified dismissal by the trial court. House of Raeford Farms, Inc. v. City of Raeford, 104 N.C. App. 280, 408 S.E.2d 885, 1991 N.C. App. LEXIS 1011 (1991).

Failure to Comply with Requirements of G.S. 1A-1 , Rule 23(b) Not Jurisdictional Defect. —

Although complaint, in shareholders’ derivative suit was not properly verified, because G.S. 1A-1 , Rule 23(b) addresses the procedure to be followed in, and not the substantive elements of, a shareholders’ derivative suit, plaintiffs’ failure to comply with the verification requirement at the time the complaint was filed was not a jurisdictional defect. Alford v. Shaw, 327 N.C. 526 , 398 S.E.2d 445, 1990 N.C. LEXIS 1009 (1990).

Failure to Exhaust Remedies. —

Because a professor did not pursue each level of appeal provided by the university system from his discharge, he did not exhaust his remedies prior to filing a wrongful discharge suit in superior court. Therefore, the superior court lacked jurisdiction to consider his complaint and properly dismissed it under G.S. 1A-1 , Rule 12(b)(1). Johnson v. Univ. of N.C. 202 N.C. App. 355, 688 S.E.2d 546, 2010 N.C. App. LEXIS 187 (2010).

Failure to exhaust administrative remedies on non-constitutional claims rendered plaintiffs’ claims subject to dismissal under this section. Shell Island Homeowners Ass'n v. Tomlinson, 134 N.C. App. 217, 517 S.E.2d 406, 1999 N.C. App. LEXIS 751 (1999).

Appeal of Dismissal. —

Appeal from the denial of a G.S. 1A-1 , N.C. R. Civ. P. 12(b)(1) motion based on sovereign immunity was neither immediately appealable under G.S. 1-277(b) , nor affected a substantial right. Meherrin Indian Tribe v. Lewis, 197 N.C. App. 380, 677 S.E.2d 203, 2009 N.C. App. LEXIS 661 (2009).

Denial of Motion Not Immediately Appealable. —

While G.S. 1-277(b) permits the immediate appeal of an order denying a motion made pursuant to subsection (b)(2) of this rule to dismiss for lack of jurisdiction over the person, that statute does not apply to orders denying motions made pursuant to subsection (b)(1) of this rule to dismiss for lack of subject matter jurisdiction. Such orders, the same as other orders not determinative of an action, are interlocutory and therefore not immediately appealable. Teachy v. Coble Dairies, Inc., 306 N.C. 324 , 293 S.E.2d 182, 1982 N.C. LEXIS 1445 (1982).

Employer’s appeal of the trial court’s order denying its N.C.R. Civ. P. 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, based on workers’ compensation exclusivity, was dismissed, because avoiding the time and expense of trial was not a “substantial right” justifying immediate appeal of an interlocutory order. Burton v. Phoenix Fabricators & Erectors, Inc., 185 N.C. App. 303, 648 S.E.2d 235, 2007 N.C. App. LEXIS 1741 (2007), cert. denied, 362 N.C. 352 , 661 S.E.2d 242, 2008 N.C. LEXIS 424 (2008).

Denial of a medical examiner’s G.S. 1A-1 , N.C. R. Civ. P. 12(b)(1) motion to dismiss a negligence action on the basis of sovereign immunity was a question of personal jurisdiction, not subject matter jurisdiction, was an interlocutory order, and was not immediately appealable. Green v. Kearney, 203 N.C. App. 260, 690 S.E.2d 755, 2010 N.C. App. LEXIS 566 (2010).

Mistress’s challenge to a trial court order denying her motion to dismiss pursuant to G.S. 1A-1 , N.C. R. Civ. P. 12(b)(1) was dismissed as interlocutory. Hedden v. Isbell, 250 N.C. App. 189, 792 S.E.2d 571, 2016 N.C. App. LEXIS 1098 (2016).

Concurrent Federal and State Jurisdiction Presumed in RICO and Similar Federal Actions. —

The general rule in Racketeer Influenced and Corrupt Organizations actions and similar federal actions presumes concurrent jurisdiction over federal claims as between state and federal courts. This presumption however may be rebutted only by showing the existence of a Congressional provision establishing sole federal jurisdiction, a clear implication of exclusivity from the relevant legislative history or a “disabling incompatibility between the federal claim and state court adjudications.” Hoke v. E.F. Hutton & Co., 91 N.C. App. 159, 370 S.E.2d 857, 1988 N.C. App. LEXIS 742 (1988).

Termination Proceedings Involving American Indian. —

Trial court had subject matter jurisdiction over termination of parental rights proceeding since the equivocal testimony of the father that he was an American Indian was insufficient to meet the father’s burden to prove the applicability of the Indian Child Welfare Act, 25 U.S.C.S. § 1912(f). In re Williams, 149 N.C. App. 951, 563 S.E.2d 202, 2002 N.C. App. LEXIS 364 (2002).

Claim Involving Estate Administration. —

Where the children of the decedent sued the decedent’s second wife for conversion and breach of fiduciary duties concerning the wife’s administration of the decedent’s estate, the trial court had jurisdiction over the claims as the claims were civil in nature. State ex rel. Pilard v. Berninger, 154 N.C. App. 45, 571 S.E.2d 836, 2002 N.C. App. LEXIS 1407 (2002).

Claim Involving Civil Service Board. —

Trial court improperly dismissed, upon the City’s N.C. Civ. P. 12(b)(1), (b)(6), and (b)(2) motion to dismiss for lack of subject matter jurisdiction, an employee’s appeal of a decision by the Asheville Civil Service Board as the employee had a right to de novo review of the Board’s decision under § 8(f) of the Asheville Civil Service Law; however, the appellate court considered the City’s summary judgment motion and the evidence presented to the Board, as there were no factual issues and whether the Board had subject matter jurisdiction was a question of law, and concluded that the employee had not met his burden to prove subject matter jurisdiction as he resigned and had not been fired. Harper v. City of Asheville, 160 N.C. App. 209, 585 S.E.2d 240, 2003 N.C. App. LEXIS 1760 (2003).

Motion to dismiss a third-party complaint for indemnification against the North Carolina Department of Transportation (NCDOT) should have been dismissed under G.S. 1A-1 , N.C. R. Civ. P. 12(b)(1); the complaint, which was filed by a bridge contractor, was untimely because the contractor’s G.S. 136-29 verified claim was filed more than 60 days after the contractor received NCDOT’s payment on the final estimate for a bridge project, and thus, the trial court lacked subject matter jurisdiction over the action. A.H. Beck Found. Co. v. Jones Bros., 166 N.C. App. 672, 603 S.E.2d 819, 2004 N.C. App. LEXIS 2023 (2004).

Claim Against Officer of Bankrupt Corporation. —

Trial court had subject matter jurisdiction to hear constructive fraud and unfair and deceptive practice claims asserted by a corporation that supplied lumber to another corporation that went bankrupt, against the former president of the bankrupt corporation, as the claims did not belong to the bankrupt corporation, the claims were not part of the bankruptcy estate, and the bankruptcy trustee had no authority to bring the claims. Keener Lumber Co. v. Perry, 149 N.C. App. 19, 560 S.E.2d 817, 2002 N.C. App. LEXIS 128 (2002).

Claim Involving Denial of Special Use Permit. —

Neither a trial court nor an appellate court had subject matter jurisdiction over a developer’s appeal of a city council’s denial of a special use permit to construct a cemetery where the proper avenue of appeal for the developer was to have petitioned for certiorari under G.S. 160A-381(c). Northfield Dev. Co. v. City of Burlington, 165 N.C. App. 885, 599 S.E.2d 921, 2004 N.C. App. LEXIS 1528 (2004).

Jurisdiction of Industrial Commission. —

Because the Industrial Commission had sole jurisdiction over the plaintiff worker’s allegations, after settlement, that defendants committed fraud, bad faith, unfair and deceptive trade practices, intentional infliction of emotional distress and civil conspiracy during the handling of his workers’ compensation claim, the trial court properly dismissed his appeal pursuant to G.S. 1A-1 , Rule 12(b). Deem v. Treadaway & Sons Painting & Wallcovering, Inc., 142 N.C. App. 472, 543 S.E.2d 209, 2001 N.C. App. LEXIS 141 (2001).

Trial court lacked subject matter jurisdiction over whether the insurance guaranty association was required by amendments to the Insurance Guaranty Association Act, G.S. 58-48-1 et seq., and the North Carolina Workers’ Compensation Act, G.S. 97-1 et seq., to defend and indemnify the workers’ compensation claims against the insolvent insurers, as the industrial commission had jurisdiction over the matter; not only was the association an insurer under G.S. 58-48-35(a)(2) over which the industrial commission had jurisdiction, but also, under G.S. 97-91 , the industrial commission had jurisdiction to hear all questions arising under the Workers’ Compensation Act. N.C. Ins. Guar. Ass'n v. Int'l Paper Co., 152 N.C. App. 224, 569 S.E.2d 285, 2002 N.C. App. LEXIS 1092 (2002).

Declaratory Judgment Action as to Criminal Statute. —

Appellate court erred in finding that jurisdiction for a declaratory judgment action as to the constitutionality of a criminal statute did not exist because the case presented an actual controversy between parties with adverse interests; furthermore, the claimant sufficiently alleged imminent prosecution and that the claimant stood to lose fundamental human rights and property interests if the criminal statute was enforced and was later determined to be unconstitutional. Malloy v. Cooper, 356 N.C. 113 , 565 S.E.2d 76, 2002 N.C. LEXIS 543 (2002).

Subject Matter Jurisdiction Held Lacking. —

Trial court properly denied an G.S. 1A-1 , N.C. R. Civ. P. 12(b)(1), motion to dismiss the church members’ claim regarding the conduct of a vote on proposed bylaws amendments where the claim challenged whether the church and pastor acted within their authority and observed the church’s own organic forms and rules. Davis v. Williams, 242 N.C. App. 262, 774 S.E.2d 889, 2015 N.C. App. LEXIS 625 (2015).

Hotel owners’ motions to dismiss for lack of subject matter jurisdiction were properly granted where the city council did not hold a vote and resolve to commence legal proceedings as required by its ordinances, and as a result, the civil action was not properly initiated by the city council and the city failed to prove it had standing. State ex rel. City of Albemarle v. Nance, 266 N.C. App. 353, 831 S.E.2d 605, 2019 N.C. App. LEXIS 608 (2019).

Subject Matter Jurisdiction Held Appropriate. —

Trial court erred in denying an G.S. 1A-1 , N.C. R. Civ. P. 12(b)(1), motion to dismiss with respect to the conversion and embezzlement claims against the pastor where the First Amendment required the court to defer to the church’s internal governing body with regard to ecclesiastical decisions concerning church management and use of funds. Davis v. Williams, 242 N.C. App. 262, 774 S.E.2d 889, 2015 N.C. App. LEXIS 625 (2015).

V.Personal Jurisdiction

Sovereign Immunity. —

In a case where a child was struck by a car after he and his family had viewed a Christmas parade, and subsequently died, the town defendants’ motions to dismiss plaintiffs’ claim of negligence against them on the grounds that they breached their duty of care to ensure the safety of residents and visitors to the parade was improperly denied because plaintiffs’ claim of negligence against the town defendants was barred by sovereign immunity with respect to the governmental activities of providing a law enforcement presence, regulating traffic and deciding which roads to keep open for vehicular traffic and which roads to close, approving or denying permits, and providing ambulance services. Parker v. Town of Erwin, 243 N.C. App. 84, 776 S.E.2d 710, 2015 N.C. App. LEXIS 772 (2015).

Immunity of CEO of Charter School. —

CEO did not raise sufficient evidence of the CEO’s entitlement to public official immunity to defeat the State’s claim given the Sate’s allegation that the CEO knowingly made false or fraudulent statements in connection with receiving state funds in violation of the North Carolina False Claims Act, G.S. 1-605 et seq. State ex rel. Cooper v. Kinston Charter Academy, 268 N.C. App. 531, 836 S.E.2d 330, 2019 N.C. App. LEXIS 982 (2019), rev'd in part, aff'd, 379 N.C. 560 , 866 S.E.2d 647, 2021- NCSC-163, 2021 N.C. LEXIS 1291 (2021).

Sovereign Immunity for Charter School. —

Public charter school was entitled to sovereign immunity and, thus, dismissal of the State’s North Carolina False Claims Act, G.S. 1-605 et seq., claims, since, as an extension of the sovereign, the school was entitled to exercise the State’s sovereign immunity, and the State failed to make any showing that the General Assembly intended to waive the charter’s immunity so as to include public schools within the term person for purposes of the North Carolina False Claims Act. State ex rel. Cooper v. Kinston Charter Academy, 268 N.C. App. 531, 836 S.E.2d 330, 2019 N.C. App. LEXIS 982 (2019), rev'd in part, aff'd, 379 N.C. 560 , 866 S.E.2d 647, 2021- NCSC-163, 2021 N.C. LEXIS 1291 (2021).

The manner of presenting the defense of lack of jurisdiction over the person is governed by this rule. Spartan Leasing, Inc. v. Brown, 14 N.C. App. 383, 188 S.E.2d 574, 1972 N.C. App. LEXIS 2136 (1972).

Personal Jurisdiction Found. —

The plaintiff’s complaint charging that defendant engaged in solicitations of and criminal conversation with plaintiff’s husband via phone and e-mail, which resulted in the alienation of the affections of her husband, satisfied the requirements of the North Carolina long-arm statute and established the necessary minimum contacts between the South Carolina defendant and North Carolina sufficient to meet due process requirements; the plaintiff’s allegations that there were sexual relations between the two and that she was injured in North Carolina due to the telephone and e-mail solicitations brought her claims within the purview of G.S. 1-75.4(4); although the quantity of defendant’s contacts were not extensive, the injury occurred within North Carolina which had an interest in providing a forum for plaintiff’s cause of action, not recognized in South Carolina, and the exercise of jurisdiction imposed only a minimal burden on the defendant who lives in a neighboring state. Cooper v. Shealy, 140 N.C. App. 729, 537 S.E.2d 854, 2000 N.C. App. LEXIS 1265 (2000).

North Carolina trial court had personal jurisdiction under the long-arm statute, G.S. 1-75.4(5)b, over a non-resident driver of a truck owned by a North Carolina resident, under a policy issued by a North Carolina insurer, that the driver authorized, ratified, and accepted, and the exercise of personal jurisdiction was consistent with due process requirements; the trial court erred in dismissing a declaratory action brought by the insurer against the driver under G.S. 1A-1 , N.C. R. Civ. P. 12(b)(2). N.C. Farm Bureau Mut. Ins. Co. v. Holt, 154 N.C. App. 156, 574 S.E.2d 6, 2002 N.C. App. LEXIS 1413 (2002).

In a support enforcement action, the trial court properly concluded that the exercise of personal jurisdiction over the ex-husband and father complied with both the long-arm statute and due process because the father’s activity of engaging in the real estate business in North Carolina, which the trial court’s findings showed was systematic and continuous, was sufficient to support the conclusion that he purposefully availed himself of the privilege of conducting activities within North Carolina, thus invoking the benefits and protections of its laws, and could therefore have reasonably anticipated being haled into court in North Carolina; furthermore, the denial of the father’s motion was appealable. Lang v. Lang, 157 N.C. App. 703, 579 S.E.2d 919, 2003 N.C. App. LEXIS 947 (2003).

Where a builder’s customers lived in North Carolina, executed the contract in North Carolina, and conducted negotiations and discussions in the state, North Carolina could exercise of personal jurisdiction over him without violating due process and his motion to dismiss was denied. Carson v. Brodin, 160 N.C. App. 366, 585 S.E.2d 491, 2003 N.C. App. LEXIS 1801 (2003).

North Carolina trial court did not err in denying defendant mother’s motion to dismiss a custody petition for lack of subject matter jurisdiction where the mother and the parties’ minor children lived in Japan because North Carolina was the home state of the children at the commencement of the custody action under the Uniform Child-Custody Jurisdiction and Enforcement Act, and thus the trial court had subject matter jurisdiction to make the initial child-custody determination; children’s absence from North Carolina was a temporary absence, a conclusion supported by the residency of the children in North Carolina for over two years before their departure to Japan, coupled with the evidence of the father’s intent that he and his family would return to North Carolina. Hammond v. Hammond, 209 N.C. App. 616, 708 S.E.2d 74, 2011 N.C. App. LEXIS 317 (2011).

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 N.C. App. LEXIS 1098 (2016), cert. denied, 795 S.E.2d 366, 2017 N.C. LEXIS 66 (2017); review denied, 2017 N.C. LEXIS 66 (2017).

Personal Jurisdiction Not Established. —

Trial court did not err in granting a Florida resort’s motion to dismiss claims arising out of injuries sustained at the resort; the injured person did not establish that North Carolina had personal jurisdiction over tortious acts allegedly committed in North Carolina by private investigator working on behalf of the resort, as the injured person did not raise an issue of fact as to the resort’s retention of control over how the investigator investigated the accident. Wyatt v. Walt Disney World, Co., 151 N.C. App. 158, 565 S.E.2d 705, 2002 N.C. App. LEXIS 726 (2002).

There were insufficient minimal contacts with North Carolina to establish either general or specific personal jurisdiction over a Japanese drug manufacturer which did not design, manufacture, package, sell, ship, or distribute the drug in question in North Carolina, and where, inter alia, having a few “seconded” employees in North Carolina and a bank account in North Carolina which was closed three years before suit was filed were only peripheral contacts; a trial court erred in denying the drug manufacturer’s motion to dismiss for lack of personal jurisdiction in a suit brought by cancer patients alleging that the drug manufacturer and others violated various laws relating to the marketing and pricing of a drug, and participated in a fraudulent marketing, pricing, and sales scheme to defraud persons taking the drug. Stetser v. TAP Pharm. Prods., 162 N.C. App. 518, 591 S.E.2d 572, 2004 N.C. App. LEXIS 187 (2004).

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 N.C. App. LEXIS 2024 (2004).

In an action filed by the State against a foreign corporation under G.S. 66-291 , the trial court properly dismissed the action for lack of personal jurisdiction, because: (1) the State’s conclusory allegation was insufficient to establish an alter ego theory of liability for personal jurisdiction purposes; (2) there was no evidence of any act or omission by the foreign corporation within North Carolina in the record; and (3) the trial court specifically found that the foreign corporation was not in the State of North Carolina when it received the alleged fraudulent funds from the North Carolina corporation. State ex rel. Cooper v. Ridgeway Brands Mfg., LLC, 188 N.C. App. 302, 655 S.E.2d 446, 2008 N.C. App. LEXIS 89 (2008).

Trial court properly dismissed an amended complaint against defendant under G.S. 1A-1 , N.C. R. Civ. P. 12(b)(2) where plaintiffs did not support their claim of statutory jurisdiction under G.S. 1-75.4(1) as they relied on defendant’s verified responses that defendant acquired and retained all shares of co-defendant, but failed to state any grounds for personal jurisdiction in their amended complaint, and the amended complaint did not allege facts as to activity being conducted in North Carolina by defendant. Timothy L. Hardin v. York Mem'l Park, 221 N.C. App. 317, 730 S.E.2d 768, 2012 N.C. App. LEXIS 769 (2012).

Dismissal of a subcontractor’s suit against a contractor for lack of personal jurisdiction was appropriate because the subcontract between the parties, by its terms, was governed by New Jersey law, and, under New Jersey law, the forum selection provision of the general contract was integrated into the subcontract, and was valid, mandatory, and enforceable as to the parties. There also was insufficient evidence to demonstrate that the contractor had minimum contacts with the State of North Carolina necessary to support personal jurisdiction. US Chem. Storage, LLC v. Berto Constr., Inc., 253 N.C. App. 378, 800 S.E.2d 716, 2017 N.C. App. LEXIS 312 (2017).

No Minimum Contacts. —

Denial of defendant’s motions to dismiss plaintiff’s action alleging that defendant had alienated the affections of plaintiff’s wife was improper under N.C. R. Civ. P. 12(b)(1) and (b)(2) because defendant did not have the requisite minimum contacts with the state specific or general jurisdiction purposes. Defendant admitted engaging in sexual relations with plaintiff’s wife in other states, but there was little, if any, evidence that defendant had sexual relations with her in North Carolina. Bell v. Mozley, 216 N.C. App. 540, 716 S.E.2d 868, 2011 N.C. App. LEXIS 2288 (2011).

Motion to Dismiss for Lack of Personal Jurisdiction. —

Motion to dismiss should have been granted to defendant, where court lacked authority to exercise personal jurisdiction over it. Transtector Sys. v. Electric Supply, Inc., 113 N.C. App. 148, 437 S.E.2d 699, 1993 N.C. App. LEXIS 1296 (1993).

Trial court properly granted out-of-state law clients’ motion to dismiss, pursuant to Rule 12(b)(2), in an action by a law firm seeking fees for work done on an appeal, pursuant to theories of breach of contract and quantum meruit where there was a statutory basis under G.S. 1-75.4 that supported a finding of personal jurisdiction, but there was no minimum contacts established to satisfy the grounds for specific jurisdiction; the court noted that unsolicited letters sent by the firm to the clients, which were never responded to, did not satisfy minimum contacts, nor was there proof that the clients had authorized another to contract with the firm on their behalf, or that the clients ever ratified the work that was allegedly done by the firm. Adams, Kleemeier, Hagan, Hannah & Fouts, PLLC v. Jacobs, 158 N.C. App. 376, 581 S.E.2d 798, 2003 N.C. App. LEXIS 1195 , rev'd, 357 N.C. 651 , 588 S.E.2d 465, 2003 N.C. LEXIS 1414 (2003).

Inappropriate Challenge by Motion for Directed Verdict. —

According to this section, a motion for a directed verdict is not an appropriate method of presenting the defense of lack of jurisdiction over the person. Harris v. Pembaur, 84 N.C. App. 666, 353 S.E.2d 673, 1987 N.C. App. LEXIS 2542 (1987).

Methods of Challenging Jurisdiction. —

This section provides that a defendant may raise the defense of lack of jurisdiction over his person by a pre-answer motion or by a responsive pleading. If the defendant fails to proceed in this manner, the defense of lack of jurisdiction is waived. Harris v. Pembaur, 84 N.C. App. 666, 353 S.E.2d 673, 1987 N.C. App. LEXIS 2542 (1987).

Concept of Voluntary Appearance Not Abolished. —

When this rule and G.S. 1-75.7 are construed together, it is apparent that this rule does not abolish the concept of the voluntary or general appearance. Simms v. Mason's Stores, Inc., 285 N.C. 145 , 203 S.E.2d 769, 1974 N.C. LEXIS 929 (1974); Swenson v. Thibaut, 39 N.C. App. 77, 250 S.E.2d 279, 1978 N.C. App. LEXIS 2346 (1978).

Voluntary Appearance as Waiver of Defense of Lack of Personal Jurisdiction. —

Nothing in the language of this rule prevents a defendant, prior to filing a answer or a motion in which he could set up a section (b) defense, from submitting himself to the jurisdiction of the court in which an action has been filed against him by formally entering his voluntary appearance, by seeking some affirmative relief at the hands of the court, or by utilizing the facilities of the court in some other manner inconsistent with the defense that the court has no jurisdiction over him, and once a defendant has submitted himself to the jurisdiction of the court by such conduct the defense of lack of jurisdiction over his person is no longer available to him. Simms v. Mason's Stores, Inc., 285 N.C. 145 , 203 S.E.2d 769, 1974 N.C. LEXIS 929 (1974).

Nonresident defendant, by moving for a discretionary change of venue pursuant to G.S. 1-83(2) without first or simultaneously asserting his defenses under section (b) of this rule relating to jurisdiction and process, made a general appearance and voluntarily submitted himself to the jurisdiction of the court. Humphrey v. Sinnott, 84 N.C. App. 263, 352 S.E.2d 443, 1987 N.C. App. LEXIS 2481 (1987).

Once defendant submitted herself to the jurisdiction of the court, then the defense of lack of jurisdiction over the person was no longer available to her. Harris v. Pembaur, 84 N.C. App. 666, 353 S.E.2d 673, 1987 N.C. App. LEXIS 2542 (1987).

Right to Challenge Personal Jurisdiction Preserved Where General Appearance Made in Conjunction with or After Subsection (b)(2) Motion. —

If a general appearance is made in conjunction with or after a subsection (b)(2) motion is properly filed, the right to challenge personal jurisdiction is preserved. Lynch v. Lynch, 302 N.C. 189 , 274 S.E.2d 212, 1981 N.C. LEXIS 1045 (1981).

Where defendant’s initial action was the filing of a motion which, inter alia, sought dismissal pursuant to subsection (b)(2) of this rule for lack of jurisdiction over his person, a subsequent general appearance would not have waived his right to challenge personal jurisdiction. Hall v. Hall, 65 N.C. App. 797, 310 S.E.2d 378, 1984 N.C. App. LEXIS 2787 (1984).

A general appearance will waive the right to challenge personal jurisdiction only when it is made prior to the proper filing of a subsection (b)(2) motion contesting jurisdiction over the person. Hall v. Hall, 65 N.C. App. 797, 310 S.E.2d 378, 1984 N.C. App. LEXIS 2787 (1984).

Where defendant’s initial action was the filing of a motion which, inter alia, sought dismissal pursuant to subsection (b)(2) of this rule for lack of jurisdiction over his person, a subsequent general appearance would not have waived his right to challenge personal jurisdiction. Hall v. Hall, 65 N.C. App. 797, 310 S.E.2d 378, 1984 N.C. App. LEXIS 2787 (1984).

A general appearance by a party’s attorney will dispense with process and service on the defendant; and the filing of an answer by the defendant’s attorney, which does not include the defense of lack of personal jurisdiction, constitutes a waiver of this defense if the defense has not been raised in a prior motion. Grimsley v. Nelson, 117 N.C. App. 329, 451 S.E.2d 336, 1994 N.C. App. LEXIS 1271 (1994), aff'd in part and rev'd in part, 342 N.C. 542 , 467 S.E.2d 92, 1996 N.C. LEXIS 29 (1996).

Securing Enlargement of Time to Plead as General Appearance. —

A defendant who, before asserting his defense that the court has no jurisdiction over his person by answer or pre-answer motion under sections (b) and (g) and subsection (h)(1), secures an enlargement of time in which to plead, is making a general appearance, thereby submitting to the court’s jurisdiction and obviating the necessity of any service of summons. Philpott v. Kerns, 285 N.C. 225 , 203 S.E.2d 778, 1974 N.C. LEXIS 940 (1974). See also, Simms v. Mason's Stores, Inc., 285 N.C. 145 , 203 S.E.2d 769, 1974 N.C. LEXIS 929 (1974).

In determining whether a general appearance was made, § 1-75.7 must be construed with this rule, since these statutes are part of the same enactment. Lynch v. Lynch, 302 N.C. 189 , 274 S.E.2d 212, 1981 N.C. LEXIS 1045 (1981).

This rule and G.S. 1-75.7 must be construed together since they are a part of the same enactment. Simms v. Mason's Stores, Inc., 285 N.C. 145 , 203 S.E.2d 769, 1974 N.C. LEXIS 929 (1974); Swenson v. Thibaut, 39 N.C. App. 77, 250 S.E.2d 279, 1978 N.C. App. LEXIS 2346 (1978).

General Appearance Not Shown. —

Because the filing of the answer was entirely consistent with this section and because the record revealed that the plaintiffs were fully aware of the fact that the attorney signing the answer represented the insurance company, there arises no presumption that the attorney represented the defendant. Accordingly, the answer did not constitute a general appearance by the defendant, and the defendant was not precluded from later raising the defense of lack of personal jurisdiction. Grimsley v. Nelson, 117 N.C. App. 329, 451 S.E.2d 336, 1994 N.C. App. LEXIS 1271 (1994), aff'd in part and rev'd in part, 342 N.C. 542 , 467 S.E.2d 92, 1996 N.C. LEXIS 29 (1996).

In a wrongful death case by the personal representative of the decedent, the case was properly dismissed where (1) the representative conceded that service of process was not properly made, and (2) the court also rejected the representative’s argument that one of the defendant’s appearances for various motions was a general appearance that waived jurisdiction; the court found that a motion for a continuance to respond to the complaint, for costs related to an earlier voluntary dismissal of a prior suit, and for extensive discovery did not constitute general appearances and did not waive the defendant’s jurisdictional defenses based on failure of service. Draughon v. Harnett County Bd. of Educ., 166 N.C. App. 449, 602 S.E.2d 717, 2004 N.C. App. LEXIS 1784 (2004).

A defendant submits to the jurisdiction of the court by formally entering a voluntary appearance, by seeking some affirmative relief at the hands of the court, or by utilizing the facilities of the court in some manner inconsistent with the defense that the court has no jurisdiction over her. Harris v. Pembaur, 84 N.C. App. 666, 353 S.E.2d 673, 1987 N.C. App. LEXIS 2542 (1987).

Evidence of Backdated Signature Voids Judgment Occurring Within 30 Days. —

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 thirty days. Latimer v. Latimer, 136 N.C. App. 227, 522 S.E.2d 801, 1999 N.C. App. LEXIS 1313 (1999), decided prior to 2001 amendment to subsection (c).

Effects of Failure to Raise Issue And of Stipulating to Jurisdiction. —

Where defendants raised the issues of failure to state a claim and lack of subject matter jurisdiction, but failed to raise the issue of personal jurisdiction, and stipulated in the record before the appellate court that they were properly before the trial court, the defendants could not argue that they were not subject to suit under Chapters 108A and 122C and G.S. 153A-77 . Hobbs v. North Carolina Dep't of Human Resources, 135 N.C. App. 412, 520 S.E.2d 595, 1999 N.C. App. LEXIS 1146 (1999).

Defendant made a general appearance in a child custody proceeding and submitted herself to the jurisdiction of the court by making a motion invoking the adjudicatory power of the court to determine whether full faith and credit should be given to a custody decree entered in another state. Lynch v. Lynch, 302 N.C. 189 , 274 S.E.2d 212, 1981 N.C. LEXIS 1045 (1981).

Option of Presenting Lack of Jurisdiction by Pre-Answer Motion or Answer Substituted for Special Appearance. —

This rule eliminated the special appearance and, in lieu thereof, gave a defendant the option of making the defense of lack of jurisdiction over the person by pre-answer motion or by answer, even though a defendant makes a general appearance when he files an answer. Simms v. Mason's Stores, Inc., 285 N.C. 145 , 203 S.E.2d 769, 1974 N.C. LEXIS 929 (1974).

This rule did not abolish the concept of the voluntary or general appearance but did eliminate the special appearance, and, in lieu thereof, gave defendant the option of making the defense of lack of jurisdiction over the person by pre-answer motion or by answer. Lynch v. Lynch, 45 N.C. App. 391, 264 S.E.2d 114, 1980 N.C. App. LEXIS 2635 (1980), aff'd in part and rev'd in part, 302 N.C. 189 , 274 S.E.2d 212, 1981 N.C. LEXIS 1045 (1981).

Where defendant admits the existence of jurisdiction in her answer, that fact is conclusively established and cannot be disputed. Harris v. Pembaur, 84 N.C. App. 666, 353 S.E.2d 673, 1987 N.C. App. LEXIS 2542 (1987).

Filing Answer as Waiver of Right to Contest. —

The defendant waived his right to contest lack of personal jurisdiction when he filed his answer without raising this defense. Jackson County ex rel. Child Support Enforcement Agency v. Swayney, 75 N.C. App. 629, 331 S.E.2d 145, 1985 N.C. App. LEXIS 3681 (1985), aff'd in part and rev'd in part, 319 N.C. 52 , 352 S.E.2d 413, 1987 N.C. LEXIS 1828 (1987).

In defendant’s answer, he made a motion under subsection (b)(6) of this rule, and a res judicata motion, without making a motion to contest personal jurisdiction. By filing his answer without contesting personal jurisdiction, his right to challenge the court’s exercise of personal jurisdiction over him was waived. Stern v. Stern, 89 N.C. App. 689, 367 S.E.2d 7, 1988 N.C. App. LEXIS 359 (1988).

G.S. 1-277(b) allows the immediate appeal of a denial of subsection (b)(2) motion, but not the immediate appeal of a denial of a subsection (b)(1) motion. Teachy v. Coble Dairies, Inc., 306 N.C. 324 , 293 S.E.2d 182, 1982 N.C. LEXIS 1445 (1982).

An appeal lies immediately from the refusal to dismiss a cause for want of jurisdiction. In re Will of Lamb, 48 N.C. App. 122, 268 S.E.2d 831, 1980 N.C. App. LEXIS 3195 (1980), rev'd, 303 N.C. 452 , 279 S.E.2d 781, 1981 N.C. LEXIS 1184 (1981).

An appeal lies immediately from refusal by the trial court to dismiss a cause for want of jurisdiction over the person where the motion is made pursuant to subsection (b)(2) of this rule. Chamberlin v. Chamberlin, 70 N.C. App. 474, 319 S.E.2d 670, 1984 N.C. App. LEXIS 3682 (1984).

Jurisdiction over Incarcerated Father in Termination Proceeding. —

Trial court properly asserted personal jurisdiction over a father, incarcerated in Pennsylvania, in a proceeding for termination of his parental rights over his 13 year old child, who resided in North Carolina, despite the father’s lack of minimum contacts with North Carolina, where: (1) the father never had a custodial relationship with the child, nor did he have any significant personal or financial relationship with the child other than an occasional letter and a total of $125 in monies and gifts; (2) the relationship was unlikely to change in the future due to the father’s lengthy incarceration and the child’s unwillingness to see him; and (3) the father’s only alternative for providing for care of the child was through the assistance of his parents, who had no relationship with the child, and even failed to attend the termination of parental rights hearing. In re Williams, 149 N.C. App. 951, 563 S.E.2d 202, 2002 N.C. App. LEXIS 364 (2002).

In paternity suit, where trial court adequately inquired into defendant’s contacts with this State and set its findings out in its order, without objection of defendant, the hearing which was held on defendant’s motion to dismiss for lack of personal jurisdiction comported with all due process requirements. Cochran v. Wallace, 95 N.C. App. 167, 381 S.E.2d 853, 1989 N.C. App. LEXIS 664 (1989).

No Error in Denial of Motion. —

Despite a distributor’s claims that his manufacturer’s export agent, who lived in Great Britain, had tortiously interfered with the distributor-manufacturer relationship, in that the agent hired the distributor’s salesman with the intention of establishing his own distributorship, a trial court did not err in denying the distributor’s motion, made pursuant to G.S. 1A-1 , N.C. R. Civ. P. 60(b), to vacate its order in which it had dismissed the complaint on the ground that under the Due Process Clause, the trial court had no personal jurisdiction over the manager. Review under a Rule 60(b) motion was limited to determining whether a trial court had abused its discretion, the documents submitted with the motion would not have changed the trial court’s ruling on the motion to dismiss, and the distributor had been given the opportunity to obtain and present the documents in the evidentiary hearing on the Rule 60(b) motion but had failed to do so. Deer Corp. v. Carter, 177 N.C. App. 314, 629 S.E.2d 159, 2006 N.C. App. LEXIS 968 (2006).

Despite a distributor’s claims that his manufacturer’s export agent, who lived in Great Britain, had tortiously interfered with the distributor-manufacturer relationship, in that the agent hired the distributor’s salesman with the intention of establishing his own distributorship, a trial court did not err in ruling that under the Due Process Clause, no personal jurisdiction existed over the manager. The personal knowledge requirement for documents and affidavits, as contained in G.S. 1A-1 , N.C. R. Civ. P. 56(e), applied to motions to dismiss under G.S. 1A-1 , N.C. R. Civ. P. 12(b)(2), not all parts of the distributor’s affidavits and complaint were based on personal knowledge, and only those parts based on personal knowledge, which were insufficient to show personal jurisdiction, could be considered. Deer Corp. v. Carter, 177 N.C. App. 314, 629 S.E.2d 159, 2006 N.C. App. LEXIS 968 (2006).

Appeal of Dismissal. —

Appeal of a motion to dismiss under G.S. 1A-1 , N.C. R. Civ. P. 12(b)(2) based on sovereign immunity was a question of personal jurisdiction rather than subject matter jurisdiction, and was immediately appealable. Meherrin Indian Tribe v. Lewis, 197 N.C. App. 380, 677 S.E.2d 203, 2009 N.C. App. LEXIS 661 (2009).

VI.Improper Venue

Venue Is Not Jurisdictional. —

The principle that venue is not jurisdictional, but is only ground for removal to the proper county, if objection thereto is made in apt time and in the proper manner, appears to be fully supported by section (b) and subsection (h)(1) of this rule. Shaw v. Stiles, 13 N.C. App. 173, 185 S.E.2d 268, 1971 N.C. App. LEXIS 1183 (1971).

Defense of improper venue may be raised in the answer if no pre-answer motions have been made. Swift & Co. v. Dan-Cleve Corp., 26 N.C. App. 494, 216 S.E.2d 464, 1975 N.C. App. LEXIS 2087 (1975).

Where motion asserting improper venue is made in writing in apt time, question of removal becomes a matter of substantial right, and the court of original venue is without power to proceed further in essential matters until the right of removal is considered and passed upon. Little v. Little, 12 N.C. App. 353, 183 S.E.2d 278, 1971 N.C. App. LEXIS 1358 (1971).

In the absence of waiver or consent of the parties, express or implied, when a motion for change of venue as a matter of right has been properly made in apt time, the court is in error thereafter to enter any order affecting the rights of the parties, save the order of removal. Little v. Little, 12 N.C. App. 353, 183 S.E.2d 278, 1971 N.C. App. LEXIS 1358 (1971).

Court was not required to rule on motion for change of venue prior to granting plaintiffs’ motions for possession of collateral, since an ancillary order of attachment had already been entered, since granting possession of the collateral to plaintiffs did not affect defendant’s ultimate rights, and since the motion for change of venue involved a change within the district. Citicorp Person-to-Person Fin. Center, Inc. v. Stallings 601 Sales, Inc., 49 N.C. App. 187, 270 S.E.2d 567, 1980 N.C. App. LEXIS 3344 (1980).

Motion for Change of Venue Under Subsection (B)(3) and G.S. 1-76 . —

Trial court erred in denying a store seller’s motion to change venue, pursuant to G.S. 1A-1 , Rule 12(b)(3), in the store purchaser’s action, which alleged breach of the parties’ contract, and which sought damages and specific enforcement of the agreement; the court noted that pursuant to G.S. 1-76 , the outcome of the action involved a direct determination of an interest in real property of one store which was left out during the closing of the parties’ agreement, and accordingly, the action was local and should have been brought in the county where that store was located. Fox Holdings, Inc. v. Wheatly Oil Co., 161 N.C. App. 47, 587 S.E.2d 429, 2003 N.C. App. LEXIS 1977 (2003).

Denial of defendants’ motions to change venue under G.S. 1A-1 , N.C. R. Civ. P. 12(b)(3) and G.S. 1-76 and G.S. 1-83 was proper where: (1) because the principal object of plaintiff’s action involved interpretation and enforcement of the lease, rather than termination of the lease, the case was transitory; (2) the original complaint did not seek termination of the lease, and the amended complaint only sought termination as an alternative to its original claims; (3) the principal object of the claims did not involve title to or an interest in real property; and (4) G.S. 1-76 , rather than G.S. 1-82 applied. Kirkland's Stores, Inc. v. Cleveland Gastonia, LLC, 223 N.C. App. 119, 733 S.E.2d 885, 2012 N.C. App. LEXIS 1186 (2012).

Motion for Change of Venue Under Subsection (b)(3) and G.S. 1-83(2) . —

Defendant’s motion for change of venue properly was filed after the answer was filed because, although motions for change of venue based on improper venue, pursuant to subsection (b)(3) of this rule, must be filed prior to or with the answer, motions for change of venue based on the convenience of witnesses, pursuant to G.S. 1-83(2) , must be filed after the answer is filed, and defendant’s motion was based on the convenience of the witnesses. McCullough v. Branch Banking & Trust Co., 136 N.C. App. 340, 524 S.E.2d 569, 2000 N.C. App. LEXIS 17 (2000).

Defense of Improper Venue Not Waived by Motion for Enlargement of Time. —

While section (h) of this rule provides for waiver of the defense of improper venue where not joined in a motion made under this rule, this waiver is not applicable to a motion for enlargement of time made under G.S. 1A-1 , Rule 6. Moseley v. Branch Banking & Trust Co., 19 N.C. App. 137, 198 S.E.2d 36, 1973 N.C. App. LEXIS 1597 , cert. denied, 284 N.C. 121 , 199 S.E.2d 659, 1973 N.C. LEXIS 791 (1973).

Implied Waiver of Right to Change Venue. —

Where in a divorce action almost a year passed between the time defendant filed motion for change of venue under subsection (b)(3) of this rule and the first hearing date, at which time defendant sought a continuance, and on the second hearing date five months later defendant failed to appear, the trial court was justified in finding an implied waiver of defendant’s right to a change of venue by her failure to pursue her motion for removal. Miller v. Miller, 38 N.C. App. 95, 247 S.E.2d 278, 1978 N.C. App. LEXIS 2090 (1978).

When a child was undisputedly present in the county over which a district court had jurisdiction when a petition to terminate the parental rights of the child’s father was filed in that court, and the father did not seek a change of venue after the petition was filed, waiving any defect in venue under G.S. 1A-1 , N.C. R. Civ. P. 12(b), the district court properly heard the petition. In re J.L.K., 165 N.C. App. 311, 598 S.E.2d 387, 2004 N.C. App. LEXIS 1162 (2004).

Forum Selection Clause. —

Employer’s motion to dismiss an employee’s action alleging unlawful termination should have been made under G.S. 1A-1 , N.C. R. Civ. P. 12(b)(3), not under G.S. 1A-1 , N.C. R. Civ. P. 12(b)(1) and (2), because it raised the issue of whether North Carolina courts were barred from hearing the case by a forum selection clause in the parties’ contract that specified that they would use courts in Los Angeles County (California) to resolve their disputes; however, the appellate court heard the employer’s appeal from the trial court’s judgment denying its motion because the parties tried the issue, and found that the forum selection clause did not bar North Carolina courts from tryng the employee’s lawsuit. Hickox v. R&G Group Int'l, 161 N.C. App. 510, 588 S.E.2d 566, 2003 N.C. App. LEXIS 2184 (2003).

Transfer to Cherokee Tribal Court. —

Civil action between a pedestrian and a motorist and a casino, filed originally in superior court, was transferred or removed from superior court to a Cherokee Indian tribal court, rather than being stayed while the tribal court adjudicated the issues. The parties were bound by the language of their consent order dismissing the action from the tribal court, and no action remained pending in superior court. Carden v. Owle Constr., LLC, 218 N.C. App. 179, 720 S.E.2d 825, 2012 N.C. App. LEXIS 55 (2012).

VII.Insufficiency of Process.

Sufficient Compliance Shown. —

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 N.C. App. LEXIS 364 (2002).

Correctable Error. —

Trial court erred in granting defendants’ motion to dismiss pursuant to subdivisions (b)(4) and (5) as the designation of the incorrect county on the civil summons form was not a jurisdictional defect but rather an irregularity or error in form correctable by amending the summons in accordance with Rule 4(i). Hazelwood v. Bailey, 339 N.C. 578 , 453 S.E.2d 522, 1995 N.C. LEXIS 20 (1995).

Waiver of Insufficient Process by Making General Appearance. —

Since the failure of a summons to comply with G.S. 7B-1106(a)(5) implicated the trial court’s jurisdiction over the children, not over the termination of parental rights action as a whole, pursuant to G.S. 1A-1 , N.C. R. Civ. P. 12(h)(1), a general appearance by the children’s guardian ad litem and attorney advocate waived any objection to the jurisdictional requirements of G.S. 7B-1101 . In re J.T., 363 N.C. 1 , 672 S.E.2d 17, 2009 N.C. LEXIS 113 (2009).

VIII.Insufficiency of Service

Where there was no valid service of process, the court acquired no jurisdiction over defendant and defendant’s motion to dismiss under this rule on jurisdictional grounds should have been allowed. Sink v. Easter, 284 N.C. 555 , 202 S.E.2d 138, 1974 N.C. LEXIS 1286 (1974).

Where the trial court record showed that plaintiff failed to request defendant’s appearance in its Delayed Service of Complaint, the trial court found that no summons had ever been served on defendant and properly granted defendant’s motion to dismiss. Hemmings v. Green, 122 N.C. App. 191, 468 S.E.2d 278, 1996 N.C. App. LEXIS 219 (1996).

Insufficiency of Service Not Waived by Taking Deposition After Filing Answer Raising the Defense. —

Defendant did not waive the defense of insufficiency of service of process by taking plaintiff ’s deposition after answer was filed raising the jurisdictional defense. Wiles v. Welparnel Constr. Co., 34 N.C. App. 157, 237 S.E.2d 297, 1977 N.C. App. LEXIS 1604 (1977), rev'd, 295 N.C. 81 , 243 S.E.2d 756, 1978 N.C. LEXIS 948 (1978).

Estoppel Doctrine. —

Estoppel doctrine did not bar health care providers from asserting that they were not properly served with process in a patient’s lawsuit because the providers’ motions for extensions of time did not actually concede that the attempted service had been valid and they put the patient on notice of a possible defect as to service of process. Further, there was a period of several days between the date the patient received the providers’ answer expressly asserting the defense and the last date on which the patient could have extended the summonses. Stewart v. Shipley, 264 N.C. App. 241, 825 S.E.2d 684, 2019 N.C. App. LEXIS 162 (2019).

Continuance. —

Trial court did not abuse its discretion by refusing to grant a motor vehicle accident victim’s motion for a continuance to allow additional time to conduct discovery because the victim was on notice of the lack of service of process issue which the opposing motorist presented in a motion to dismiss, asserting that the court lacked jurisdiction. Furthermore, the victim had time to address the matter prior to the expiration of the alias and pluries summons and before a hearing. Patton v. Vogel, 267 N.C. App. 254, 833 S.E.2d 198, 2019 N.C. App. LEXIS 726 (2019).

Appeal. —

An order ruling on the sufficiency of service of process is not immediately appealable. Seabrooke v. Hagin, 83 N.C. App. 60, 348 S.E.2d 614, 1986 N.C. App. LEXIS 2646 (1986).

In a collection suit, the court of appeals did not reach a debtor’s argument that the trial court erred in denying its motion to dismiss, pursuant to G.S. 1A-1-12(b)(5), on the ground the creditor did not comply with all requirements for service by publication, where the order from which the debtor sought appeal was interlocutory. Autec, Inc. v. Southlake Holdings, LLC, 171 N.C. App. 147, 613 S.E.2d 727, 2005 N.C. App. LEXIS 1162 (2005).

Service Insufficient. —

Dismissal of a personal injury action for lack of personal jurisdiction was appropriate because the trial court never acquired jurisdiction over the claim as the purported service of process at the residential address of a motorist was insufficient, the motor vehicle accident victim was not entitled to an extension of time to properly serve the motorist, and the trial court did not abuse its discretion by denying the victim additional time to conduct discovery. Patton v. Vogel, 267 N.C. App. 254, 833 S.E.2d 198, 2019 N.C. App. LEXIS 726 (2019).

Service Not Insufficient. —

A successful service of process occurring within thirty 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).

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 N.C. App. LEXIS 537 (2005).

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 N.C. App. LEXIS 1258 (2005).

IX.Failure to State Claim
A.In General

Constitutional Issues. —

To test the legal sufficiency of a complaint asserting constitutional issues, a party may move to dismiss under this rule. North Carolina E. Mun. Power v. Wake County, 100 N.C. App. 693, 398 S.E.2d 486, 1990 N.C. App. LEXIS 1163 (1990).

Sovereign Immunity. —

Although a medical examiner mistakenly declared a patient dead and directed him to the morgue, the trial court erred in denying the medical examiner’s G.S. 1A-1 , N.C. R. Civ. P. 12(b)(6) motion to dismiss a negligence action on the basis of sovereign immunity because the medical examiner actions, while arguably negligent, did not rise to the level of malicious or corrupt conduct, nor did the medical examiner act outside the scope of authority. Green v. Kearney, 203 N.C. App. 260, 690 S.E.2d 755, 2010 N.C. App. LEXIS 566 (2010).

In a contractor’s third-party complaint against a city, the denial of the city’s dismissal motion under N.C. R. Civ. P. 12(b)(6) was immediately appealable where it was certified pursuant to N.C. R. Civ. P. 54(b), and the issue of whether the third-party complaint was barred by governmental immunity affected substantial rights of the city; the scope of review was limited to the one certified issue. Town of Sandy Creek v. East Coast Contr. Inc, 224 N.C. App. 537, 736 S.E.2d 793, 2012 N.C. App. LEXIS 1445 (2012), superseded, 226 N.C. App. 576, 741 S.E.2d 673, 2013 N.C. App. LEXIS 384 (2013).

Denial of a city’s motion under N.C. R. Civ. P. 12(b)(6) to dismiss a third-party complaint by a contractor, arising from construction of a sewer system, was proper, as governmental immunity did not apply to the contractor’s negligence claims with respect to the city’s handling of the business relationship with the contractor, which was a proprietary function. Town of Sandy Creek v. East Coast Contr. Inc, 224 N.C. App. 537, 736 S.E.2d 793, 2012 N.C. App. LEXIS 1445 (2012), superseded, 226 N.C. App. 576, 741 S.E.2d 673, 2013 N.C. App. LEXIS 384 (2013).

Lack of Standing. —

A party has standing to initiate a lawsuit if he is a real party in interest; a motion to dismiss a party’s claim for lack of standing is tantamount to a motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to N.C. R. Civ. P. 12(b)(6). Slaughter v. Swicegood, 162 N.C. App. 457, 591 S.E.2d 577, 2004 N.C. App. LEXIS 190 (2004).

Where the trial court did not certify the order denying construction company’s motion to dismiss an action brought by homeowners association as immediately appealable pursuant to G.S. 1A-1 , Rule 54, and the construction company did not appear to be deprived of any substantial right which could not be protected by timely appeal from the ultimate disposition of the controversy on its merits, the appeal was dismissed. Pineville Forest Homeowners Ass'n v. Portrait Homes Constr. Co., 175 N.C. App. 380, 623 S.E.2d 620, 2006 N.C. App. LEXIS 71 (2006).

Motion Denied Where Association Had Representational Standing. —

Because the association had standing as its own corporate entity to bring suit, the trial court did not err in denying the member’s motion to dismiss for lack of jurisdiction and for failure to state a claim based on the association’s lack of representational standing. Fed. Point Yacht Club Ass'n v. Moore, 233 N.C. App. 298, 758 S.E.2d 1, 2014 N.C. App. LEXIS 307 (2014).

Plaintiffs investors’ claim of negligent misrepresentation was properly dismissed pursuant to this section where they failed to make pertinent inquiries as to accuracy of information received from defendant insurance agent and therefore could not show that they reasonably relied on his information; by the plain language admittedly used by the agent, plaintiffs should have been put on notice that the fact of whether the revitalized entity would be profitable remained a risk. Simms v. Prudential Life Ins. Co. of Am., 140 N.C. App. 529, 537 S.E.2d 237, 2000 N.C. App. LEXIS 1203 (2000).

The only purpose of a motion under subsection (b)(6) of this rule is to test the legal sufficiency of the pleading against which it is directed. In deciding such a motion the trial court is to treat the allegations of the pleading it challenges as true. Azzolino v. Dingfelder, 71 N.C. App. 289, 322 S.E.2d 567, 1984 N.C. App. LEXIS 3853 (1984), aff'd in part and rev'd in part, 315 N.C. 103 , 337 S.E.2d 528, 1985 N.C. LEXIS 2169 (1985).

The essential question on a motion under subsection (b)(6) of this rule is whether the complaint, when liberally construed, states a claim upon which relief can be granted on any theory. Barnaby v. Boardman, 70 N.C. App. 299, 318 S.E.2d 907, 1984 N.C. App. LEXIS 3658 (1984), rev'd, 313 N.C. 565 , 330 S.E.2d 600, 1985 N.C. LEXIS 1560 (1985).

The question for the court on a motion to dismiss is whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory, whether properly labeled or not. Harris v. NCNB Nat'l Bank, 85 N.C. App. 669, 355 S.E.2d 838, 1987 N.C. App. LEXIS 2645 (1987).

The test on a motion to dismiss for failure to state a claim upon which relief can be granted is whether the pleadings, when taken as true, are legally sufficient to satisfy the elements of at least some legally recognized claim. Arroyo v. Scottie's Professional Window Cleaning, Inc., 120 N.C. App. 154, 461 S.E.2d 13, 1995 N.C. App. LEXIS 705 (1995).

Where loan between brothers was secured by deed of trust and son of borrower was made trustee, because of the close family relationships of the parties, the question of when lender knew or should have known of trustee’s alleged breach of fiduciary duty was question for trier of fact, and lender’s action against trustee was not subject to dismissal on borrower’s and trustee’s motion to dismiss alleging the action was time barred under subsection (b)(6) of this rule. Dawn v. Dawn, 122 N.C. App. 493, 470 S.E.2d 341, 1996 N.C. App. LEXIS 445 (1996).

Complaint Must Be Liberally Construed. —

In analyzing the sufficiency of the complaint under subsection (b)(6) of this rule, the complaint must be liberally construed. Dixon v. Stuart, 85 N.C. App. 338, 354 S.E.2d 757, 1987 N.C. App. LEXIS 2594 (1987).

Failure to State Claim May Be Asserted in Responsive Pleading or by Motion to Dismiss. —

When a pleader has failed to state a claim upon which relief can be granted, his adversary is permitted by subsection (b)(6) of this rule to assert this defense either in a responsive pleading or by motion to dismiss. Forrester v. Garrett, 280 N.C. 117 , 184 S.E.2d 858, 1971 N.C. LEXIS 1100 (1971).

In ruling upon a subdivision (b)(6) motion, the trial court should liberally construe the complaint and should not dismiss the action unless it appears to a certainty that plaintiff is entitled to no relief under any statement of facts which could be proved in support of the claim. Arroyo v. Scottie's Professional Window Cleaning, Inc., 120 N.C. App. 154, 461 S.E.2d 13, 1995 N.C. App. LEXIS 705 (1995).

Motion Under Subsection (b)(6) Available in Declaratory Judgment Action. —

When the record shows that there is no basis for declaratory relief, as when the complaint does not allege an actual, genuine existing controversy, this may be taken advantage of by a subsection (b)(6) motion to dismiss. Kirkman v. Kirkman, 42 N.C. App. 173, 256 S.E.2d 264, 1979 N.C. App. LEXIS 2791 , cert. denied, 298 N.C. 297 , 259 S.E.2d 300, 1979 N.C. LEXIS 1588 (1979).

When Motion Under Subsection (b)(6) May Be Made. —

A motion to dismiss for failure to state a claim upon which relief may be granted under subsection (b)(6) of this rule may be made as late as trial upon the merits. Dale v. Lattimore, 12 N.C. App. 348, 183 S.E.2d 417, 1971 N.C. App. LEXIS 1357 , cert. denied, 279 N.C. 619 , 184 S.E.2d 113, 1971 N.C. LEXIS 899 (1971).

A motion under subsection (b)(6) cannot be raised for the first time on appeal. Collyer v. Bell, 12 N.C. App. 653, 184 S.E.2d 414, 1971 N.C. App. LEXIS 1426 (1971); Jones v. Satterfield Dev. Co., 16 N.C. App. 80, 191 S.E.2d 435, 1972 N.C. App. LEXIS 1645 , cert. denied, 282 N.C. 304 , 192 S.E.2d 194, 1972 N.C. LEXIS 940 (1972).

Where there has been a trial, a party cannot on appeal interpose the defense that the complaint fails to state a claim upon which relief can be granted. Dale v. Lattimore, 12 N.C. App. 348, 183 S.E.2d 417, 1971 N.C. App. LEXIS 1357 , cert. denied, 279 N.C. 619 , 184 S.E.2d 113, 1971 N.C. LEXIS 899 (1971).

Subsection (b)(6) is an analogue to section (f), and the same tests as to legal principles apply. Mozingo v. North Carolina Nat'l Bank, 31 N.C. App. 157, 229 S.E.2d 57, 1976 N.C. App. LEXIS 1945 (1976), cert. denied, 291 N.C. 711 , 232 S.E.2d 204, 1977 N.C. LEXIS 1246 (1977).

For discussion of the similarities and differences between motions under subsection (b)(6) of this rule and G.S. 1A-1 , Rule 56, see Shoffner Indus., Inc. v. W.B. Lloyd Constr. Co., 42 N.C. App. 259, 257 S.E.2d 50, 1979 N.C. App. LEXIS 2838 , cert. denied, 298 N.C. 296 , 259 S.E.2d 301, 1979 N.C. LEXIS 1583 (1979).

Motion to dismiss is the usual and proper method of testing legal sufficiency of the complaint. Sutton v. Duke, 277 N.C. 94 , 176 S.E.2d 161, 1970 N.C. LEXIS 510 (1970); Dockery v. Lampart Table Co., 36 N.C. App. 293, 244 S.E.2d 272, 1978 N.C. App. LEXIS 2469 , cert. denied, 295 N.C. 465 , 246 S.E.2d 215, 1978 N.C. LEXIS 900 (1978); Lloyd v. Babb, 296 N.C. 416 , 251 S.E.2d 843, 1979 N.C. LEXIS 1184 (1979); Stanback v. Stanback, 297 N.C. 181 , 254 S.E.2d 611, 1979 N.C. LEXIS 1249 (1979); Braun v. Glade Valley Sch., Inc., 77 N.C. App. 83, 334 S.E.2d 404, 1985 N.C. App. LEXIS 4054 (1985).

The test on a motion to dismiss for failure to state a claim upon which relief can be granted is whether the pleading is legally sufficient. Alltop v. J.C. Penney Co., 10 N.C. App. 692, 179 S.E.2d 885, 1971 N.C. App. LEXIS 1699 , cert. denied, 279 N.C. 348 , 182 S.E.2d 580, 1971 N.C. LEXIS 783 (1971); Barbour v. Little, 37 N.C. App. 686, 247 S.E.2d 252, 1978 N.C. App. LEXIS 2830 , cert. denied, 295 N.C. 733 , 248 S.E.2d 862, 1978 N.C. LEXIS 1129 (1978); McKinney Drilling Co. v. Nello L. Teer Co., 38 N.C. App. 472, 248 S.E.2d 444, 1978 N.C. App. LEXIS 2221 (1978); Fowler v. Williamson, 39 N.C. App. 715, 251 S.E.2d 889, 1979 N.C. App. LEXIS 2578 (1979); Snyder v. Freeman, 40 N.C. App. 348, 253 S.E.2d 10, 1979 N.C. App. LEXIS 2269 (1979), rev'd, 300 N.C. 204 , 266 S.E.2d 593, 1980 N.C. LEXIS 1067 (1980); Kinlaw v. Long Mfg. N.C. Inc., 40 N.C. App. 641, 253 S.E.2d 629, 1979 N.C. App. LEXIS 2331 , rev'd, 298 N.C. 494 , 259 S.E.2d 552, 1979 N.C. LEXIS 1379 (1979); GASP v. Mecklenburg County, 42 N.C. App. 225, 256 S.E.2d 477, 1979 N.C. App. LEXIS 2784 (1979); Shoffner Indus., Inc. v. W.B. Lloyd Constr. Co., 42 N.C. App. 259, 257 S.E.2d 50, 1979 N.C. App. LEXIS 2838 , cert. denied, 298 N.C. 296 , 259 S.E.2d 301, 1979 N.C. LEXIS 1583 (1979); United Leasing Corp. v. Miller, 45 N.C. App. 400, 263 S.E.2d 313, 1980 N.C. App. LEXIS 2651 (1980); State ex rel. Tenn. Dep't of Health & Env't v. Environmental Mgt. Comm'n, 78 N.C. App. 763, 338 S.E.2d 781, 1986 N.C. App. LEXIS 2012 (1986).

Where it appears to a certainty that plaintiffs are entitled to no relief under any state of facts which could be proved in support of the claim, dismissal for failure to state a claim upon which relief can be granted is proper. Alamance County v. N.C. Dep't of Human Resources, 58 N.C. App. 748, 294 S.E.2d 377, 1982 N.C. App. LEXIS 2816 (1982).

To prevent a dismissal under subsection (b)(6) of this rule, a party must (1) give sufficient notice of the events on which the claim is based to enable the adverse party to respond and prepare for trial, and (2) state enough to satisfy the substantive elements of at least some legally recognized claim. Hewes v. Johnston, 61 N.C. App. 603, 301 S.E.2d 120, 1983 N.C. App. LEXIS 2684 (1983); Vinson v. McManus, 68 N.C. App. 763, 316 S.E.2d 98, 1984 N.C. App. LEXIS 3441 (1984); Peele v. Provident Mut. Life Ins. Co., 90 N.C. App. 447, 368 S.E.2d 892, 1988 N.C. App. LEXIS 566 (1988).

The motion to dismiss under subsection (b)(6) of this rule tests the sufficiency of the complaint to state a claim for relief. Hendrix v. Hendrix, 67 N.C. App. 354, 313 S.E.2d 25, 1984 N.C. App. LEXIS 3050 (1984).

A motion under subsection (b)(6) of this rule tests the legal sufficiency of the claim. The rules regarding the sufficiency of a complaint to withstand such a motion are equally applicable to a claim for relief presented in a counterclaim by the defendant. A counterclaim is sufficient to withstand the motion where no insurmountable bar to recovery on the claim appears on its face. Thus, the question becomes whether the counterclaim states a claim upon which relief can be granted on any theory. Chrysler Credit Corp. v. Rebhan, 66 N.C. App. 255, 311 S.E.2d 606, 1984 N.C. App. LEXIS 2869 (1984).

A legal insufficiency may be due to an absence of law to support a claim of the sort made, absence of fact sufficient to make a good claim, or the disclosure of some fact which will necessarily defeat the claim. State ex rel. Tenn. Dep't of Health & Env't v. Environmental Mgt. Comm'n, 78 N.C. App. 763, 338 S.E.2d 781, 1986 N.C. App. LEXIS 2012 (1986).

Where the facts are insufficient as a matter of law to constitute reasonable reliance on them, a complaint alleging fraud or negligent representation is properly dismissed. Hudson-Cole Dev. Corp. v. Beemer, 132 N.C. App. 341, 511 S.E.2d 309, 1999 N.C. App. LEXIS 117 (1999).

Motion Under Subsection (b)(6) Is Modern Equivalent of Demurrer. —

A motion to dismiss for failure to state a claim upon which relief can be granted is the modern equivalent of a demurrer. Sutton v. Duke, 277 N.C. 94 , 176 S.E.2d 161, 1970 N.C. LEXIS 510 (1970); Green v. Best, 9 N.C. App. 599, 176 S.E.2d 853, 1970 N.C. App. LEXIS 1417 (1970).

Which Performs Substantially Same Function as Demurrer. —

The motion to dismiss under subsection (b)(6) of this rule performs substantially the same function as the old common-law general demurrer. Sutton v. Duke, 277 N.C. 94 , 176 S.E.2d 161, 1970 N.C. LEXIS 510 (1970); Forrester v. Garrett, 280 N.C. 117 , 184 S.E.2d 858, 1971 N.C. LEXIS 1100 (1971); North Carolina Consumers Power, Inc. v. Duke Power Co., 285 N.C. 434 , 206 S.E.2d 178, 1974 N.C. LEXIS 1001 (1974); Stanback v. Stanback, 297 N.C. 181 , 254 S.E.2d 611, 1979 N.C. LEXIS 1249 (1979); Pierce v. Piver, 45 N.C. App. 111, 262 S.E.2d 320, 1980 N.C. App. LEXIS 2550 (1980).

A motion under subsection (b)(6) of this rule performs substantially the same function as a demurrer for failure to state facts sufficient to constitute a cause of action. Hodges v. Wellons, 9 N.C. App. 152, 175 S.E.2d 690, 1970 N.C. App. LEXIS 1301 (1970).

And Will Only Be Allowed When Demurrer Would Have Been Sustained. —

The motion to dismiss will only be allowed when, under the former practice, a demurrer would have been sustained because the complaint affirmatively disclosed that the plaintiff had no cause of action against the defendant. Sutton v. Duke, 277 N.C. 94 , 176 S.E.2d 161, 1970 N.C. LEXIS 510 (1970); Forrester v. Garrett, 280 N.C. 117 , 184 S.E.2d 858, 1971 N.C. LEXIS 1100 (1971); Mazzucco v. North Carolina Bd. of Medical Exmrs., 31 N.C. App. 47, 228 S.E.2d 529, 1976 N.C. App. LEXIS 1900 , cert. denied, 291 N.C. 323 , 230 S.E.2d 676, 1976 N.C. LEXIS 982 (1976).

Treatment of Demurrer as Motion Under Subsection (b)(6). —

The trial court did not err in considering demurrers filed prior to the effective date of the Rules of Civil Procedure as motions under subsection (b)(6) of this rule where plaintiff was not taken by surprise because the grounds stated in the demurrers were grounds covered by the rule. Hodges v. Wellons, 9 N.C. App. 152, 175 S.E.2d 690, 1970 N.C. App. LEXIS 1301 (1970). See also, Green v. Best, 9 N.C. App. 599, 176 S.E.2d 853, 1970 N.C. App. LEXIS 1417 (1970).

Motion to Dismiss Converted to Motion to Compel Arbitration. —

Defendant’s motion to dismiss pursuant to subsection (b)(6) of this rule based on “the terms and provisions of the parties’ Employment Agreement which provides for binding arbitration” would be treated as an application to stay litigation and compel arbitration pursuant to former G.S. 1-567.3(a), and the order of dismissal would be vacated and the matter remanded to the trial court for further appropriate proceedings. Novacare Orthotics & Prosthetics E., Inc. v. Speelman, 137 N.C. App. 471, 528 S.E.2d 918, 2000 N.C. App. LEXIS 407 (2000).

Motion to Dismiss Treated as Motion for a More Definite Statement. —

There was no abuse of discretion in the trial court’s treating defendants’ motion to dismiss, under G.S. 1A-1 , N.C. R. Civ. P. 12(b)(6) as a motion for a more definite statement., under G.S. 1A-1, N.C. R. Civ. P. 12(e), and then ordering plaintiff to file a second amended complaint, with a more definite statement. Page v. Mandel, 154 N.C. App. 94, 571 S.E.2d 635, 2002 N.C. App. LEXIS 1417 (2002).

Function of a motion to dismiss is to test the law of a claim, not the facts which support it. White v. White, 296 N.C. 661 , 252 S.E.2d 698, 1979 N.C. LEXIS 1117 (1979); Pierce v. Piver, 45 N.C. App. 111, 262 S.E.2d 320, 1980 N.C. App. LEXIS 2550 (1980); Snyder v. Freeman, 300 N.C. 204 , 266 S.E.2d 593, 1980 N.C. LEXIS 1067 (1980); State ex rel. Gilchrist v. Hurley, 48 N.C. App. 433, 269 S.E.2d 646, 1980 N.C. App. LEXIS 3284 (1980); Laumann v. Plakakis, 84 N.C. App. 131, 351 S.E.2d 765, 1987 N.C. App. LEXIS 2469 (1987).

The test on a motion to dismiss for failure to state a claim upon which relief can be granted is whether the pleading is legally sufficient. State ex rel. Tenn. Dep't of Health & Env't v. Environmental Mgt. Comm'n, 78 N.C. App. 763, 338 S.E.2d 781, 1986 N.C. App. LEXIS 2012 (1986).

In reviewing a Rule 12(b)(6) motion, a court must determine whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory, whether properly labeled or not; the trial court may grant this motion if there is a want of law to support a claim of the sort made, an absence of facts sufficient to make a good claim, or the disclosure of some fact which will necessarily defeat the claim. Dalenko v. Wake County Dep't of Human Servs., 157 N.C. App. 49, 578 S.E.2d 599, 2003 N.C. App. LEXIS 371 (2003), cert. denied, 357 N.C. 458 , 585 S.E.2d 386, 2003 N.C. LEXIS 1074 (2003), cert. denied, 540 U.S. 1178, 124 S. Ct. 1411, 158 L. Ed. 2d 79, 2004 U.S. LEXIS 1057 (2004).

A ruling on the merits cannot be made on a motion to dismiss, Wilkes v. North Carolina State Bd. of Alcoholic Control, 44 N.C. App. 495, 261 S.E.2d 205, 1980 N.C. App. LEXIS 2458 (1980), but see, Cline v. Teich, 92 N.C. App. 257, 374 S.E.2d 462, 1988 N.C. App. LEXIS 1039 (1988) (annotated below) .

Subsection (b)(6) as Adjudication on the Merits. —

G.S. 1A-1 , Rule 41(b) provides the basis for concluding that dismissal under subsection (b)(6) of this rule is an adjudication on the merits; therefore, a dismissal under subsection (b)(6) bars subsequent relitigation of the same claim. Cline v. Teich, 92 N.C. App. 257, 374 S.E.2d 462, 1988 N.C. App. LEXIS 1039 (1988).

Although well-pleaded factual allegations of a complaint are treated as true for purposes of a Rule 12(b)(6) motion, conclusions of law or unwarranted deductions of facts are not admitted; thus, while courts are to treat as true a plaintiff’s factual allegations, it is a court’s task to determine whether those allegations as a matter of law state a claim. Dalenko v. Wake County Dep't of Human Servs., 157 N.C. App. 49, 578 S.E.2d 599, 2003 N.C. App. LEXIS 371 (2003), cert. denied, 357 N.C. 458 , 585 S.E.2d 386, 2003 N.C. LEXIS 1074 (2003), cert. denied, 540 U.S. 1178, 124 S. Ct. 1411, 158 L. Ed. 2d 79, 2004 U.S. LEXIS 1057 (2004).

Dismissal of an attorney’s complaint against a medical records provider was based on G.S. 1A-1 , Rule 12(b)(6), rather than Rule 12(b)(1), where the trial court had dismissed the action with prejudice; it was noted that a dismissal under Rule 12(b)(1) was not on the merits, and accordingly, was not given res judicata effect, whereas a dismissal under Rule 12(b)(6) barred subsequent relitigation of the same claim. Street v. Smart Corp., 157 N.C. App. 303, 578 S.E.2d 695, 2003 N.C. App. LEXIS 544 (2003).

Dismissal Improper Where Allegations Support Claims. —

Dismissal was error as to the insured’s and trustees’ claims for fraud, negligent misrepresentation, and unfair and deceptive practices, given allegations supporting these claims; however, a constructive fraud claim was not supported and was properly dismissed. Hunter v. Guardian Life Ins. Co. of Am., 162 N.C. App. 477, 593 S.E.2d 595, 2004 N.C. App. LEXIS 174 (2004).

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, 271 N.C. App. 249, 844 S.E.2d 26, 2020 N.C. App. LEXIS 346 (2020).

Allegations Treated as True. —

For the purpose of a motion to dismiss, the allegations of the complaint are treated as true. Smith v. Ford Motor Co., 289 N.C. 71 , 221 S.E.2d 282, 1976 N.C. LEXIS 1221 (1976); Mazzucco v. North Carolina Bd. of Medical Exmrs., 31 N.C. App. 47, 228 S.E.2d 529, 1976 N.C. App. LEXIS 1900 , cert. denied, 291 N.C. 323 , 230 S.E.2d 676, 1976 N.C. LEXIS 982 (1976); Presnell v. Pell, 39 N.C. App. 538, 251 S.E.2d 692, 1979 N.C. App. LEXIS 2560 , aff'd in part and rev'd in part, 298 N.C. 715 , 260 S.E.2d 611, 1979 N.C. LEXIS 1414 (1979); Fowler v. Williamson, 39 N.C. App. 715, 251 S.E.2d 889, 1979 N.C. App. LEXIS 2578 (1979); Kinlaw v. Long Mfg. N.C. Inc., 40 N.C. App. 641, 253 S.E.2d 629, 1979 N.C. App. LEXIS 2331 , rev'd, 298 N.C. 494 , 259 S.E.2d 552, 1979 N.C. LEXIS 1379 (1979); Shoffner Indus., Inc. v. W.B. Lloyd Constr. Co., 42 N.C. App. 259, 257 S.E.2d 50, 1979 N.C. App. LEXIS 2838 , cert. denied, 298 N.C. 296 , 259 S.E.2d 301, 1979 N.C. LEXIS 1583 (1979); State ex rel. Gilchrist v. Hurley, 48 N.C. App. 433, 269 S.E.2d 646, 1980 N.C. App. LEXIS 3284 (1980); Stanley v. Stanley, 51 N.C. App. 172, 275 S.E.2d 546, 1981 N.C. App. LEXIS 2212 , cert. denied, 303 N.C. 182 , 280 S.E.2d 454, 1981 N.C. LEXIS 1280 (1981), cert. denied, 454 U.S. 959, 102 S. Ct. 496, 70 L. Ed. 2d 374, 1981 U.S. LEXIS 4181 (1981); Noell v. Winston, 51 N.C. App. 455, 276 S.E.2d 766, 1981 N.C. App. LEXIS 2258 (1981); Brewer v. Hatcher, 52 N.C. App. 601, 279 S.E.2d 69, 1981 N.C. App. LEXIS 2465 (1981); Mebane v. Board of Medical Exmrs., 55 N.C. App. 455, 286 S.E.2d 112, 1982 N.C. App. LEXIS 2213 (1982); Ladd v. Estate of Kellenberger, 314 N.C. 477 , 334 S.E.2d 751, 1985 N.C. LEXIS 2007 (1985); Sorrell v. Sorrell's Farms & Ranches, Inc., 78 N.C. App. 415, 337 S.E.2d 595, 1985 N.C. App. LEXIS 4438 (1985); Hawkins v. Webster, 78 N.C. App. 589, 337 S.E.2d 682, 1985 N.C. App. LEXIS 4332 (1985); Fox v. Wilson, 85 N.C. App. 292, 354 S.E.2d 737, 1987 N.C. App. LEXIS 2591 (1987); Peele v. Provident Mut. Life Ins. Co., 90 N.C. App. 447, 368 S.E.2d 892, 1988 N.C. App. LEXIS 566 (1988).

In ruling on a motion to dismiss for failure to state a claim, the allegations of the complaint must be viewed as admitted. Rawls v. Lampert, 58 N.C. App. 399, 293 S.E.2d 620, 1982 N.C. App. LEXIS 2766 (1982).

In ruling on the motion the allegations of the complaint must be viewed as admitted, and on that basis the court must determine as a matter of law whether the allegations state a claim for which relief may be granted. Stanback v. Stanback, 297 N.C. 181 , 254 S.E.2d 611, 1979 N.C. LEXIS 1249 (1979); Rawls v. Lampert, 58 N.C. App. 399, 293 S.E.2d 620, 1982 N.C. App. LEXIS 2766 (1982); Andresen v. Eastern Realty Co., 60 N.C. App. 418, 298 S.E.2d 764, 1983 N.C. App. LEXIS 2446 (1983); Ruffin v. Contractors & Materials, Inc., 69 N.C. App. 174, 316 S.E.2d 353, 1984 N.C. App. LEXIS 3399 (1984); State ex rel. Tenn. Dep't of Health & Env't v. Environmental Mgt. Comm'n, 78 N.C. App. 763, 338 S.E.2d 781, 1986 N.C. App. LEXIS 2012 (1986); Warren v. Halifax County, 90 N.C. App. 271, 368 S.E.2d 47, 1988 N.C. App. LEXIS 437 (1988).

When a motion for judgment on the pleadings is made, all well-pleaded factual allegations in the nonmoving party’s pleadings must be taken as true. Burton v. Kenyon, 46 N.C. App. 309, 264 S.E.2d 808, 1980 N.C. App. LEXIS 2802 (1980); Rose v. Guilford County, 60 N.C. App. 170, 298 S.E.2d 200, 1982 N.C. App. LEXIS 3277 (1982).

For purposes of ruling on a motion to dismiss, the well-pleaded material allegations of the complaint are taken as admitted. Snug Harbor Property Owners Ass'n v. Curran, 55 N.C. App. 199, 284 S.E.2d 752, 1981 N.C. App. LEXIS 3007 (1981).

In an appellate review of a dismissal of a counterclaim under subdivision (b)(6) of this rule, the material allegations of fact alleged in the counterclaim were taken as admitted. Barnaby v. Boardman, 313 N.C. 565 , 330 S.E.2d 600, 1985 N.C. LEXIS 1560 (1985).

Where case was dismissed prior to trial pursuant to subdivision (b)(6), it is clear under North Carolina law that the court must treat the allegations of the complaint as true. Hickman ex rel. Womble v. McKoin, 337 N.C. 460 , 446 S.E.2d 80, 1994 N.C. LEXIS 412 (1994).

But Not Conclusions or Unwarranted Deductions. —

For the purpose of the motion to dismiss, the well-pleaded material allegations of the complaint are taken as admitted; but conclusions of law or unwarranted deductions of fact are not admitted. Sutton v. Duke, 277 N.C. 94 , 176 S.E.2d 161, 1970 N.C. LEXIS 510 (1970); Lloyd v. Babb, 296 N.C. 416 , 251 S.E.2d 843, 1979 N.C. LEXIS 1184 (1979); Hooper v. Liberty Mut. Ins. Co., 84 N.C. App. 549, 353 S.E.2d 248, 1987 N.C. App. LEXIS 2520 (1987); Hill v. Perkins, 84 N.C. App. 644, 353 S.E.2d 686, 1987 N.C. App. LEXIS 2550 (1987).

In ruling on a motion to dismiss for failure to state a claim upon which relief can be granted, the allegations of the complaint must be viewed as admitted, and the motion should not be allowed unless the complaint affirmatively shows that plaintiff has no cause of action. Gatlin v. Bray, 81 N.C. App. 639, 344 S.E.2d 814, 1986 N.C. App. LEXIS 2351 (1986).

On a motion to dismiss for failure to state a claim upon which relief can be granted, all allegations of fact are taken as true but conclusions of law are not. Jackson v. Bumgardner, 318 N.C. 172 , 347 S.E.2d 743, 1986 N.C. LEXIS 2569 (1986).

Concept of “Defective Statement of a Good Cause of Action” Abolished. —

When G.S. 1A-1 , Rule 7(c) abolished demurrers and decreed that pleas for insufficiency should not be used, it also abolished the concept of a defective statement of a good cause of action. Sutton v. Duke, 277 N.C. 94 , 176 S.E.2d 161, 1970 N.C. LEXIS 510 (1970); Cassels v. Ford Motor Co., 10 N.C. App. 51, 178 S.E.2d 12, 1970 N.C. App. LEXIS 1185 (1970); Forrester v. Garrett, 280 N.C. 117 , 184 S.E.2d 858, 1971 N.C. LEXIS 1100 (1971).

Motion to Dismiss May Be Interposed to Defective Claim. —

Generally speaking, the motion to dismiss under subsection (b)(6) of this rule 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 N.C. LEXIS 510 (1970); Cassels v. Ford Motor Co., 10 N.C. App. 51, 178 S.E.2d 12, 1970 N.C. App. LEXIS 1185 (1970); Forrester v. Garrett, 280 N.C. 117 , 184 S.E.2d 858, 1971 N.C. LEXIS 1100 (1971); Brown v. Brown, 21 N.C. App. 435, 204 S.E.2d 534, 1974 N.C. App. LEXIS 1828 (1974).

Subsection (b)(6) of this rule permits a motion to dismiss upon the ground that the complaint states a defective claim or cause of action. Dale v. Lattimore, 12 N.C. App. 348, 183 S.E.2d 417, 1971 N.C. App. LEXIS 1357 , cert. denied, 279 N.C. 619 , 184 S.E.2d 113, 1971 N.C. LEXIS 899 (1971).

But Not to Defective Statement of Good Claim. —

The motion to dismiss under subsection (b)(6) of this rule 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 this rule, 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 N.C. LEXIS 510 (1970); Cassels v. Ford Motor Co., 10 N.C. App. 51, 178 S.E.2d 12, 1970 N.C. App. LEXIS 1185 (1970); Forrester v. Garrett, 280 N.C. 117 , 184 S.E.2d 858, 1971 N.C. LEXIS 1100 (1971); Brown v. Brown, 21 N.C. App. 435, 204 S.E.2d 534, 1974 N.C. App. LEXIS 1828 (1974); Deitz v. Jackson, 57 N.C. App. 275, 291 S.E.2d 282, 1982 N.C. App. LEXIS 2631 (1982); Anderson v. Texas Gulf, Inc., 83 N.C. App. 634, 351 S.E.2d 109, 1986 N.C. App. LEXIS 2754 (1986).

Subsection (b)(6) of this rule does not permit a motion to dismiss upon the ground that the complaint contains a defective statement of a good cause of action, relief for that defect being available under other sections of this rule. Dale v. Lattimore, 12 N.C. App. 348, 183 S.E.2d 417, 1971 N.C. App. LEXIS 1357 , cert. denied, 279 N.C. 619 , 184 S.E.2d 113, 1971 N.C. LEXIS 899 (1971).

If a complaint amounts to what was formerly called a “defective statement” of a good cause of action, a motion to dismiss under subsection (b)(6) of this rule should not be allowed. Other provisions of this rule, the rules governing discovery and the motion for summary judgment provide adequate procedure to obtain details not set out in a complaint. Lupo v. Powell, 44 N.C. App. 35, 259 S.E.2d 777, 1979 N.C. App. LEXIS 3158 (1979).

Under the notice theory of pleading of the Rules of Civil Procedure a complaint should not be dismissed merely because it amounts to a defective statement of a good cause of action. Jenkins v. Wheeler, 69 N.C. App. 140, 316 S.E.2d 354, 1984 N.C. App. LEXIS 3397 (1984).

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 N.C. LEXIS 1100 (1971).

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 N.C. LEXIS 1039 (1971); Brown v. Brown, 21 N.C. App. 435, 204 S.E.2d 534, 1974 N.C. App. LEXIS 1828 (1974); Benton v. W.H. Weaver Constr. Co., 28 N.C. App. 91, 220 S.E.2d 417, 1975 N.C. App. LEXIS 1682 (1975); North Carolina Nat'l Bank v. McCarley & Co., 34 N.C. App. 689, 239 S.E.2d 583, 1977 N.C. App. LEXIS 1794 (1977).

While mere vagueness is not enough to dismiss the complaint, the complaint must state enough to satisfy the requirements of the substantive law giving rise to the claim; merely asserting a grievance is not enough. Braun v. Glade Valley Sch., Inc., 77 N.C. App. 83, 334 S.E.2d 404, 1985 N.C. App. LEXIS 4054 (1985).

But Complaint Must State Substantive Elements of Some Recognized Claim. —

Despite the liberal nature of the concept of notice pleading, a complaint must nonetheless state enough to give the substantive elements of at least some legally recognized claim or it is subject to dismissal under subsection (b)(6) of this rule. Stanback v. Stanback, 297 N.C. 181 , 254 S.E.2d 611, 1979 N.C. LEXIS 1249 (1979).

A complaint may be dismissed pursuant to subsection (b)(6) of this rule if there is an absence of law to support a claim of the sort made. Snyder v. Freeman, 40 N.C. App. 348, 253 S.E.2d 10, 1979 N.C. App. LEXIS 2269 (1979), rev'd, 300 N.C. 204 , 266 S.E.2d 593, 1980 N.C. LEXIS 1067 (1980); Noell v. Winston, 51 N.C. App. 455, 276 S.E.2d 766, 1981 N.C. App. LEXIS 2258 (1981).

A claim for relief must still satisfy the requirements of the substantive laws which gave 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. While an incorrect choice of theory should not result in dismissal of the claim, the allegations must suffice to state a claim under some legal theory. Morrow v. Kings Dep't Stores, Inc., 57 N.C. App. 13, 290 S.E.2d 732, 1982 N.C. App. LEXIS 2591 (1982).

In order to withstand a motion to dismiss pursuant to subsection (b)(6) of this rule, the complaint must provide sufficient notice of the events and circumstances from which the claim arises, and must make allegations sufficient to satisfy the substantive elements of at least some recognized claim. Harris v. Duke Power Co., 83 N.C. App. 195, 349 S.E.2d 394, 1986 N.C. App. LEXIS 2683 (1986), aff'd, 319 N.C. 627 , 356 S.E.2d 357, 1987 N.C. LEXIS 2081 (1987); Fox v. Wilson, 85 N.C. App. 292, 354 S.E.2d 737, 1987 N.C. App. LEXIS 2591 (1987); Harris v. NCNB Nat'l Bank, 85 N.C. App. 669, 355 S.E.2d 838, 1987 N.C. App. LEXIS 2645 (1987).

With the adoption of “notice pleading,” mere vagueness or lack of detail is no longer ground for allowing a motion to dismiss. Gatlin v. Bray, 81 N.C. App. 639, 344 S.E.2d 814, 1986 N.C. App. LEXIS 2351 (1986).

In order to survive a motion to dismiss under subsection (b)(6) of this rule, a plaintiff must only state enough to give the substantive elements of a legally recognized claim. Booher v. Frue, 86 N.C. App. 390, 358 S.E.2d 127, 1987 N.C. App. LEXIS 2715 (1987), aff'd, 321 N.C. 590 , 364 S.E.2d 141, 1988 N.C. LEXIS 18 (1988).

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 where 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 N.C. App. LEXIS 1780 (2004).

Complaint Sufficient to Withstand Motion to Dismiss. —

Where complaint alleged the existence of an employment contract containing a specific duration of employment, as it is well established that this type of employment contract is not terminable at will, and plaintiff was not permitted to complete the contract’s stated duration of employment, the breach of contract claim as alleged in the complaint was sufficient to withstand defendant’s subdivision (b)(6) motion to dismiss. Brandis v. Lightmotive Fatman, Inc., 115 N.C. App. 59, 443 S.E.2d 887, 1994 N.C. App. LEXIS 543 (1994).

Plaintiff alleged sufficient facts in his complaint to state a claim for wrongful termination under the public policy exception to the employment at-will doctrine. Vereen v. Holden, 121 N.C. App. 779, 468 S.E.2d 471, 1996 N.C. App. LEXIS 133 (1996).

Where plaintiffs alleged facts sufficient to establish a prima facie case of negligence against town as well as sufficient to place plaintiffs’ case within the “special duty” exception to the public duty doctrine and to withstand the town’s defenses, the trial court erred by granting the town’s motion to dismiss; complaint’s factual allegations [e.g., that .4 mile from plaintiffs’ burning house, fire chief decided to abandon plaintiffs’ emergency call and instead ordered his crew to return to the fire station] were adequate to support a conclusion that fire chief’s behavior was “malicious,” “willful and wanton,” or “outside of and beyond the scope of” his official duties as fire chief. Davis v. Messer, 119 N.C. App. 44, 457 S.E.2d 902, 1995 N.C. App. LEXIS 403 (1995).

Plaintiff, insurer of automobile which was pulling trailer, stated a claim for contribution against defendant, insurer of trailer involved in accident, where plaintiff acted in good faith in notifying defendant of claim and defendant was not prejudiced by delay in notice, and plaintiff acted to protect its own interest as insurer of automobile and was not a mere volunteer. Nationwide Mut. Ins. Co. v. State Farm Mut. Auto. Ins. Co., 122 N.C. App. 449, 470 S.E.2d 556, 1996 N.C. App. LEXIS 458 (1996).

Where complaint, as reflected within the caption, body and claim for relief, indicated a suit against a crossing guard individually and in her official capacity, and alleged that crossing guard had a specific, ministerial duty to assist children, arising from fixed and designated facts, the plaintiff pled a claim against defendant in her individual capacity sufficient to overcome defendant’s motion under this section to dismiss on the ground that defendant crossing guard was a public official immune to liability for ordinary negligence. Isenhour v. Hutto, 350 N.C. 601 , 517 S.E.2d 121, 1999 N.C. LEXIS 721 (1999).

Where the facts alleged by the plaintiffs suggested that a special relationship existed between the plaintiffs and the defendants which would give rise to an exception to the public duty doctrine, dismissal at the pleading stage was inappropriate. Hobbs v. North Carolina Dep't of Human Resources, 135 N.C. App. 412, 520 S.E.2d 595, 1999 N.C. App. LEXIS 1146 (1999).

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, pursuant to G.S. 55-7-42 , where the plaintiffs had complied with G.S. 1A-1 , Rule 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 N.C. App. LEXIS 1207 (2000).

Under § 4-401 of the Uniform Commercial Code, G.S. 25-4-401 , a bank may only charge its customers’ accounts for “properly payable” items, and if the banks cashed checks payable to a third party with either no endorsement or with only the corporations’ president’s endorsement, such items were not properly payable; by alleging in one of its alternative theories that the banks cashed checks payable to a third party and turned the proceeds over to the president, the corporations’ complaint stated at least one viable cause of action sufficient to defeat the banks’ motion to dismiss under Rule 12(b)(6). Castle Worldwide, Inc. v. Southtrust Bank, 157 N.C. App. 518, 579 S.E.2d 478, 2003 N.C. App. LEXIS 730 (2003).

In an action which an injured party filed against a church and a landowner after the injured party was hurt at a church festival, the appellate court affirmed the trial court’s judgment dismissing the injured party’s action against the landowner, but reversed the trial court’s judgment dismissing the injured party’s claim against the church, because the injured party stated a claim for recovery by alleging that the church failed to use reasonable care when it allowed too many children to ride on a flatbed trailer without proper supervision and that the injured party was hurt while rescuing a child who almost fell off the trailer. Clontz v. St. Mark's Evangelical Lutheran Church, 157 N.C. App. 325, 578 S.E.2d 654, 2003 N.C. App. LEXIS 537 (2003).

Trial court properly denied a law firm’s motion to dismiss under N.C. R. Civ. P. 12(b)(6) a claim by the attorneys who provided legal services pursuant to a contingency fee agreement and then were fired by the client; the discharged attorneys had a viable claim in North Carolina in quantum meruit against the former client or its subsequent representative. Guess v. Parrott, 160 N.C. App. 325, 585 S.E.2d 464, 2003 N.C. App. LEXIS 1798 (2003).

African-American employee who worked for a county department of social services had the right to pursue her claim that she was not promoted because of her race under Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., under 42 U.S.C.S. § 1983, or under both laws, and the trial court erred when it dismissed her complaint because, although the complaint did not state that the employee was seeking relief under 42 U.S.C.S. § 1983, the facts she alleged were sufficient to state a claim for relief under § 1983. Enoch v. Inman, 164 N.C. App. 415, 596 S.E.2d 361, 2004 N.C. App. LEXIS 1006 (2004).

Superior court erroneously dismissed a claim filed by two of decedent’s step-grandchildren that defendants, two of the decedent’s other step-grandchildren, maliciously caused their step-grandmother to execute a will that left them only nominal bequests, as: (1) the movant step-grandchildren would not be able to obtain adequate relief through a caveat proceeding; and (2) it did not appear that the step-grandchildren could not prove a set of facts supporting their claim which would entitle them to relief. Murrow v. Henson, 172 N.C. App. 792, 616 S.E.2d 664, 2005 N.C. App. LEXIS 1809 (2005).

Trial court erred by dismissing a client’s claim for compensation for “emotional” damages stemming from an attorney’s alleged legal malpractice as the client’s allegation that he sustained “emotional” injury was nothing more than a description of the damage that he claimed to have suffered as a result of the attorney’s negligence and did not constitute the addition of an enforceable claim or cause of action that the statute of limitations had run against. Thus, the client’s claim for emotional injury related back, pursuant to G.S. 1A-1 , N.C. R. Civ. P. 41(a)(1), to the original filing of his complaint, which he had previously voluntarily dismissed. Royster v. McNamara, 218 N.C. App. 520, 723 S.E.2d 122, 2012 N.C. App. LEXIS 218 (2012).

Trial court erred in dismissing an IIED claim where plaintiff’s allegations painted a picture of law enforcement officials deliberately abusing their authority as public officials to manipulate evidence and distort a case for the purpose of reaching a foreordained conclusion of guilt, and plaintiff’s resulting depression and damages were foreseeable. Turner v. Thomas, 369 N.C. 419 , 794 S.E.2d 439, 2016 N.C. LEXIS 1124 (2016).

Dismissal of a resident’s intentional infliction of emotional distress claims against the directors of a homeowner’s association should have survived where her allegations of unrelenting abuse that involved her being beaten, physically restrained, threatened, and subjected to extraordinarily vulgar and offensive comments were sufficient to show that the directors perpetuated a prolonged multi-year campaign of harassment, threats, and abuse that grossly exceeded the bounds of propriety. Radcliffe v. Avenel Homeowners Ass'n, 248 N.C. App. 541, 789 S.E.2d 893, 2016 N.C. App. LEXIS 824 (2016), cert. denied, 369 N.C. 569 , 799 S.E.2d 42, 2017 N.C. LEXIS 344 (2017).

Dismissal was improperly granted on a breach of express warranty counterclaim where the buyers alleged that at the time of purchase, they informed agents of the seller that they were in the market for a vehicle that they both could ride in for their personal use, the agents stated that the vehicle could safely transport both Defendants at the same time and that the vehicle was brand new with no mechanical issues, and the buyers relied on this express warranty when purchasing the vehicle and would not have purchased it had the agents not represented to them that the vehicle was in good working order and fit to transport them both. Ford Motor Credit Co. LLC v. McBride, 257 N.C. App. 590, 811 S.E.2d 640, 2018 N.C. App. LEXIS 106 (2018).

Buyers’ claim that they revoked their acceptance of the nonconforming vehicle should have survived a motion to dismiss where the defect was not apparent at the time of purchase, the seller’s agents had assured the buyers that the vehicle was suitable to transport both of them, the buyers revoked acceptance of the vehicle by returning it to seller and informing the creditor that they no longer wanted the vehicle, and revocation was within a reasonable time after they discovered or should have discovered the non-conformity and there was no substantial change in the condition of the vehicle not caused by its own defects in its entirety. Ford Motor Credit Co. LLC v. McBride, 257 N.C. App. 590, 811 S.E.2d 640, 2018 N.C. App. LEXIS 106 (2018).

Dismissal was improperly granted on the breach of the implied warranty of fitness for a particular purpose counterclaim given the allegation that the buyers informed the seller’s agents that they were looking for a vehicle that could transport them both at the same time. Ford Motor Credit Co. LLC v. McBride, 257 N.C. App. 590, 811 S.E.2d 640, 2018 N.C. App. LEXIS 106 (2018).

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 N.C. App. LEXIS 297 (2018).

In a case in which the father had been traveling out of town frequently for his work, his travel schedule was irregular, and he and the mother had serious difficulties in communicating and making arrangements for changes in the child’s schedule, to the child’s detriment, the father’s motion to modify custody was improperly dismissed for failure to state a claim upon which relief could be granted because the father’s motion to modify alleged at least one substantial change of circumstances as the father was no longer required to travel and was available and able to care for the minor child on an equal basis with the mother. Stern v. Stern, 264 N.C. App. 585, 826 S.E.2d 490, 2019 N.C. App. LEXIS 264 (2019).

Claim that has as an element the truthfulness of a representation about an activity North Carolina law regards as ultrahazardous can survive a motion to dismiss, even though the content of the representation relates to an activity regarded by the law as ultrahazardous. Thus, success on plaintiff’s claim for tortious interference with prospective economic advantage was not precluded by the content of defendants’ representations to a town, notwithstanding the rule of strict liability applicable to cases in which injury is alleged to result from an ultrahazardous activity. Cheryl Lloyd Humphrey Land Inv. Co., LLC v. Resco Prods., 266 N.C. App. 255, 831 S.E.2d 395, 2019 N.C. App. LEXIS 595 (2019), rev'd, 377 N.C. 384 , 858 S.E.2d 795, 2021- NCSC-56, 2021 N.C. LEXIS 538 (2021).

Upon Which Relief Can Be Granted Under Some Theory. —

With regard to its sufficiency, the question is whether the complaint, when liberally construed, states a claim upon which relief can be granted on any theory. Brewer v. Hatcher, 52 N.C. App. 601, 279 S.E.2d 69, 1981 N.C. App. LEXIS 2465 (1981); Hawkins v. Webster, 78 N.C. App. 589, 337 S.E.2d 682, 1985 N.C. App. LEXIS 4332 (1985).

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 N.C. LEXIS 1249 (1979).

For purposes of a motion to dismiss, the allegations in the complaint must be treated as true, and the complaint is sufficient if it supports relief on any theory. Jenkins v. Wheeler, 69 N.C. App. 140, 316 S.E.2d 354, 1984 N.C. App. LEXIS 3397 (1984).

A motion to dismiss for failure to state a claim upon which relief may be granted is addressed to whether the facts alleged in the complaint, when viewed in the light most favorable to the plaintiffs, give rise to a claim for relief on any theory. Ford v. Peaches Entertainment Corp., 83 N.C. App. 155, 349 S.E.2d 82, 1986 N.C. App. LEXIS 2673 (1986).

Dismissal Not Necessitated by Incorrect Choice of Legal Theory. —

In testing the sufficiency of a claim, the complaint must be liberally construed, and when the allegations give sufficient notice of the wrong of which plaintiff complains, incorrect choice of the legal theory upon which the claim is bottomed should not result in dismissal if the allegations are sufficient to state a claim under some legal theory. Jones v. City of Greensboro, 51 N.C. App. 571, 277 S.E.2d 562, 1981 N.C. App. LEXIS 2305 (1981).

The theory of a claim is to be determined from the evidence and not from the pleadings. The fact that plaintiff might have mislabeled his claim is of no significance in ruling on a motion to dismiss pursuant to this rule. Warren v. Halifax County, 90 N.C. App. 271, 368 S.E.2d 47, 1988 N.C. App. LEXIS 437 (1988).

The facts pleaded in the complaint are the determining factors in deciding whether the complaint states a claim upon which relief can be granted; the legal theory set forth in the complaint does not determine the validity of the claim. Braun v. Glade Valley Sch., Inc., 77 N.C. App. 83, 334 S.E.2d 404, 1985 N.C. App. LEXIS 4054 (1985).

In order to survive a motion to dismiss pursuant to subsection (b)(6) of this rule, a complaint for fraud must allege with particularity all material facts and circumstances constituting the fraud. But while the facts constituting fraud must be alleged with particularity, there is no requirement that any precise formula be followed or that any certain language be used. Carver v. Roberts, 78 N.C. App. 511, 337 S.E.2d 126, 1985 N.C. App. LEXIS 4334 (1985).

Test for Sufficiency of Complaint. —

A complaint is sufficient to withstand a motion to dismiss where no insurmountable bar to recovery on the claim alleged appears on the face of the complaint and where allegations contained therein are sufficient to give a defendant sufficient notice of the nature and basis of plaintiff ’s claim to enable him to answer and prepare for trial. Cassels v. Ford Motor Co., 10 N.C. App. 51, 178 S.E.2d 12, 1970 N.C. App. LEXIS 1185 (1970); Lewis v. Gastonia Air Serv., Inc., 16 N.C. App. 317, 192 S.E.2d 6, 1972 N.C. App. LEXIS 1694 (1972); North Carolina Nat'l Bank v. McCarley & Co., 34 N.C. App. 689, 239 S.E.2d 583, 1977 N.C. App. LEXIS 1794 (1977); Presnell v. Pell, 39 N.C. App. 538, 251 S.E.2d 692, 1979 N.C. App. LEXIS 2560 , aff'd in part and rev'd in part, 298 N.C. 715 , 260 S.E.2d 611, 1979 N.C. LEXIS 1414 (1979); Shoffner Indus., Inc. v. W.B. Lloyd Constr. Co., 42 N.C. App. 259, 257 S.E.2d 50, 1979 N.C. App. LEXIS 2838 , cert. denied, 298 N.C. 296 , 259 S.E.2d 301, 1979 N.C. LEXIS 1583 (1979); United Leasing Corp. v. Miller, 45 N.C. App. 400, 263 S.E.2d 313, 1980 N.C. App. LEXIS 2651 (1980); Stanley v. Stanley, 51 N.C. App. 172, 275 S.E.2d 546, 1981 N.C. App. LEXIS 2212 , cert. denied, 303 N.C. 182 , 280 S.E.2d 454, 1981 N.C. LEXIS 1280 (1981), cert. denied, 454 U.S. 959, 102 S. Ct. 496, 70 L. Ed. 2d 374, 1981 U.S. LEXIS 4181 (1981); Noell v. Winston, 51 N.C. App. 455, 276 S.E.2d 766, 1981 N.C. App. LEXIS 2258 (1981); Brewer v. Hatcher, 52 N.C. App. 601, 279 S.E.2d 69, 1981 N.C. App. LEXIS 2465 (1981); Deitz v. Jackson, 57 N.C. App. 275, 291 S.E.2d 282, 1982 N.C. App. LEXIS 2631 (1982); Dixon v. Stuart, 85 N.C. App. 338, 354 S.E.2d 757, 1987 N.C. App. LEXIS 2594 (1987); Leonard v. Pugh, 86 N.C. App. 207, 356 S.E.2d 812, 1987 N.C. App. LEXIS 2685 (1987).

It is error to grant defendant’s motion to dismiss plaintiff ’s claim where no insurmountable bar to recovery appears on the face of the complaint and the complaint contains a statement of the claim sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved. Clouse v. Chairtown Motors, Inc., 14 N.C. App. 117, 187 S.E.2d 398, 1972 N.C. App. LEXIS 2051 (1972).

A pleading is sufficient if it gives enough notice of the events or transactions that produced the claim to enable the adverse party to understand the nature and basis of the claim, to file a responsive pleading, and, by using the rules provided for discovery, to get additional information needed for trial. North Carolina Nat'l Bank v. Wallens, 31 N.C. App. 721, 230 S.E.2d 690, 1976 N.C. App. LEXIS 2095 (1976); Orange County Sensible Hwys. & Protected Env'ts, Inc. v. North Carolina Dep't of Transp., 46 N.C. App. 350, 265 S.E.2d 890, 1980 N.C. App. LEXIS 2836 (1980).

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 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 N.C. LEXIS 1039 (1971); Brown v. Brown, 21 N.C. App. 435, 204 S.E.2d 534, 1974 N.C. App. LEXIS 1828 (1974); Carolina Wire & Cable, Inc. v. Finnican, 46 N.C. App. 87, 264 S.E.2d 138, 1980 N.C. App. LEXIS 2750 (1980).

Pleadings comply with the present concept of notice pleading if the allegations in the complaint give defendant sufficient notice of the nature and basis of plaintiffs’ claim to file an answer, and the face of the complaint shows no insurmountable bar to recovery. Rose v. Guilford County, 60 N.C. App. 170, 298 S.E.2d 200, 1982 N.C. App. LEXIS 3277 (1982); Gatlin v. Bray, 81 N.C. App. 639, 344 S.E.2d 814, 1986 N.C. App. LEXIS 2351 (1986).

The complaint is adequate if it gives the defendant sufficient notice of the nature and basis of plaintiff ’s claim to enable him to answer and to prepare for trial, and to show the type of case brought. State ex rel. Gilchrist v. Hurley, 48 N.C. App. 433, 269 S.E.2d 646, 1980 N.C. App. LEXIS 3284 (1980).

The sufficiency of a claim to withstand a motion to dismiss is tested by its success or failure in setting out a state of facts which, when liberally considered, would entitle plaintiff to some relief. If it appears to a certainty that no state of facts could be proved in support of the claim so as to entitle plaintiff to some relief, the complaint should be dismissed. Carolina Bldrs. Corp. v. AAA Dry Wall, Inc., 43 N.C. App. 444, 259 S.E.2d 364, 1979 N.C. App. LEXIS 3108 (1979); Yates v. City of Raleigh, 46 N.C. App. 221, 264 S.E.2d 798, 1980 N.C. App. LEXIS 2797 (1980).

A motion under subsection (b)(6) of this rule operates to test the legal sufficiency of the complaint. In ruling on the motion the allegations of the complaint must be viewed as admitted, and on that basis the court must determine as a matter of law whether the allegations state a claim for which relief may be granted. However, if the complaint discloses an unconditional affirmative defense which defeats the asserted claim, the motion will be granted and the action dismissed. Skinner v. E.F. Hutton & Co., 70 N.C. App. 517, 320 S.E.2d 424, 1984 N.C. App. LEXIS 3708 (1984), modified in part and rev'd in part, 314 N.C. 267 , 333 S.E.2d 236, 1985 N.C. LEXIS 1776 (1985).

Under the “notice theory of pleading,” a statement of a claim can withstand a motion to dismiss if it gives the other party notice of the nature and basis of the claim sufficient to enable the party to answer and prepare for trial. Barnaby v. Boardman, 70 N.C. App. 299, 318 S.E.2d 907, 1984 N.C. App. LEXIS 3658 (1984), rev'd, 313 N.C. 565 , 330 S.E.2d 600, 1985 N.C. LEXIS 1560 (1985).

In order to withstand a motion to dismiss pursuant to subsection (b)(6) of this rule, the complaint must provide sufficient notice of the events and circumstances from which the claim arises, and must make allegations sufficient to satisfy the substantive elements of at least some recognized claim. Stewart v. Allison, 86 N.C. App. 68, 356 S.E.2d 109, 1987 N.C. App. LEXIS 2665 (1987).

To be legally sufficient, a claim must show on its face that there is no insurmountable bar to recovery and that the pleadings give the adverse party notice of the events giving rise to the claim so that the party understands the nature of the claim and is able to answer the allegations in the complaint and prepare for trial. Piedmont Ford Truck Sales, Inc. v. City of Greensboro, 90 N.C. App. 692, 370 S.E.2d 262, 1988 N.C. App. LEXIS 636 (1988), writ denied, 323 N.C. 625 , 374 S.E.2d 589, 1988 N.C. LEXIS 758 (1988), rev'd, 324 N.C. 499 , 380 S.E.2d 107, 1989 N.C. LEXIS 295 (1989).

In a conversion action, owners of leased portable hangers stated claim based on city’s taking control of hangers pursuant to a bankruptcy clause in the agreement, even though plaintiff owners ability to recover depended on whether the hangers were in fact “trade fixtures” and thus personalty or improvements affixed to the realty. Garvin v. City of Fayetteville, 102 N.C. App. 121, 401 S.E.2d 133, 1991 N.C. App. LEXIS 198 (1991).

Unfair and Deceptive Trade Practices. —

It was proper to dismiss a former employee’s action that alleged that a former employer engaged in unfair and deceptive trade practices in violation of G.S. 75-1.1 where the employer changed its by-laws to prohibit former employees from applying to serve on its board until six years had elapsed since the date of last employment because such matters of internal corporate management did not affect commerce in the context of a claim of unfair and deceptive trade practices. Wilson v. Blue Ridge Elec. Mbrshp. Corp., 157 N.C. App. 355, 578 S.E.2d 692, 2003 N.C. App. LEXIS 541 (2003).

Because the buyers to a contract with the seller did not possess any contract rights due to the insufficiency of their consideration, they could not allege damages by virtue of any alleged unfair and deceptive acts of the seller relating to that alleged contract. McLamb v. T.P. Inc., 173 N.C. App. 586, 619 S.E.2d 577, 2005 N.C. App. LEXIS 2122 (2005).

Motion to dismiss the vehicle purchasers’ fraud and G.S. 75-1.1 claims was properly granted where there were no allegations that the previous owners’ lender made any direct statements to the purchasers or that their decision to purchase the vehicle from the seller was based on the lender’s actual misrepresentations or omissions. Sain v. Adams Auto Grp., Inc., 244 N.C. App. 657, 781 S.E.2d 655, 2016 N.C. App. LEXIS 58 (2016).

Dismissing the vehicle purchasers’ G.S. 75-1.1 claim against the seller was error where the claim was based on the seller’s alleged misrepresentation of the vehicle’s condition after purchasing it at auction. Sain v. Adams Auto Grp., Inc., 244 N.C. App. 657, 781 S.E.2d 655, 2016 N.C. App. LEXIS 58 (2016).

Trial court did not err in dismissing plaintiff’s unfair or deceptive practices claim against an investment fund manager and its officers where the claim rested entirely upon two letters sent between the parties’ counsel, case law concluding that acts engaged in by counsel fell within the learned profession exemption of G.S. 75-1.1 , and thus, plaintiff failed to alleged facts to establish that the acts complained of were in commerce as required under G.S. 75-1.1(b) . Moch v. A.M. Pappas & Assocs., LLC, 251 N.C. App. 198, 794 S.E.2d 898, 2016 N.C. App. LEXIS 1304 (2016).

Borrower’s unfair or deceptive trade practices claim was properly dismissed where the permanent loan modification agreement had not commenced, and thus, the lenders and loan servicers could not have committed unfair or deceptive trade practices by refusing to honor the agreement. McDonald v. Bank of N.Y. Mellon Trust Co., 259 N.C. App. 582, 816 S.E.2d 861, 2018 N.C. App. LEXIS 465 (2018).

Facts alleging unfair claim settlement practices were sufficient to state a claim for unfair trade practices under G.S. 58-63-15 so as to withstand a challenge under subdivision (b)(6) of this rule. Miller v. Nationwide Mut. Ins. Co., 112 N.C. App. 295, 435 S.E.2d 537, 1993 N.C. App. LEXIS 1090 (1993).

Unfair and Deceptive Trade Practices Act. —

Trial court properly granted defendants’ motion pursuant to G.S. 1A-1 , N.C. R. Civ. P. 12(b)(6) to dismiss an investor’s action alleging violations of the Unfair and Deceptive Trade Practice Act (UDTPA), G.S. 75-1.1 and other claims; no authority existed for imposing a duty upon defendants, securities brokers, to oversee the manner in which the funds in question were invested, and securities transactions were not subject to the UDTPA, because such application would create overlapping supervision, enforcement, and liability in an area of law that was already pervasively regulated by state and federal statutes and agencies. Sterner v. Penn, 159 N.C. App. 626, 583 S.E.2d 670, 2003 N.C. App. LEXIS 1540 (2003).

Plaintiff who sued defendant/insurance company for unfair and deceptive practices and acts, when it raised his insurance premiums after paying a claim which he repeatedly informed the insurer was fraudulent, failed to state facts sufficient to survive summary judgment under G.S. 58-63-15(11)(b) and (c); where the defendant’s advertising claimed that it did not want to pay false claims, plaintiff should have alleged that it did want to, not merely that it did, and where defendant failed to adequately investigate the claim, plaintiff should have alleged that the defendant did not act promptly in doing so. Cash v. State Farm Mut. Auto. Ins. Co., 137 N.C. App. 192, 528 S.E.2d 372, 2000 N.C. App. LEXIS 312 (2000).

Plaintiff’s claim for tortious breach of insurance contract and punitive damages, based on defendant’s deciding to settle a claim which plaintiff claimed was fraudulent and subsequently raising his premiums, failed to state a claim for which relief could be granted; plaintiff failed to indicate that defendant/insurer’s settlement with claimants rose to the level of aggravation defined in Taha v. Thompson, 120 N.C. App. 697, 704-05, 463 S.E.2d 553, 558 (1995), and he also failed to allege an intentional wrong by the insurer; and while he alleged that the claimants committed fraud be nowhere alleged that the insurer committed fraud by settling their claim. Cash v. State Farm Mut. Auto. Ins. Co., 137 N.C. App. 192, 528 S.E.2d 372, 2000 N.C. App. LEXIS 312 (2000).

Allegations in amended complaint were sufficient to state a claim for relief based on a theory of negligence against an aircraft manufacturer in the preparation and publication of the information manual on mechanical functions. Driver v. Burlington Aviation, Inc., 110 N.C. App. 519, 430 S.E.2d 476, 1993 N.C. App. LEXIS 569 (1993).

Dismissal Is Precluded Absent Insurmountable Bar to Recovery. —

A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. This rule generally precludes dismissal except in those instances where the face of the complaint discloses some insurmountable bar to recovery. Brown v. Brown, 21 N.C. App. 435, 204 S.E.2d 534, 1974 N.C. App. LEXIS 1828 (1974); Carolina Wire & Cable, Inc. v. Finnican, 46 N.C. App. 87, 264 S.E.2d 138, 1980 N.C. App. LEXIS 2750 (1980); Forbis v. Honeycutt, 48 N.C. App. 145, 268 S.E.2d 247, 1980 N.C. App. LEXIS 3196 , aff'd, 301 N.C. 699 , 273 S.E.2d 240, 1981 N.C. LEXIS 1022 (1980); Snug Harbor Property Owners Ass'n v. Curran, 55 N.C. App. 199, 284 S.E.2d 752, 1981 N.C. App. LEXIS 3007 (1981); Ladd v. Estate of Kellenberger, 314 N.C. 477 , 334 S.E.2d 751, 1985 N.C. LEXIS 2007 (1985).

If a complaint meets the basic requirements set forth in G.S. 1A-1 , Rule 8 and does not show upon its face that there is an insurmountable bar to recovery on the claim alleged, it is not subject to dismissal under subsection (b)(6) of this rule. Patterson v. Weatherspoon, 17 N.C. App. 236, 193 S.E.2d 585, 1972 N.C. App. LEXIS 1631 (1972).

A complaint is deemed sufficient to withstand a motion to dismiss under this rule where no insurmountable bar to recovery appears on the face of the complaint and the complaint’s allegations give adequate notice of the nature and extent of the claim. Renwick v. News & Observer Publishing Co., 63 N.C. App. 200, 304 S.E.2d 593, 1983 N.C. App. LEXIS 3021 (1983), rev'd, 310 N.C. 312 , 312 S.E.2d 405, 1984 N.C. LEXIS 1576 (1984); 469 U.S. 858, 105 S. Ct. 187, 83 L. Ed. 2d 121 (1984).

A complaint will not be dismissed for failure to state a valid claim unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim. Unless the face of the complaint shows an insurmountable bar to recovery, plaintiff ’s action should not be dismissed on the pleading. Lyon v. Continental Trading Co., 76 N.C. App. 499, 333 S.E.2d 774, 1985 N.C. App. LEXIS 3892 (1985).

Subsection (b)(6) of this rule generally precludes dismissal except in those instances in which the face of the complaint discloses some insurmountable bar to recovery. Hawkins v. Webster, 78 N.C. App. 589, 337 S.E.2d 682, 1985 N.C. App. LEXIS 4332 (1985).

And a complaint should not be dismissed unless it appears that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim. Clouse v. Chairtown Motors, Inc., 14 N.C. App. 117, 187 S.E.2d 398, 1972 N.C. App. LEXIS 2051 (1972); Newton v. Standard Fire Ins. Co., 291 N.C. 105 , 229 S.E.2d 297, 1976 N.C. LEXIS 937 (1976); Mazzucco v. North Carolina Bd. of Medical Exmrs., 31 N.C. App. 47, 228 S.E.2d 529, 1976 N.C. App. LEXIS 1900 , cert. denied, 291 N.C. 323 , 230 S.E.2d 676, 1976 N.C. LEXIS 982 (1976); North Carolina Nat'l Bank v. Wallens, 31 N.C. App. 721, 230 S.E.2d 690, 1976 N.C. App. LEXIS 2095 (1976); North Carolina Nat'l Bank v. McCarley & Co., 34 N.C. App. 689, 239 S.E.2d 583, 1977 N.C. App. LEXIS 1794 (1977); Kelly v. Briles, 35 N.C. App. 714, 242 S.E.2d 883, 1978 N.C. App. LEXIS 3066 (1978); Eutaw Shopping Ctr., Inc. v. Glenn, 39 N.C. App. 67, 249 S.E.2d 459, 1978 N.C. App. LEXIS 2342 (1978), cert. denied, 296 N.C. 737 , 254 S.E.2d 177, 1979 N.C. LEXIS 1282 (1979); Stanback v. Stanback, 297 N.C. 181 , 254 S.E.2d 611, 1979 N.C. LEXIS 1249 (1979); Presnell v. Pell, 298 N.C. 715 , 260 S.E.2d 611, 1979 N.C. LEXIS 1414 (1979); FDIC v. Loft Apts., Ltd. Partnership, 39 N.C. App. 473, 250 S.E.2d 693, 1979 N.C. App. LEXIS 2515 , cert. denied, 297 N.C. 176 , 254 S.E.2d 39 (1979); O'Neill v. Southern Nat'l Bank, 40 N.C. App. 227, 252 S.E.2d 231, 1979 N.C. App. LEXIS 2591 (1979); Winborne v. Winborne, 41 N.C. App. 756, 255 S.E.2d 640, 1979 N.C. App. LEXIS 2719 , cert. denied, 298 N.C. 305 , 259 S.E.2d 918, 1979 N.C. LEXIS 1624 (1979); Lupo v. Powell, 44 N.C. App. 35, 259 S.E.2d 777, 1979 N.C. App. LEXIS 3158 (1979); Snyder v. Freeman, 300 N.C. 204 , 266 S.E.2d 593, 1980 N.C. LEXIS 1067 (1980); Whitfield v. Winslow, 48 N.C. App. 206, 268 S.E.2d 245, 1980 N.C. App. LEXIS 3219 (1980); Crouse v. Woodruff, 48 N.C. App. 719, 269 S.E.2d 706, 1980 N.C. App. LEXIS 3319 (1980); Brewer v. Hatcher, 52 N.C. App. 601, 279 S.E.2d 69, 1981 N.C. App. LEXIS 2465 (1981); Mebane v. Board of Medical Exmrs., 55 N.C. App. 455, 286 S.E.2d 112, 1982 N.C. App. LEXIS 2213 (1982); Morrow v. Kings Dep't Stores, Inc., 57 N.C. App. 13, 290 S.E.2d 732, 1982 N.C. App. LEXIS 2591 (1982); Deitz v. Jackson, 57 N.C. App. 275, 291 S.E.2d 282, 1982 N.C. App. LEXIS 2631 (1982); Rawls v. Lampert, 58 N.C. App. 399, 293 S.E.2d 620, 1982 N.C. App. LEXIS 2766 (1982); Ruffin v. Contractors & Materials, Inc., 69 N.C. App. 174, 316 S.E.2d 353, 1984 N.C. App. LEXIS 3399 (1984); Braun v. Glade Valley Sch., Inc., 77 N.C. App. 83, 334 S.E.2d 404, 1985 N.C. App. LEXIS 4054 (1985); Sorrell v. Sorrell's Farms & Ranches, Inc., 78 N.C. App. 415, 337 S.E.2d 595, 1985 N.C. App. LEXIS 4438 (1985); Bryant v. Pitt, 78 N.C. App. 801, 338 S.E.2d 588, 1986 N.C. App. LEXIS 2015 (1986); Miller v. Parlor Furn. of Hickory, Inc., 79 N.C. App. 639, 339 S.E.2d 804, 1986 N.C. App. LEXIS 2108 (1986); Stikeleather v. Willard, 83 N.C. App. 50, 348 S.E.2d 607, 1986 N.C. App. LEXIS 2636 (1986); St. Paul Fire & Marine Ins. Co. v. Freeman-White Assocs., 86 N.C. App. 431, 358 S.E.2d 99, 1987 N.C. App. LEXIS 2722 (1987), aff'd, 322 N.C. 77 , 366 S.E.2d 480, 1988 N.C. LEXIS 134 (1988); Booher v. Frue, 86 N.C. App. 390, 358 S.E.2d 127, 1987 N.C. App. LEXIS 2715 (1987), aff'd, 321 N.C. 590 , 364 S.E.2d 141, 1988 N.C. LEXIS 18 (1988); Warren v. Halifax County, 90 N.C. App. 271, 368 S.E.2d 47, 1988 N.C. App. LEXIS 437 (1988); Peele v. Provident Mut. Life Ins. Co., 90 N.C. App. 447, 368 S.E.2d 892, 1988 N.C. App. LEXIS 566 (1988).

A complaint should not be dismissed for failure to state a claim upon which relief can be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. FDIC v. Loft Apts., Ltd. Partnership, 39 N.C. App. 473, 250 S.E.2d 693, 1979 N.C. App. LEXIS 2515 , cert. denied, 297 N.C. 176 , 254 S.E.2d 39 (1979); O'Neill v. Southern Nat'l Bank, 40 N.C. App. 227, 252 S.E.2d 231, 1979 N.C. App. LEXIS 2591 (1979); Pedwell v. First Union Nat'l Bank, 51 N.C. App. 236, 275 S.E.2d 565, 1981 N.C. App. LEXIS 2222 (1981); Renwick v. News & Observer Publishing Co., 63 N.C. App. 200, 304 S.E.2d 593, 1983 N.C. App. LEXIS 3021 (1983), rev'd, 310 N.C. 312 , 312 S.E.2d 405, 1984 N.C. LEXIS 1576 (1984); Brown v. Miller, 63 N.C. App. 694, 306 S.E.2d 502, 1983 N.C. App. LEXIS 3182 (1983); Hull v. Floyd S. Pike Elec. Contractor, 64 N.C. App. 379, 307 S.E.2d 404, 1983 N.C. App. LEXIS 3281 (1983); Azzolino v. Dingfelder, 71 N.C. App. 289, 322 S.E.2d 567, 1984 N.C. App. LEXIS 3853 (1984), aff'd in part and rev'd in part, 315 N.C. 103 , 337 S.E.2d 528, 1985 N.C. LEXIS 2169 (1985); Briggs v. Rosenthal, 73 N.C. App. 672, 327 S.E.2d 308, 1985 N.C. App. LEXIS 3388 , cert. denied, 314 N.C. 114 , 332 S.E.2d 479, 1985 N.C. LEXIS 1890 (1985); Leonard v. Pugh, 86 N.C. App. 207, 356 S.E.2d 812, 1987 N.C. App. LEXIS 2685 (1987).

A claim should be dismissed under subsection (b)(6) of this rule where it appears that plaintiff is entitled to no relief under any statement of facts which could be proven; this will occur when there is a want of law to support a claim of the sort made, an absence of facts sufficient to make a good claim, or the disclosure of some fact which will necessarily defeat the claim. Orange County Sensible Hwys. & Protected Env'ts, Inc. v. North Carolina Dep't of Transp., 46 N.C. App. 350, 265 S.E.2d 890, 1980 N.C. App. LEXIS 2836 (1980).

A claim for relief should not suffer dismissal unless it affirmatively appears that plaintiff is entitled to no relief under any state of facts which could be presented in support of the claim. Andresen v. Eastern Realty Co., 60 N.C. App. 418, 298 S.E.2d 764, 1983 N.C. App. LEXIS 2446 (1983); Ladd v. Estate of Kellenberger, 314 N.C. 477 , 334 S.E.2d 751, 1985 N.C. LEXIS 2007 (1985); Fox v. Wilson, 85 N.C. App. 292, 354 S.E.2d 737, 1987 N.C. App. LEXIS 2591 (1987); Dixon v. Stuart, 85 N.C. App. 338, 354 S.E.2d 757, 1987 N.C. App. LEXIS 2594 (1987); Harris v. NCNB Nat'l Bank, 85 N.C. App. 669, 355 S.E.2d 838, 1987 N.C. App. LEXIS 2645 (1987).

A claim for relief should not be dismissed unless it appears beyond doubt that the party is entitled to no relief under any state of facts which could be presented in support of the claim. Barnaby v. Boardman, 70 N.C. App. 299, 318 S.E.2d 907, 1984 N.C. App. LEXIS 3658 (1984), rev'd, 313 N.C. 565 , 330 S.E.2d 600, 1985 N.C. LEXIS 1560 (1985).

An order granting a motion to dismiss is erroneous if the complaint, liberally construed, shows no insurmountable bar to recovery, as dismissal is generally precluded unless plaintiff can prove no set of facts to support the claim for relief. Jenkins v. Wheeler, 69 N.C. App. 140, 316 S.E.2d 354, 1984 N.C. App. LEXIS 3397 (1984).

A motion to dismiss pursuant to subsection (b)(6) of this rule is properly granted when the complaint affirmatively discloses to a certainty that even if the facts alleged therein were true, the plaintiff would be entitled to no relief. Plemmons v. City of Gastonia, 62 N.C. App. 470, 302 S.E.2d 905, 1983 N.C. App. LEXIS 2948 (1983).

Dismissal of a complaint is proper under the provisions of subsection (b)(6) of this rule when one or more of the following three conditions is satisfied: (1) When the complaint on its face reveals that no law supports plaintiff ’s claim; (2) when the complaint reveals on its face the absence of fact sufficient to make a good claim; (3) when some fact disclosed in the complaint necessarily defeats the plaintiff ’s claim. Oates v. Jag, Inc., 314 N.C. 276 , 333 S.E.2d 222, 1985 N.C. LEXIS 1779 (1985), limited, Everts v. Parkinson, 147 N.C. App. 315, 555 S.E.2d 667, 2001 N.C. App. LEXIS 1177 (2001), limited, Crescent Univ. City Venture, LLC v. Trussway Mfg., Inc., 376 N.C. 54 , 852 S.E.2d 98, 2020 N.C. LEXIS 1134 (2020).

A complaint should not be dismissed for failure to state a claim unless it appears to a certainty that plaintiff is legally entitled to no relief under any construction of the facts asserted. Powell v. Wold, 88 N.C. App. 61, 362 S.E.2d 796, 1987 N.C. App. LEXIS 3450 (1987).

A claim should be dismissed under this rule where it appears that the plaintiff is entitled to no relief under any statement of facts which could be proven. Peoples Sec. Life Ins. Co. v. Hooks, 322 N.C. 216 , 367 S.E.2d 647, 1988 N.C. LEXIS 282 (1988).

In reviewing the grant of a motion to dismiss for failure to state a claim, the question for the appellate court is whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief can be granted under some legal theory, whether properly labeled or not. Replacements, Ltd. v. MidweSterling, 133 N.C. App. 139, 515 S.E.2d 46, 1999 N.C. App. LEXIS 363 (1999).

The trial court properly dismissed a complaint alleging tortious interference with a contract which on its face admitted that defendants, minority shareholder and attorneys, had a legitimate business interest both in defendant’s contract with another corporation which sought to buy its assets, as well as for mailing a letter informing that corporation of pending litigation. Filmar Racing, Inc. v. Stewart, 141 N.C. App. 668, 541 S.E.2d 733, 2001 N.C. App. LEXIS 16 (2001).

Dismissal Proper in Medical Contract Dispute. —

Since the termination of the contract with a doctor to provide anesthesiology services and entry into an exclusive contract with another company to provide the same services was not the legal equivalent of the termination of the doctor’s medical staff privileges and the doctor maintained his privileges at the hospital, the trial court properly dismissed the doctor’s action for failure to state a claim. Plummer v. Cmty. Gen. Hosp. of Thomasville, Inc., 155 N.C. App. 574, 573 S.E.2d 596, 2002 N.C. App. LEXIS 1583 (2002).

Complaint Without Merit May Be Dismissed. —

A complaint may be dismissed on motion filed under subsection (b)(6) of this rule if it is clearly without merit; this want of merit may consist in an absence of law to support a claim of the sort made, or absence of facts sufficient to make a good claim, or in the disclosure of some fact which will necessarily defeat the claim. Hodges v. Wellons, 9 N.C. App. 152, 175 S.E.2d 690, 1970 N.C. App. LEXIS 1301 (1970); North Carolina Nat'l Bank v. McCarley & Co., 34 N.C. App. 689, 239 S.E.2d 583, 1977 N.C. App. LEXIS 1794 (1977); Kinlaw v. Long Mfg. N.C. Inc., 298 N.C. 494 , 259 S.E.2d 552, 1979 N.C. LEXIS 1379 (1979); FDIC v. Loft Apts., Ltd. Partnership, 39 N.C. App. 473, 250 S.E.2d 693, 1979 N.C. App. LEXIS 2515 , cert. denied, 297 N.C. 176 , 254 S.E.2d 39 (1979); Kinlaw v. Long Mfg. N.C. Inc., 40 N.C. App. 641, 253 S.E.2d 629, 1979 N.C. App. LEXIS 2331 , rev'd, 298 N.C. 494 , 259 S.E.2d 552, 1979 N.C. LEXIS 1379 (1979); GASP v. Mecklenburg County, 42 N.C. App. 225, 256 S.E.2d 477, 1979 N.C. App. LEXIS 2784 (1979); Shoffner Indus., Inc. v. W.B. Lloyd Constr. Co., 42 N.C. App. 259, 257 S.E.2d 50, 1979 N.C. App. LEXIS 2838 , cert. denied, 298 N.C. 296 , 259 S.E.2d 301, 1979 N.C. LEXIS 1583 (1979); Snyder v. Freeman, 300 N.C. 204 , 266 S.E.2d 593, 1980 N.C. LEXIS 1067 (1980); Stanford v. Owens, 46 N.C. App. 388, 265 S.E.2d 617, 1980 N.C. App. LEXIS 2861 , cert. denied, 301 N.C. 95 , 1980 N.C. LEXIS 1287 (1980); Morrow v. Kings Dep't Stores, Inc., 57 N.C. App. 13, 290 S.E.2d 732, 1982 N.C. App. LEXIS 2591 (1982); Lee v. Paragon Group Contractors, 78 N.C. App. 334, 337 S.E.2d 132, 1985 N.C. App. LEXIS 4306 (1985).

A complaint may be dismissed on motion if clearly without any merit; and this want of merit may consist in an absence of law to support the claim, or in the disclosure of some fact that will necessarily defeat the claim. O'Neill v. Southern Nat'l Bank, 40 N.C. App. 227, 252 S.E.2d 231, 1979 N.C. App. LEXIS 2591 (1979); Winborne v. Winborne, 41 N.C. App. 756, 255 S.E.2d 640, 1979 N.C. App. LEXIS 2719 , cert. denied, 298 N.C. 305 , 259 S.E.2d 918, 1979 N.C. LEXIS 1624 (1979); Pierce v. Piver, 45 N.C. App. 111, 262 S.E.2d 320, 1980 N.C. App. LEXIS 2550 (1980); Rawls v. Lampert, 58 N.C. App. 399, 293 S.E.2d 620, 1982 N.C. App. LEXIS 2766 (1982).

A motion to dismiss will be allowed if a complaint is clearly without merit; this lack of merit may consist in an absence of law to support the claim, or in the disclosure of some fact that will necessarily defeat the claim, or when the complaint shows on its face that there is an insurmountable bar. Collins v. Edwards, 54 N.C. App. 180, 282 S.E.2d 559, 1981 N.C. App. LEXIS 2798 (1981).

Where plaintiffs’ nuisance complaint made no allegations of defendant’s intentional conduct but was merely a broad assertion to the effect that the location and operation of defendant’s business was a nuisance to them and that the court should, therefore, grant plaintiffs’ injunctive relief and damages, and where plaintiffs’ complaint did not even assert that their remedy at law was inadequate so that they would be entitled to the equitable remedy of a permanent injunction, plaintiffs’ complaint failed to state a complaint upon which relief could be granted. State v. Mercer, 84 N.C. App. 623, 353 S.E.2d 682, 1987 N.C. App. LEXIS 2539 (1987).

A complaint must be dismissed under subsection (b)(6) of this rule when it is clear from the face of the complaint that plaintiffs cannot recover as a matter of law, where some fact essential to plaintiffs’ case is missing, or where a fact is revealed in plaintiffs’ complaint which defeats the action. Piedmont Ford Truck Sales, Inc. v. City of Greensboro, 90 N.C. App. 692, 370 S.E.2d 262, 1988 N.C. App. LEXIS 636 (1988), writ denied, 323 N.C. 625 , 374 S.E.2d 589, 1988 N.C. LEXIS 758 (1988), rev'd, 324 N.C. 499 , 380 S.E.2d 107, 1989 N.C. LEXIS 295 (1989).

As Where Pleaded Facts Defeat the Claim. —

A complaint may be dismissed on motion filed under subsection (b)(6) of this rule where it pleads facts which will necessarily defeat the claim. Powell v. County of Haywood, 15 N.C. App. 109, 189 S.E.2d 785, 1972 N.C. App. LEXIS 1834 (1972); Sunbow Indus., Inc. v. London, 58 N.C. App. 751, 294 S.E.2d 409, 1982 N.C. App. LEXIS 2829 (1982).

In suit against insurance company, alleging, among other things, breach of contract and misrepresentation, trial court did not err in granting the insurance company’s motion to dismiss, as the insured admitted in the complaint that he was not entitled to underinsured motorist coverage. Pinney v. State Farm Mut. Ins. Co., 146 N.C. App. 248, 552 S.E.2d 186, 2001 N.C. App. LEXIS 858 (2001).

Or Where Complaint Discloses Unconditional Affirmative Defense. —

If the complaint discloses an unconditional affirmative defense which defeats the claim asserted or pleads facts which deny the right to any relief on the alleged claim it will be dismissed. Brown v. Brown, 21 N.C. App. 435, 204 S.E.2d 534, 1974 N.C. App. LEXIS 1828 (1974); Brown v. Miller, 63 N.C. App. 694, 306 S.E.2d 502, 1983 N.C. App. LEXIS 3182 (1983).

When a complaint states a valid claim but also discloses an unconditional affirmative defense which defeats the asserted claim, the motion to dismiss for failure to state a claim upon which relief can be granted will be granted and the action dismissed. Skinner v. E.F. Hutton & Co., 314 N.C. 267 , 333 S.E.2d 236, 1985 N.C. LEXIS 1776 (1985).

Once it is determined that the affirmative defense is properly before the trial court, dismissal under Rule 12(b)(6) on the grounds of the affirmative defense is proper if the complaint on its face reveals an insurmountable bar to recovery. Johnson v. North Carolina DOT, 107 N.C. App. 63, 418 S.E.2d 700, 1992 N.C. App. LEXIS 627 (1992).

Or Where Plaintiff Is Not Entitled to Relief Requested. —

The court correctly dismissed, pursuant to this section, the plaintiff’s claim against the defendant county clerk alleging that he failed to comply with G.S. 1-117 and 7A-109(b)(6), where plaintiff was not entitled to have notice of lis pendens cross-indexed by the clerk on the public record. George v. Administrative Office of the Courts, 142 N.C. App. 479, 542 S.E.2d 699, 2001 N.C. App. LEXIS 139 (2001).

Trial court did not err in granting an employer’s motion under G.S. 1A-1 , Rule 12(b)(6) dismissing employee’s claim of wrongful discharge in violation of public policy because she engaged in a protected activity in requesting that the employer pay for a medical evaluation of a work-related injury; employee’s request that the employer pay for a doctor’s visit or other medical services was merely an abstract assertion, and was not an assertion of rights under the Workers’ Compensation Act, G.S. 97-1 et seq. where there was no evidence that she filed a workers’ compensation claim that would have triggered the statutory and common law protection against employer retaliation in violation of public policy. Whitings v. Wolfson Casing Corp., 173 N.C. App. 218, 618 S.E.2d 750, 2005 N.C. App. LEXIS 1916 (2005).

Vehicle purchasers’ negligence claim against the previous owners’ lender was properly dismissed where the transferee was the seller, who had purchased the vehicle at auction; thus, any duty owed under G.S. 20-71.4 was to the seller. Sain v. Adams Auto Grp., Inc., 244 N.C. App. 657, 781 S.E.2d 655, 2016 N.C. App. LEXIS 58 (2016).

Impact of As Is Warranty. —

Vehicle purchasers’ fraud, breach of contract, and negligence claims against the seller were properly dismissed given the as is warranty they signed. Sain v. Adams Auto Grp., Inc., 244 N.C. App. 657, 781 S.E.2d 655, 2016 N.C. App. LEXIS 58 (2016).

Or Where Plaintiffs Fail to Plead Damages. —

The trial court properly dismissed the plaintiffs’ claim for tortious interference with prospective economic advantage, pursuant to Rule 12(b)(6) where the plaintiffs failed to sufficiently plead damages. Walker v. Sloan, 137 N.C. App. 387, 529 S.E.2d 236, 2000 N.C. App. LEXIS 414 (2000).

Or Where Plaintiffs Fail to Demonstrate an Injury. —

The trial court correctly dismissed, as failing to state a claim upon which relief could be granted, the plaintiffs’ claim that the defendants/minority shareholders violated the prohibition against unfair and deceptive trade practices by ratifying the adverse actions of majority shareholder/manager who had would-be-stock-buyers/employees fired. Walker v. Sloan, 137 N.C. App. 387, 529 S.E.2d 236, 2000 N.C. App. LEXIS 414 (2000).

Where Plaintiffs Fail to Demonstrate Standing. —

Temporary restraining order, under G.S. 1A-1 -65(b), was denied as the State Employees Association of North Carolina, Inc. (SEANC) lacked standing to contest the reallocation of funds from the State retirement systems; the SEANC failed to demonstate that all of its members otherwise had standing to sue in their own right, and its complaint was dismissed for failure to state a cause of action, under G.S. 1A-1 , N.C. R. Civ. P. 12(b)6), and for the lack of subject matter jurisdiction under Rule 12(h)(3). State Emples. Ass'n of N.C. Inc. v. State, 154 N.C. App. 207, 573 S.E.2d 525, 2002 N.C. App. LEXIS 1451 (2002), rev'd, 357 N.C. 239 , 580 S.E.2d 693, 2003 N.C. LEXIS 599 (2003).

Where Plaintiffs Fail to Exhaust Administrative Remedies. —

Under G.S. 1A-1-12, N.C. R. Civ. P. 12(b)(6), the trial court properly dismissed two animal welfare advocates’ action challenging an animal control facility’s euthanasia procedures and record-keeping for failure to exhaust administrative remedies, and where the advocates failed to allege either the inadequacy or the futility of the administrative remedy. Justice for Animals, Inc. v. Robeson County, 164 N.C. App. 366, 595 S.E.2d 773, 2004 N.C. App. LEXIS 813 (2004).

Failure to Plead Exhaustion of Administrative Remedies. —

County employee’s claim for wrongful discharge failed to state a cause of action under G.S. 1A-1 , N.C. R. Civ. P. 12(b)(6), where she failed to allege a waiver of sovereign immunity by the county and its officials, requiring dismissal; her Title VII action lacked subject matter jurisdiction pursuant to Rule 12(b)(1) where she failed to state whether she had exhausted her administrative remedies, requiring a remand for further determination. Paquette v. County of Durham, 155 N.C. App. 415, 573 S.E.2d 715, 2002 N.C. App. LEXIS 1619 (2002).

If Face of Complaint Discloses That Claim Is Barred. —

A statute of limitations can be the basis for dismissal on a subdivision (b)(6) motion if the face of the complaint discloses that the plaintiff’s claim is so barred. Reunion Land Co. v. Village of Marvin, 129 N.C. App. 249, 497 S.E.2d 446, 1998 N.C. App. LEXIS 423 (1998).

Trial court properly dismissed a North Carolina Retaliatory Employment Discrimination Act, G.S. 95-240 et seq., complaint under Rule 12(b)(6), where the right-to-sue letter from the North Carolina Department of Labor (NCDOL) stated that the administrative complaint to the NCDOL was untimely under G.S. 5-242(a). Brackett v. SGL Carbon Corp., 158 N.C. App. 252, 580 S.E.2d 757, 2003 N.C. App. LEXIS 1041 (2003).

Claims for medical malpractice and wrongful death which an administrator filed against a doctor in July 2001, alleging that the administrator’s mother died in April 1999 because the doctor misread a chest x-ray in February 1997, were barred by G.S. 1-15(c) and 1-53(4), and the trial court properly granted a motion to dismiss the action which the doctor and a professional corporation filed, pursuant to G.S. 1A-1 , N.C. R. Civ. P. 12(b)(6). Udzinski v. Lovin, 159 N.C. App. 272, 583 S.E.2d 648, 2003 N.C. App. LEXIS 1508 (2003), aff'd, 358 N.C. 534 , 597 S.E.2d 703, 2004 N.C. LEXIS 658 (2004).

Dismissal Upheld. —

The trial court properly dismissed action brought by doctors against accountants who had been engaged to advise them on business opportunities under G.S. 1A-1 , Rule 12(b)(6), as doctors’ complaint against accountants disclosed that its claims were either time-barred or lacked facts sufficient to state a claim for relief. Harrold v. Dowd, 149 N.C. App. 777, 561 S.E.2d 914, 2002 N.C. App. LEXIS 309 (2002).

Backseat passenger of an accident vehicle was properly dismissed from a negligence suit under G.S. 1A-1-12(b)(6), because she had no special relationship to the unlicensed driver, she was not the owner-occupant of the vehicle, she was not on a joint enterprise with the driver, she had no legal right or duty to control the vehicle’s operation, and she did not actually and negligently exercise control. Harris v. DaimlerChrysler Corp., 180 N.C. App. 551, 638 S.E.2d 260, 2006 N.C. App. LEXIS 2500 (2006).

Lower court erred in reversing the dismissal of plaintiff’s malicious prosecution claim against two police officers where the grand jury indictment for first-degree murder, which was based on a forensic report that a bloodstain on plaintiff’s shirt was consistent with a bloody hand being wiped on the shirt, established probable cause, and thus, dismissal under G.S. 1A-1 , N.C. R. Civ. P. 12(b)(6). Turner v. Thomas, 369 N.C. 419 , 794 S.E.2d 439, 2016 N.C. LEXIS 1124 (2016).

Real estate developer’s breach of fiduciary duty, fraud, and constructive fraud claims against the two remaining defendants were properly dismissed as time-barred where the developer failed to explain how the exercise of due diligence would not have led him to discover that funds in his account had been transferred or withdrawn. Wilson v. Pershing, LLC, 253 N.C. App. 643, 801 S.E.2d 150, 2017 N.C. App. LEXIS 388 (2017).

Trial court properly granted the hotel owners’ motion to dismiss the husband’s wrongful death claim where the decedent’s consumption of alcohol and the owners’ actions in serving the decedent rose to the same level of negligence, the decedent’s resulting contributory negligence thereby barred the husband’s common law dram shop claim. Davis v. Hulsing Enters., LLC, 370 N.C. 455 , 810 S.E.2d 203, 2018 N.C. LEXIS 64 (2018).

Borrower’s negligence claim against a bank was dismissed where even if the North Carolina Secure and Fair Enforcement Mortgage Licensing Act, N.C. Gen. Stat. § 53-244.010 et seq. (2017), established a legal duty, the borrower failed to allege that he had engaged in any type of independent inquiry as to the validity of the appraisal value or that he was prevented from doing so, and thus, he had not sufficiently pled justifiable reliance. Cordaro v. Harrington Bank, FSB, 260 N.C. App. 26, 817 S.E.2d 247, 2018 N.C. App. LEXIS 607 (2018).

Breach of contract claim was dismissed where, under the terms of the construction loan contract, the preparation of the appraisal was for the bank’s sole benefit, and thus, the bank was under no contractual obligation to ensure the accuracy of the appraisal for the borrower. Cordaro v. Harrington Bank, FSB, 260 N.C. App. 26, 817 S.E.2d 247, 2018 N.C. App. LEXIS 607 (2018).

Borrower’s G.S. 75-1.1 claim against a bank was dismissed for failure to state a claim where the borrower failed to allege that he had engaged in any type of independent inquiry as to the validity of the appraisal value or that he was prevented from doing so, and thus, he had not sufficiently pled justifiable reliance. Cordaro v. Harrington Bank, FSB, 260 N.C. App. 26, 817 S.E.2d 247, 2018 N.C. App. LEXIS 607 (2018).

Borrower’s breach of contract, specific performance, and breach of the covenant of good faith and fair dealing claims were properly dismissed where the permanent loan modification agreement had not become effective due to her failure to make a timely first payment by the stated due date. McDonald v. Bank of N.Y. Mellon Trust Co., 259 N.C. App. 582, 816 S.E.2d 861, 2018 N.C. App. LEXIS 465 (2018).

Neighboring landowners’ professional negligence claim against a land surveyor was properly dismissed as neither G.S. 1-47(6) , G.S. 89C-2 , nor 21 N.C. Admin. Code 56.1601 established a standard of care, and the landowners failed to sufficiently allege that they were within the categories of persons whom the surveyor knew would rely on the survey. Lamb v. Styles, 263 N.C. App. 633, 824 S.E.2d 170, 2019 N.C. App. LEXIS 102 (2019).

In a putative class action lawsuit against the University of North Carolina Health Care System, the patient did not state a claim for breach of contract based on a violation of a statute prohibiting certain charges by a provider of health care services as the hospital provided access to the operating room for patients in half-hour blocks of time; those blocks of time were components of the healthcare procedure; and, although the patient did not use the entire final half-hour block of time, he used some of that component and could be billed for it. Julian v. Univ. of N.C. Health Care Sys., 264 N.C. App. 424, 826 S.E.2d 553, 2019 N.C. App. LEXIS 275 (2019).

In a putative class action lawsuit against the University of North Carolina Health Care System, the patient did not state a claim for breach of contract because the language of the contract, which was incorporated into the complaint, stated that patients would be billed for the amount of time the operating room was used based on half hour increments, and, although the patient did not use the entire final half-hour block of time, he did use some of it. Julian v. Univ. of N.C. Health Care Sys., 264 N.C. App. 424, 826 S.E.2d 553, 2019 N.C. App. LEXIS 275 (2019).

Former hotel manager’s motion to dismiss a city’s nuisance claims under G.S. 19-1(a) was granted where the city had not served her with any notice of the alleged public nuisance and had not requested damages against her in the complaint, and she was no longer employed by nor a tenant or lessee of the hotel owners, was not present at the hotel, and was a private citizen when the city brought its claim. State ex rel. City of Albemarle v. Nance, 266 N.C. App. 353, 831 S.E.2d 605, 2019 N.C. App. LEXIS 608 (2019).

Standard of Review. —

For a motion based on G.S. 1A-1 , Rule 12(b)(6), the standard of review is whether, construing the complaint liberally, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory. Country Club of Johnston County, Inc. v. United States Fid. & Guar. Co., 150 N.C. App. 231, 563 S.E.2d 269, 2002 N.C. App. LEXIS 499 (2002).

Appellate court reviews de novo rulings on motions made pursuant to G.S. 1A-1-12(b)(6). Toomer v. Branch Banking & Trust Co., 171 N.C. App. 58, 614 S.E.2d 328, 2005 N.C. App. LEXIS 1188 (2005).

Appellate court reviewed the trial court’s dismissal of the taxpayers’ lawsuit to determine whether the allegations of the complaint, if treated as true, were sufficient to state a claim upon which relief could be granted under some legal theory. Coley v. State, 360 N.C. 493 , 631 S.E.2d 121, 2006 N.C. LEXIS 594 (2006).

Where an affirmative defense is raised for the first time in a motion to dismiss under subsection (b)(6) of this rule, the motion must ordinarily refer expressly to the affirmative defense relied upon. Johnson v. North Carolina DOT, 107 N.C. App. 63, 418 S.E.2d 700, 1992 N.C. App. LEXIS 627 (1992).

Absent a showing of prejudice, an affirmative defense may be raised by a Rule 12(b)(6) motion to dismiss. Johnson v. North Carolina DOT, 107 N.C. App. 63, 418 S.E.2d 700, 1992 N.C. App. LEXIS 627 (1992).

Where the nonmovant has not been surprised and has full opportunity to argue and present evidence on the affirmative defense, the failure of the motion filed under subsection (b)(6) of this rule to expressly refer to the affirmative defense will not bar consideration of the defense by the trial court. Johnson v. North Carolina DOT, 107 N.C. App. 63, 418 S.E.2d 700, 1992 N.C. App. LEXIS 627 (1992).

A complaint is without merit if (1) there is an absence of law to support a claim of the sort made; (2) there is an absence of fact sufficient to make a good claim; or (3) there is the disclosure of some fact which will defeat a claim. Home Elec. Co. v. Hall & Underdown Heating & Air Conditioning Co., 86 N.C. App. 540, 358 S.E.2d 539, 1987 N.C. App. LEXIS 2747 (1987), aff'd, 322 N.C. 107 , 366 S.E.2d 441, 1988 N.C. LEXIS 117 (1988).

The only times when dismissal is proper under subsection (b)(6) of this rule are: (1) when the complaint on its face reveals that no law supports plaintiff ’s claim; (2) when the complaint reveals on its face that some fact essential to plaintiff ’s claim is missing; and (3) when some fact disclosed in the complaint defeats the plaintiff ’s claim. Schloss Outdoor Adv. Co. v. City of Charlotte, 50 N.C. App. 150, 272 S.E.2d 920, 1980 N.C. App. LEXIS 3473 (1980); Hull v. Floyd S. Pike Elec. Contractor, 64 N.C. App. 379, 307 S.E.2d 404, 1983 N.C. App. LEXIS 3281 (1983); Jackson v. Bumgardner, 318 N.C. 172 , 347 S.E.2d 743, 1986 N.C. LEXIS 2569 (1986); Hooper v. Liberty Mut. Ins. Co., 84 N.C. App. 549, 353 S.E.2d 248, 1987 N.C. App. LEXIS 2520 (1987).

This rule provides that a complaint must be dismissed when on its face it appears that no law supports it, that some fact essential to it is missing or that some disclosed fact necessarily defeats it. Mozingo v. North Carolina Nat'l Bank, 31 N.C. App. 157, 229 S.E.2d 57, 1976 N.C. App. LEXIS 1945 (1976), cert. denied, 291 N.C. 711 , 232 S.E.2d 204, 1977 N.C. LEXIS 1246 (1977); Mumford v. Hutton & Bourbonnais Co., 47 N.C. App. 440, 267 S.E.2d 511, 1980 N.C. App. LEXIS 3130 (1980).

A complaint is dismissable for want of proof under subsection (b)(6) of this rule only when it appears that the proof needed is beyond the realm of possibility. Newton v. Whitaker, 83 N.C. App. 112, 349 S.E.2d 333, 1986 N.C. App. LEXIS 2662 (1986), aff'd, 319 N.C. 455 , 355 S.E.2d 138, 1987 N.C. LEXIS 2029 (1987).

A complaint may be dismissed pursuant to subsection (b)(6) of this rule if there is no law to support the claim made, if there is an absence of facts sufficient to make a good claim, or if there is a disclosure of facts which will necessarily defeat the claim. Robertson v. Boyd, 88 N.C. App. 437, 363 S.E.2d 672, 1988 N.C. App. LEXIS 42 (1988).

The fact that the full extent of plaintiff ’s damages may be a matter of some speculation is no basis for the trial court to deny plaintiff any relief by dismissing its complaint. Carolina Wire & Cable, Inc. v. Finnican, 46 N.C. App. 87, 264 S.E.2d 138, 1980 N.C. App. LEXIS 2750 (1980).

Insufficient Allegation of Special Damage as Basis for Dismissal. —

Where special damage is an integral part of the claim for relief, its insufficient allegation could provide the basis for dismissal under subsection (b)(6) of this rule. Stanback v. Stanback, 297 N.C. 181 , 254 S.E.2d 611, 1979 N.C. LEXIS 1249 (1979).

A statute of limitations can be the basis for dismissal on a motion under subsection (b)(6) of this rule if the face of the complaint discloses that plaintiff ’s claim is so barred. Long v. Fink, 80 N.C. App. 482, 342 S.E.2d 557, 1986 N.C. App. LEXIS 2197 (1986).

A statute of limitations defense is properly asserted in a motion to dismiss under subsection (b)(6). Horton v. Carolina Medicorp, Inc., 119 N.C. App. 777, 460 S.E.2d 567, 1995 N.C. App. LEXIS 681 (1995), rev'd, 344 N.C. 133 , 472 S.E.2d 778, 1996 N.C. LEXIS 419 (1996).

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 N.C. App. LEXIS 1784 (2004).

When the complaint discloses on its face that plaintiff ’s claim is barred by the statute of limitations, such defect may be taken advantage of by a motion to dismiss under subsection (b)(6) of this rule. FDIC v. Loft Apts., Ltd. Partnership, 39 N.C. App. 473, 250 S.E.2d 693, 1979 N.C. App. LEXIS 2515 , cert. denied, 297 N.C. 176 , 254 S.E.2d 39 (1979); Fleet Real Estate Funding Corp. v. Blackwelder, 83 N.C. App. 27, 348 S.E.2d 611, 1986 N.C. App. LEXIS 2641 (1986).

Because alleged trust beneficiaries’ action seeking a declaration of trust over supposed family property was filed more than 20 years after the record title holder repudiated or disavowed any family trust by leaving the property in fee simple to his three brothers, the action was barred by the statute of limitations, G.S. 1-52 , G.S. 1-56 , and the trial court properly granted defendants’ motions to dismiss pursuant to G.S. 1A-1 , Rule 12(b)(6). Laster v. Francis, 199 N.C. App. 572, 681 S.E.2d 858, 2009 N.C. App. LEXIS 1498 (2009).

Plaintiff’s Claim Not Barred by Statute of Limitations. —

Because the allegations of plaintiff’s complaint were adequate for her rescission claim to survive scrutiny under this rule, that claim was thus asserted when she filed her 22 May 2015 complaint; because her complaint was initiated within the three-year statutory limitation period applicable to a claim for rescission of a contract executed on 18 April 2013, the rescission claim was timely asserted and was not statutorily barred under this rule. Holton v. Holton, 258 N.C. App. 408, 813 S.E.2d 649, 2018 N.C. App. LEXIS 297 (2018).

Failure of Plaintiff Without Standing to State Wrongful Death Claim. —

Since a wrongful death action may be brought only by the executor, administrator or collector of the decedent, the plaintiff, who was the adopted daughter of the decedent, could not maintain the action in her own name; therefore she failed to state a claim upon which relief could be granted, and the order dismissing her action under this rule was proper. Young v. Marshburn, 10 N.C. App. 729, 180 S.E.2d 43, 1971 N.C. App. LEXIS 1711 , cert. denied, 278 N.C. 703 , 181 S.E.2d 603, 1971 N.C. LEXIS 1038 (1971).

Mislabeled Motion to Dismiss. —

Where defendants’ motion was in fact a motion to dismiss for failure to state a claim upon which relief could be granted pursuant to this rule, and the effect of the trial court’s judgment was to treat it as such, the label “judgment on the pleadings” which was inadvertently entered in the notice of hearing to plaintiff and the trial court’s judgment could not have prejudiced plaintiff, the motion being properly treated according to its substance rather than its label. Harrell v. Whisenant, 53 N.C. App. 615, 281 S.E.2d 453, 1981 N.C. App. LEXIS 2715 (1981).

Dismissal Based on Subsection (b)(6) of This Rule, Not Rule 41(B). —

Although the trial court’s findings indicated that it might have determined that plaintiff failed to timely and effectively prosecute the rescission claim under N.C. R. Civ. P. 41(b), neither the transcript nor the order contained findings addressing whether plaintiff acted in a manner which deliberately or unreasonably delayed the matter; the amount of prejudice, if any, to defendant; and the reason, if one existed, that sanctions short of dismissal would not suffice, as required by this rule; thus, the trial court had to have dismissed the rescission claim under this rule, not N.C. R. Civ. P. 41(b). Holton v. Holton, 258 N.C. App. 408, 813 S.E.2d 649, 2018 N.C. App. LEXIS 297 (2018).

Trial court’s dismissal of plaintiff’s equitable distribution (ED) and spousal support claims had to have been based on grounds in N.C. R. Civ. P. 12(b)(6) because the trial court dismissed plaintiff’s complaint with prejudice, and a dismissal under N.C. R. Civ. P. 12(b)(1) had to be made without prejudice, since a trial court without jurisdiction would lack authority to adjudicate the matter; and because, in light of the separation agreement waiving plaintiff’s right to seek ED and spousal support, plaintiff’s complaint failed to state valid claims for ED and postseparation support. Holton v. Holton, 258 N.C. App. 408, 813 S.E.2d 649, 2018 N.C. App. LEXIS 297 (2018).

To the extent that the trial court dismissed plaintiff’s complaint under N.C. R. Civ. P. 12(b)(1) for lack of jurisdiction over the subject matter of her equitable distribution (ED) and spousal support claims as barred by the separation agreement, such a dismissal would have necessarily been predicated upon its N.C. R. Civ. P. 12(b)(6) dismissal of the rescission claim, or upon its Rule 12(b)(6) dismissals of the ED and spousal support claims; thus, it followed that Rule 12(b)(6) was the pivotal civil procedure rule underlying the trial court’s dismissal of plaintiff’s complaint. Holton v. Holton, 258 N.C. App. 408, 813 S.E.2d 649, 2018 N.C. App. LEXIS 297 (2018).

As to application of G.S. 1A-1 , Rule 43(e) in ruling on motion to dismiss, see Hankins v. Somers, 39 N.C. App. 617, 251 S.E.2d 640, 1979 N.C. App. LEXIS 2537 , cert. denied, 297 N.C. 300 , 254 S.E.2d 920, 1979 N.C. LEXIS 1306 (1979).

Findings and Conclusions Not Required on Denial of Motion to Dismiss. —

A trial judge is not required to make findings and conclusions with respect to an interlocutory order that is not appealable, such as is the case with the denial of a motion to dismiss. O'Neill v. Southern Nat'l Bank, 40 N.C. App. 227, 252 S.E.2d 231, 1979 N.C. App. LEXIS 2591 (1979).

Unless Required by Statute or Requested by Party. —

Trial court is required to make findings of fact and conclusions of law on a motion to dismiss only when required by statute or requested by a party. Sherwood v. Sherwood, 29 N.C. App. 112, 223 S.E.2d 509, 1976 N.C. App. LEXIS 2387 (1976).

A trial court cannot make “findings of fact” conclusive on appeal on a motion to dismiss for failure to state a claim under subsection (b)(6) of this rule. White v. White, 296 N.C. 661 , 252 S.E.2d 698, 1979 N.C. LEXIS 1117 (1979).

A motion to dismiss for failure to state a claim in an action for declaratory judgment is seldom appropriate, and will not be allowed simply because the plaintiff may not be able to prevail. Such motion is allowed only when there is no basis for declaratory relief, as when the complaint does not allege an actual, genuine existing controversy. A claim for declaratory relief is sufficient if the complaint alleges the existence of a real controversy arising out of the parties’ opposing contentions and respective legal rights under a deed, will, or contract in writing. Morris v. Plyler Paper Stock Co., 89 N.C. App. 555, 366 S.E.2d 556, 1988 N.C. App. LEXIS 267 (1988).

Grant of Motion After Previous Denial by Another Judge. —

Superior court erred in granting a motion under subsection (b)(6) of this rule after moving party’s previous motion under subsection (b)(6) had been denied by another superior court judge. Jenkins v. Wheeler, 81 N.C. App. 512, 344 S.E.2d 371, 1986 N.C. App. LEXIS 2307 (1986).

Motion Under G.S. 1A-1 , Rule 60(b) Not Proper After Denial of Subsection (b)(6) Motion. —

Since the denial of a motion to dismiss is not a final judgment or order, a motion for relief from such an order could not, as a matter of law, be proper under G.S. 1A-1 , Rule 60(b). O'Neill v. Southern Nat'l Bank, 40 N.C. App. 227, 252 S.E.2d 231, 1979 N.C. App. LEXIS 2591 (1979).

An order denying a motion under subsection (b)(6) of this rule is interlocutory and not appealable. O'Neill v. Southern Nat'l Bank, 40 N.C. App. 227, 252 S.E.2d 231, 1979 N.C. App. LEXIS 2591 (1979).

Ordinarily no appeal lies from denial of a motion to dismiss. Smith v. State, 289 N.C. 303 , 222 S.E.2d 412, 1976 N.C. LEXIS 1289 (1976), limited, Whitfield v. Gilchrist, 126 N.C. App. 241, 485 S.E.2d 61, 1997 N.C. App. LEXIS 346 (1997); Terry v. Terry, 46 N.C. App. 583, 265 S.E.2d 463, 1980 N.C. App. LEXIS 2837 (1980), rev'd, 302 N.C. 77 , 273 S.E.2d 674, 1981 N.C. LEXIS 1033 (1981); Dworsky v. Travelers Ins. Co., 49 N.C. App. 446, 271 S.E.2d 522, 1980 N.C. App. LEXIS 3382 (1980).

Ordinarily, there is no right of appeal from the refusal of a motion to dismiss, as refusal to dismiss generally will not seriously impair any right of defendant that cannot be corrected upon appeal from final judgment. Godley Auction Co. v. Myers, 40 N.C. App. 570, 253 S.E.2d 362, 1979 N.C. App. LEXIS 2281 (1979).

Ordinarily, a denial of a motion to dismiss under subsection (b)(6) of this rule merely serves to continue the action then pending. No final judgment is involved, and the disappointed movant is generally not deprived of any substantial right which cannot be protected by timely appeal from the trial court’s ultimate disposition of the entire controversy on its merits. Thus, an adverse ruling on a motion under subsection (b)(6) is in most cases an interlocutory order from which no direct appeal may be taken. State, Child Day-Care Licensing Comm'n v. Fayetteville St. Christian School, 299 N.C. 351 , 261 S.E.2d 908, 1980 N.C. LEXIS 930 (1980).

Denial of a motion to dismiss for failure to state a claim upon which relief can be granted is not a final determination within the meaning of G.S. 1-277(a) , does not affect a substantial right, and is not appealable. Hankins v. Somers, 39 N.C. App. 617, 251 S.E.2d 640, 1979 N.C. App. LEXIS 2537 , cert. denied, 297 N.C. 300 , 254 S.E.2d 920, 1979 N.C. LEXIS 1306 (1979).

Denial of a motion to dismiss for failure to state a claim upon which relief can be granted is an interlocutory order from which no immediate appeal may be taken. Teachy v. Coble Dairies, Inc., 306 N.C. 324 , 293 S.E.2d 182, 1982 N.C. LEXIS 1445 (1982).

No appeal lies as a matter of right from the denial of a subsection (b)(6) motion. Raines v. Thompson, 62 N.C. App. 752, 303 S.E.2d 413, 1983 N.C. App. LEXIS 2974 (1983).

Appeal of Denial of Motion is Unavailable After Decision on Merits. —

After the trial court denied the landlord’s motion to dismiss the tenant’s counterclaims pursuant to G.S. 1A-1 , N.C. R. Civ. P. 12(b)(6), and the case was tried with judgment issued on the merits, the landlord could not then seek review of the denial of his motion to dismiss. Pierce v. Reichard, 163 N.C. App. 294, 593 S.E.2d 787, 2004 N.C. App. LEXIS 382 (2004).

Appeal of Denial of Motion to Dismiss Heard. —

Generally, the denial of a motion under subsection 12(b)(6) of this rule is interlocutory and not immediately appealable. However, where the court of appeals had proper jurisdiction over the other issues and because the parties desired an answer to a question which was fundamental in determining their rights, was also of public importance, and would aid State agencies in the performance of their duties, the court exercised its supervisory discretion to address on the merits the appeal. Faulkenbury v. Teachers' & State Employees' Retirement Sys., 108 N.C. App. 357, 424 S.E.2d 420, 1993 N.C. App. LEXIS 100 , aff'd, 335 N.C. 158 , 436 S.E.2d 821, 1993 N.C. LEXIS 527 (1993).

Summary Judgment Not Precluded by Earlier Denial of Motion Under Subsection (b)(6). —

The denial of a motion to dismiss for failure to state a claim upon which relief can be granted, which merely challenges the sufficiency of the complaint, does not prevent the court’s allowing a subsequent motion for summary judgment based on affidavits outside the complaint. Alltop v. J.C. Penney Co., 10 N.C. App. 692, 179 S.E.2d 885, 1971 N.C. App. LEXIS 1699 , cert. denied, 279 N.C. 348 , 182 S.E.2d 580, 1971 N.C. LEXIS 783 (1971).

Denial of a motion to dismiss made under subsection (b)(6) of this rule does not prevent the court from thereafter allowing a subsequent motion for summary judgment made and supported as provided in G.S. 1A-1 , Rule 56. Barbour v. Little, 37 N.C. App. 686, 247 S.E.2d 252, 1978 N.C. App. LEXIS 2830 , cert. denied, 295 N.C. 733 , 248 S.E.2d 862, 1978 N.C. LEXIS 1129 (1978); Dull v. Mutual of Omaha Ins. Co., 85 N.C. App. 310, 354 S.E.2d 752, 1987 N.C. App. LEXIS 2598 (1987); Burton v. NCNB Nat'l Bank, 85 N.C. App. 702, 355 S.E.2d 800, 1987 N.C. App. LEXIS 2647 (1987).

In a wrongful death action against a city and a railroad arising from a motorist’s death after being struck by a train at a railroad crossing, after a trial court partially denied the city’s motion to dismiss under Rule 12(b)(6) and 12(c), it was not precluded from granting the city’s summary judgment motion. Wilkerson v. Norfolk S. Ry. Co., 151 N.C. App. 332, 566 S.E.2d 104, 2002 N.C. App. LEXIS 744 (2002).

Rules Applicable to Counterclaims. —

The rules regarding the sufficiency of a complaint to withstand a motion to dismiss pursuant to subsection (b)(6) of this rule, for failure to state a claim upon which relief can be granted, are equally applicable to a claim for relief by a defendant in a counterclaim. Barnaby v. Boardman, 70 N.C. App. 299, 318 S.E.2d 907, 1984 N.C. App. LEXIS 3658 (1984), rev'd, 313 N.C. 565 , 330 S.E.2d 600, 1985 N.C. LEXIS 1560 (1985).

And to Third-Party Complaints. —

Where defendants/third-party plaintiffs, a car dealer and its agent, were sued for misrepresenting the condition of a car and filed a third-party complaint for contribution and indemnity against third-party defendant restorer, who repaired and then sold the car after it was involved in a collision, the trial court properly granted the restorer’s N.C. R. Civ. P. 12(b)(6) motion to dismiss the third-party complaint for failure to state a claim upon which relief could be granted, as defendants failed to sufficiently allege that the restorer committed a tort against plaintiff buyers so as to render the restorer a joint tortfeasor. Bowman v. Alan Vester Ford Lincoln Mercury, 151 N.C. App. 603, 566 S.E.2d 818, 2002 N.C. App. LEXIS 886 (2002).

Appellate Court’s Prior Decision Not Binding. —

The appellate court’s prior decision, in which it “vacated” an order dismissing the plaintiff ’s complaint for failure to state a claim, was not binding on the court on a later appeal of a judgment notwithstanding the verdict. While the appellate court, in the first appeal, held that the complaint disclosed no insurmountable bar to recover under at least one of the claims for relief, its inquiry in the second appeal was a very different one: Was the evidence introduced at trial, viewed in the light most favorable to the plaintiff, insufficient as a matter of law to support the jury’s verdict? Pearce v. American Defender Life Ins. Co., 74 N.C. App. 620, 330 S.E.2d 9, 1985 N.C. App. LEXIS 3564 (1985), aff'd in part and rev'd in part, 316 N.C. 461 , 343 S.E.2d 174, 1986 N.C. LEXIS 2156 (1986).

Failure to File Timely Complaint. —

Under the statute of repose, a court properly granted a motion to dismiss when a complaint was filed more than six years after substantial completion of a house and, according to the complaint, the only acts subsequent to completion were repairs. Whitehurst v. Hurst Built, 156 N.C. App. 650, 577 S.E.2d 168, 2003 N.C. App. LEXIS 209 (2003).

Motion to Dismiss for Abuse of Process. —

Allegations in complaint that defendant filed liens “for the purpose of injuring and destroying the credit business of the plaintiffs and in general to oppress the plaintiffs” and that the defendant knew they were without legal basis stated an ulterior motive and a willful act not proper in the regular course of the earlier legal proceeding, and therefore, the defendant’s motion to dismiss the action for abuse of process was properly denied. Hewes v. Wolfe, 74 N.C. App. 610, 330 S.E.2d 16, 1985 N.C. App. LEXIS 3562 (1985).

The public duty doctrine did not bar a claim against defendant/county for negligent inspection of plaintiffs’ private residence. Thompson v. Waters, 351 N.C. 462 , 526 S.E.2d 650, 2000 N.C. LEXIS 238 (2000).

The public duty doctrine did not bar a claim against the defendant/city for the alleged negligence of a 911 operator who delayed dispatching the fire department until six minutes after she received the call reporting the fire. Lovelace v. City of Shelby, 351 N.C. 458 , 526 S.E.2d 652, 2000 N.C. LEXIS 237 (2000).

Challenge to Congressional Redistricting Plan. —

Action brought by the Republican Party of North Carolina, thirty registered Republicans, nine registered Democrats, and three citizens not affiliated with either party to challenge the State’s federal congressional redistricting plan was dismissed with prejudice under Rule 12(b)(6) for failure to state a claim. Pope v. Blue, 809 F. Supp. 392, 1992 U.S. Dist. LEXIS 21068 (W.D.N.C.), aff'd, 506 U.S. 801, 113 S. Ct. 30, 121 L. Ed. 2d 3, 1992 U.S. LEXIS 4939 (1992).

Crossclaim Against Commissioner of DMV Held Barred. —

Where the court determined that defendant as Commissioner of the DMV was a public official and therefore immune from liability for mere negligence, a crossclaim which alleged nothing more than negligence failed to state a claim for which relief could be granted. Columbus County Auto Auction, Inc. v. Aycock Auction Co., 90 N.C. App. 439, 368 S.E.2d 888, 1988 N.C. App. LEXIS 564 (1988).

Collateral Attack on Order Confirming Sheriff’s Sale of Property. —

Judgment debtor who did not appeal an order confirming a sheriff’s sale of the judgment debtor’s interest in property was not allowed to file an action collaterally attacking the order and the trial court properly dismissed the judgment debtor’s action for failure to state a cause of action. Leary v. N.C. Forest Prods., Inc., 157 N.C. App. 396, 580 S.E.2d 1, 2003 N.C. App. LEXIS 745 , aff'd, 357 N.C. 567 , 597 S.E.2d 673, 2003 N.C. LEXIS 1271 (2003).

Complaint Concerning Loss of Bearer Bond Presented Basis for Declaratory Relief. —

Plaintiff ’s complaint should not have been dismissed for failure to state a claim, since the court did not see an absence of law or fact to support plaintiff ’s claim or disclosure of a fact that necessarily defeated plaintiff ’s claim, and plaintiff ’s complaint concerning the loss of bearer bonds deposited with the Commissioner of Insurance presented a basis for declaratory relief. Selective Ins. Co. v. NCNB Nat'l Bank, 91 N.C. App. 597, 372 S.E.2d 876, 1988 N.C. App. LEXIS 897 (1988), cert. denied, 324 N.C. 248 , 377 S.E.2d 756, 1989 N.C. LEXIS 118 (1989), rev'd in part, 324 N.C. 560 , 380 S.E.2d 521, 1989 N.C. LEXIS 333 (1989).

Failure to Allege Elements of Fraud. —

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 books and records did not satisfy the particularity requirement of G.S. 1A-1 , Rule 9(b), and dismissal of defendants’ amended counterclaim under subsection (b)(6) of this rule was proper. Chesapeake Microfilm, Inc. v. Eastern Microfilm Sales & Serv., Inc., 91 N.C. App. 539, 372 S.E.2d 901, 1988 N.C. App. LEXIS 900 (1988).

Public Duty Doctrine Not a Shield from Liability Resulting from Ultrahazardous Activity. —

The plaintiff stated a claim upon which relief could be granted when he alleged that defendant/city was strictly liable for the injuries which he sustained as a result of defendants’ use of dynamite, an ultrahazardous activity. The public duty doctrine did not shield the city from liability for this claim because the protection afforded by the public duty doctrine does not extend to local governmental agencies other than law enforcement agencies engaged in their general duty to protect the public. Hargrove v. Billings & Garrett, Inc., 137 N.C. App. 759, 529 S.E.2d 693, 2000 N.C. App. LEXIS 535 (2000).

Failure to Allege Waiver of Immunity. —

Where plaintiffs failed to allege in their complaint that defendant school board waived its immunity by the procurement of liability insurance to cover alleged negligence or tort, plaintiffs’ complaint failed to state a cause of action as to defendant school board. Gunter v. Anders, 114 N.C. App. 61, 441 S.E.2d 167, 1994 N.C. App. LEXIS 264 (1994).

County employee’s claim for wrongful discharge failed to state a cause of action under G.S. 1A-1 , N.C. R. Civ. P. 12(b)(6), where she failed to allege a waiver of sovereign immunity by the county and its officials, requiring dismissal; her Title VII action lacked subject matter jurisdiction pursuant to Rule 12(b)(1) where she failed to state whether she had exhausted her administrative remedies, requiring a remand for further determination. Paquette v. County of Durham, 155 N.C. App. 415, 573 S.E.2d 715, 2002 N.C. App. LEXIS 1619 (2002).

In a case in which plaintiff’s daughter, as the personal representative of her father’s estate, filed a negligence action against defendants, a human services agency, a social worker, and a guardian ad litem, for negligence involving incompetency and guardianship matters relating to her father, the trial court properly granted defendants’ Rule 12(b)(6) motion to dismiss the complaint as against the agency and the social worker in the social worker’s official capacity, as the complaint failed to state a claim against them by failing to allege a waiver of their sovereign immunity. Dalenko v. Wake County Dep't of Human Servs., 157 N.C. App. 49, 578 S.E.2d 599, 2003 N.C. App. LEXIS 371 (2003), cert. denied, 357 N.C. 458 , 585 S.E.2d 386, 2003 N.C. LEXIS 1074 (2003), cert. denied, 540 U.S. 1178, 124 S. Ct. 1411, 158 L. Ed. 2d 79, 2004 U.S. LEXIS 1057 (2004).

Trial court properly dismissed an employee’s wrongful termination complaint for failure to state a claim as the North Carolina Board of Nursing was a state agency that was entitled to a defense of sovereign immunity as the Board was enacted by G.S. 90-171.21, three members of the Board were appointed by the North Carolina Governor and the North Carolina legislature under G.S. 90-171.21(b), and its duties, as set forth in G.S. 90-171.23(b), served a public purpose; the employee failed to allege that the Board waived its sovereign immunity. Abbott v. N.C. Bd. of Nursing, 177 N.C. App. 45, 627 S.E.2d 482, 2006 N.C. App. LEXIS 714 (2006).

Trial court erred in denying state agencies’ motion to dismiss a corporation’s complaint, seeking a declaratory judgment that an E-Procurement fee was a tax not enacted by the legislature in violation of N.C. Const., Art. II, § 23 and a refund of the taxes under G.S. 105-267 because the corporation’s claims were barred by the defense of sovereign immunity; the North Carolina Supreme Court’s holding that sovereign immunity could not prevent a plaintiff from asserting a claim alleging a violation of his rights under the Declaration of Rights of the North Carolina Constitution was limited to alleged violations of personal rights and did not extend to the corporation’s complaint because N.C. Const., Art. II, § 23 did not articulate any rights, only procedures to be followed. Petroleum Traders Corp. v. State, 190 N.C. App. 542, 660 S.E.2d 662, 2008 N.C. App. LEXIS 1003 (2008).

Waiver of Sovereign Immunity. —

Trial court erred in dismissing, pursuant to G.S. 1A-1 , Rule 12(b)(6), a construction company’s breach of contract action against a state agency; G.S. 136-29 waived the agency’s sovereign immunity, as the company complied with the statute and the claims arose under the contract. Battle Ridge Cos. v. N.C. DOT, 161 N.C. App. 156, 587 S.E.2d 426, 2003 N.C. App. LEXIS 1981 (2003).

Improper to Consider Statute of Frauds. —

It was inappropriate to consider, for purposes of a motion under subsection (b)(6) of this rule, whether a contract failed to comport with the statute of frauds, because the defense that the statute of frauds bars enforcement of a contract is an affirmative defense that can only be raised by answer or reply. Brooks Distrib. Co., Inc. v. Pugh, 324 N.C. 326 , 378 S.E.2d 31, 1989 N.C. LEXIS 155 (1989).

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, 1994 N.C. App. LEXIS 6 (1994).

Because a motion to dismiss under G.S. 1A-1 , N.C. R. Civ. P. 12(b)(6) is a motion on the pleadings, alleging an agreement and breach of that agreement was sufficient to state a claim, regardless of whether the agreement was invalid under the statute of frauds, G.S. 22-2 ; moreover, the statute of frauds did not bar other claims that arose in connection with the voidable contract. Holloway v. Holloway, 221 N.C. App. 156, 726 S.E.2d 198, 2012 N.C. App. LEXIS 704 (2012).

Allegations of Plaintiff ’s Expenses Did Not State Claim. —

Allegations made concerning the expenses the plaintiff incurred in presenting his claim and in preparing and pursuing his lawsuit did not state a claim that would support legal relief. Dailey v. Integon Gen. Ins. Corp., 75 N.C. App. 387, 331 S.E.2d 148, 1985 N.C. App. LEXIS 3699 (1985).

Tort Action Brought by Improper Party. —

Pursuant to subsection (b)(6) of this rule, trial court properly dismissed action brought against tortfeasor by employer of injured child’s father, which had provided medical benefits for child through a self-funded employee benefit program. Harris-Teeter Super Mkts., Inc. v. Watts, 97 N.C. App. 101, 387 S.E.2d 203, 1990 N.C. App. LEXIS 24 (1990).

Complaint for Insurance Benefits Alleging Intentional Infliction of Emotional Distress. —

Since a contract of insurance is a commercial transaction, absent allegations of specific facts which, if proved, would have demonstrated calculated intentional conduct causing emotional distress directed towards the claimant, a complaint for insurance benefits alleging intentional infliction of emotional distress did not withstand a motion to dismiss under subsection (b)(6) of this rule. Beasley v. National Sav. Life Ins. Co., 75 N.C. App. 104, 330 S.E.2d 207, 1985 N.C. App. LEXIS 3594 (1985).

There is a difference between sufficiently alleging a claim and sufficiently proving it. Although the plaintiff clearly alleged a claim for the intentional infliction of emotional distress, there was no testimony whatsoever to indicate that he suffered emotional distress. Such an injury cannot be assumed, but must be proved by evidence. Dailey v. Integon Gen. Ins. Corp., 75 N.C. App. 387, 331 S.E.2d 148, 1985 N.C. App. LEXIS 3699 (1985).

Former jurors’ complaint for intentional infliction of emotional distress was improperly dismissed because it sufficiently alleged defendant physician’s conduct as extreme and outrageous; the complaint alleged that a letter sent by the defendant to community doctors, including the plaintiffs’ primary care physicians, which categorized them as “Jurors who have found a doctor guilty,” “People who have sued doctors,” and “Others of whom I am leery” subjected plaintiffs to prejudice by the physicians in their local health care system. Burgess v. Busby, 142 N.C. App. 393, 544 S.E.2d 4, 2001 N.C. App. LEXIS 146 (2001).

Motion to Dismiss Improperly Granted. —

Trial court erred in granting defendants’ motion to dismiss the personal representative’s negligence action because the allegations of the complaint did not necessarily dictate a finding of contributory negligence by the decedent where the fact that the decedent bypassed the crossing gate, in violation of G.S. 20-142.1 , was evidence that could be considered in deciding whether the decedent breached the duty of exercising ordinary care. Sharp v. CSX Transp., Inc., 160 N.C. App. 241, 584 S.E.2d 888, 2003 N.C. App. LEXIS 1732 (2003).

Dismissal of the employee’s claim for wrongful discharge in violation of public policy and her claim under North Carolina’s Retaliatory Employment Discrimination Act (REDA), G.S. 95-240 et. seq., was reversed because the employee provided evidence that established that the employer admitted the employee was terminated for pursuing workers’ compensation rights. Tarrant v. Freeway Foods of Greensboro, Inc., 163 N.C. App. 504, 593 S.E.2d 808, 2004 N.C. App. LEXIS 409 (2004).

Trial court erred in granting the seller’s motion to dismiss in a case where the buyer sued the seller under multiple theories arising out of the sale of a log home package, after the parties had settled their dispute during trial, after the trial court had instructed them to file a stipulation of voluntary dismissal by a particular date, after they filed a stipulation on that date, and the buyer filed a complaint for breach of the settlement agreement and a second complaint stating his original causes of action; the one-year statute of limitations for refiling did not bar the buyer’s second complaint because he filed it within one year of the date that the trial court directed the written stipulation of voluntary dismissal be filed, and, thus, the one-year refiling period began to run from that date and not the earlier date on which the buyer announced in open court that he intended to file an involuntary dismissal. Keyzer v. Amerlink, Ltd., 164 N.C. App. 761, 596 S.E.2d 878, 2004 N.C. App. LEXIS 1138 (2004).

For claims based on third-party beneficiary contract doctrine to withstand a motion to dismiss, plaintiffs’ allegations must show: (1) the existence of a contract between two other persons; (2) that the contract was valid and enforceable; and (3) that the contract was entered into for his direct, and not incidental, benefit. Raritan River Steel Co. v. Cherry, Bekaert & Holland, 79 N.C. App. 81, 339 S.E.2d 62, 1986 N.C. App. LEXIS 1977 (1986), aff'd in part and rev'd in part, 322 N.C. 200 , 367 S.E.2d 609, 1988 N.C. LEXIS 296 (1988).

Plaintiffs’ allegation of a very general taking by aircraft overflights “within the past two years” failed to allege with reasonable specificity when the alleged appropriation or taking occurred; however, rather than dismissing the complaint altogether, the court should have required plaintiffs to come forward in accordance with defendant’s motion for a more definite statement and plead the facts they possessed, so that the court could then rule on their timeliness and sufficiency. Smith v. City of Charlotte, 79 N.C. App. 517, 339 S.E.2d 844, 1986 N.C. App. LEXIS 2091 (1986).

A claim should be dismissed under this rule where it appears that plaintiff is entitled to no relief under any statement of facts which could be proven; this will occur when there is a want of law to support a claim of the sort made, an absence of facts sufficient to make a good claim, or the disclosure of some fact which will necessarily defeat the claim. Garvin v. City of Fayetteville, 102 N.C. App. 121, 401 S.E.2d 133, 1991 N.C. App. LEXIS 198 (1991).

Dismissal as Adjudication on Merits. —

With certain exceptions, G.S. 1A-1 , Rule 41(b) provides that all dismissals, including those under subsection (b)(6) of this rule, operate as adjudications upon the merits unless the trial court specifies that the dismissal is without prejudice. Johnson v. Bollinger, 86 N.C. App. 1, 356 S.E.2d 378, 1987 N.C. App. LEXIS 2664 (1987).

A dismissal with prejudice for failure to state a claim, including a dismissal under N.C. R. Civ. P. 12(b)(6), is a final judgment on the merits for res judicata purposes. Ashton v. City of Concord, 337 F. Supp. 2d 735, 2004 U.S. Dist. LEXIS 19217 (M.D.N.C. 2004).

Evidence Outside the Pleadings Not to Be Considered. —

Where the trial court considered evidence outside the pleadings, motion to dismiss was improperly granted. Jacobs v. Royal Ins. Co. of Am., 128 N.C. App. 528, 495 S.E.2d 185, 1998 N.C. App. LEXIS 110 (1998).

Amendment After Dismissal. —

A motion to dismiss under subsection (b)(6) of this rule is not a “responsive pleading” under G.S. 1A-1 , Rule 15(a) and so does not itself terminate plaintiff’s unconditional right to amend a complaint under G.S. 1A-1 , Rule 15(a). However, once the trial court enters its dismissal under subsection (b)(6), plaintiff’s right to amend under G.S. 1A-1, Rule 15(a) is terminated. Under certain limited circumstances set forth in G.S. 1A-1, Rules 59(e) and 60(b), a plaintiff may, however, seek to reopen the trial court’s judgment and amend the complaint concurrently under G.S. 1A-1, Rule 15(a). Johnson v. Bollinger, 86 N.C. App. 1, 356 S.E.2d 378, 1987 N.C. App. LEXIS 2664 (1987).

Claim Based on Repealed Statute Held Not Subject to Dismissal. —

Claim based on former G.S. 168-6 held not subject to dismissal under subsection (b)(6) of this rule, notwithstanding the repeal of G.S. 168-6 , where the complaint was sufficient to put defendants on notice of the events or transactions which produced the claim, and even though the General Assembly did not include a saving clause in the repeal of G.S. 168-6, the same remedy was immediately available to plaintiff for the same injury in the new act, without any intervening period in which plaintiff’s claim was without legal redress. Buchanan v. Hunter Douglas, Inc., 87 N.C. App. 84, 359 S.E.2d 271, 1987 N.C. App. LEXIS 2958 (1987).

Appeal of Dismissal. —

When an action is dismissed with leave to amend, the proceeding is still pending and the plaintiff has no right to appeal such a dismissal interlocutory in nature. When the court allows amendment by the plaintiffs, relief in the trial court has not been entirely denied and appeal is premature. Day v. Coffey, 68 N.C. App. 509, 315 S.E.2d 96, 1984 N.C. App. LEXIS 3316 , cert. denied, 312 N.C. 82 , 321 S.E.2d 894, 1984 N.C. LEXIS 2166 (1984).

In a defamation action, the appeal of the candidate and campaign from the trial court’s denial of their G.S. 1A-1 , N.C. R. Civ. P. 12(b)(6) motion was interlocutory, and the denial did not challenge a substantial right that was to be lost absent immediate appellate review pursuant to G.S. 1-277(a) ; the instant case was akin to a previous case in which an appeal from a motion for judgment on pleadings pursuant to G.S. 1A-1 , N.C. R. Civ. P. 12(c) was dismissed, and the instant case was distinguishable from a previous case in which an appeal on a ruling on a motion for summary judgment pursuant to G.S. 1A-1, N.C. R. Civ. P. 56 was allowed, as a motion under G.S. 1A-1, N.C. R. Civ. P. 12(c) was more similar to a G.S. 1A-1, N.C. R. Civ. P. 12(b)(6) motion. Grant v. Miller, 170 N.C. App. 184, 611 S.E.2d 477, 2005 N.C. App. LEXIS 902 (2005).

Appeal from the denial of the G.S. 1A-1 , N.C. R. Civ. P. 12(b)(6) motion to dismiss based on sovereign immunity affected a substantial right and was therefore immediately appealable. Meherrin Indian Tribe v. Lewis, 197 N.C. App. 380, 677 S.E.2d 203, 2009 N.C. App. LEXIS 661 (2009).

When Denial of Motion May Be Reviewed on Appeal. —

Ordinarily, denial of a motion to dismiss for failure to state a claim is an interlocutory order from which no immediate appeal may be taken. Nevertheless, where a decision of the principal question presented would expedite the administration of justice, or where the case involves a legal issue of public importance, appellate courts may exercise their discretion to determine such an appeal on its merits. Flaherty v. Hunt, 82 N.C. App. 112, 345 S.E.2d 426, 1986 N.C. App. LEXIS 2417 (1986).

Review of Denial of Motion to Dismiss Not Available After Judgment on Merits. —

Where an unsuccessful motion to dismiss is grounded on an alleged insufficiency of the facts to state a claim for relief, and the case thereupon proceeds to judgment on the merits, the unsuccessful movant may not on an appeal from the final judgment seek review of the denial of the motion to dismiss. Concrete Serv. Corp. v. Investors Group, Inc., 79 N.C. App. 678, 340 S.E.2d 755, 1986 N.C. App. LEXIS 2123 , cert. denied, 317 N.C. 333 , 346 S.E.2d 137, 1986 N.C. LEXIS 2331 (1986); Drain v. United Servs. Life Ins. Co., 85 N.C. App. 174, 354 S.E.2d 269, 1987 N.C. App. LEXIS 2566 (1987).

An unsuccessful movant under subsection (b)(6) of this rule may not seek review of denial of such motion on appeal from judgment on the merits against him. Berrier v. Thrift, 107 N.C. App. 356, 420 S.E.2d 206, 1992 N.C. App. LEXIS 696 (1992).

Breach of Contract Insufficient to Support Unfair Practices Claim. —

The defendants’ claim was properly dismissed pursuant to this section where their contention that the plaintiff did not follow through on an oral agreement to assist in purchasing a condominium, at most, stated a simple breach of contract, because they failed to allege any substantially aggravating circumstances which would give rise to an unfair or deceptive practices claim under G.S. 75-1.1 . Miller v. Rose, 138 N.C. App. 582, 532 S.E.2d 228, 2000 N.C. App. LEXIS 777 (2000).

Negligent Interference With A Contract Not Recognized Tort. —

Full Commission did not err in dismissing plaintiff’s negligent interference with a contract claim based on the failure to state a claim for which relief could be granted because negligent interference with a contract was not a tort recognized in North Carolina. Williams v. N.C. DOJ, 273 N.C. App. 209, 848 S.E.2d 231, 2020 N.C. App. LEXIS 609 (2020).

Claim for Concurrent Negligence. —

For case holding plaintiff successfully stated a cause of action for concurrent negligence based upon the negligent acts of multiple defendants even though plaintiff could not allege which defendant had committed the injurious act, see McMillan ex rel. McMillan v. Mahoney, 99 N.C. App. 448, 393 S.E.2d 298, 1990 N.C. App. LEXIS 527 (1990).

Claim Against Parents for Negligence in Giving Air Rifles to Children. —

For case holding plaintiff successfully stated a claim for negligence against parents for giving air rifles to their minor children (where plaintiff ’s injury was sustained after being shot by one of the children), see McMillan ex rel. McMillan v. Mahoney, 99 N.C. App. 448, 393 S.E.2d 298, 1990 N.C. App. LEXIS 527 (1990).

Claim for Failure to Follow Safety Requirements. —

Where plaintiff alleged defendant was aware that the required safe methods for cleaning highly elevated windows were not being practiced, the defendant’s management accepted and encouraged this fact, that defendant knew of supervisor’s past record of ignoring safety requirements, and defendant had previously allowed exact cleaning job to be performed in the same inherently dangerous manner by this supervisor, these allegations were sufficient to state a legally cognizable claim that defendant intentionally engaged in conduct that it knew was substantially certain to cause serious injury or death. Arroyo v. Scottie's Professional Window Cleaning, Inc., 120 N.C. App. 154, 461 S.E.2d 13, 1995 N.C. App. LEXIS 705 (1995).

Governmental Official Can Be Sued in Both Official and Individual Capacity. —

A government employee in his official capacity is not in privity with himself in his individual capacity for purposes of res judicata; therefore, a prior lawsuit against an individual in his official capacity does not bar later relitigation of claims against that same individual in his personal capacity. Andrews v. Daw, 201 F.3d 521, 2000 U.S. App. LEXIS 999 (4th Cir. 2000).

Post-Trial Motion to Dismiss Improper. —

Trial court in a granddaughter’s claim for access to her relatives’ gravesites under G.S. 65-75 [repealed] erred in allowing an owner to assert a motion to dismiss for failure to state a claim after trial, because such a motion was not permitted post-trial. Massey v. Hoffman, 184 N.C. App. 731, 647 S.E.2d 457, 2007 N.C. App. LEXIS 1595 (2007).

Dismissal With Prejudice for Failure to State Claim. —

Trial court did not abuse its discretion when it dismissed, with prejudice, a bank’s complaint for failure to state a claim because the record was devoid of any motion by the bank to amend its complaint and there was nothing in the record indicating that the bank moved that the dismissal be without prejudice. First Fed. Bank v. Aldridge, 230 N.C. App. 187, 749 S.E.2d 289, 2013 N.C. App. LEXIS 1163 (2013).

Dismissal Held Proper. —

The trial court properly dismissed action brought by doctors against accountants who had been engaged to advise them on business opportunities under G.S. 1A-1 , Rule 12(b)(6), as doctors’ complaint against accountants disclosed that its claims were either time-barred or lacked facts sufficient to state a claim for relief. Harrold v. Dowd, 149 N.C. App. 777, 561 S.E.2d 914, 2002 N.C. App. LEXIS 309 (2002).

Trial court’s dismissal of a case claiming breach of a requirement contract was reversed; interpretation of the contract’s termination language was a factual issue not appropriate for a G.S. 1A-1 , N.C. R. Civ. P. 12(b)(6) challenge. IWTMM, Inc. v. Forest Hills Rest Home, 156 N.C. App. 556, 577 S.E.2d 175, 2003 N.C. App. LEXIS 195 (2003).

Trial court properly dismissed the teachers’ request for declaratory relief against the county school board under G.S. 115C-84.2 and G.S. 115C-301.1 as the teachers failed to plead all the facts necessary to disclose the existence of an actual controversy between the parties; furthermore, neither section expressly or implicitly created a private cause of action for the teachers. However, the trial court erred by dismissing the teachers’ breach of contract claims against the school board as the teachers’ allegations were sufficient to withstand the motion to dismiss. Lea v. Grier, 156 N.C. App. 503, 577 S.E.2d 411, 2003 N.C. App. LEXIS 238 (2003).

Since the landowners had the opportunity to present all affirmative defenses argued in their action for a permanent injunction during the condemnation proceedings, judicial economy counseled against litigating the same issues again; thus, the landowners’ actions were properly dismissed for failure to state a cause of action. Nelson v. Town of Highlands, 159 N.C. App. 393, 583 S.E.2d 313, 2003 N.C. App. LEXIS 1516 (2003), rev'd, 358 N.C. 210 , 594 S.E.2d 21, 2004 N.C. LEXIS 194 (2004).

Since plaintiff general contractor did not allege negligence claims against defendant subcontractors that were not otherwise covered by contractual obligations, there was no tort-feasor, and thus, no statutory right to contribution under G.S. 1B-1 ; the trial court properly dismissed the claims against the subcontractors under G.S. 1A-1 , Rule 12(b)(6). Kaleel Builders, Inc. v. Ashby, 161 N.C. App. 34, 587 S.E.2d 470, 2003 N.C. App. LEXIS 1993 (2003).

Where the accident occurred on April 12, 2000, and the uninsured motorist insurer was not served in the wrongful death action against the uninsured driver until July 3, 2002, the trial court properly dismissed the action under G.S. 1A-1 , Rule 12, as the two-year wrongful death statute of limitations action under G.S.1-53(4) had expired. Sturdivant v. Andrews, 161 N.C. App. 177, 587 S.E.2d 510, 2003 N.C. App. LEXIS 2003 (2003), cert. dismissed, 358 N.C. 242 , 594 S.E.2d 34, 2004 N.C. LEXIS 179 (2004).

Where the lifetime income beneficiaries of charitable trusts established in their complaint that the remainder beneficiary of the trusts, which was a charitable foundation, continued to exist and continued to make charitable distributions, the complaint on its face revealed that no law supported the beneficiaries’ claim for reformation of the trust under the cy pres provisions of G.S. 36A-53(a); a trial court did not err in granting the foundation’s motion to dismiss the beneficiaries’ complaint. Morris v. E.A. Morris Charitable Found., 161 N.C. App. 673, 589 S.E.2d 414, 2003 N.C. App. LEXIS 2254 (2003).

Illegitimate child’s complaint seeking a declaration that she was the sole heir of a decedent was properly dismissed where the complaint did not claim that the decedent was adjudged to be the child’s father, or that the decedent had acknowledged himself to be the child’s father in a written instrument which was duly executed and filed; absent G.S. 29-19(b), an illegitimate child had no right to inherit from his or her putative father, and, although a deoxyribonucleic acid (DNA) test had established that the decedent was the child’s biological father, a positive DNA test was not listed in the the statute as a method of meeting the requirements to legitimate a child. Phillips v. Ledford, 162 N.C. App. 150, 590 S.E.2d 280, 2004 N.C. App. LEXIS 3 (2004).

Where a minority shareholder’s complaint centered around an allegation that a corporation’s directors and a buyer had engaged in a course of conduct designed to enable them to buy the shares of the minority at an unfair price, the complaint failed to adequately allege an unlawful or fraudulent transaction, and the complaint was properly dismissed. Osher v. Ridinger, 162 N.C. App. 155, 589 S.E.2d 905, 2004 N.C. App. LEXIS 37 (2004).

Trial court properly concluded that a lienholder which sued a county and the county’s tax collector, alleging that the tax collector was negligent and violated the lienholder’s constitutional rights when he failed to give the lienholder actual notice that a mobile home would be sold at a tax sale, did not state a claim upon which relief could be granted. Oakwood Acceptance Corp., LLC v. Massengill, 162 N.C. App. 199, 590 S.E.2d 412, 2004 N.C. App. LEXIS 118 (2004).

Former employee’s breach of contract claim against his former employer was dismissed for failure to state a claim upon which relief could be granted because the employee was an at-will employee and, without supporting factual allegations, his claim that the employer’s code of conduct was part of his employment contract failed. Guarascio v. New Hanover Health Network, Inc., 163 N.C. App. 160, 592 S.E.2d 612, 2004 N.C. App. LEXIS 301 (2004).

G.S. 50B-1 et seq. does not establish victims of domestic violence as a protected class of persons or extend employment security status to such persons, and domestic violence victims were not members of a protected class or otherwise entitled to special treatment; the termination of the at will employment of a domestic violence victim did not violate public policy, and a trial court’s dismissal of his wrongful termination suit was affirmed. Imes v. City of Asheville, 163 N.C. App. 668, 594 S.E.2d 397, 2004 N.C. App. LEXIS 583 , aff'd, 359 N.C. 182 , 606 S.E.2d 117, 2004 N.C. LEXIS 1348 (2004).

Client’s legal malpractice claim was properly dismissed under G.S. 1A-1 , Rule 12(b)(6), as time barred, because the action was filed over three years after end of trial and, one count alleged negligence in trial strategy, response to pretrial stipulations, and discovery, all of which necessarily occurred before or during trial, while the second count alleged negligence in failure to challenge the validity of a prenuptial agreement on appeal, which was in adhering to the rules of court and thus, did not constitute malpractice. Ventriglia v. Deese, 194 N.C. App. 344, 669 S.E.2d 817, 2008 N.C. App. LEXIS 2263 (2008).

Trial court correctly decided that a client’s intentional wrongdoing, including libel per se, malicious prosecution, and unfair and deceptive trade practices, resulting in a $700,000 judgment against him, barred any recovery from his attorney for malpractice under a theory of in pari delicto. His claim was properly dismissed under G.S. 1A-1-12(b)(6). Whiteheart v. Waller, 199 N.C. App. 281, 681 S.E.2d 419, 2009 N.C. App. LEXIS 1369 (2009).

In a case where a child was struck by a car after he and his family had viewed a Christmas parade, and subsequently died, the property owner’s motion to dismiss based on failure to state a claim was properly granted because, as the adjacent property owner to the alley on which the incident occurred, the property owner did not have a duty to illuminate the property that was owned by someone else; and the nonfunctioning light on the property owner’s building was not, itself, a dangerous condition that created the dark condition of the nighttime sky, which caused the accident; thus, plaintiffs’ complaint failed to sufficiently allege that the property owner breached a duty owed to them, and failed to set forth a prima facie claim of negligence. Parker v. Town of Erwin, 243 N.C. App. 84, 776 S.E.2d 710, 2015 N.C. App. LEXIS 772 (2015).

Trial court properly dismissed a disbarred attorney’s defamation action against a former opponent where the attorney’s alleged mismanagement of entrusted client funds was central to the subject matter of her disciplinary hearing, and thus, the former opponent’s statements about his concerns with the attorney’s handling of a settlement check were absolutely privileged. Watts-Robinson v. Shelton, 251 N.C. App. 507, 796 S.E.2d 51, 2016 N.C. App. LEXIS 1357 (2016).

Trial court properly dismissed the claim brought by students and organizations that the county board of commissioners bore the constitutional obligation for providing all children in the county with a sound basic education where prior case law clearly established that the constitutional responsibility to provide a sound basic education rested on the State. Silver v. Halifax Cty. Bd. of Comm'rs, 255 N.C. App. 559, 805 S.E.2d 320, 2017 N.C. App. LEXIS 762 (2017), aff'd, 371 N.C. 855 , 821 S.E.2d 755, 2018 N.C. LEXIS 1138 (2018).

Dismissal Held Improper. —

In a case brought by mobile home owners against the manufacturer of those homes, alleging that the manufacturer had engaged in unfair and deceptive trade practices by recommending and selling the owners a defective mobile home tie-down system, the owners’ claim that they should be allowed to recover the costs that they incurred to buy and install the defective tie down systems or the costs to retro-fit their tie-down system to one that provided a safe and reliable method to secure the homes in severe weather conditions and met the minimal governmental standards, stated a claim for actual injury sufficient to survive the manufacturer’s motion to dismiss; a trial court’s dismissal of the owners’ claim was reversed. Coley v. Champion Home Builders Co., 162 N.C. App. 163, 590 S.E.2d 20, 2004 N.C. App. LEXIS 5 (2004).

Trial court erred in dismissing buyers’ breach of implied warranty claim arising out of fact that they could not build the home they wanted to build on the property they bought from the seller that would comply with the property’s restrictive covenants; evidence showed that the seller not only made misrepresentations about the property, but that the seller took steps to hinder the buyers from investigating the alleged misrepresentations and discovering that they could not build the home they wanted to build on the property. Little v. Stogner, 162 N.C. App. 25, 592 S.E.2d 5, 2004 N.C. App. LEXIS 13 (2004).

No Basis for Taking Judicial Notice of Additional Facts. —

As the only purpose of a motion to dismiss a complaint due to its legal sufficiency was to test the pleading for sufficiency purposes, matters outside the complaint were not germane and there was no cause to take judicial notice of such additional facts. Charlotte Motor Speedway, LLC v. County of Cabarrus, 230 N.C. App. 1, 748 S.E.2d 171, 2013 N.C. App. LEXIS 1012 (2013).

B.Conversion of Motion to Dismiss to Summary Judgment Motion.

When Motion to Dismiss Converted to Summary Judgment Motion. —

A motion to dismiss for failure to state a claim is converted to a G.S. 1A-1 , Rule 56 motion for summary judgment when matters outside the pleadings are presented to and not excluded by the court. Stanback v. Stanback, 297 N.C. 181 , 254 S.E.2d 611, 1979 N.C. LEXIS 1249 (1979); Smith v. Independent Life Ins. Co., 43 N.C. App. 269, 258 S.E.2d 864, 1979 N.C. App. LEXIS 3068 (1979); Piedmont Consultants of Statesville, Inc. v. Baba, 48 N.C. App. 160, 268 S.E.2d 222, 1980 N.C. App. LEXIS 3212 (1980); Baugh v. Woodard, 56 N.C. App. 180, 287 S.E.2d 412, 1982 N.C. App. LEXIS 2346 (1982).

Where extraneous matter is received and considered on a motion to dismiss under subsection (b)(6) of this rule, the motion should be treated as a motion for summary judgment and disposed of in the manner and on the conditions stated in G.S. 1A-1 , Rule 56. Fowler v. Williamson, 39 N.C. App. 715, 251 S.E.2d 889, 1979 N.C. App. LEXIS 2578 (1979); Roach v. City of Lenoir, 44 N.C. App. 608, 261 S.E.2d 299, 1980 N.C. App. LEXIS 2491 (1980); Oliver v. Roberts, 49 N.C. App. 311, 271 S.E.2d 399, 1980 N.C. App. LEXIS 3402 (1980), cert. denied, 276 S.E.2d 283, 1981 N.C. LEXIS 1559 (N.C. 1981).

By the provisions of section (b) of this rule itself, matters outside the pleading may be presented to the court and considered by it on a motion to dismiss under subsection (b)(6), in which case the motion will be treated as one for summary judgment under G.S. 1A-1 , Rule 56. Smith v. Smith, 17 N.C. App. 416, 194 S.E.2d 568, 1973 N.C. App. LEXIS 1372 (1973).

Section (b) of this rule provides that on a motion under subsection (b)(6), if matters outside the pleadings are presented to and considered by the court, the motion will be treated as one for summary judgment and disposed of as provided in G.S. 1A-1 , Rule 56. Parslow v. Parslow, 47 N.C. App. 84, 266 S.E.2d 746, 1980 N.C. App. LEXIS 2978 (1980).

Where the record contains affidavits and indicates that the trial judge, in addition to considering the pleadings and attached exhibits, also heard counsel for both parties and considered briefs submitted by both parties, the motion for judgment on the pleadings under section (c) of this rule must be considered as though it was made under G.S. 1A-1 , Rule 56. Minor v. Minor, 70 N.C. App. 76, 318 S.E.2d 865, 1984 N.C. App. LEXIS 3611 (1984).

Where matters outside the pleadings are presented to and not excluded by the court on a motion to dismiss for failure to state a claim, the motion shall be treated as one for summary judgment under G.S. 1A-1 , Rule 56. DeArmon v. B. Mears Corp., 312 N.C. 749 , 325 S.E.2d 223, 1985 N.C. LEXIS 1494 (1985); King v. Durham County Mental Health Developmental Disabilities & Substance Abuse Auth., 113 N.C. App. 341, 439 S.E.2d 771, 1994 N.C. App. LEXIS 19 (1994).

Where matters outside the pleadings are before the court, a motion to dismiss may be treated as a motion for summary judgment. Deans v. Layton, 89 N.C. App. 358, 366 S.E.2d 560, 1988 N.C. App. LEXIS 189 (1988).

When a trial court considers matters outside the pleadings, a motion under this rule is automatically converted into a motion for summary judgment. North Carolina Steel, Inc. v. National Council on Comp. Ins., 123 N.C. App. 163, 472 S.E.2d 578, 1996 N.C. App. LEXIS 678 (1996), aff'd in part and rev'd in part, 347 N.C. 627 , 496 S.E.2d 369, 1998 N.C. LEXIS 112 (1998).

Where the trial court reviewed the evidence that was presented before the referee and found that there were no issues of material fact, the trial court was permitted to enter summary judgment, as the summary judgment entered in the instant case was analogous to where an appellate court treated a motion under G.S. 1A-1 , N.C. R. Civ. P. 12(b)(6) as a motion for summary judgment. Dockery v. Hocutt, 153 N.C. App. 744, 571 S.E.2d 81, 2002 N.C. App. LEXIS 1267 (2002), aff'd in part, modified, 357 N.C. 210 , 581 S.E.2d 431, 2003 N.C. LEXIS 596 (2003).

Where the North Carolina Industrial Commission considers materials outside of the pleadings, a movant’s motion to dismiss pursuant to G.S. 1A-1 , N.C. R. Civ. P. 12(b)(6) was converted into a motion for summary judgment. Norman v. N.C. DOT, 161 N.C. App. 211, 588 S.E.2d 42, 2003 N.C. App. LEXIS 2043 (2003), cert. denied, 358 N.C. 545 , 599 S.E.2d 404, 2004 N.C. LEXIS 813 (2004).

Dismissal of school bus driver’s negligence action, based on the bus driver’s failure to file the action as a compulsory counterclaim in earlier litigation, was reversed; the trial court considered matters outside the face of the bus driver’s complaint in ordering the dismissal, which converted the motion to one for summary judgment, and the parties had not been given an opportunity to present evidence on whether the failure to file the compulsory counterclaim estopped the bus driver from bringing her claims in a separate action. Kemp v. Spivey, 166 N.C. App. 456, 602 S.E.2d 686, 2004 N.C. App. LEXIS 1781 (2004).

Trial court converted a G.S. 1A-1 , N.C. R. Civ. P. 12(b)(6) motion into a motion for summary judgment because the court considered matters outside of the pleadings in the form of exhibits, depositions, affidavits and discovery responses. Bailey v. Handee Hugo's, Inc., 173 N.C. App. 723, 620 S.E.2d 312, 2005 N.C. App. LEXIS 2302 (2005).

Because the trial court clearly considered matters outside the pleadings, the trial court properly treated defendants’ G.S. 1A-1 , N.C. R. Civ. P. 12(b)(6) motion to dismiss as a motion for summary judgment under G.S. 1A-1 , N.C. R. Civ. P. 56. Barbee v. Johnson, 190 N.C. App. 349, 660 S.E.2d 135, 2008 N.C. App. LEXIS 887 (2008).

Because the superior court considered matters outside the pleadings when the court heard an insurer’s motion to dismiss the insureds’ counterclaims, the appellate court reviewed the superior court’s grant of the insurer’s motion to dismiss as the grant of a motion for summary judgment. State Farm Mut. Auto. Ins. Co. v. Gaylor, 190 N.C. App. 448, 660 S.E.2d 104, 2008 N.C. App. LEXIS 821 (2008).

Because the trial court considered matters outside the pleadings, including the separation agreement and/or defendant’s affidavit supporting his first dismissal motion, in which he asserted that plaintiff’s claims were waived by the 18 April 2013 separation agreement, defendant’s motion to dismiss for failure to state a claim was converted into one of summary judgment; additionally, her equitable distribution and spousal support claims had to be reviewed under the summary judgment standard as they were necessarily based on the terms of the separation agreement itself or defendant’s affidavit. Holton v. Holton, 258 N.C. App. 408, 813 S.E.2d 649, 2018 N.C. App. LEXIS 297 (2018).

Motion Not Converted to Motion for Summary Judgment by Reference to Contract. —

Defendant’s motion to dismiss was not converted into one for summary judgment by the trial court’s referring to the contract which was the subject of the action and was specifically referred to in the complaint. Coley v. North Carolina Nat'l Bank, 41 N.C. App. 121, 254 S.E.2d 217, 1979 N.C. App. LEXIS 2383 (1979); Brooks Distrib. Co. v. Pugh, 91 N.C. App. 715, 373 S.E.2d 300, 1988 N.C. App. LEXIS 914 (1988), rev'd, 324 N.C. 326 , 378 S.E.2d 31, 1989 N.C. LEXIS 155 (1989).

Motion Not Converted to Motion For Summary Judgment By Reference To Administrative Complaint Or Rrigh-To-Sue Letter. —

Where an employee referred in a complaint for a violation of the North Carolina Retaliatory Employment Discrimination Act, G.S. 95-240 et seq., to the administrative complaint and/or right-to-sue letter from the North Carolina Department of Labor, which were not attached to the complaint, and they formed the procedural basis for the complaint, the trial court did not convert the employer’s motion to dismiss under Rule 12(b)(6) into one for summary judgment under G.S. 1A-1 , Rule 56, by considering the unattached documents. Brackett v. SGL Carbon Corp., 158 N.C. App. 252, 580 S.E.2d 757, 2003 N.C. App. LEXIS 1041 (2003).

Summary judgment, like judgment on the pleadings, is appropriately granted only where no disputed issues of fact have been presented and the undisputed facts show that any party is entitled to judgment as a matter of law. Minor v. Minor, 70 N.C. App. 76, 318 S.E.2d 865, 1984 N.C. App. LEXIS 3611 (1984).

The notice required in situations where a subsection (b)(6) motion is treated as a motion for summary judgment is procedural rather than constitutional. As such, the proper action for counsel to take is to request a continuance or additional time to produce evidence. Objections to timeliness are therefore not germane in such situations and the trial court has discretion, provided the opposing party has a “reasonable opportunity” to present pertinent material, to take and consider affidavits in support of a converted motion. By participating in the hearing and failing to request a continuance or additional time to produce evidence, a party waives his right to this procedural notice. Raintree Homeowners Ass'n v. Raintree Corp., 62 N.C. App. 668, 303 S.E.2d 579, 1983 N.C. App. LEXIS 2979 (1983).

Complaint in Federal Court Incorporated by Reference Not Matter Outside Pleadings. —

Where the plaintiff incorporated by reference in her complaint as an exhibit a complaint in a federal court action and a copy of it was attached, the complaint in the federal court action was not a matter outside the pleadings converting a motion to dismiss under subsection (b)(6) of this rule into a motion for summary judgment under G.S. 1A-1 , Rule 56, since G.S. 1A-1 , Rule 10(c) provides that such an exhibit is a part of the pleading for all purposes. Stanback v. Stanback, 297 N.C. 181 , 254 S.E.2d 611, 1979 N.C. LEXIS 1249 (1979).

Memoranda, Briefs and Oral Arguments Not Matters Outside the Pleading. —

Memoranda of points and authorities as well as briefs and oral arguments are not considered matters outside the pleading for purposes converting a motion under this rule into a motion for summary judgment under G.S. 1A-1 , Rule 56. Privette v. University of N.C. 96 N.C. App. 124, 385 S.E.2d 185, 1989 N.C. App. LEXIS 969 (1989).

Illustrative Cases. —

Where plaintiff sought a personal judgment against owners based on its contract to drill a well and to have such personal judgment declared to be a specific lien on the property allegedly conveyed by owners to purchasers, but there was no allegation in the complaint that the purchasers were indebted to plaintiff in any amount, and subsequently plaintiff abandoned its claim for a personal judgment based on the contract to drill the well by taking a voluntary dismissal of its claim against owners, when the trial judge granted the purchasers motion to dismiss under subsection (b)(6) of this rule there was no debt or judgment to be secured by a lien on the property in question, and since the court necessarily considered matters outside the pleadings, i.e., the voluntary dismissal of plaintiff ’s claim for personal judgment against owners, order under subsection (b)(6) of this rule was converted to a summary judgment for the purchasers with respect to the dismissal of plaintiff ’s claim to have a lien imposed on the property. Johnson v. Builder's Transp., Inc., 79 N.C. App. 721, 340 S.E.2d 515, 1986 N.C. App. LEXIS 2118 (1986).

Materials which constituted only requests, explanations, and arguments of counsel on both sides with respect to defendants’ motions under subsection (b)(6) of this rule were matters outside the pleadings within the meaning of section (b) thereof. King v. Cape Fear Mem. Hosp., 96 N.C. App. 338, 385 S.E.2d 812, 1989 N.C. App. LEXIS 997 (1989).

Where, in a claim brought by mobile home owners alleging unfair and deceptive trade practices by the manufacturers of the homes, the parties presented to the trial court deposition testimony and affidavits, none of which was excluded by the trial court, the trial court’s conversion of the manufacturers’ N.C. R. Civ. P. 12(b)(6) motion into a N.C. R. Civ. P. 56 motion was proper; although the owners argued that they were not given a reasonable opportunity to present all pertinent material, the owners did not request a continuance or additional time to produce evidence, but fully participated in the hearing, and thus their claim was meritless. Belcher v. Fleetwood Enters., 162 N.C. App. 80, 590 S.E.2d 15, 2004 N.C. App. LEXIS 9 (2004).

Where, in support of their motion claiming that a legal malpractice claim against them was time barred, lawyers submitted a complaint filed against the client in a separate case and the client’s answer to that complaint, which were not excluded by the trial court, the motion was treated as one for summary judgment. Bolton v. Crone, 162 N.C. App. 171, 589 S.E.2d 915, 2004 N.C. App. LEXIS 56 (2004).

Trial court’s order indicated that it dismissed a complaint under N.C. R. Civ. P. 12(b)(6), and notably, did not mention any of the evidentiary matter appropriately considered on a motion for summary judgment; moreover, nothing in the record established that the trial court considered matters beyond the pleadings. Accordingly, the trial court did not convert the motion to dismiss into a summary judgment motion. Charlotte Motor Speedway, Inc. v. Tindall Corp., 195 N.C. App. 296, 672 S.E.2d 691, 2009 N.C. App. LEXIS 120 (2009).

Court Lacked Jurisdiction To Convert After Timely Voluntary Dismissal. —

Where plaintiff had a motion to amend his complaint pending before the trial court and, consequent to the defendants’ motion to dismiss, filed a timely voluntary dismissal under Rule 41 (a)(1)(i), and the trial court had before it matters outside the pleadings, the trial court did not have jurisdiction to dismiss plaintiff’s complaint with prejudice pursuant to subdivision (b)(6) of this rule. Schnitzlein v. Hardee's Food Sys., Inc., 134 N.C. App. 153, 516 S.E.2d 891, 1999 N.C. App. LEXIS 679 (1999).

X.Failure to Join Necessary Party.

A defense of failure to join a necessary party must be raised in the trial court; it may not be asserted for the first time on appeal. Stancil v. Bruce Stancil Refrigeration, Inc., 81 N.C. App. 567, 344 S.E.2d 789, 1986 N.C. App. LEXIS 2336 (1986).

Remedy for Failure to Join Necessary Party Is Motion to Dismiss. —

Summary judgment is not a proper remedy for failure to join a necessary party. Rather, a motion to dismiss for failure to join a necessary party would be proper. Dildy v. Southeastern Fire Ins. Co., 13 N.C. App. 66, 185 S.E.2d 272, 1971 N.C. App. LEXIS 1158 (1971).

Dismissal under subsection (b)(7) of this rule is proper only when the defect cannot be cured, and the court ordinarily should order a continuance for the absent party to be brought into the action and plead. Howell v. Fisher, 49 N.C. App. 488, 272 S.E.2d 19, 1980 N.C. App. LEXIS 3424 (1980), cert. denied, 302 N.C. 218 , 277 S.E.2d 69, 1981 N.C. LEXIS 1162 (1981).

Trial court did not err in denying the town’s motion to dismiss the newspaper’s amended complaint for lack of standing and for the alleged failure to join a necessary party, the town clerk, as the newspaper was a party to the action who sought the disclosure of the alleged public records at issue, and thus the newspaper had standing to request the documents, and it was not necessary to join the town clerk to the action before all necessary parties to the action were before the trial court. Womack Newspapers, Inc. v. Town of Kitty Hawk, 181 N.C. App. 1, 639 S.E.2d 96, 2007 N.C. App. LEXIS 81 (2007).

Court to Decide Whether Absent Party Should Be Joined. —

When faced with a motion under subsection (b)(7) of this rule, the court will decide if the absent party should be joined as a party. Crosrol Carding Devs., Inc. v. Gunter & Cooke, Inc., 12 N.C. App. 448, 183 S.E.2d 834, 1971 N.C. App. LEXIS 1382 (1971); Godley Auction Co. v. Myers, 40 N.C. App. 570, 253 S.E.2d 362, 1979 N.C. App. LEXIS 2281 (1979).

If it decides in the affirmative, the court will order him brought into the action. Crosrol Carding Devs., Inc. v. Gunter & Cooke, Inc., 12 N.C. App. 448, 183 S.E.2d 834, 1971 N.C. App. LEXIS 1382 (1971); Godley Auction Co. v. Myers, 40 N.C. App. 570, 253 S.E.2d 362, 1979 N.C. App. LEXIS 2281 (1979).

Procedure Where Absentee Cannot Be Joined. —

If the absentee cannot be joined, the court must then determine, by balancing the guiding factors set forth in G.S. 1A-1 , Rule 19(b), whether to proceed without him or to dismiss the action. Crosrol Carding Devs., Inc. v. Gunter & Cooke, Inc., 12 N.C. App. 448, 183 S.E.2d 834, 1971 N.C. App. LEXIS 1382 (1971).

Under subsection (b)(7), dismissal is appropriate where the party ordered joined is not subject to the court’s jurisdiction. Crosrol Carding Devs., Inc. v. Gunter & Cooke, Inc., 12 N.C. App. 448, 183 S.E.2d 834, 1971 N.C. App. LEXIS 1382 (1971).

A dismissal under subsection (b)(7) is not considered to be on the merits and is without prejudice. Crosrol Carding Devs., Inc. v. Gunter & Cooke, Inc., 12 N.C. App. 448, 183 S.E.2d 834, 1971 N.C. App. LEXIS 1382 (1971).

Trial court’s order conditionally indicating that plaintiff homeowner association’s tax refund action would be dismissed if certain necessary parties were not joined, erroneously indicated that such dismissal would be with prejudice; a dismissal for failure to join a necessary party, such as in response to a motion under N.C. R. Civ. P. 12(b)(7), was not a dismissal on the merits and could not be with prejudice. Fairfield Mt. Prop. Owners Ass'n v. Doolittle, 149 N.C. App. 486, 560 S.E.2d 604, 2002 N.C. App. LEXIS 189 (2002).

Dismissal Without Prejudice. —

Because the trial court’s October 11, 2010, order dismissing the member’s complaint without prejudice for failure to join necessary parties did not specify a period of time for the member to refile his complaint, he had a statutory period of one year from the date of that order to refile his complaint; however, when defendant failed to refile his complaint or appeal the trial court’s order, his counterclaim filed January 25, 2012, was properly dismissed. Fed. Point Yacht Club Ass'n v. Moore, 233 N.C. App. 298, 758 S.E.2d 1, 2014 N.C. App. LEXIS 307 (2014).

Failure to Join the County in Rezoning Dispute Was Fatal. —

The trial court erred in denying the Board of Commissioners’ motion to dismiss under G.S. 1A-1 , Rule 12(b)(1), (2), (4), (6) and (7) where the plaintiffs brought their action challenging a rezoning solely against the Board and not against the County and where the plaintiffs’ attempts to amend the complaint to substitute the county as the named defendant were ineffective as they occurred after the statute of limitations had run under G.S. 1-54.1 because G.S. 1A-1 , Rule 15(c) is not authority for the relation back of claims against a new party. Piland v. Hertford County Bd. of Comm'rs, 141 N.C. App. 293, 539 S.E.2d 669, 2000 N.C. App. LEXIS 1411 (2000).

Appeal from Denial of Motion to Dismiss Interlocutory in Nature. —

Appeal from a trial court’s order denying a motion to dismiss a complaint, under N.C. R. Civ. P. 12(b)(7), for failure to join a necessary party was premature because it was interlocutory in nature, under G.S. 1A-1 , N.C. R. Civ. P. 54(b), and because the appellants failed to show, pursuant to G.S. 1-277(a) and G.S. 7A-27(d)(1), that a substantial right would have been affected absent immediate disposition of the matter. Builders Mut. Ins. Co. v. Meeting St. Builders, LLC, 222 N.C. App. 647, 736 S.E.2d 197, 2012 N.C. App. LEXIS 1079 (2012).

Failure to Join Homeowner was not Fatal. —

Trial court properly denied the homeowner’s association directors’ motion to dismiss a resident’s tort claims for failure to join the homeowner where the lawsuit involved intentional tort claims asserted by the resident for acts allegedly inflicted upon her that caused her to personally suffer emotional distress, physical injuries, and financial harm, and because the claims were personal and unique to the resident, the homeowner could not be characterized as a necessary party. Radcliffe v. Avenel Homeowners Ass'n, 248 N.C. App. 541, 789 S.E.2d 893, 2016 N.C. App. LEXIS 824 (2016), cert. denied, 369 N.C. 569 , 799 S.E.2d 42, 2017 N.C. LEXIS 344 (2017).

XI.Motion for Judgment on the Pleadings

Section (c) of this rule is identical to its federal counterpart. Ragsdale v. Kennedy, 286 N.C. 130 , 209 S.E.2d 494, 1974 N.C. LEXIS 1185 (1974).

Motions Under Subsection (b)(6) and Section (c) Distinguished. —

Principal difference between a motion for judgment on the pleadings and a motion to dismiss for failure to state a claim upon which relief can be granted is that a motion under section (c) of this rule is properly made after the pleadings are closed, while a motion under subsection (b)(6) of this rule must be made prior to or contemporaneously with the filing of the responsive pleading. Robertson v. Boyd, 88 N.C. App. 437, 363 S.E.2d 672, 1988 N.C. App. LEXIS 42 (1988).

The survival of an action after a motion under subsection (b)(6) of this rule is not the equivalent to the court determining that conflicting issues exist. No party is entitled to judgment as a matter of law under section (c). Cash v. State Farm Mut. Auto. Ins. Co., 137 N.C. App. 192, 528 S.E.2d 372, 2000 N.C. App. LEXIS 312 (2000).

Motion for judgment on the pleadings operates substantially the same as under the Code system before adoption of the new Rules of Civil Procedure. Ragsdale v. Kennedy, 286 N.C. 130 , 209 S.E.2d 494, 1974 N.C. LEXIS 1185 (1974).

Function of section (c) of this rule is to dispose of baseless claims or defenses when the formal pleadings reveal their lack of merit. Ragsdale v. Kennedy, 286 N.C. 130 , 209 S.E.2d 494, 1974 N.C. LEXIS 1185 (1974); High v. Parks, 42 N.C. App. 707, 257 S.E.2d 661, 1979 N.C. App. LEXIS 2989 , cert. denied, 298 N.C. 806 , 262 S.E.2d 1, 1979 N.C. LEXIS 1466 (1979).

Trial court’s order granting plaintiff summary judgment on an action alleging that defendant was in default on two promissory notes could not be treated as judgment on the pleadings where the trial court had considered matters outside of the pleadings, including arguments from both sides and evidentiary materials from defendant. Buckner v. TigerSwan, Inc., 244 N.C. App. 385, 781 S.E.2d 494, 2015 N.C. App. LEXIS 1039 (2015).

Inapplicable to Post-Trial Motions. —

Motions under section (c) of this rule are pretrial motions requiring a review of the pleadings; they cannot be employed to test the validity of post-trial motions. Scott v. Scott, 106 N.C. App. 379, 416 S.E.2d 583, 1992 N.C. App. LEXIS 484 (1992).

Judgment on the pleadings under section (c) is not favored by the law, and the nonmovant’s pleadings will be liberally construed. Huss v. Huss, 31 N.C. App. 463, 230 S.E.2d 159, 1976 N.C. App. LEXIS 2018 (1976).

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. RGK, Inc. v. United States Fid. & Guar. Co., 292 N.C. 668 , 235 S.E.2d 234, 1977 N.C. LEXIS 1074 (1977).

Judgment on the pleadings pursuant to section (c) of this rule is not favored by the law, and the pleadings must be liberally construed in the light most favorable to the nonmoving parties. Pipkin v. Lassiter, 37 N.C. App. 36, 245 S.E.2d 105, 1978 N.C. App. LEXIS 2649 (1978); DeTorre v. Shell Oil Co., 84 N.C. App. 501, 353 S.E.2d 269, 1987 N.C. App. LEXIS 2514 (1987).

Judgment on the pleadings is not appropriate merely because the claimant’s case is weak and he is unlikely to prevail on the merits. Huss v. Huss, 31 N.C. App. 463, 230 S.E.2d 159, 1976 N.C. App. LEXIS 2018 (1976); Pipkin v. Lassiter, 37 N.C. App. 36, 245 S.E.2d 105, 1978 N.C. App. LEXIS 2649 (1978).

Judgment on the pleadings is proper only when the pleadings fail to present any issue of fact for the jury. Gammon v. Clark, 25 N.C. App. 670, 214 S.E.2d 250, 1975 N.C. App. LEXIS 2364 (1975).

A judgment on the pleadings based upon a plea of the statute of limitations is proper only when the pleadings fail to present any issue of fact for determination by a jury. Flexolite Elec., Ltd. v. Gilliam, 55 N.C. App. 86, 284 S.E.2d 523, 1981 N.C. App. LEXIS 2974 (1981).

A motion for judgment on the pleadings is proper procedure when all the material allegations of fact are admitted in the pleadings and only questions of law remain. Ragsdale v. Kennedy, 286 N.C. 130 , 209 S.E.2d 494, 1974 N.C. LEXIS 1185 (1974); Pipkin v. Lassiter, 37 N.C. App. 36, 245 S.E.2d 105, 1978 N.C. App. LEXIS 2649 (1978); DeTorre v. Shell Oil Co., 84 N.C. App. 501, 353 S.E.2d 269, 1987 N.C. App. LEXIS 2514 (1987).

When pleadings do not resolve all factual issues, judgment on pleadings is generally inappropriate. Ragsdale v. Kennedy, 286 N.C. 130 , 209 S.E.2d 494, 1974 N.C. LEXIS 1185 (1974).

The law does not authorize entry of a judgment on the pleadings in any case where the pleadings raise an issue of fact on any single material proposition. Cline v. Seagle, 27 N.C. App. 200, 218 S.E.2d 480, 1975 N.C. App. LEXIS 1795 (1975).

Movant Must Prove Entitlement to Judgment as Matter of Law. —

A motion for judgment on the pleadings pursuant to section (c) of this rule should not be granted unless the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law. American Bank & Trust Co. v. Elzey, 26 N.C. App. 29, 214 S.E.2d 800, 1975 N.C. App. LEXIS 1961 , cert. denied, 288 N.C. 252 , 217 S.E.2d 662, 1975 N.C. LEXIS 971 (1975); J.F. Wilkerson Contracting Co. v. Rowland, 29 N.C. App. 722, 225 S.E.2d 840, 1976 N.C. App. LEXIS 2635 , cert. denied, 290 N.C. 660 , 228 S.E.2d 452, 1976 N.C. LEXIS 1133 (1976); Minor v. Minor, 70 N.C. App. 76, 318 S.E.2d 865, 1984 N.C. App. LEXIS 3611 (1984).

Under section (c) of this rule, a party moving for judgment on the pleadings is held to a strict standard and must show that no material issue of facts exists and that he is clearly entitled to judgment. Ragsdale v. Kennedy, 286 N.C. 130 , 209 S.E.2d 494, 1974 N.C. LEXIS 1185 (1974); Shellhorn v. Brad Ragan, Inc., 38 N.C. App. 310, 248 S.E.2d 103, 1978 N.C. App. LEXIS 2173 , cert. denied, 295 N.C. 735 , 249 S.E.2d 804, 1978 N.C. LEXIS 1138 (1978); Newbold v. Globe Life Ins. Co., 50 N.C. App. 628, 274 S.E.2d 905, 1981 N.C. App. LEXIS 2169 (1981).

The movant under section (c) of this rule must show, even when viewing the facts and permissible inferences in the light most favorable to the nonmoving party, that he is clearly entitled to judgment as a matter of law. DeTorre v. Shell Oil Co., 84 N.C. App. 501, 353 S.E.2d 269, 1987 N.C. App. LEXIS 2514 (1987); Whitaker v. Clark, 109 N.C. App. 379, 427 S.E.2d 142, 1993 N.C. App. LEXIS 274 , cert. denied, 333 N.C. 795 , 431 S.E.2d 31, 1993 N.C. LEXIS 258 (1993).

Distinction between a motion for judgment on the pleadings and a motion for summary judgment is that the latter may require an evidentiary hearing; in the situation where the trial court takes judicial notice of an established fact, such as the record of the prior proceeding, no hearing is required. QUB Studios, LLC v. Marsh, 262 N.C. App. 251, 822 S.E.2d 113, 2018 N.C. App. LEXIS 1082 (2018).

When a party moves for judgment on the pleadings, he admits two things for the purpose of his motion, namely: (1) the truth of all well-pleaded facts in the pleading of his adversary, together with all fair inferences to be drawn from such facts; and (2) the untruth of his own allegations insofar as they are controverted by the pleading of his adversary. Gammon v. Clark, 25 N.C. App. 670, 214 S.E.2d 250, 1975 N.C. App. LEXIS 2364 (1975).

All well-pleaded factual allegations in the nonmoving party’s pleadings are taken as true, and all contravening assertions in the nonmovant’s pleadings are taken as false. Ragsdale v. Kennedy, 286 N.C. 130 , 209 S.E.2d 494, 1974 N.C. LEXIS 1185 (1974); Shellhorn v. Brad Ragan, Inc., 38 N.C. App. 310, 248 S.E.2d 103, 1978 N.C. App. LEXIS 2173 , cert. denied, 295 N.C. 735 , 249 S.E.2d 804, 1978 N.C. LEXIS 1138 (1978).

Upon a motion for judgment on the pleadings under section (c) of this rule the allegations of the nonmovant are taken as true and all contravening assertions of the movant are taken as false. Huss v. Huss, 31 N.C. App. 463, 230 S.E.2d 159, 1976 N.C. App. LEXIS 2018 (1976).

When a party moves for judgment on the pleadings, he admits the truth of all well-pleaded facts in the pleading of the opposing party and the untruth of his own allegations insofar as they are controverted by the pleadings of the opposing party. Pipkin v. Lassiter, 37 N.C. App. 36, 245 S.E.2d 105, 1978 N.C. App. LEXIS 2649 (1978).

What Allegations in Nonmovant’s Pleadings Deemed Admitted. —

All allegations in the nonmovant’s pleadings except conclusions of law, legally impossible facts and matters not admissible in evidence at the trial are deemed admitted by the movant for purposes of the motion. Ragsdale v. Kennedy, 286 N.C. 130 , 209 S.E.2d 494, 1974 N.C. LEXIS 1185 (1974); Commercial Credit Equip. Corp. v. Thompson, 48 N.C. App. 594, 269 S.E.2d 286, 1980 N.C. App. LEXIS 3250 (1980).

For the purpose of a motion for judgment on the pleadings, the movant is deemed to have admitted all factual allegations in the non-movant’s pleadings except those which are legally impossible and those not admissible in evidence. Cheape v. Town of Chapel Hill, 320 N.C. 549 , 359 S.E.2d 792, 1987 N.C. LEXIS 2342 (1987).

Facts and permissible inferences are viewed in the light most favorable to nonmoving party in considering a motion for judgment on the pleadings. Ragsdale v. Kennedy, 286 N.C. 130 , 209 S.E.2d 494, 1974 N.C. LEXIS 1185 (1974); Shellhorn v. Brad Ragan, Inc., 38 N.C. App. 310, 248 S.E.2d 103, 1978 N.C. App. LEXIS 2173 , cert. denied, 295 N.C. 735 , 249 S.E.2d 804, 1978 N.C. LEXIS 1138 (1978); Rose v. Guilford County, 60 N.C. App. 170, 298 S.E.2d 200, 1982 N.C. App. LEXIS 3277 (1982).

In considering a motion for judgment on the pleadings, the trial court is required to view the facts presented in the pleadings and the inferences to be drawn therefrom in the light most favorable to the nonmoving party. American Bank & Trust Co. v. Elzey, 26 N.C. App. 29, 214 S.E.2d 800, 1975 N.C. App. LEXIS 1961 , cert. denied, 288 N.C. 252 , 217 S.E.2d 662, 1975 N.C. LEXIS 971 (1975); Huss v. Huss, 31 N.C. App. 463, 230 S.E.2d 159, 1976 N.C. App. LEXIS 2018 (1976); Burton v. Kenyon, 46 N.C. App. 309, 264 S.E.2d 808, 1980 N.C. App. LEXIS 2802 (1980); Newbold v. Globe Life Ins. Co., 50 N.C. App. 628, 274 S.E.2d 905, 1981 N.C. App. LEXIS 2169 (1981).

Evidence to Be Considered by Trial Judge. —

In a motion for judgment on the pleadings the trial judge is to consider only the pleadings and any attached exhibits, which become part of the pleadings. No evidence is to be heard, and the trial judge is not to consider statements of fact in the briefs of the parties or the testimony of allegations by the parties in different proceedings. Minor v. Minor, 70 N.C. App. 76, 318 S.E.2d 865, 1984 N.C. App. LEXIS 3611 (1984).

Trial court did not err in considering a Resolution, ratifying the execution of an interlocal agreement between a city’s board of education and a county, that was attached to the city’s and county’s G.S. 1A-1 , N.C. R. Civ. P. 12(c) motion for judgment on the pleadings, even though the Resolution was not made part of the pleadings. The complaint for declaratory judgment made clear reference to the events that were memorialized in the Resolution, and any error was harmless because, by plaintiff’s admission, the interlocal agreement was properly before the trial court. Reese v. Charlotte-Mecklenburg Bd. of Educ. & Mecklenburg, 196 N.C. App. 539, 676 S.E.2d 481, 2009 N.C. App. LEXIS 532 (2009).

Trial court properly considered attachments to documents referred to in an objector’s complaint in deciding a N.C. R. Civ. P. 12(c) motion to dismiss which was filed by a city and a county. By referencing an agreement in the objector’s complaint, the objector placed the entire agreement, including all referenced attachments, before the trial court for consideration of the Rule 12(c) motion. Reese v. City of Charlotte, 196 N.C. App. 557, 676 S.E.2d 493, 2009 N.C. App. LEXIS 506 (2009).

Because the trial court explicitly stated that it considered matters outside the pleadings, it was improper to grant judgment on the pleadings in the alternative. Wells Fargo Bank, N.A. v. Orsbon & Fenninger, LLP, 2021-NCCOA-315, 278 N.C. App. 359, 862 S.E.2d 407, 2021- NCCOA-315, 2021 N.C. App. LEXIS 324 (2021).

Because the trial court explicitly stated that it considered matters outside the pleadings, it was improper to grant judgment on the pleadings in the alternative. Wells Fargo Bank, N.A. v. Orsbon & Fenninger, LLP, 2021-NCCOA-315, 278 N.C. App. 359, 862 S.E.2d 407, 2021- NCCOA-315, 2021 N.C. App. LEXIS 324 (2021).

The Trial Court Cannot, on Its Own motion, Enter Judgment on the Pleadings. —

The trial court was not authorized to enter judgment on the pleadings pursuant to this rule because neither party in a neglect proceeding moved for judgment on the pleadings. Thrift v. Buncombe County Dep't of Soc. Servs., 137 N.C. App. 559, 528 S.E.2d 394, 2000 N.C. App. LEXIS 417 (2000).

Under section (c) of this rule the court is not required to find facts in a judgment on the pleadings since the facts determining disposition are those alleged in the pleadings; and the court cannot select some of the alleged facts as a basis for granting the motion on the pleadings if other allegations, together with the selected facts, establish material issues of fact. J.F. Wilkerson Contracting Co. v. Rowland, 29 N.C. App. 722, 225 S.E.2d 840, 1976 N.C. App. LEXIS 2635 , cert. denied, 290 N.C. 660 , 228 S.E.2d 452, 1976 N.C. LEXIS 1133 (1976).

Findings and Conclusions as Surplusage. —

Findings of fact and conclusions of law in a judgment on the pleadings were surplusage and of no legal effect. United Va. Bank v. Air-Lift Assocs., 79 N.C. App. 315, 339 S.E.2d 90, 1986 N.C. App. LEXIS 1978 (1986).

When Summary Judgment Motion Treated as Motion for Judgment on Pleadings. —

Where the record on appeal contained no affidavits, answers to interrogatories, or anything else other than the pleadings upon which to base a decision, a motion purportedly made under G.S. 1A-1 , Rule 56 would be considered as a motion for judgment on the pleadings under section (c) of this rule. Reichler v. Tillman, 21 N.C. App. 38, 203 S.E.2d 68, 1974 N.C. App. LEXIS 1703 (1974); Town of Bladenboro v. McKeithan, 44 N.C. App. 459, 261 S.E.2d 260, 1980 N.C. App. LEXIS 2477 (1980); Burton v. Kenyon, 46 N.C. App. 309, 264 S.E.2d 808, 1980 N.C. App. LEXIS 2802 (1980).

A motion for judgment on the pleadings is inappropriate where the complaint is not fatally defective and matters outside the pleadings are presented to and considered by the court; under such circumstances the motion for judgment on the pleadings must be treated as a motion for summary judgment. Battle v. Clanton, 27 N.C. App. 616, 220 S.E.2d 97, 1975 N.C. App. LEXIS 1925 (1975), cert. denied, 289 N.C. 613 , 223 S.E.2d 391, 1976 N.C. LEXIS 1338 (1976).

When Motion for Judgment on Pleadings Treated as Motion for Summary Judgment. —

Where matters outside the pleadings were considered by the court in reaching its decision on the judgment on the pleadings, the motion for judgment on the pleadings was treated as if it were a motion for summary judgment. Helms v. Holland, 124 N.C. App. 629, 478 S.E.2d 513, 1996 N.C. App. LEXIS 1207 (1996).

Deputy area director of a substance abuse area authority could not complain that she was not afforded a reasonable opportunity to prepare and present evidence for summary judgment when on the authority’s motion for judgment on the pleadings the authority referred to but did not offer any evidence or materials to the trial court for consideration, but the director, over the authority’s objection, requested the trial court to consider matters outside the pleadings by presenting at least three documents to the judge; furthermore, the trial judge based its judgment only on the pleadings and the arguments of counsel. Davis v. Durham Mental Health/Development Disabilities/Substance Abuse Area Auth., 165 N.C. App. 100, 598 S.E.2d 237, 2004 N.C. App. LEXIS 1156 (2004).

Motion Not Converted to Motion for Summary Judgment. —

Although defendants’ affidavits were presented to the trial court, because they were excluded by the trial court from consideration in its ruling, plaintiffs’ motion for judgment on the pleadings was not converted into one for summary judgment. Sauls v. Barbour, 273 N.C. App. 325, 848 S.E.2d 292, 2020 N.C. App. LEXIS 640 (2020).

When 12(b)(6) Motion Converted to Motion for Judgment on the Pleadings. —

Because the trial court could apply G.S. 1A-1 , N.C. R. Civ. P. 12(c) sua sponte, it did not err in considering exhibits appended to the answer and converting the G.S. 1A-1 , N.C. R. Civ. P. 12(b)(6) motion to a G.S. 1A-1, N.C. R. Civ. P. 12(c) motion. S.N.R. Mgmt. Corp. v. Danube Partners 141, LLC, 189 N.C. App. 601, 659 S.E.2d 442, 2008 N.C. App. LEXIS 703 (2008).

Motion for Judgment on the Pleadings Treated as (12)(b)(6) Motion. —

Although respondent styled his motion as one for judgment on the pleadings pursuant to Rule 12(c), the court treated it as a motion for failure to state a claim because (1) the basis for the motion was that the petition failed to state sufficient facts as required by G.S. 7A-289.25(6) [see now G.S. 7B-1104 ], and (2) a motion is treated according to its substance and not its label. In re Quevedo, 106 N.C. App. 574, 419 S.E.2d 158, 1992 N.C. App. LEXIS 560 (1992).

Grant of Motion Held Proper. —

The plaintiff was not prejudiced by dismissal of her case on the pleadings, where the defendant had requested dismissal for failure to state a claim, but plaintiff had received the pleadings two weeks prior to trial and the court could have rendered judgment on the pleadings sua sponte. Terrell v. Lawyers Mut. Liab. Ins., 131 N.C. App. 655, 507 S.E.2d 923, 1998 N.C. App. LEXIS 1448 (1998).

Plaintiff’s cause of action for constructive fraud against defendant/insurer, who settled a claim in spite of plaintiff’s repeated protestations that claimants were acting fraudulently, failed because he did not present evidence of a fiduciary relationship between insurer/defendant and himself. Cash v. State Farm Mut. Auto. Ins. Co., 137 N.C. App. 192, 528 S.E.2d 372, 2000 N.C. App. LEXIS 312 (2000).

A cause of action alleging breach of good faith will not lie when the insurer settles a claim within the monetary limits of the insured’s policy; the insurer has the duty to consider the insured’s interest, but may act in its own interest in settlement of the claim. Cash v. State Farm Mut. Auto. Ins. Co., 137 N.C. App. 192, 528 S.E.2d 372, 2000 N.C. App. LEXIS 312 (2000).

Judgment on the pleadings in favor of an insurance company was affirmed where the plain language of a disability policy stated that the benefit payments under the policy were limited to a 36-month term. Gore v. Nationsbanc Ins. Co., 153 N.C. App. 520, 570 S.E.2d 115, 2002 N.C. App. LEXIS 1174 (2002).

Where a probation officer’s memorandum filed in support of a G.S. 1A-1 , Rule 12(c) motion for judgment on the pleadings contained no factual matters outside the pleadings, the trial court properly treated the motion as one for summary judgment. Lambert v. Cartwright, 160 N.C. App. 73, 584 S.E.2d 341, 2003 N.C. App. LEXIS 1674 (2003).

Trial court did not err in granting substance abuse area authority’s motion for judgment on the deputy area director’s pleadings because, taking the director’s allegations as true, no genuine issue of material fact existed and the authority did not violate the North Carolina Open Meetings Law, G.S. 143-318.9 et. seq., to warrant the appointment of an interim area director to be declared null and void or a nullity. Davis v. Durham Mental Health/Development Disabilities/Substance Abuse Area Auth., 165 N.C. App. 100, 598 S.E.2d 237, 2004 N.C. App. LEXIS 1156 (2004).

Grant of Motion Held Error. —

The trial court erred in granting defendant’s counterclaim for mortgage payments without a hearing on the merits, where the pleadings did not establish due dates, nor did plaintiff admit that such payments were due. Daniels v. Montgomery Mut. Ins. Co., 320 N.C. 669 , 360 S.E.2d 772, 1987 N.C. LEXIS 2405 (1987).

Motion for judgment on the pleadings was not favored, and should not have been granted unless it appeared to a certainty that the plaintiff was entitled to no relief under any state of facts which could have been proved in support of the claim; a trial court’s dismissal was reversed where the complaint adequately alleged claims of breach of contract, breach of fiduciary duty, breach of the implied covenant of good faith and fair dealing, constructive fraud, and unfair trade practices. Governor's Club Inc. v. Governors Club Ltd. P'ship, 152 N.C. App. 240, 567 S.E.2d 781, 2002 N.C. App. LEXIS 926 (2002), aff'd, 357 N.C. 46 , 577 S.E.2d 620, 2003 N.C. LEXIS 313 (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 subsection (c) of this rule 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 the expert testimony certification, voluntarily dismissed the action, and later 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 N.C. App. LEXIS 1044 (2003), rev'd, 358 N.C. 144 , 592 S.E.2d 687, 2004 N.C. LEXIS 172 (2004).

Because the trial court improperly struck the husband’s answer, the trial court’s allowance of the wife’s motion for judgment on the pleadings under G.S. 1A-1 , N.C. R. Civ. P. 12(c) also was error. Carpenter v. Carpenter, 189 N.C. App. 755, 659 S.E.2d 762, 2008 N.C. App. LEXIS 692 (2008).

Redundancy of Order Under Section (c). —

Where all defendants made timely motions pursuant to subsection (b)(6) of this rule, which were granted by the trial court, the court’s subsequent order pursuant to section (c) of this rule was redundant and would not be considered on appeal. Thus, the sole issue in the appeal was whether the trial court erred in granting defendants’ motions under subsection (b)(6). Robertson v. Boyd, 88 N.C. App. 437, 363 S.E.2d 672, 1988 N.C. App. LEXIS 42 (1988).

As to appellate consideration of motion for judgment on pleadings, see Mills v. Koscot Interplanetary, Inc., 13 N.C. App. 681, 187 S.E.2d 372, 1972 N.C. App. LEXIS 2310 (1972).

Motion to dismiss an appeal from the granting of a motion for judgment on the pleadings under N.C. R. Civ. P. 12(c) was granted because no substantial rights were affected; there was no showing that any defenses or arguments concerning actual malice in a First Amendment defamation claim would have been lost if the case was allowed to proceed. Boyce & Isley, PLLC v. Cooper, 169 N.C. App. 572, 611 S.E.2d 175, 2005 N.C. App. LEXIS 675 (2005).

Refusal to Grant Judgment on Pleadings on Grounds of Governmental Immunity. —

Although normally an appeal does not lie from the denial of a motion for judgment on the pleadings, an immediate appeal will lie under subsection (c), as well as subsection (b), where the trial court refuses to grant a judgment on the pleadings for the state on the grounds of governmental immunity. Whitaker v. Clark, 109 N.C. App. 379, 427 S.E.2d 142, 1993 N.C. App. LEXIS 274 , cert. denied, 333 N.C. 795 , 431 S.E.2d 31, 1993 N.C. LEXIS 258 (1993).

City’s motion for judgment on the pleadings, in a case alleging its negligence in failing to promptly dispatch the fire department to a burning house, asserting that the public duty doctrine protected it from liability, was properly denied because the public duty doctrine only applied narrowly to the failure of law enforcement to provide protection to specific individuals. Lovelace v. City of Shelby, 153 N.C. App. 378, 570 S.E.2d 136, 2002 N.C. App. LEXIS 1175 (2002).

Judgment on the Pleadings Inappropriate in an Adjudication of Neglect. —

Just as a default judgment or judgment on the pleadings is inappropriate in a proceeding involving termination of parental rights, it is equally inappropriate in an adjudication of neglect. Thrift v. Buncombe County Dep't of Soc. Servs., 137 N.C. App. 559, 528 S.E.2d 394, 2000 N.C. App. LEXIS 417 (2000).

Summary judgment improper where plaintiffs’ claim raised a genuine issue as to defendant’s negligence in the design and construction of a retaining wall, the necessary costs to remedy the defects and the appropriate damages by submitting affidavits and photographs in support of their claim, and defendant submitted no material beyond its pleadings. Floraday v. Don Galloway Homes, Inc., 340 N.C. 223 , 456 S.E.2d 303, 1995 N.C. LEXIS 250 (1995).

Standard of review. —

Appellate court reviews de novo rulings on motions made pursuant to G.S. 1A-1-12(c). Toomer v. Branch Banking & Trust Co., 171 N.C. App. 58, 614 S.E.2d 328, 2005 N.C. App. LEXIS 1188 (2005).

Appeal Dismissed. —

Appeal of the trial court’s partial grant of judgment on the pleadings in favor of media entities and not-for-profit corporations filed by the Administration of the state of North Carolina was dismissed because the Administration’s failure to properly plead, raise, or argue the affirmative defense of sovereign immunity was a bar to its consideration on the motions being heard in the trial court, and therefore the interlocutory order appealed from presented no issue of sovereign immunity entitling the Administration to immediate appellate review. News & Observer Publ'g Co. v. McCrory, 251 N.C. App. 211, 795 S.E.2d 243, 2016 N.C. App. LEXIS 1305 (2016).

XII.Motion for More Definite Statement

Motion for a more definite statement is the most purely dilatory of all the motions available under the Rules of Civil Procedure. Ross v. Ross, 33 N.C. App. 447, 235 S.E.2d 405, 1977 N.C. App. LEXIS 2233 (1977); Fisher v. Lamm, 66 N.C. App. 249, 311 S.E.2d 61, 1984 N.C. App. LEXIS 2872 (1984).

Motion for more definite statement is not favored by the courts and is sparingly granted, because pleadings may be brief and lacking in factual detail, and because of the extensive discovery devices available to the movant. Ross v. Ross, 33 N.C. App. 447, 235 S.E.2d 405, 1977 N.C. App. LEXIS 2233 (1977).

Vagueness as Grounds for Motion for More Definite Statement But Not Motion to Dismiss. —

Mere vagueness is not ground for a motion to dismiss, but a defendant is instead entitled to attack an allegation by a motion for a more definite statement under section (e) of this rule. Schloss Outdoor Adv. Co. v. City of Charlotte, 50 N.C. App. 150, 272 S.E.2d 920, 1980 N.C. App. LEXIS 3473 (1980).

Motion for More Definite Statement Within Discretion of Court. —

The granting or denial of a motion for a more definite statement rests in the sound discretion of the trial judge, and his ruling thereon will not be overturned on appeal absent a showing of abuse of discretion. Ross v. Ross, 33 N.C. App. 447, 235 S.E.2d 405, 1977 N.C. App. LEXIS 2233 (1977).

So long as pleading meets requirements of G.S. 1A-1 , Rule 8 and fairly notifies the opposing party of the nature of the claim, a motion for more definite statement will not be granted. Ross v. Ross, 33 N.C. App. 447, 235 S.E.2d 405, 1977 N.C. App. LEXIS 2233 (1977).

Special Damages. —

Where plaintiff pleaded business losses as special damages, however vaguely and ambiguously, defendants’ proper remedy was a motion for a more definite statement under section (e) of this rule, and not dismissal under subsection (b)(6) of this rule. Johnson v. Bollinger, 86 N.C. App. 1, 356 S.E.2d 378, 1987 N.C. App. LEXIS 2664 (1987).

Dismissal for Failure to Comply. —

Dismissal of an amended complaint for a failure to comply with a court order for a more definite statement was vacated, as the trial court had not considered lesser sanctions; the trial court had to at least consider lesser sanctions before imposing dismissal as a sanction in a civil case pursuant to G.S. 1A-1 , N.C. R. Civ. P. 12(e) or 41(b). Page v. Mandel, 154 N.C. App. 94, 571 S.E.2d 635, 2002 N.C. App. LEXIS 1417 (2002).

XIII.Motion to Strike

The purpose of section (f) of this rule is to avoid expenditure of time and resources before trial by removing spurious issues, whether introduced by original or amended complaint. Estrada v. Jaques, 70 N.C. App. 627, 321 S.E.2d 240, 1984 N.C. App. LEXIS 3880 (1984), limited, Osburn v. Danek Med., Inc., 135 N.C. App. 234, 520 S.E.2d 88, 1999 N.C. App. LEXIS 1045 (1999).

A motion under section (f) is a device to test the legal sufficiency of an affirmative defense. First-Citizens Bank & Trust Co. v. Akelaitis, 25 N.C. App. 522, 214 S.E.2d 281, 1975 N.C. App. LEXIS 2314 (1975).

Section (f) of this rule requires that a motion to strike be made before responding to a pleading. Clouse v. Chairtown Motors, Inc., 14 N.C. App. 117, 187 S.E.2d 398, 1972 N.C. App. LEXIS 2051 (1972).

Section (f) of this rule allows the court to strike improper allegations from any pleading. Although the reported cases do not address the application of section (f) of this rule to allegations added under G.S. 1A-1 , Rule 15, the latter rule clearly governs pleadings practice, and motions to strike logically are available to test amended as well as original complaints. Estrada v. Jaques, 70 N.C. App. 627, 321 S.E.2d 240, 1984 N.C. App. LEXIS 3880 (1984), limited, Osburn v. Danek Med., Inc., 135 N.C. App. 234, 520 S.E.2d 88, 1999 N.C. App. LEXIS 1045 (1999).

Matter should not be stricken unless it has no possible bearing upon the litigation. If there is any question as to whether an issue may arise, the motion should be denied. Shellhorn v. Brad Ragan, Inc., 38 N.C. App. 310, 248 S.E.2d 103, 1978 N.C. App. LEXIS 2173 , cert. denied, 295 N.C. 735 , 249 S.E.2d 804, 1978 N.C. LEXIS 1138 (1978).

Trial court did not err in denying the town’s motion to strike portions of the newspaper’s amended complaint, as the allegations in the amended complaint questioned the town’s compliance with the public records law and the town’s later resolution to disclose certain records, and thus were relevant and material to the newspaper’s claims in a case where the newspaper sought the disclosure of certain records it claimed were public records. Womack Newspapers, Inc. v. Town of Kitty Hawk, 181 N.C. App. 1, 639 S.E.2d 96, 2007 N.C. App. LEXIS 81 (2007).

Trial court did not abuse its discretion by denying a plaintiff’s motion to strike a section of the defendant’s answer, which section was designated as the “Overview” because the Overview asserted, in words or substance, that the actions of the defendants were lawful, and characterized the relief that the plaintiff sought as efforts to have the courts supervise the activities of governmental units. These parts were sufficiently related to the allegations of the complaints that the plaintiff was not entitled to have the motion to strike granted. Reese v. City of Charlotte, 196 N.C. App. 557, 676 S.E.2d 493, 2009 N.C. App. LEXIS 506 (2009).

Motion to Strike Inappropriate for Failure to Timely File Answer. —

Trial court erred in granting the wife’s motion to strike the husband’s pleadings because failure to timely file an answer was not grounds for striking a pleading under G.S. 1A-1 , N.C. R. Civ. P. 12(f) and the answer that the husband did file raised matters that could have had a possible bearing on the litigation. Carpenter v. Carpenter, 189 N.C. App. 755, 659 S.E.2d 762, 2008 N.C. App. LEXIS 692 (2008).

Motion under Section (f) Not Proper to Challenge Notice of Dismissal Without Prejudice. —

A motion to strike “any insufficient defense or any redundant, irrelevant, immaterial, impertinent or scandalous matter” under section (f) of this rule is not the proper motion by which to challenge a notice of dismissal without prejudice. Travelers Ins. Co. v. Ryder Truck Rental, Inc., 34 N.C. App. 379, 238 S.E.2d 193, 1977 N.C. App. LEXIS 1702 (1977).

“Short and Plain Statement” of Complaint. —

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. G.S. 1A-1 , Rule 8 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 N.C. App. LEXIS 3574 (1985), aff'd, 318 N.C. 352 , 348 S.E.2d 772, 1986 N.C. LEXIS 2651 (1986).

Consideration of Untimely Motion Upheld. —

Although plaintiff’s motion to strike was not timely filed, because this section clearly states that the trial court may strike materials from the pleadings on its own initiative at any time, the trial court’s consideration of the motion was permissible despite its untimeliness. Daily v. Mann Media, Inc., 95 N.C. App. 746, 384 S.E.2d 54, 1989 N.C. App. LEXIS 881 (1989).

Defense Stricken for Irrelevance. —

Where defendant agreed to pay plaintiff severance pay in the event that the parties’ business relationship ended, defendant was not entitled to plead as a defense that plaintiff’s action was barred because he was terminated for cause, and accordingly, the trial court committed no error in striking that defense on the grounds that it was irrelevant and immaterial, having no possible bearing upon the litigation, and because the defense was legally insufficient. Daily v. Mann Media, Inc., 95 N.C. App. 746, 384 S.E.2d 54, 1989 N.C. App. LEXIS 881 (1989).

Employer’s affirmative defense of frustration of purpose was stricken, under G.S. 1A-1 , N.C. R. Civ. P. 12(b), as inapplicable to its breach of an agreement to pay its former employee retirement benefits. Faulconer v. Wysong & Miles Co., 155 N.C. App. 598, 574 S.E.2d 688, 2002 N.C. App. LEXIS 1572 (2002).

In an insurance case, an insured’s third-party complaint against an alleged bailee whose alleged negligence caused the destruction of the property for which insurance coverage was sought, was properly stricken under G.S. 1A-1 , N.C. R. Civ. P. 12(f), because the complaint was not filed in accordance with G.S. 1A-1 , N.C. R. Civ. P. 15(a), and the statute of limitations on the claim it attempted to assert had run at the time a motion was made to amend the complaint to include that claim, and was therefore immaterial having no possible bearing on the litigation. Barnes v. Erie Ins. Exch., 156 N.C. App. 270, 576 S.E.2d 681, 2003 N.C. App. LEXIS 103 (2003).

Affirmative Defense Allowed Because State Agency Waived Sovereign Immunity. —

Trial court properly denied state transportation agency’s motion to strike condemned landowners’ affirmative defense of abuse of discretion since the state agency had waived sovereign immunity. DOT v. Blue, 147 N.C. App. 596, 556 S.E.2d 609, 2001 N.C. App. LEXIS 1235 (2001).

Objectionable Language Was Relevant to Motive. —

Trial court did not abuse its discretion when it denied a 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 N.C. App. LEXIS 532 (2009).

Motion to Strike Properly Granted. —

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 N.C. App. LEXIS 1376 (2012), cert. denied, 571 U.S. 1012, 134 S. Ct. 623, 187 L. Ed. 2d 404, 2013 U.S. LEXIS 8148 (2013).

XIV.Decisions under Prior Law

Editor’s Note. —

The cases cited below were decided under former G.S. 1-127 , 1-134 and 1-153.

A defect in jurisdiction over the subject matter cannot be cured by waiver, consent, amendment or otherwise. Anderson v. Atkinson, 235 N.C. 300 , 69 S.E.2d 603, 1952 N.C. LEXIS 387 (1952) (decided under former G.S. 1-134 ).

The objection that a prior action is pending between the same parties for the same cause is waived unless it is raised in the mode appointed by law. McDowell v. Blythe Bros. Co., 236 N.C. 396 , 72 S.E.2d 860, 1952 N.C. LEXIS 565 (1952) (decided under former G.S. 1-134 ).

The court may strike out irrelevant or redundant matter inserted in a pleading upon motion of any party aggrieved, aptly made. Wall v. England, 243 N.C. 36 , 89 S.E.2d 785, 1955 N.C. LEXIS 711 (1955); Girard Trust Bank v. Easton, 3 N.C. App. 414, 165 S.E.2d 252, 1969 N.C. App. LEXIS 1590 (1969) (decided under former G.S. 1-153).

Irrelevant or redundant matter inserted in a pleading is subject to a motion to strike. Johnson v. Petree, 4 N.C. App. 20, 165 S.E.2d 757, 1969 N.C. App. LEXIS 1432 (1969) (decided under former G.S. 1-153).

A motion to strike, made in apt time, is made as a matter of right. Sullivan v. Johnson, 3 N.C. App. 581, 165 S.E.2d 507, 1969 N.C. App. LEXIS 1626 (1969) (decided under former G.S. 1-153).

A complaint must be fatally defective before it will be rejected as insufficient. Newman Mach. Co. v. Newman, 275 N.C. 189 , 166 S.E.2d 63, 1969 N.C. LEXIS 374 (1969) (decided under former G.S. 1-127 ).

OPINIONS OF ATTORNEY GENERAL

District Court Judge May Consider Merits of Divorce Action Immediately After Filing of Defendant’s Answer. — See opinion of Attorney General to Honorable Charles B. Deane, Jr., Senator, Seventeenth District, 43 N.C. Op. Att'y Gen. 344 (1974).

Rule 13. Counterclaim and crossclaim.

  1. Compulsory counterclaims. —  A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if
    1. At the time the action was commenced the claim was the subject of another pending action, or
    2. The opposing party brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this rule.
  2. Permissive counterclaim. —  A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim.
  3. Counterclaim exceeding opposing claim. —  A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party.
  4. Counterclaim against the State of North Carolina. —  These rules shall not be construed to enlarge beyond the limits fixed by law the right to assert counterclaims or to claim credit against the State of North Carolina or an officer or agency thereof.
  5. Counterclaim maturing or acquired after pleading. —  A claim which either matured or was acquired by the pleader after serving his pleading may, with the permission of the court, be presented as a counterclaim by supplemental pleading.
  6. Omitted counterclaim. —  When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim by amendment.
  7. Crossclaim against coparty. —  A pleading may state as a crossclaim any claim by one party against a coparty arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action. Such crossclaim may include a claim that the party against whom it is asserted is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the crossclaimant.
  8. Additional parties may be brought in. —  When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or crossclaim, the court shall order them to be brought in as defendants as provided in these rules, if jurisdiction of them can be obtained.
  9. Separate trial; separate judgment. —  If the court orders separate trials as provided in Rule 42(b), judgment on a counterclaim or crossclaim may be rendered in accordance with the terms of Rule 54(b) when the court has jurisdiction so to do, even if the claims of the opposing party have been dismissed or otherwise disposed of.

History. 1967, c. 954, s. 1.

Comment

Sections (a) through (f) deal with counterclaims that must and those that may be asserted in an action, i.e., with compulsory and permissive counterclaims.

Compulsory counterclaims. — There is no current statutory provision which in terms makes any counterclaim compulsory. However, certain counterclaims have traditionally been made compulsory in effect by application of res judicata principles. The judicially evolved rule is that a party will be barred from maintaining an action if in a prior or pending action he could have obtained the same relief by permissive counterclaim and if a judgment for plaintiff in the former or pending action would collaterally estop the plaintiff in the second in respect of determinative issues. Thus, most typically, when a party is sued for damages arising out of negligent operation of an automobile, he must assert any claim for damages he may have arising out of the same occurrence by counterclaim, at peril of being barred from thereafter asserting the claim by separate action. Allen v. Salley, 179 N.C. 147 , 101 S.E. 545 (1919). Rule 13(a) states this substantially, but with more directness, and in a way which avoids some possible question about the application of the North Carolina judicial rule to a second action when plaintiff in the first action lost. Basically, this rule should cause no actual change in the practice in respect to those claims which counsel for defendants will feel under compulsion to assert by counterclaim at peril of being barred to assert them separately.

Three necessary exceptions to the basic rule of compulsion are provided in this section. A counterclaim otherwise compulsory under the rule need not be asserted: (1) If parties necessary to its adjudication cannot be subjected to jurisdiction; or (2) if the pleader has already asserted the claim in another pending action; or (3) if to counterclaim would subject the pleader to personal jurisdiction in respect of a merely quasi in rem claim by the plaintiff, as to which the pleader is not otherwise amenable to personal jurisdiction. Furthermore, possible relief against the consequences of failure to assert a normally compulsory counterclaim is provided in section (f) which gives the court discretion to allow a compulsory counterclaim to be added by amendment.

Permissive counterclaim. — Under former code practice, two types of counterclaim were permissive: (1) Any contract claim existing at the commencement of the plaintiff ’s action, when the plaintiff ’s claim is in contract, and (2) any claim arising out of the same contract or transaction which is the basis of plaintiff ’s action (usually compulsory under the res judicata rule).

The rule in section (b) is much broader. In fact, it is unlimited in its terms — a pleader may at his option assert any claim he may have against an opponent which he is not compelled by section (a) to assert. This approach parallels that of the unlimited joinder of claims philosophy of Rule 18. The idea is that so far as the basic structuring of the litigation at the pleading stage is concerned, there should be unlimited ability to join opposing as well as parallel claims — and that the appropriate protection against trial of an overly complex case resulting from unlimited counterclaim assertion right is by severance for separate trial subsequently under Rule 42(b).

Section (c). — This section states existing case law in North Carolina. See 1 McIntosh, North Carolina Practice and Procedure, § 1238 (2d ed. 1956).

Section (d). — This section is self-explanatory.

Section (e). — This section allows the assertion by supplemental pleading, with leave of court, of counterclaims maturing or acquired after the pleader has already filed his defensive pleading. This is a direct and simple handling of a problem as to which confusion had existed under code practice. Under former § 1-137, a counterclaim might be asserted under the contract section only if it was in existence at the time of commencement of plaintiff ’s action, but no such limitation was stated with respect to counterclaims under the same transaction section. But, of course, these also may arise out of contract, and some confusion existed in applying the statute. See 1 McIntosh, North Carolina Practice and Procedure, § 1242 (2d ed. 1956). This rule makes no distinction based on types of counterclaim, but simply provides that any subsequently acquired counterclaim may, if the court deems it proper on a whole view of the matter, be injected into litigation after the initial pleading has already been served.

Crossclaims between parties similarly aligned, as coplaintiffs or codefendants. — Rule 13(g), following the general philosophy of an unlimited option by pleaders to join any claims and assert any counterclaims at the pleading stage, lays down a very liberal policy for asserting crossclaims between coparties. There is, however, a limitation, not found with respect to permissive claim joinder under Rule 18, or permissive counterclaim assertion under Rule 13(b). The crossclaim must arise out of the same transaction or occurrence on which the basic claims and counterclaims are based, or must relate to property which is the subject matter of the original action. Thus, coparties cannot as a matter of right inject claims between themselves which have not even a general historical relation to the basic claims in litigation between plaintiffs and defendants. But, given the general historical relation expressed in the concept, “arising out of the same transaction or occurrence,” there is no further requirement that the crossclaim relate substantively to the basic claim or counterclaim — or that it in some way affect the party asserting these basic claims. Thus, most typically, where A sues B and C for personal injury damages as alleged joint tort-feasors, B and C may crossclaim against each other in respect of independent claims for personal injury or property damage alleged to have resulted from the same occurrence out of which A’s claim arose. Certainly the most common bases for crossclaims are those for contribution or indemnification in respect of the crossclaimant’s alleged liability, and the last sentence Rule 13(g) specifically authorizes these bases.

This represents a substantial departure from former code practice which, without specific statutory directive, had slowly evolved a much more restrictive judicial rule for permissible crossclaims between coparties. Thus, it was held under the code that the only permissible crossclaim was one for indemnification based on a noncontractual right (e.g., primary as opposed to secondary tort liability). Specifically forbidden was any crossclaim by one codefendant against another for: (1) Personal injury or property damage to the claimant, notwithstanding it “arose out of the same occurrence” as plaintiff ’s primary claim. Jarrett v. Brogdon, 256 N.C. 693 , 124 S.E.2d 850 (1962); (2) contribution in respect of the crossclaimant’s liability to plaintiff. Bass v. Lee, 255 N.C. 73 , 120 S.E.2d 570 (1961); and (3) indemnification if based on an express or implied contract to indemnify crossclaimant in respect of his liability to plaintiff. Steele v. Moore-Flesher Hauling Co., 260 N.C. 486 , 133 S.E.2d 197 (1963). See generally, tracing the evolution of the permissible crossclaim rules to their present state, Note, 40 N.C.L. Rev. 633 (1962).

Section (h). — This section states existing North Carolina case law. Bullard v. Berry Coal & Oil Co., 254 N.C. 756 , 119 S.E.2d 910 (1961) (when A sues B in negligence and B counterclaims, B may have C brought in to defend against counterclaim on allegations that C is vicariously liable thereon in respect of A’s alleged negligence).

Here again, with respect to the liberal attitude toward allowable crossclaims, the notion is that if over-complexity results for the purposes of trial, severance and separate trials under Rule 42(b) is the appropriate action, rather than preventing the assertion of crossclaims at the pleading stage.

Section (i). — This section incorporates the provisions of Rule 54(b) to allow the entering of “final judgment” in respect to particular counterclaims or crossclaims, notwithstanding the whole action is not yet ripe for judgment.

Legal Periodicals.

For comment on the definition and scope of res judicata in North Carolina, see 5 Wake Forest Intra. L. Rev. 315 (1969).

For note on relation back of barred counterclaims under section (f) of this rule, see 49 N.C.L. Rev. 134 (1970).

For survey of 1976 case law on civil procedure, see 55 N.C.L. Rev. 914 (1977).

For note discussing the application of the compulsory counterclaim provision of this rule in divorce suits, see 57 N.C.L. Rev. 439 (1979).

For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

For survey of 1982 law on civil procedure, see 61 N.C.L. Rev. 991 (1983).

CASE NOTES

Analysis

I.In General

Factors to Consider. —

In analyzing whether two or more claims arose out of the same transaction or occurrence for purposes of the compulsory counterclaim rule, the Supreme Court of North Carolina adopts the following three federal caselaw factors for a court to consider: (1) whether the issues of fact and law raised by the claim and counterclaim are largely the same; (2) whether substantially the same evidence bears on both claims; and (3) whether any logical relationship exists between the two claims. Though application of the compulsory counterclaim rule is not reducible to any simple formula, a North Carolina court should inquire, at a minimum, into those three factors when deciding if a claim arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim. Jonesboro United Methodist Church v. Mullins-Sherman Architects, L.L.P., 359 N.C. 593 , 614 S.E.2d 268, 2005 N.C. LEXIS 643 (2005).

II.Counterclaims

The purpose of section (a) of this rule, making certain counterclaims compulsory, is to enable one court to resolve all related claims in one action, thereby avoiding a wasteful multiplicity of litigation. Gardner v. Gardner, 294 N.C. 172 , 240 S.E.2d 399, 1978 N.C. LEXIS 1194 (1978); Stines v. Satterwhite, 58 N.C. App. 608, 294 S.E.2d 324, 1982 N.C. App. LEXIS 2811 (1982); Carolina Squire, Inc. v. Champion Map Corp., 75 N.C. App. 194, 330 S.E.2d 36, 1985 N.C. App. LEXIS 3596 (1985).

The term “at the time the action was commenced,” as used in subsection (a)(1) of this rule, refers to the action against which the pleader is required to counterclaim, and not necessarily the primary action originally commencing the lawsuit. Thus, where defendant institutes a crossclaim and a third-party action, the court should look to the times of filing such crossclaim and third-party action to determine whether, at those times, there was pending an action whose claim involved the same subject matter as that of the proposed counterclaims. Faggart v. Biggers, 18 N.C. App. 366, 197 S.E.2d 75, 1973 N.C. App. LEXIS 1878 , cert. denied, 283 N.C. 752 , 198 S.E.2d 721, 1973 N.C. LEXIS 1066 (1973).

Counterclaims do not relate back to the date of the original pleading, so they are subject to statutes of limitations dated to the time the counterclaim is filed, not to the date of the complaint and answer. PharmaResearch Corp. v. Mash, 163 N.C. App. 419, 594 S.E.2d 148, 2004 N.C. App. LEXIS 410 (2004).

Section (a) of this rule is a tool designed to further judicial economy. Twin City Apts., Inc. v. Landrum, 45 N.C. App. 490, 263 S.E.2d 323, 1980 N.C. App. LEXIS 2645 (1980).

Section (a) of this rule is a tool designed to further judicial economy. The tool should not be used to combine actions that, despite their origin in a common factual background, have no logical relationship to each other. Winston-Salem Joint Venture v. Cathy's Boutique, Inc., 72 N.C. App. 673, 325 S.E.2d 286, 1985 N.C. App. LEXIS 3112 (1985).

In order to find that an action must be filed as a compulsory counterclaim pursuant to section (a) of this rule, a court must first find a logical relationship between the factual backgrounds of the two claims. In addition, the court must find a logical relationship between the nature of the actions. Winston-Salem Joint Venture v. Cathy's Boutique, Inc., 72 N.C. App. 673, 325 S.E.2d 286, 1985 N.C. App. LEXIS 3112 (1985).

And Should Not Be Used to Combine Actions Without Logical Relationship. —

Section (a) of this rule is a tool designed to further judicial economy. The tool should not be used to combine actions that, despite their origin in a common factual background, have no logical relationship to each other. Curlings v. Macemore, 57 N.C. App. 200, 290 S.E.2d 725, 1982 N.C. App. LEXIS 2583 (1982).

A counterclaim is in the nature of an independent proceeding and is not automatically determined by a ruling in the principal claim. Brooks v. Gooden, 69 N.C. App. 701, 318 S.E.2d 348, 1984 N.C. App. LEXIS 3594 (1984).

What Claims Must Be Asserted. —

This rule requires a party to assert as a counterclaim any claim arising out of the same transaction or occurrence as the pending action, “at peril of being barred” from asserting the claim in a later action. Furr v. Noland, 103 N.C. App. 279, 404 S.E.2d 885, 1991 N.C. App. LEXIS 648 (1991).

Where plaintiff proffered its counterclaims one year and three months after the filing of the complaint, by that time extensive discovery had already taken place, the new counterclaims would have required evidence of transactions which occurred three to five years earlier, and plaintiff sought to allege unfair and deceptive business practices for the first time, defendants were not to be penalized with more discovery and litigation and, for the first time, be exposed to treble damages because plaintiff was initially acting pro se and its first attorney was dilatory. House Healers Restorations, Inc. v. Ball, 112 N.C. App. 783, 437 S.E.2d 383, 1993 N.C. App. LEXIS 1259 (1993).

Plaintiff/husband’s claim to recoup money on two promissory notes executed by his wife during their marriage was a compulsory counterclaim in defendant’s previously filed domestic action; and he should, therefore, have been granted leave, upon its dismissal, to file it properly in separate case. Hudson v. Hudson, 135 N.C. App. 97, 518 S.E.2d 811, 1999 N.C. App. LEXIS 925 (1999).

In an action in which a seller filed against a buyer, alleging breach of contract for failure to pay for goods, the buyer failed to assert counterclaims alleging breach of express warranty, breach of the implied warranty of merchantability, or breach of the implied warranty of fitness for a particular purpose at trial, and the appellate court refused to allow the buyer to assert those claims on appeal as a basis for reversing the trial court’s order granting summary judgment in favor of the seller. Business Communs., Inc. v. Ki Networks, Inc., 157 N.C. App. 710, 580 S.E.2d 77, 2003 N.C. App. LEXIS 937 (2003).

To Be Compulsory, Counterclaim Must Exist When Pleading Is Served. —

Under G.S. 1A-1 , Rule 13(a), a party is required to plead as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction; under this rule, a counterclaim is compulsory only when it is in existence at the time of the serving of the pleading. Country Club of Johnston County, Inc. v. United States Fid. & Guar. Co., 150 N.C. App. 231, 563 S.E.2d 269, 2002 N.C. App. LEXIS 499 (2002).

Where a claim is not mature at the time of the filing of the action, failure to bring it as a counterclaim does not serve as a bar to subsequent litigation on that claim; even where the claim matures after the pleadings have been filed but during the pendency of the action, the pleader is not required to supplement the pleadings with a compulsory counterclaim. Country Club of Johnston County, Inc. v. United States Fid. & Guar. Co., 150 N.C. App. 231, 563 S.E.2d 269, 2002 N.C. App. LEXIS 499 (2002).

Once a claim has been denominated a compulsory counterclaim under section (a) of this rule, the question what must be done with it if it is filed as a subsequent, independent claim is not answered by the rule itself. Atkins v. Nash, 61 N.C. App. 488, 300 S.E.2d 880, 1983 N.C. App. LEXIS 2698 (1983).

Logical Relationship Between Factual Backgrounds and Nature of Actions Required. —

In order to find that an action must be filed as a compulsory counterclaim pursuant to section (a) of this rule, a court must first find a logical relationship between the factual backgrounds of the two claims. In addition, the court must find a logical relationship between the nature of the actions. Twin City Apts., Inc. v. Landrum, 45 N.C. App. 490, 263 S.E.2d 323, 1980 N.C. App. LEXIS 2645 (1980); Curlings v. Macemore, 57 N.C. App. 200, 290 S.E.2d 725, 1982 N.C. App. LEXIS 2583 (1982).

Similarity in Nature of Action and Remedy Sought More Important Than Common Factual Transaction. —

It is the similarity in the nature of the action and the remedy sought which seems to be more important in establishing when an action will be treated as a compulsory counterclaim, rather than a basis in a common factual transaction. Twin City Apts., Inc. v. Landrum, 45 N.C. App. 490, 263 S.E.2d 323, 1980 N.C. App. LEXIS 2645 (1980).

Section (a) of this rule does not require that the legal claims be identical. It is sufficient that the nature of the actions and the remedies sought are logically related in fact and law. Brooks v. Rogers, 82 N.C. App. 502, 346 S.E.2d 677, 1986 N.C. App. LEXIS 2519 (1986).

In determining whether certain claims arose out of the same transaction or occurrence as a prior action for purposes of treating them as compulsory counterclaims, several factors are considered: (1) Whether the issues of fact and law are largely the same; (2) whether substantially the same evidence is involved in each action; and (3) whether there is a logical relationship between the two actions. Brooks v. Rogers, 82 N.C. App. 502, 346 S.E.2d 677, 1986 N.C. App. LEXIS 2519 (1986).

Counterclaims were compulsory where they arose out of business dealings of the parties covering over a two-year period and the expenditure of over one million dollars, and where defendants conceded that the counterclaims were compulsory in their brief by stating that they “arise out of the same series of transactions as the claims in the original complaints,” and that “a reasonable person would have brought all of the claims on the original complaints.” House Healers Restorations, Inc. v. Ball, 112 N.C. App. 783, 437 S.E.2d 383, 1993 N.C. App. LEXIS 1259 (1993).

Compulsory Counterclaim Not Limited to Facts Alleged in Original Complaint. —

A compulsory counterclaim under section (a) of this rule is not limited to facts alleged in the original complaint, but includes logically related acts and conduct involving the parties. Powell Mfg. Co. v. Harrington Mfg. Co., 30 N.C. App. 97, 226 S.E.2d 173, 1976 N.C. App. LEXIS 2155 (1976).

Where a compulsory counterclaim is filed as an independent action during the pendency of the prior action, it must be dismissed with leave to file it as a counterclaim in the prior action or stayed until final judgment has been entered in that action. Cloer v. Smith, 132 N.C. App. 569, 512 S.E.2d 779, 1999 N.C. App. LEXIS 229 (1999).

Trial court erred in failing to dismiss homeowners’ Pitt County complaint against a contractor pursuant to G.S. 1A-1 , N.C. R. Civ. P. 13(a) because the homeowners’ claims were compulsory counterclaims in the contractor’s previously filed New Hanover County action where (1) the factual and legal issues of the two cases arose out of a common factual background, (2) the evidence required to support the parties’ claims was the same, and (3) there was a logical relationship between the two actions. Hendrix v. Advanced Metal Corp., 195 N.C. App. 436, 672 S.E.2d 745, 2009 N.C. App. LEXIS 151 (2009).

Compulsory Counterclaim Rule Applied. —

Church’s suit for breach of contract, breach of express and implied warranties, and negligence/malpractice against a general contractor was barred pursuant to the compulsory counterclaim rule of G.S. 1A-1-13(a), because the church’s claims all arose out of the same transaction that was settled in favor of the general contractor in a prior suit in another county wherein the general contractor sued the church to enforce a settlement agreement that had been entered into between the parties with regard to the construction dispute; the church was aware of its claims against the general contractor when the prior suit was brought. Jonesboro United Methodist Church v. Mullins-Sherman Architects, L.L.P., 359 N.C. 593 , 614 S.E.2d 268, 2005 N.C. LEXIS 643 (2005).

Although the denial of a contractor’s motion to dismiss pursuant to G.S. 1A-1 , N.C. R. Civ. P. 13(a) was interlocutory, immediate appellate review was proper because of a prior action pending in another county. Hendrix v. Advanced Metal Corp., 195 N.C. App. 436, 672 S.E.2d 745, 2009 N.C. App. LEXIS 151 (2009).

Common Factual Issues Insufficient to Designate Action as Compulsory Counterclaim. —

Common factual issues between an employee’s wrongful termination claim and a sheriff’s defamation action were not sufficient to designate it a compulsory counterclaim under G.S. 1A-1-13(a); prior action pending doctrine did not bar the employee’s action as the parties, legal issues, and subject matter in the actions were not substantially similar, in that the sheriff’s action was between private citizens, and the issue in the sheriff’s action was whether the employee could present sufficient evidence of slander while the issue in the present case was whether the employee was discriminated against and wrongfully terminated. Townsend v. Shook, 210 N.C. App. 462, 708 S.E.2d 187, 2011 N.C. App. LEXIS 451 (2011).

Because a claim was not a compulsory counterclaim under G.S. 1A-1 , N.C. R. Civ. P. 13(a), an unjust enrichment award was proper. G.S. 7A-219 barred its filing in a prior summary ejectment suit because it exceeded the small claims limit, and it was not mature at the time of an appeal under G.S. 7A-220 . Holloway v. Holloway, 221 N.C. App. 156, 726 S.E.2d 198, 2012 N.C. App. LEXIS 704 (2012).

In order to give effect to the purpose of section (a) of this rule once its applicability to a second independent action has been determined, this second action must on motion be either (1) dismissed with leave to file it in the former case, or (2) stayed until the former case has been finally determined. Gardner v. Gardner, 294 N.C. 172 , 240 S.E.2d 399, 1978 N.C. LEXIS 1194 (1978); Stines v. Satterwhite, 58 N.C. App. 608, 294 S.E.2d 324, 1982 N.C. App. LEXIS 2811 (1982); Atkins v. Nash, 61 N.C. App. 488, 300 S.E.2d 880, 1983 N.C. App. LEXIS 2698 (1983).

If an action may be denominated a compulsory counterclaim in a prior action, it must be either (1) dismissed with leave to file it in the former case, or (2) stayed until the conclusion of the former case. However, because the purpose of section (a) of this rule is to combine related claims in one action, thereby avoiding a wasteful multiplicity of litigation, the option to stay the second action should be reserved for unusual circumstances. Brooks v. Rogers, 82 N.C. App. 502, 346 S.E.2d 677, 1986 N.C. App. LEXIS 2519 (1986).

A motion to dismiss on grounds of a prior pending action should be treated as a motion pursuant to section (a) of this rule and should be allowed where the action arose out of the same transaction or occurrence which formed the basis of the movant’s prior action. Atkins v. Nash, 61 N.C. App. 488, 300 S.E.2d 880, 1983 N.C. App. LEXIS 2698 (1983).

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 N.C. LEXIS 1223 (1976).

The existence of wife’s pending action for alimony without divorce did not affect her statutory right to plead a counterclaim seeking alimony without divorce based upon the same allegations when her husband brought a separate action for absolute divorce. VanDooren v. VanDooren, 37 N.C. App. 333, 246 S.E.2d 20, 1978 N.C. App. LEXIS 2744 , cert. denied, 248 S.E.2d 258 (N.C. 1978).

Allegations in Divorce Action Held Recrimination, Not Counterclaim. —

In an action for divorce, defendant wife’s allegations that plaintiff husband secured a deed of separation from her by fraud by representing that he had not been seeing another woman when in fact he was regularly committing adultery did not state or constitute a counterclaim for alimony or for child custody or support which could be asserted in an action for absolute divorce; the alleged misconduct set forth in wife’s defense fell clearly within the doctrine of recrimination and was therefore not available to wife as a defense to husband’s action for divorce. Edwards v. Edwards, 43 N.C. App. 296, 259 S.E.2d 11, 1979 N.C. App. LEXIS 3064 (1979).

Summary Ejectment Action. —

Tenant’s claim that landlord improperly exercised summary ejectment was a compulsory counterclaim in summary ejectment proceeding as the issues of law and fact were largely the same, were logically related, and required substantially the same evidence. Cloer v. Smith, 132 N.C. App. 569, 512 S.E.2d 779, 1999 N.C. App. LEXIS 229 (1999).

Where plaintiff’s airplane hangar lease was terminated and plaintiff resigned plaintiff’s position as a board member of a county airport authority, res judicata did not bar plaintiff’s claims, because defendants’ contention that all of the claims in the suit were compulsory counterclaims to a summary ejectment action was rejected; however, plaintiff’s claim that plaintiff was entitled to renewal of the lease was precluded by a prior state court decision under issue preclusion. Hicks v. Mount Airy-Surry Cnty. Airport Auth., 2015 U.S. Dist. LEXIS 164833 (M.D.N.C. Dec. 9, 2015).

District court properly dismissed a tenant’s appeal and its accompanying counterclaims, which were brought for the first time on appeal, because, while the tenant was not an “aggrieved party” inasmuch as the small claims court denied the landlord’s request for summary ejectment, she was still free to seek appropriate redress for her claims against the landlord by bringing a separate action “notwithstanding” the fact that the counterclaims were compulsive. J. S. & Assocs. v. Stevenson, 265 N.C. App. 199, 828 S.E.2d 183, 2019 N.C. App. LEXIS 388 (2019).

Plaintiff landlord’s claim for summary ejectment was not a compulsory counterclaim in tenant’s prior action for breach of a lease agreement, breach of covenants of fitness and habitability and of the duty of repair, violations of the unfair trade practices statute, and conspiracy to deprive tenant of her civil rights, although both actions arose out of the same landlord and tenant relationship, since the nature of the actions and the remedies sought were too divergent. Twin City Apts., Inc. v. Landrum, 45 N.C. App. 490, 263 S.E.2d 323, 1980 N.C. App. LEXIS 2645 (1980).

Tenants’ claim arising from their landlords’ alleged failure to maintain the septic system on the leased property was not a compulsory counterclaim in the landlords’ earlier eviction suit; the tenants’ separate, later claim asserting, inter alia, breach of contract and negligence arising from the septic problem was too divergent from the claim and the counterclaim in the earlier summary ejectment proceeding to be a compulsory counterclaim, and thus was not barred by res judicata. Murillo v. Daly, 169 N.C. App. 223, 609 S.E.2d 478, 2005 N.C. App. LEXIS 518 (2005).

Failure to Assert Counterclaim for Retaliatory Eviction on Appeal from Magistrate. —

Plaintiffs’ claims for retaliatory eviction were compulsory counterclaims which should have been asserted in the appeal from magistrate’s judgment in prior summary ejectment proceeding—the amount in controversy would have prevented it from being asserted before the magistrate—and plaintiffs were, therefore, precluded by the doctrine of res judicata from asserting either of the claims in second action; the determinative question in both actions was whether plaintiffs breached their respective lease agreements, making defendants’ termination of the lease agreements valid. Fickley v. Greystone Enters., 140 N.C. App. 258, 536 S.E.2d 331, 2000 N.C. App. LEXIS 1110 (2000).

Claim of Conversion Not Compulsory Counterclaim in Action on Contract. —

Where plaintiff alleged that defendant stole property owned by plaintiff and where in prior action defendants sued plaintiff for breach of contract, trial court erred in finding that plaintiff’s claim was a compulsory counterclaim to the prior action, since the issues of fact and law in plaintiff’s conversion proceeding were different from the issues involved in defendant’s action on the contract. Hailey v. Allgood Constr. Co., 95 N.C. App. 630, 383 S.E.2d 220, 1989 N.C. App. LEXIS 838 (1989).

Failure to assert a compulsory counterclaim will ordinarily bar future action on the claim. Hudspeth v. Bunzey, 35 N.C. App. 231, 241 S.E.2d 119, 1978 N.C. App. LEXIS 2930 , cert. denied, 294 N.C. 736 , 244 S.E.2d 154, 1978 N.C. LEXIS 1304 (1978).

Voluntary Dismissal of Compulsory Counterclaim as Bar to Later Suit. —

Plaintiff may not maintain action on a claim which was a compulsory counterclaim in a prior lawsuit and on which plaintiff took a voluntary dismissal. Furr v. Noland, 103 N.C. App. 279, 404 S.E.2d 885, 1991 N.C. App. LEXIS 648 (1991).

This rule and the doctrine of res judicata would be completely undermined if parties were allowed to voluntarily dismiss and then later re-file compulsory counterclaims. The judicial economy promoted by this rule would be lost. Furr v. Noland, 103 N.C. App. 279, 404 S.E.2d 885, 1991 N.C. App. LEXIS 648 (1991).

But Assertion of Counterclaim Maturing After Original Answer Is Not Mandatory. —

Although section (e) permits the court to allow a supplemental pleading to assert a counterclaim, matured or acquired, subsequent to the original answer, such supplemental pleading is not mandated and failure to assert such a counterclaim will not bar the claim. Driggers v. Commercial Credit Corp., 31 N.C. App. 561, 230 S.E.2d 201, 1976 N.C. App. LEXIS 2060 (1976); Stines v. Satterwhite, 58 N.C. App. 608, 294 S.E.2d 324, 1982 N.C. App. LEXIS 2811 (1982).

Denial of motion seeking to amend answer to allege compulsory counterclaim is immediately appealable. Hudspeth v. Bunzey, 35 N.C. App. 231, 241 S.E.2d 119, 1978 N.C. App. LEXIS 2930 , cert. denied, 294 N.C. 736 , 244 S.E.2d 154, 1978 N.C. LEXIS 1304 (1978).

Insurer failed to establish that unfair business practice claims presented in a subsequent action were compulsory counterclaims in a declaratory judgment action involving coverage because it failed to establish that the insured knew or reasonably should have known of all material facts necessary to assert all claims; the record supported the insured’s claims that the facts which constituted the basis of the insured’s claims were not fully known to the insured at the time the declaratory judgment action was filed, but rather, became clear to the insured throughout the pendency of that action. Country Club of Johnston County, Inc. v. United States Fid. & Guar. Co., 150 N.C. App. 231, 563 S.E.2d 269, 2002 N.C. App. LEXIS 499 (2002).

Plaintiff insurer’s recovery against defendant for intentional damage to property could not be offset by defendant’s claim for child support owed to her by the insured, where defendant’s counterclaim for child support was a compulsory counterclaim in an earlier action. North Carolina Farm Bureau Mut. Ins. Co. v. Balfour, 62 N.C. App. 580, 302 S.E.2d 922, 1983 N.C. App. LEXIS 2922 (1983).

Claims Dismissed to Permit Joinder as Counterclaims in Pending Action. —

Where suits were logically related, the same parties were involved, the issues arose out of the same agreement, and both suits occurred because of the same set of circumstances, plaintiff failed to demonstrate that any of his rights would be jeopardized if the issues were adjudicated in a single action; therefore, plaintiff’s claims for monetary and injunctive relief should have been raised as a compulsory counterclaim in previously filed declaratory judgment action, and plaintiff’s action should have been dismissed without prejudice to file these claims as a counterclaim in the pending action. Stevens v. Henry, 121 N.C. App. 150, 464 S.E.2d 704, 1995 N.C. App. LEXIS 1044 (1995).

Claim for damages for breach of contract should have been raised as compulsory counterclaim in a previously filed declaratory judgment action, since both actions arose out of the same franchise agreement, both actions were brought about by the same set of occurrences, the damage claim was clearly extant during the pleading phase of the declaratory judgment action, none of the exceptions to the compulsory counterclaim provisions were applicable, and the plaintiff made no showing that its rights would have been jeopardized if all issues were adjudicated in a single action. Carolina Squire, Inc. v. Champion Map Corp., 75 N.C. App. 194, 330 S.E.2d 36, 1985 N.C. App. LEXIS 3596 (1985).

Claim of Diversion of Partnership Assets and Accounting. —

The original action claimed a diversion of partnership assets and sought a partnership accounting. A later abuse of process claim was that the plaintiffs in the original action, for ulterior motives, used their action to file lis pendens and liens against the property of the plaintiffs in the second action. The two claims, while possessing similar factual bases, required different proof, and the plaintiffs in the second action, by failing to plead a counterclaim in the first action, were not barred by res judicata from asserting their abuse of process claim. Hewes v. Wolfe, 74 N.C. App. 610, 330 S.E.2d 16, 1985 N.C. App. LEXIS 3562 (1985).

Order granting bank’s motion to lift the stay of foreclosure proceedings against an owner was proper because the foreclosure action was not a compulsory counterclaim in a separate federal action. G.S. 1A-1 , N.C. R. Civ. P. 13(a) did not compel the bank to pursue its foreclosure in the federal action; pursuant to 28 U.S.C.S § 2072, Fed. R. Civ. P. 13(a) did not apply to the bank’s foreclosure by power of sale and thus, did not require the bank to file the foreclosure action as a compulsory counterclaim in the federal action. The North Carolina Rules of Civil Procedure do not apply to Federal Court proceedings. In re Foreclosure of a Deed of Trust from Draffen, 222 N.C. App. 39, 731 S.E.2d 435, 2012 N.C. App. LEXIS 933 (2012).

Bank Not Required to Pursue Foreclosure in Federal Action. —

Order granting bank’s motion to lift the stay of foreclosure proceedings against an owner was proper because the foreclosure action was not a compulsory counterclaim in a separate federal action. G.S. 1A-1 , N.C. R. Civ. P. 13(a) did not compel the bank to pursue its foreclosure in the federal action; pursuant to 28 U.S.C.S § 2072, Fed. R. Civ. P. 13(a) did not apply to the bank’s foreclosure by power of sale and thus, did not require the bank to file the foreclosure action as a compulsory counterclaim in the federal action. In re Foreclosure of a Deed of Trust from Draffen, 222 N.C. App. 39, 731 S.E.2d 435, 2012 N.C. App. LEXIS 933 (2012).

A nonqualifying corporation, against which an action is brought in this State, may bring a compulsory counterclaim in that action. E & E Indus., Inc. v. Crown Textiles, Inc., 80 N.C. App. 508, 342 S.E.2d 397, 1986 N.C. App. LEXIS 2208 (1986).

By suing in a forum of this State a foreign corporation which has not obtained a certificate of authority before the commencement of the action, a North Carolina corporation effectively waives any protection which G.S. 55-154 (see now G.S. 55-15-02 ) affords it from compulsory counterclaims asserted by the party sued. E & E Indus., Inc. v. Crown Textiles, Inc., 80 N.C. App. 508, 342 S.E.2d 397, 1986 N.C. App. LEXIS 2208 (1986).

Direct Condemnation Counterclaim Permissible. —

G.S. 136-114, a DOT direct condemnation counterclaim was permissible via G.S. 1A-1 , N.C. R. Civ. P. 13. DOT v. Stimpson, 258 N.C. App. 382, 813 S.E.2d 634, 2018 N.C. App. LEXIS 296 (2018).

Joinder of Other Parties. —

Section (a) of this rule clearly contemplates that all counterclaims arising out of the same transaction or occurrence be asserted, even if other parties must then be joined, as long as the court can acquire jurisdiction over them. Brooks v. Rogers, 82 N.C. App. 502, 346 S.E.2d 677, 1986 N.C. App. LEXIS 2519 (1986).

Joinder of plaintiff’s counsel was not “required for the granting of complete relief” as to defendants’ counterclaim where defendants could not have asserted a valid claim against the counsel in the first place. Davis Lake Community Ass'n v. Feldmann, 138 N.C. App. 292, 530 S.E.2d 865, 2000 N.C. App. LEXIS 598 (2000).

While it appeared, based on federal court interpretations of Fed. R. Civ. P. 13(a), that a school bus driver would be estopped from bringing negligence claims against an ambulance driver in a separate action because the claims constituted compulsory counterclaims that should have been presented in earlier litigation, dismissal of the bus driver’s action was reversed; the trial court had considered matters outside the face of the complaint in ruling on the ambulance driver’s motion to dismiss, and the parties had not been afforded the opportunity to address the estoppel issue. Kemp v. Spivey, 166 N.C. App. 456, 602 S.E.2d 686, 2004 N.C. App. LEXIS 1781 (2004).

Article 11 of Chapter 7B Contains Exclusive Procedures Used in Counterclaim for Termination of Parental Rights. —

Given both the statement of legislative intent in G.S. 7B-1100(1) and the specificity of the procedures in G.S. 7B-100 et seq., Article 11 of Chapter 7B provides the exclusive procedures to be used in a termination of parental rights proceeding; a defendant therefore cannot rely on G.S. 1A-1 , N.C. R. Civ. P. 13 as the basis for a counterclaim for termination of parental rights. In re S.D.W. & H.E.W., 187 N.C. App. 416, 653 S.E.2d 429, 2007 N.C. App. LEXIS 2419 (2007).

G.S. 7B-1100 et seq. does not provide a procedure through which a party may counterclaim for termination of parental rights in response to a complaint for child visitation; rather, Article 11 contemplates that a termination petition should be brought in a separate action. In re S.D.W. & H.E.W., 187 N.C. App. 416, 653 S.E.2d 429, 2007 N.C. App. LEXIS 2419 (2007).

Because G.S. 7B-1100 et seq. provided the exclusive procedures for a termination of parental rights proceeding and contemplated that a termination petition be brought in a separate action, the trial court lacked subject matter jurisdiction over a termination of parental rights action brought as a counterclaim to a visitation action; although the trial court had tried to rectify the error by having summonses issued under G.S. 7B-1106(a), the issuance of a summons alone did not vest a trial court with subject matter jurisdiction over an action that was never properly commenced. In re S.D.W. & H.E.W., 187 N.C. App. 416, 653 S.E.2d 429, 2007 N.C. App. LEXIS 2419 (2007).

III.Crossclaims

Wider Range of Cross Actions Between Coparties Authorized. —

The new Rules of Civil Procedure authorize a much wider range of cross actions between coparties than were heretofore permissible. Anderson v. Robinson, 275 N.C. 132 , 165 S.E.2d 502, 1969 N.C. LEXIS 356 (1969).

Dismissal of Plaintiff ’s Claims Does Not Require Dismissal of Crossclaims. —

Unless a crossclaim is dependent upon the plaintiff ’s original claim (as would be, e.g., a crossclaim for indemnity or contribution) or is purely defensive, the plaintiff ’s dismissal of its claims against all of the defendants does not require the dismissal of a crossclaim properly filed in the same action. Jennette Fruit & Produce Co. v. Seafare Corp., 75 N.C. App. 478, 331 S.E.2d 305, 1985 N.C. App. LEXIS 3668 (1985).

Crossclaims Against State. —

Allowing claims against the State for contribution and indemnification to be asserted as crossclaims accomplishes the legislative purpose behind section (g) of this rule and avoids absurd or bizarre consequences, by preventing the necessity of a second action before the Industrial Commission to settle claims between the coparties; an absurd result would be reached by allowing the State to be made a third-party defendant on a claim for contribution or indemnification, while prohibiting an identical claim to be made by a coparty in an action in which the State is already a party. Selective Ins. Co. v. NCNB Nat'l Bank, 324 N.C. 560 , 380 S.E.2d 521, 1989 N.C. LEXIS 333 (1989).

State Held Liable as Coparty. —

Where insurer sued bank and State for the loss or theft of bonds, State was held liable as a coparty under section (g) of this rule for purposes of contribution and indemnification to the same extent that the State would be held liable as a third-party defendant under G.S. 1A-1 , Rule 14(c); since it was clear that the State was not immune from such claims substantively, and since the State was already properly before the court as a party defendant, there was no reason to exclude the State from the definition of a coparty under section (g) of this rule. Selective Ins. Co. v. NCNB Nat'l Bank, 324 N.C. 560 , 380 S.E.2d 521, 1989 N.C. LEXIS 333 (1989).

Class Action Crossclaim. —

The class of plaintiffs was entitled as a matter of law to proceed against impleaded defendant because plaintiffs’ crossclaim related to the subject matter of the action and because the crossclaim merely realleged claims which the court found to be appropriate for class action procedure. Dublin v. UCR, Inc., 115 N.C. App. 209, 444 S.E.2d 455, 1994 N.C. App. LEXIS 609 (1994).

Rule 14. Third-party practice.

  1. When defendant may bring in third party. —  At any time after commencement of the action a defendant, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff ’s claim against him. Leave to make the service need not be obtained if the third-party complaint is filed not later than 45 days after the answer to the complaint is served. Otherwise leave must be obtained on motion upon notice to all parties to the action. The person served with the summons and third-party complaint, hereinafter called the third-party defendant, shall make his defense to the third-party plaintiff ’s claim as provided in Rule 12 and his counterclaims against the third-party plaintiff and crossclaim against other third-party defendants as provided in Rule 13. The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff ’s claim. The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff ’s claim against the third-party plaintiff. The plaintiff may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff ’s claim against the third-party plaintiff, and the third-party defendant thereupon shall assert his defenses as provided in Rule 12 and his counterclaims and crossclaims as provided in Rule 13. Any party may move for severance, separate trial, or dismissal of the third-party claim. A third-party defendant may proceed under this rule against any person not a party to the action who is or may be liable to him for all or part of the claim made in the action against the third-party defendant.Where the normal statute of limitations period in an action arising on a contract is extended as provided in G.S. 1-47(2) or in any action arising on a contract or promissory note, upon motion of the defendant the court may order to be made parties additional defendants, including any party of whom the plaintiff is a subrogee, assignee, third-party beneficiary, endorsee, agent or transferee, or such other person as has received the benefit of the contract by transfer of interest.
  2. When plaintiff may bring in third party. —  When a counterclaim is asserted against a plaintiff, he may cause a third party to be brought in under circumstances which under this rule would entitle a defendant to do so.
  3. Rule applicable to State of North Carolina. —  Notwithstanding the provisions of the Tort Claims Act, the State of North Carolina may be made a third party under subsection (a) or a third-party defendant under subsection (b) in any tort action. In such cases, the same rules governing liability and the limits of liability of the State and its agencies shall apply as is provided for in the Tort Claims Act.

History. 1967, c. 954, s. 1; 1969, c. 810, s. 2; 1975, c. 587, s. 1; 1981, c. 92; c. 810.

Comment

Certainly one of the most unsatisfactory areas of North Carolina procedural law was that concerned with what has come to be called “third-party practice.” By this is meant the basis upon which and the procedure whereby an original defendant (third-party plaintiff) may implead — have brought into the action — an additional party (third-party defendant) to defend against a claim over by the original defendant/third-party plaintiff. An adequate procedural rule dealing with this important and frequently encountered problem must at least: (1) Specify the substantive grounds permitting impleader, and (2) clearly set out the procedure by which it may be accomplished. For a comprehensive coverage, it should additionally prescribe the kinds of claims which, after impleader has been accomplished, may then be asserted by the parties — originally plaintiff, third-party plaintiff, and third-party defendants — inter se. North Carolina statutory law did none of these in adequate, direct terms. Because of the desirability of allowing impleader in some situations at least, the North Carolina court constructed a set of judicial rules for impleading by drawing upon certain statutes which suggested its use peripherally or in a specific situation, but which were completely inadequate if gauged by the standards of adequate coverage above suggested. Thus, former § 1-73, providing in part that the court might cause parties to be brought in when necessary to a complete determination of the controversy; former § 1-222, providing in part that a judgment might be given for or against one or more of several defendants, might determine the rights of the parties on each side, as between themselves, and might grant a defendant any affirmative relief to which entitled; and § 1-240, cryptically providing for the impleading of alleged joint tort-feasors by an original alleged tort-feasor defendant, were drawn upon by the court. As indicated, none of these statutes dealt directly with the basic problems: (a) Of grounds for impleading (except § 1-240, dealing narrowly with contribution between joint tort-feasors); (b) Of the procedure by which a third-party plaintiff actually impleads a third-party defendant; or (c) Of the kinds of claims that may, after impleader is accomplished, be asserted by the parties inter se.

Working with this completely inadequate statutory pattern, the court has, over the years, evolved rules and sanctioned procedures for impleading which can only be found by resort to the decided cases. These rules as evolved are, aside from the difficulty of locating them, subject to criticism because of their narrowness of approach to the grounds on which impleading is allowed in the first place, and then to the question of what claims may properly be asserted after impleading by the parties inter se. Thus, the basic rule which has evolved to control impleadings permits impleading only when the claim by the third-party plaintiff is for: (1) Contribution against an alleged joint tort-feasor under § 1-240, or (2) indemnification, but only when the indemnification right arises as a matter of law, and not when it arises by express or implied contract. See, for a summary of this rule and the basis of its evolution, 1 McIntosh, North Carolina Practice and Procedure, § 722 (2d edition 1956, with 1965 Supplement). The court is not always consistent in this distinction. See Davis v. Radford, 233 N.C. 283 , 63 S.E.2d 822 (1951).

Beyond this, no systematic prescription of the additional claims which may thereafter be asserted between third-party plaintiff and third-party defendant, and between plaintiff and third-party defendant has been worked out in the North Carolina cases. And, as pointed out, this is not provided in the statutes. It is clear only that an impleaded third-party defendant may, but is not compelled to, assert against the third-party plaintiff any claim which would, as to the third-party plaintiff ’s claim, meet the permissive counterclaim test of former § 1-123. Norris v. Johnson, 246 N.C. 179 , 97 S.E.2d 773 (1957) (permissive); Morgan v. Brooks, 241 N.C. 527 , 85 S.E.2d 869 (1955) (but not compulsory).

None of the statutes drawn upon prescribed the exact procedure for impleading. Thus, there was no statutory directive as to whether it shall be done by “cross complaint” in the original defendant’s answer, or by separate “third-party complaint”; as to whether it requires an order of court based upon motion and notice, or an order entered ex parte; nor as to what mode of service of the third-party complaint or cross complaint shall be utilized. In the absence of any such directive, a practice, generally standardized, but with many variants has been evolved. It has received at least indirect sanction from the court by constant reference to its use without comment. See 1 McIntosh, North Carolina Practice and Procedure, § 722.5 (1965 Pocket Supplement). This practice is cumbersome, and, as indicated, not by any means completely standardized.

In contrast to this most unsatisfactory situation, federal Rule 14 provides a directive for third-party practice which is comprehensive in its coverage. The substantive test for impleading is stated directly — a party may be impleaded “who is or may be liable to [the third-party plaintiff] for all or part of the plaintiff ’s claim against him.” This obviously gives the right to implead for contribution and indemnification, where the substantive right to those remedies exists by statute or common law. This is the limit of the impleading right judicially evolved under North Carolina practice. The federal rule is construed to go beyond this and allow impleading for indemnification where the right to be indemnified has arisen out of contract. See, e.g., Watkins v. Baltimore & O. Ry., 29 F. Supp. 700 (W.D. Pa. 1939). This would broaden the North Carolina approach. Note that it still does not allow impleading on as liberal a basis as exists for crossclaims between parties originally joined as defendants. There, under federal Rule 13, the only requirement is relation between the crossclaim and the transaction or occurrence forming the basis of plaintiff ’s claim.

Beyond the direct and plain statement of the substantive test for impleading, the federal rule prescribes clearly and concisely the procedure for impleading where the right exists. This, as pointed out, is not done in the North Carolina statutes.

Finally, federal Rule 14 concludes with a clear statement, likewise lacking in State statutes, of the various claims which may, after a third-party defendant is impleaded, be asserted by the various parties inter se. Here, as in the joinder statutes, the safeguard against undue complexity which might result under this rule’s liberal allowance of permissible cross and counterclaims is stated to be severance of claims in advance of trial.

It should be noted that federal Rule 14 is of course entirely procedural — it does not, indeed cannot — affect any substantive rights. Thus, it does not allow impleader unless the substantive right exists under State law. Accordingly, then, adoption of this rule does not affect any of the North Carolina substantive law of contribution or indemnification.

OFFICIAL COMMENT

Comment to the 1969 Amendment.

  1. G.S. 1-47(2) was amended to provide that where an action is brought on a sealed instrument, the defendant or defendants in such action may file a counterclaim arising out of the same transaction or transactions as are the subject of plaintiff ’s claim, although a shorter period of limitation would otherwise apply to defendant’s counterclaim.

The second paragraph of Rule 14 was amended to provide that in such actions, or in any action arising on a contract or promissory note, the defendant may have additional defendants brought into the action. Such additional defendants cannot escape liability by passage of time or by transferring of contract rights.

Editor’s Note.

Session Laws 1969, c. 810, which added the second paragraph of section (a) of this rule, provides in s. 2: “It is the purpose of this section to insure that if a suit may be maintained on a contract against one contracting party, the other contracting party will not be allowed to escape his contractual obligations by the passage of time or the transfer of contract rights.”

G.S. 1-240 , referred to in the Comment to this Rule as originally enacted, set out above, has been repealed. For general information regarding the official comments to the North Carolina Rules of Civil Procedure, see the Editor’s Note under the heading for this chapter.

Legal Periodicals.

For article on waiver of defense clauses in consumer contracts, see 48 N.C.L. Rev. 545 (1970).

For article on legislative changes to the new Rules of Civil Procedure, see 6 Wake Forest Intra. L. Rev. 267 (1970).

For survey of 1982 law on torts, see 61 N.C.L. Rev. 1225 (1983).

CASE NOTES

The purpose of this rule is to promote judicial efficiency and convenience of the parties by eliminating circuity of action. Heath v. Board of Comm'rs, 292 N.C. 369 , 233 S.E.2d 889, 1977 N.C. LEXIS 1096 (1977).

This rule is intended to provide a mechanism for disposing of multiple claims arising from a single set of facts in one action expeditiously and economically. Heath v. Board of Comm'rs, 292 N.C. 369 , 233 S.E.2d 889, 1977 N.C. LEXIS 1096 (1977).

This rule does not create any substantive rights where none existed before. Heath v. Board of Comm'rs, 292 N.C. 369 , 233 S.E.2d 889, 1977 N.C. LEXIS 1096 (1977).

This rule permits the defendant as a third-party plaintiff to cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of plaintiff ’s claim against him. Cody v. Department of Transp., 60 N.C. App. 724, 300 S.E.2d 25, 1983 N.C. App. LEXIS 2540 (1983).

Refiling by Third Party Plaintiff After Voluntary Dismissal. —

A third-party plaintiff who originally files a third-party complaint within the time limits set out in this rule and subsequently enters a voluntary dismissal may, within one year, refile the complaint or an amended complaint without leave of court. Clark v. Visiting Health Prof'ls, Inc., 136 N.C. App. 505, 524 S.E.2d 605, 2000 N.C. App. LEXIS 63 (2000).

Amendment of Third-Party Complaint. —

Plaintiff filing a claim against a third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the defendant/third-party plaintiff must follow the requirements pursuant to G.S. 1A-1 , N.C. R. Civ. P. 15(a) in order to amend the plaintiff’s original complaint; when the defendant or third-party plaintiff has filed an answer to the plaintiff’s original complaint, in order for the plaintiff to assert a claim against the third-party defendant, he must amend his complaint by leave of court or by written consent of the adverse party. Barnes v. Erie Ins. Exch., 156 N.C. App. 270, 576 S.E.2d 681, 2003 N.C. App. LEXIS 103 (2003).

This rule anticipates the disposition in one trial of cases involving multiple parties. It is particularly adapted to cases where the liability of a third-party defendant is contingent upon liability of another party, and upon claims the exact amount of which is not fixed at the beginning of trial. Cody v. Department of Transp., 60 N.C. App. 724, 300 S.E.2d 25, 1983 N.C. App. LEXIS 2540 (1983).

This rule anticipates the disposition in one trial of cases involving multiple parties. City of Winston-Salem v. Ferrell, 79 N.C. App. 103, 338 S.E.2d 794, 1986 N.C. App. LEXIS 2024 (1986).

Third-Party Defendant’s Liability Need Not Have Been Determined Previously. —

This section allows a party to implead a party or parties that may be liable to him. It is not necessary that the third-party defendant’s liability be previously determined. Rouse v. Maxwell, 40 N.C. App. 538, 253 S.E.2d 326, 1979 N.C. App. LEXIS 2288 (1979).

When a third-party defendant has an opportunity to participate fully in the determination of third-party plaintiff ’s liability, it is bound by a judgment in favor of the original plaintiff. City of Winston-Salem v. Ferrell, 79 N.C. App. 103, 338 S.E.2d 794, 1986 N.C. App. LEXIS 2024 (1986).

Third-Party Defendant Not Liable Where Original Defendant Not Liable. —

If the original defendant is not liable to the original plaintiff, the third-party defendant is not liable to the original defendant. Jones v. Collins, 58 N.C. App. 753, 294 S.E.2d 384, 1982 N.C. App. LEXIS 2818 (1982).

Where a personal injury action filed against the Pender County Board of Education was dismissed, the appeal of the dismissal of the Board’s third-party claims against the architecture firm seeking, under G.S. 1A-1 , Rule 14(a), indemnity and contribution, was moot, as the viability of the third-party claims was dependent upon the survival of the original action. Spearman v. Pender County Bd. of Educ., 175 N.C. App. 410, 623 S.E.2d 331, 2006 N.C. App. LEXIS 61 (2006).

Where the Pender County Board of Education filed a third-party complaint against the architectural firm seeking indemnification or contribution under G.S. 1A-1 , Rule 14(a) in the injured parties’ personal injury action against the Board, dismissal of the injured parties’ claim against the Board prevented the Board from asserting a viable claim against the firm; as a result, dismissal of the third-party complaint was proper, and appeal from that dismissal was moot. Zizzo v. Pender County Bd. of Educ., 175 N.C. App. 402, 623 S.E.2d 328, 2006 N.C. App. LEXIS 64 (2006).

Third-Party May Be Joined for Contribution. —

Under this rule, an original defendant may bring in a third-party defendant for contribution to the original defendant for a part of his liability to the plaintiff. Jones v. Collins, 58 N.C. App. 753, 294 S.E.2d 384, 1982 N.C. App. LEXIS 2818 (1982).

Allegations of an amended third-party complaint were sufficient to assert a N.C. R. Civ. P. 14 third-party action against an aviation services company for damages that an airline group was possibly liable for to an administrative agent. In addition, the airline group was entitled to damages incurred as a result of the leases which the aviation services company fraudulently induced, including damages to cover the cost of obtaining new aircraft leases. Tradewinds Airlines, Inc. v. C-S Aviation Servs., 222 N.C. App. 834, 733 S.E.2d 162, 2012 N.C. App. LEXIS 1104 (2012).

Third-Party Claim Against Plaintiff ’s Agent Barred. —

If the third-party defendant were the plaintiff ’s agent, the court would be correct in dismissing the third-party claim if the third-party defendant was negligent, since under the doctrine of respondeat superior the plaintiff would be barred from recovery from the original defendant and if the original defendant were not liable to plaintiff, the original defendant could not recover of the third-party defendant. Jones v. Collins, 58 N.C. App. 753, 294 S.E.2d 384, 1982 N.C. App. LEXIS 2818 (1982).

Person Impleaded Not Automatically Liable for Entire Amount. —

While section (a) of this rule permits a defendant to implead a person not a party to the action who is or may be liable to defendant for all or part of the plaintiff ’s claim against him, it does not follow that a person who has been impleaded is automatically liable for the entire amount of the judgment in the main action. Heath v. Board of Comm'r, 40 N.C. App. 233, 252 S.E.2d 543, 1979 N.C. App. LEXIS 2610 , cert. denied, 297 N.C. 453 , 256 S.E.2d 807, 1979 N.C. LEXIS 1440 (1979).

Allowing a defendant indemnitee to implead a third-party defendant before the indemnitee has paid the debt owing to the plaintiff does not create any new substantive rights in the indemnitee. But a cause of action now arises in the indemnitee where he impleads a third-party defendant before he pays the claim for which the indemnitor must reimburse him. Heath v. Board of Comm'rs, 292 N.C. 369 , 233 S.E.2d 889, 1977 N.C. LEXIS 1096 (1977).

State may be joined as a third-party defendant, whether in an action for contribution or in an action for indemnification, in the State courts. Teachy v. Coble Dairies, Inc., 306 N.C. 324 , 293 S.E.2d 182, 1982 N.C. LEXIS 1445 (1982); Columbus County Auto Auction, Inc. v. Aycock Auction Co., 90 N.C. App. 439, 368 S.E.2d 888, 1988 N.C. App. LEXIS 564 (1988).

The provisions of the tort claims act have been modified and superceded under the provisions of of G.S. 1A-1 , Rule 14(c), plaintiffs may now bring direct claims against the State once the State has been made a third-party defendant in a tort action, and such claims do not have to be made before the North Carolina Industrial Commission. Batts v. Batts, 160 N.C. App. 554, 586 S.E.2d 550, 2003 N.C. App. LEXIS 1837 (2003).

As Evidenced by the 1981 Amendment. —

The essence of the 1981 amendment evidences the legislature’s intent to allow the State to be sued as a third-party defendant in the State courts. This was the legislature’s initial intention in enacting section (c) of this rule, and the 1981 amendment is a clarification of this rather than an alteration. Teachy v. Coble Dairies, Inc., 306 N.C. 324 , 293 S.E.2d 182, 1982 N.C. LEXIS 1445 (1982).

Where the State was the subject of an action as a third-party defendant for indemnification pursuant to subsection (c) of this rule, the trial court erred when it dismissed a third-party complaint against the Department of Transportation. Columbus County Auto Auction, Inc. v. Aycock Auction Co., 90 N.C. App. 439, 368 S.E.2d 888, 1988 N.C. App. LEXIS 564 (1988).

Standing of Third-Party Defendant to Appeal. —

Where third-party defendant not only had an opportunity to participate, but, in fact, did fully participate in the determination of third-party plaintiff’s liability and was bound by the judgment in favor of plaintiff entered against defendants as third-party plaintiffs, it was clearly an aggrieved party within the meaning of G.S. 1-271 ; therefore, third-party defendant had standing to appeal the judgment entered against third-party plaintiffs. Barker v. Agee, 326 N.C. 470 , 389 S.E.2d 803, 1990 N.C. LEXIS 155 (1990).

Same Allegations As in Original Plaintiff’s Complaint. —

Trial court did not err by denying the motion to dismiss the complaint against it by the Division of Forest Resources, which asserted liability under the Tort Claims Act by third-party plaintiffs because the complaints against an individual forest ranger had been dismissed, since plaintiff’s allegations as to the Division of Forest Resources were identical to those made by third-party plaintiffs and the claims arose out the same transaction and occurrence that was the subject matter of plaintiff’s original claim. Myers v. McGrady, 170 N.C. App. 501, 613 S.E.2d 334, 2005 N.C. App. LEXIS 1087 (2005), rev'd, 360 N.C. 460 , 628 S.E.2d 761, 2006 N.C. LEXIS 47 (2006).

Dismissal of Third-Party Complaint. —

In divorce action where husband filed an answer in which he asserted a counterclaim against wife and a third-party complaint against third-party defendant bank and where he alleged that wife fraudulently obtained an equity line of credit from the bank, secured by a deed of trust on the marital home, without his knowledge and consent and through his forged signature which was purportedly “witnessed” by bank employees, the court did not err in dismissing the third-party complaint; wife’s claims against husband were for an absolute divorce and for an equitable distribution of the marital property, and the bank could not be held liable to husband should an absolute divorce be granted; if the transaction resulting in the deed of trust is found to have been entered into without husband’s consent and knowledge, the debts secured by the deed of trust would be held to be separate to wife; any misconduct by wife affecting the value of the property would also be considered in distributing the property. McCollum v. McCollum, 102 N.C. App. 347, 401 S.E.2d 773, 1991 N.C. App. LEXIS 313 (1991).

In an insurance case, the trial court correctly granted summary judgment dismissing an insured’s claim against the bailee of the insured’s vehicle, whose alleged negligence caused a fire that destroyed the vehicle, because the insured attempted to assert that claim as a third-party claim, under G.S. 1A-1 , N.C. R. Civ. P. 14(a), after an insurer answered the insured’s original complaint, effectively amending that complaint without complying with G.S. 1A-1 , N.C. R. Civ. P. 15. Barnes v. Erie Ins. Exch., 156 N.C. App. 270, 576 S.E.2d 681, 2003 N.C. App. LEXIS 103 (2003).

Party Dismissed from Action Not Bound by Judgment Therein. —

The general rule that a person who was once a party to an action, but has been dismissed from it, is not bound by a judgment entered therein after he ceases to be a party is not altered by this rule, particularly where the third-party defendant has not had an opportunity to contest the determinations made in the main action. Heath v. Board of Comm'r, 40 N.C. App. 233, 252 S.E.2d 543, 1979 N.C. App. LEXIS 2610 , cert. denied, 297 N.C. 453 , 256 S.E.2d 807, 1979 N.C. LEXIS 1440 (1979).

Where circumstances require separate trials after an impleader under this rule, the better practice is to try the principal action first. Falls Sales Co. v. Board of Transp., 292 N.C. 437 , 233 S.E.2d 569, 1977 N.C. LEXIS 1104 (1977).

Even though, under section (c) of this rule, the State may be made a third party in a tort action, the rules governing liability and the limits of liability of the State and its agencies as provided in the State Tort Claims Act, G.S. 143-291 et seq., apply. Guthrie v. North Carolina State Ports Auth., 307 N.C. 522 , 299 S.E.2d 618, 1983 N.C. LEXIS 1109 (1983).

Impleaded Negligence Claim Barred by Public Duty Doctrine. —

Denial of the motion to dismiss and for judgment on the pleadings filed by the North Carolina Division of Forest Resources (NCDFR), a division of the North Carolina Department of Environment and Natural Resources (NCDENR) (now a division of the North Carolina Department of Agriculture and Consumer Services), was reversed as the public duty doctrine applied to negligence claims filed under the North Carolina Tort Claims Act, G.S. 143-291 et seq., against NCDENR for the alleged mismanagement of forest fires; as G.S. 113-51 , 113-52, 113-54, and 113-55 (now G.S. 106-895 , 106-896, 106-898, and 106-899), which set forth the powers and duties of NCDENR and appointed state forest rangers, were designed to protect the citizens of North Carolina as a whole, NCDENR did not owe a specific duty to the administratrix of a decedent killed in a car accident allegedly due to a forest ranger’s negligence in managing a forest fire or to the other drivers and owners of cars involved in the accident and their negligence complaints failed to state a claim. Myers v. McGrady, 360 N.C. 460 , 628 S.E.2d 761, 2006 N.C. LEXIS 47 (2006).

Impleaded Claim Not Mooted by Voluntary Dismissal of Counterclaim. —

Contractor’s third party claims were not mooted by the owner’s voluntary dismissal of her claims against the contractor since the dismissal with prejudice was a result of the settlement that the owner had reached with the contractor; the contractor was entitled to its day in court to prove what portion, if any, of its settlement with the owner stemmed from the damages allegedly incurred in connection with the fireplace or any other work performed by the subcontractor. Bost Constr. Co. v. Blondy, 229 N.C. App. 491, 750 S.E.2d 917, 2013 N.C. App. LEXIS 928 (2013).

Third-Party Complaint Allowed. —

Property owner was permitted to file the claim as a third-party action where the complaint specifically alleged that the surveyor and employer were liable to it for all or part of an easement owner’s claims, thereby mirroring the language of G.S. 1A-1 , N.C. R. Civ. P. 14(a) (2013). Duke Energy Carolinas, LLC v. Bruton Cable Serv., 233 N.C. App. 468, 756 S.E.2d 863, 2014 N.C. App. LEXIS 363 (2014).

Rule 15. Amended and supplemental pleadings.

  1. Amendments. —  A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 30 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within 30 days after service of the amended pleading, unless the court otherwise orders.
  2. Amendments to conform to the evidence. —  When issues not raised by the pleadings are tried by the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, either before or after judgment, but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues raised by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be served thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.
  3. Relation back of amendments. —  A claim asserted in an amended pleading is deemed to have been interposed at the time the claim in the original pleading was interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading.
  4. Supplemental pleadings. —  Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions or occurrences or events which may have happened since the date of the pleading sought to be supplemented, whether or not the original pleading is defective in its statement of a claim for relief or defense. If the court deems it advisable that the adverse party plead thereto, it shall so order, specifying the time therefor.

History. 1967, c. 954, s. 1.

Comment

This rule is, except for section (c), substantially a counterpart to federal Rule 15. Section (c) is drawn from the New York Civil Practice Law and Rules, Rule 3025. As such, it deals with a most critical aspect of the whole approach of these rules to the pleading function. This is most obvious in its basic directive for the allowing of amendments to pleading. In this aspect, its approach is generally that of the codes, with the basic theme being to allow amendment as of right up to the time that the opponent has taken his initial position by responsive pleading, and thereafter to make the privilege to amend more and more difficult to obtain as the litigation progresses and positions may accordingly have become more and more hardened on the basis of the original pleadings. However, a fundamental change of approach from existing practice is taken in (1) the generality with which this basic theme is formulated and (2) this rule’s abandonment in terms of the whole variance conception so integral a part of the code amendment scheme.

Section (a). — This section first states the rule for amendment as of right up to responsive pleading time, thus basically making no change in the former law, § 1-161. But then, in dealing with the whole problem of discretionary amendments after this time and up to the time that amendments are sought to conform to proof already adduced, this rule merely lays down the simple directive that leave to amend in this interval shall be freely given “when justice so requires.” This is a deliberate abandonment of the typical code approach, as found in former § 1-163, which attempted in tortuous fashion to lay down detailed directives for the exercise of this discretion. The result of this code formulation has been to necessitate equally tortured judicial construction which, instructively, still continues, 100 years after the code’s adoption. See, e.g., Perkins v. Langdon, 233 N.C. 240 , 63 S.E.2d 565 (1951). However, the phrase “as justice requires” has acted as an effective limitation on the amendment privilege in the federal courts. For when, on a whole view of the matter, as is frequently the case, it is determined that justice does not require a particular amendment, or that, to the contrary, positive injustice to the opposing party would result, amendment has been denied. See, e.g., Friedman v. Transamerica Corp., 5 F.R.D. 115 (D. Del. 1946); Portsmouth Baseball Corp. v. Frick, 21 F.R.D. 318 (S.D.N.Y. 1958). This is a much preferable type directive to the detailed code directive which has seemed to necessitate an obviously mechanical jurisprudence in its application. Perkins v. Langdon, supra.

The last sentence of section (a) involves a departure of obvious import from the federal rule timetable.

Section (b). — This section involves the second major change in concept from code practice. Dealing with the problem of trial time amendments necessitated by the failure of proof to conform in some degree with pleadings, it deliberately abandons the laboriously constructed code scheme of immaterial variance, material variance and total failure of proof (former §§ 1-168, 1-169), and lays down a directive based directly upon the truly legitimate policy consideration which should control amendment privilege here, namely, whether, notwithstanding variance of some degree, there has nevertheless been informed consent to try the issues on the evidence presented. Here again, limitation on amendment privilege is sufficiently insured by the phrases, “when the presentation of the merits of the action will be served thereby,” and its twin, “and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him.” Indeed, it seems quite clear that the code directive was actually designed to get the same result, but that the very detail of its formulation led to a drift into a very mechanical approach which has now largely subverted the “litigation by consent” doctrine in North Carolina. See Note, 41 N.C.L. Rev. 647 (1963). Finally, the last sentence of this section inserts a final safeguard in its reminder of the continuance possibility.

Section (c). — This section deals with the extremely difficult matter of determining when amendments should “relate back” for statute of limitation purposes by posing the broad question of the relation between the new matter and the basic aggregate of historical facts upon which the original claim or defense is based. This deliberately avoids the more abstruse inquiry under the codes as to whether the amendment involves a “wholly different cause of action or defense.” It is believed that this approach is a distinct improvement in its express reliance on the truly valid consideration of identity in the historical fact sense. Wachtell’s comment on the provision in the New York Civil Practice Law and Rules from which section (c) is drawn is equally pertinent here. The rule, he says, is that “a cause of action in an amended pleading will be deemed to relate back to the commencement of the action if the original pleading gave notice of the transactions, occurrences, or series of transactions or occurrences to be proved under the amended pleading. The amended pleading will therefore relate back if the new pleading merely amplifies the old cause of action, or now even if the new pleading constitutes a new cause of action, provided that the defending party had originally been placed on notice of the events involved. For example, an amended cause of action for damages for breach of a contract would relate back where the original pleading alleged an action in equity to rescind the contract for fraud. And an amended cause of action against defendants for breach of an implied warranty of agency in entering into a contract would relate back even though the original pleading had alleged a cause of action upon the contract against the defendants as principals.” Wachtell, N.Y. Practice Under the C.P.L.R. (1963), p. 141.

Section (d). — This section is in effect a general counterpart to former § 1-167, without some of the specific detail. No practical change in the procedure for filing supplemental pleadings should result under this rule.

Legal Periodicals.

For case law survey as to amendment of pleadings, see 45 N.C.L. Rev. 836 (1967).

For note on specificity in pleading under G.S. 1A-1 , Rule 8(a)(1), see 48 N.C.L. Rev. 636 (1970).

For note on relation back of barred counterclaims under G.S. 1A-1 , Rule 13(f), see 49 N.C.L. Rev. 134 (1970).

For comment, “Rule 15 of the new Rules of Civil Procedure: Method of Amending Complaints,” see 7 Wake Forest L. Rev. 641 (1971).

For survey of 1972 case law on trial of issues by implied consent under section (b) of this rule, see 51 N.C.L. Rev. 1003 (1973).

For detailed analytic discussion of section (b) of this rule, see 12 Wake Forest L. Rev. 405 (1976).

For survey of 1978 law on civil procedure, see 57 N.C.L. Rev. 891 (1979).

For survey of 1982 law on torts, see 61 N.C.L. Rev. 1225 (1983).

For survey of 1983 law on civil procedure, see 62 N.C.L. Rev. 1107 (1984).

For note, “The North Carolina Court of Appeals Provides a Solution to the Business Name Game,” see 66 N.C.L. Rev. 1064 (1988).

For survey, “Rule 15(c) and the Relation Back of Corrected Party Names,” see 73 N.C.L. Rev. 2189 (1995).

For article, “Crossman v. Moore: The End of Relation Back with Regard to Corrected Party Names in North Carolina,” see 74 N.C.L. Rev. 2000 (1996).

CASE NOTES

Analysis

I.In General

This rule reflects the general policy of proceeding to the merits of an action. Johnson v. Johnson, 14 N.C. App. 40, 187 S.E.2d 420, 1972 N.C. App. LEXIS 2031 (1972).

The rules achieve their purpose of insuring a speedy trial on the merits by providing for and encouraging liberal amendments to conform pleadings and evidence under section (a), by pretrial order under G.S. 1A-1 , Rule 16, during and after reception of evidence under section (b) of this rule, and after entry of judgment under section (b) and G.S. 1A-1 , Rules 59 and 60. Such amendments are made upon motion and with leave of court, by express consent, and by implied consent. Roberts v. William N. & Kate B. Reynolds Mem. Park, 281 N.C. 48 , 187 S.E.2d 721, 1972 N.C. LEXIS 1004 (1972).

The Rules of Civil Procedure achieve their purpose of assuring a speedy trial by providing for and encouraging liberal amendments to the pleadings under this rule. Taylor v. Triangle Porsche-Audi, Inc., 27 N.C. App. 711, 220 S.E.2d 806, 1975 N.C. App. LEXIS 1952 (1975), cert. denied, 289 N.C. 619 , 223 S.E.2d 396, 1976 N.C. LEXIS 1369 (1976).

As a general rule, once judgment is entered, amendment of the complaint is not allowed unless the judgment is set aside or vacated under G.S. 1A-1 , Rule 59 or G.S. 1A-1 , Rule 60. Chrisalis Properties, Inc. v. Separate Quarters, Inc., 101 N.C. App. 81, 398 S.E.2d 628, 1990 N.C. App. LEXIS 1212 (1990).

The pleading with particularity required by G.S. 1A-1 , Rule 9(b) is complemented by section (b) of this rule. Benfield v. Costner, 67 N.C. App. 444, 313 S.E.2d 203, 1984 N.C. App. LEXIS 3092 (1984).

Federal Rule Compared with Section (a). —

Except for differences in time allotments, section (a) of this rule is identical to its federal counterpart. Gro-Mar Pub. Relations, Inc. v. Billy Jack Enters., Inc., 36 N.C. App. 673, 245 S.E.2d 782, 1978 N.C. App. LEXIS 2609 (1978).

Section (a) of this rule is virtually identical to its federal counterpart. United Leasing Corp. v. Miller, 60 N.C. App. 40, 298 S.E.2d 409, 1982 N.C. App. LEXIS 3274 (1982).

As the official comment makes clear, the last sentence of section (a) of this rule was expressly intended to depart from the federal rule time table. Hyder v. Dergance, 76 N.C. App. 317, 332 S.E.2d 713, 1985 N.C. App. LEXIS 3844 (1985).

As to liberal construction of this rule, see Watson v. Watson, 49 N.C. App. 58, 270 S.E.2d 542, 1980 N.C. App. LEXIS 3360 (1980).

Issue Tried by Implied Consent of Parties Though Not in Pleadings. —

In case alleging retaliatory discharge where both parties introduced a considerable amount of evidence regarding the financial condition of defendant and its relation to the termination of plaintiff’s employment, the financial hardship issue was tried by the implied consent of the parties and should have been treated as if it was raised in the pleadings. Johnson v. Friends of Weymouth, Inc., 120 N.C. App. 255, 461 S.E.2d 801, 1995 N.C. App. LEXIS 736 (1995).

Employer’s motion to dismiss an employee’s action alleging unlawful termination should have been made under G.S. 1A-1 , N.C. R. Civ. P. 12(b)(3), not under G.S. 1A-1 , N.C. R. Civ. P. 12(b)(1) and (2), because it raised the issue of whether North Carolina courts were barred from hearing the case by a forum selection clause in the parties’ contract which specified that they would use courts in Los Angeles County (California) to resolve their disputes; however, the appellate court heard the employer’s appeal from the trial court’s judgment denying its motion because the parties tried the issue, and found that the forum selection clause did not bar North Carolina courts from tryng the employee’s lawsuit. Hickox v. R&G Group Int'l, 161 N.C. App. 510, 588 S.E.2d 566, 2003 N.C. App. LEXIS 2184 (2003).

Implied Consent Not Shown. —

In a wrongful death action based on the medical specialist’s medical malpractice, the trial court did not err in failing to instruct the jury on insulating negligence because the specialist did not plead insulating negligence and it was not evident from the record that both parties understood the issue was to be tried by implied consent as provided in G.S. 1A-1 , Rule 15(b). The evidence tended to show independent acts of negligence by two parties, the specialist and another doctor who was a former codefendant, which united to cause a single injury. Boykin v. Kim, 174 N.C. App. 278, 620 S.E.2d 707, 2005 N.C. App. LEXIS 2396 (2005).

Issue of personal tax returns was not tried by implied consent because defendants’ attorney clearly objected to evidence of the personal tax returns. Rink & Robinson, PLLC v. Catawba Valley Enters., LLC, 220 N.C. App. 360, 725 S.E.2d 426, 2012 N.C. App. LEXIS 584 (2012).

This rule contemplates liberality on the part of the court in allowing amendments to the pleadings. Performance Motors, Inc. v. Allen, 20 N.C. App. 445, 201 S.E.2d 513, 1974 N.C. App. LEXIS 2461 (1974); Goodrich v. Rice, 75 N.C. App. 530, 331 S.E.2d 195, 1985 N.C. App. LEXIS 3715 (1985).

Liberal amendment of pleadings is encouraged by the Rules of Civil Procedure. McGinnis v. Robinson, 43 N.C. App. 1, 258 S.E.2d 84, 1979 N.C. App. LEXIS 3024 (1979).

It is fundamental to the concepts embodied in section (b) of this rule that amendments to pleadings and relation back of such amendments should be liberal in their allowance and application. The rule, in fact, encourages liberal amendment of pleadings. Discretion in the trial judge is not unlimited, however, and the amendment should not be granted when the opposing party would be prejudiced. Roper v. Thomas, 60 N.C. App. 64, 298 S.E.2d 424, 1982 N.C. App. LEXIS 3283 (1982).

The Rules of Civil Procedure permit a liberal use of amendments to a party’s theory of recovery. Taylor v. Gillespie, 66 N.C. App. 302, 311 S.E.2d 362, 1984 N.C. App. LEXIS 2878 (1984).

Leave to amend should be freely given. Carolina Garage, Inc. v. Holston, 40 N.C. App. 400, 253 S.E.2d 7, 1979 N.C. App. LEXIS 2275 (1979); Saintsing v. Taylor, 57 N.C. App. 467, 291 S.E.2d 880, 1982 N.C. App. LEXIS 2681 (1982).

And amendments should always be freely allowed unless some material prejudice is demonstrated, for it is the essence of the rules that decisions be had on the merits and not be avoided on the basis of mere technicalities. Mangum v. Surles, 281 N.C. 91 , 187 S.E.2d 697, 1972 N.C. LEXIS 1008 (1972); Phillips v. Phillips, 46 N.C. App. 558, 265 S.E.2d 441, 1980 N.C. App. LEXIS 2849 (1980); Mauney v. Morris, 316 N.C. 67 , 340 S.E.2d 397, 1986 N.C. LEXIS 1879 (1986).

Leave to amend should be freely given except where the party objecting can show that he would be materially prejudiced. Auman v. Easter, 36 N.C. App. 551, 244 S.E.2d 728, 1978 N.C. App. LEXIS 2545 , cert. denied, 295 N.C. 548 , 248 S.E.2d 725, 1978 N.C. LEXIS 1023 (1978); Boundreau v. Baughman, 86 N.C. App. 165, 356 S.E.2d 907, 1987 N.C. App. LEXIS 2680 (1987), aff'd in part and rev'd in part, 322 N.C. 331 , 368 S.E.2d 849, 1988 N.C. LEXIS 366 (1988).

This rule allows issues to be raised by liberal amendments to pleadings, and, in some cases, by the evidence, the effect of the rule being to allow amendment by implied consent to change the legal theory of the cause of action so long as the opposing party has not been prejudiced in presenting his case. Taylor v. Gillespie, 66 N.C. App. 302, 311 S.E.2d 362, 1984 N.C. App. LEXIS 2878 (1984).

But Court May Consider Counter vailing Legislative Purposes. —

While leave of court shall be freely given when justice so requires, and while justice might often so require where a layman appearing pro se inadvertently fails to conform to technical legal requirements, judicial discretion may properly be exercised to subordinate these concerns to readily discernible countervailing legislative intent. Jones v. Boyce, 60 N.C. App. 585, 299 S.E.2d 298, 1983 N.C. App. LEXIS 2482 (1983).

Justification for Denial of Motion to Amend. —

Although a trial court is not required to state specific reasons for denial of a motion to amend, reasons that would justify a denial are (a) undue delay, (b) bad faith, (c) undue prejudice, (d) futility of amendment, and (e) repeated failure to cure defects by previous amendments. Chicopee, Inc. v. Sims Metal Works, Inc., 98 N.C. App. 423, 391 S.E.2d 211, 1990 N.C. App. LEXIS 427 (1990).

Reasons justifying denial of an amendment are: (a) undue delay, (b) bad faith, (c) undue prejudice, (d) futility of amendment, and (e) repeated failure to cure defects by previous amendments. Martin v. Hare, 78 N.C. App. 358, 337 S.E.2d 632, 1985 N.C. App. LEXIS 4305 (1985).

Reasons justifying denial of a motion to amend include (a) undue delay, (b) undue prejudice, and (c) futility of amendment. Members Interior Constr., Inc. v. Leader Constr. Co., 124 N.C. App. 121, 476 S.E.2d 399, 1996 N.C. App. LEXIS 1003 (1996).

Proper reasons for denying a motion to amend include undue delay by the moving party, unfair prejudice to the nonmoving party, bad faith, futility of the amendment, and repeated failure to cure defects by previous amendments. Delta Envtl. Consultants of N.C. Inc. v. Wysong & Miles Co., 132 N.C. App. 160, 510 S.E.2d 690, 1999 N.C. App. LEXIS 83 (1999).

Undue Delay. —

The trial court did not abuse its discretion in denying plaintiffs’ motion to amend which was made almost three months after the defendants’ answer and nearly five months after plaintiffs’ original complaint. Walker v. Sloan, 137 N.C. App. 387, 529 S.E.2d 236, 2000 N.C. App. LEXIS 414 (2000).

Trial court did not abuse its discretion in denying the purchasers leave to amend their complaint where undue delay was a proper reason for denying a motion to amend a pleading; the record showed that the purchasers filed their complaint February 21, 2001 and did not move to amend their complaint until April 17, 2002. Wall v. Fry, 162 N.C. App. 73, 590 S.E.2d 283, 2004 N.C. App. LEXIS 61 (2004).

Ad agency’s failure to offer a credible explanation for the delay in moving to amend pursuant to G.S. 1A-1 , N.C. R. Civ. P. 15(a) warranted the trial court’s decision to deny the ad agency’s request to add counterclaims of fraud and unfair and deceptive trade practices. Since the ad agency moved after the 30-day deadline for amending without leave, the trial court acted within its discretion in denying the motion to amend, especially since the ad agency at no time offered to explain the more than three-month delay in moving for leave to amend after it filed its answer. Media Network, Inc. v. Long Haymes Carr, Inc., 197 N.C. App. 433, 678 S.E.2d 671, 2009 N.C. App. LEXIS 774 (2009).

Where the property owners acknowledged that the original and amended pleadings provided insight as to procedural irregularities that would necessarily require proof similar to that obtained in the depositions, but failed to amend their claims again at that time, the trial court did not abuse its discretion in denying plaintiffs’ motion to further amend their pleadings. McMillan v. Town of Tryon, 200 N.C. App. 228, 683 S.E.2d 747, 2009 N.C. App. LEXIS 1625 (2009).

Trial court did not abuse its discretion in denying the attendant’s motion to amend the complaint, as the motion was made 13 months after the initial complaint and only five days before the hearing on defendants’ motion for summary judgment. Wilkerson v. Duke Univ., 229 N.C. App. 670, 748 S.E.2d 154, 2013 N.C. App. LEXIS 968 (2013).

Trial court did not err by denying plaintiffs’ second motion to amend their complaint because there was ample support for its conclusion that the motion involved undue delay, suggested a dilatory motive, and was neither accompanied by a brief nor a statement of the position of opposing counsel as required. The record showed that within only a few weeks of filing their amended complaint, plaintiffs sought leave to file a second amended complaint that was not accompanied by a brief or a statement of opposing counsels’ position, and that essentially “undid” a significant number of the changes that had been made to their original complaint in their amended complaint. Azure Dolphin, LLC v. Barton, 371 N.C. 579 , 821 S.E.2d 711, 2018 N.C. LEXIS 1036 (2018).

Amendment to Correct Name. —

If the effect of an amendment is merely to correct the name of a person already in court, there is no prejudice. This is true even though the change relates back to the date of the original complaint. Thorpe v. Wilson, 58 N.C. App. 292, 293 S.E.2d 675, 1982 N.C. App. LEXIS 2781 (1982).

Trial court erred in denying the injured party’s motion to amend the complaint because the injured party’s error was a misnomer, the intended defendant (the executor) was served, and the amendment would not prejudice the executor. Pierce v. Johnson, 154 N.C. App. 34, 571 S.E.2d 661, 2002 N.C. App. LEXIS 1406 (2002).

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 N.C. App. LEXIS 51 (2009).

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 N.C. App. LEXIS 282 (2012).

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 N.C. App. LEXIS 1314 (2016).

Six Months Delay Too Long to Amend Name. —

When, after being informed by named defendant that they were not the proper defendant, plaintiffs waited over six months to file amended complaint, defendant properly asserted the statute of limitations as a bar to plaintiffs’ effort to correct the name of the party already in court. Franklin v. Winn Dixie Raleigh, Inc., 117 N.C. App. 28, 450 S.E.2d 24, 1994 N.C. App. LEXIS 1158 (1994), aff'd, 342 N.C. 404 , 464 S.E.2d 46, 1995 N.C. LEXIS 693 (1995).

This Rule applies to adoption proceedings. In re Clark, 95 N.C. App. 1, 381 S.E.2d 835, 1989 N.C. App. LEXIS 670 (1989), rev'd, 327 N.C. 61 , 393 S.E.2d 791, 1990 N.C. LEXIS 564 (1990).

Joinder of Putative Father in Adoption Proceedings. —

Even if putative father’s consent to adoption was necessary, petitioners’ failure to join him at the time they filed their original adoption petition did not authorize the trial court to dismiss the adoption proceeding without first giving petitioners the opportunity to join putative father within a reasonable time. In re Clark, 95 N.C. App. 1, 381 S.E.2d 835, 1989 N.C. App. LEXIS 670 (1989), rev'd, 327 N.C. 61 , 393 S.E.2d 791, 1990 N.C. LEXIS 564 (1990).

Rule Inapplicable in Action to Terminate Parental Rights. —

Because the trial court erred in allowing the county department of social services to amend the petitions to terminate a mother’s parental rights to conform to the evidence, the original petitions failed to put the mother on notice that G.S. 7B-1111(a)(2) would be a possible ground to support termination, and G.S. 1A-1 , N.C. R. Civ. P. 15(b) did not apply, the termination order was reversed. In re B.L.H., 190 N.C. App. 142, 660 S.E.2d 255, 2008 N.C. App. LEXIS 831 , aff'd, 362 N.C. 674 , 669 S.E.2d 320, 2008 N.C. LEXIS 988 (2008).

Defendant’s proposed use of G.S. 1A-1 , N.C. R. Civ. P. 15 to deprive the court of personal jurisdiction over the newly identified biological father, despite compliance with G.S. 7B-1105 , through the creation of a “new action” when the biological father was eventually identified and made a party to the action would have defeated the entire purpose of G.S. 7B-1104 and G.S. 7B-1105 ; therefore, the biological father was properly added as a party to the termination proceeding pursuant to the trial court’s order and the subsequent issuance and service upon him of the summons and petition to terminate parental rights in the minor child. Because G.S. 7B-1105(b) did not require that the Department of Social Services file an amended petition upon identification of the unknown parent, and the amended petition did not change or otherwise add an additional ground for terminating the father’s parental rights and did not add a party to the proceeding as the biological father was already a party to the termination proceeding, the amended petition to terminate parental rights to the minor child did not supersede the original petition such that a new action was brought upon its filing. In re M.M., 200 N.C. App. 248, 684 S.E.2d 463, 2009 N.C. App. LEXIS 1616 (2009).

Failure to Make Motion in Timely Fashion. —

Trial court did not err in denying plaintiffs’ motion to amend their complaint where plaintiffs knew of the purchase of insurance for nearly two and a half years, and failed to amend their complaint to allege this until the motions hearing when defendants moved to dismiss the action based on plaintiffs’ failure to so plead. Gunter v. Anders, 115 N.C. App. 331, 444 S.E.2d 685, 1994 N.C. App. LEXIS 614 (1994).

Amendment in Order to State Legal Theory. —

Discretionary amendments are to be freely granted unless the opposing party would be prejudiced; amending pleadings to more accurately state the legal theory supported by the factual allegations already present in the complaint would not result in unfair surprise to defendant. Smith v. Nationwide Mut. Fire Ins. Co., 96 N.C. App. 215, 385 S.E.2d 152, 1989 N.C. App. LEXIS 968 (1989).

Amendment to Add Defense. —

Trial court did not err by allowing defendants to amend their respective answers to add defense that renewal insurance policy gave insufficient notice. North River Ins. Co. v. Young, 117 N.C. App. 663, 453 S.E.2d 205, 1995 N.C. App. LEXIS 59 (1995).

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 N.C. App. LEXIS 1019 (2012).

Amendment to Withdraw Jury Request. —

Plaintiff in a personal injury case could not unilaterally withdraw her jury request once defendant filed his motion to set aside default judgment, nor could she file an amendment pursuant to this rule to withdraw her request and, thereby, contravene the strictures of G.S. 1A-1 , Rule 38. Cabe v. Worley, 140 N.C. App. 250, 536 S.E.2d 328, 2000 N.C. App. LEXIS 1111 (2000).

Amendment to Include Medical Malpractice Certification. —

Where defendants had not filed any responsive pleading, only a Rule 12(b)(6) motion to dismiss, court incorrectly denied plaintiffs’ motion to amend complaint to include a Rule 9(j) certification. Brisson v. Santoriello, 134 N.C. App. 65, 516 S.E.2d 911, 1999 N.C. App. LEXIS 666 (1999), aff'd in part, modified, dismissed in part, 351 N.C. 589 , 528 S.E.2d 568, 2000 N.C. LEXIS 354 (2000).

Amendment To Correct Amount Owed. —

Trial court did not err in granting plaintiff’s motion to amend its pleadings to change the amount defendants owed because the trial court did not allow plaintiff to change its theory of recovery; the trial court made it clear that it was allowing the motion to correct a typographical error. Rink & Robinson, PLLC v. Catawba Valley Enters., LLC, 220 N.C. App. 360, 725 S.E.2d 426, 2012 N.C. App. LEXIS 584 (2012).

Amendment to add a G.S. 58-63-15(11) claim was denied where it was not shown that defendant understood the alleged extraneous evidence was aimed at establishing a violation of G.S. 58-63-15(11) rather than proving an issue actually raised by the pleadings. Members Interior Constr., Inc. v. Leader Constr. Co., 124 N.C. App. 121, 476 S.E.2d 399, 1996 N.C. App. LEXIS 1003 (1996).

Amendment to Petition for Certiorari. —

The trial court had the authority to grant an adjoining property owner’s motion to amend her petition for certiorari, despite her failure to allege that she was an aggrieved party, since the petition was a “pleading” within the meaning of this rule. Darnell v. Town of Franklin, 131 N.C. App. 846, 508 S.E.2d 841, 1998 N.C. App. LEXIS 1552 (1998).

Amendment to Add New Party. —

Although a declaratory judgment action against a State Department of Motor Vehicles’ (DMV) practice of charging a fee for a handicapped placard was dismissed due to the State’s sovereign immunity from suit, which had not been waived, the trial court found no violation of the Americans with Disabilities Act (ADA), 42 U.S.C.S. § 12101 et seq.; a motion seeking to amend the complaint pursuant to G.S. 1A-1 , N.C. R. Civ. P. 15(a), in order to add the Commissioner of the DMV as a party was denied because such would have changed the legal issues presented and also, the ADA could not be brought against an individual pursuant to 42 U.S.C.S. § 12132. Brown v. N.C. DMV, 155 N.C. App. 436, 573 S.E.2d 246, 2002 N.C. App. LEXIS 1622 (2002).

Although a substantial right was affected and immediately appealable under G.S. 1A-1 , Rule 54(b), where undue delay or prejudice would have resulted, a trial court did not abuse its discretion in denying a custodian’s G.S. 1A-1 , Rule 15(a) motion to add two defendants to a complaint. Carter v. Rockingham County Bd. of Educ., 158 N.C. App. 687, 582 S.E.2d 69, 2003 N.C. App. LEXIS 1279 (2003).

Trial court properly denied an alleged accident victim’s motion to add a necessary party under G.S. 1A-1 , N.C. R. Civ. P. 15, because an amendment to add a new party would have been futile and unduly prejudicial; further, the statute of limitations had run and would not stand against a new party, and the relation back doctrine, which extended periods for pursuing claims, did not apply to a party. Bailey v. Handee Hugo's, Inc., 173 N.C. App. 723, 620 S.E.2d 312, 2005 N.C. App. LEXIS 2302 (2005).

Shareholder was not a New Party. —

State could add a claim against a shareholder, contingent on the State’s subsequent ability to demonstrate that the shareholder and a corporation were alter egos. The State made the necessary showings at the pleading stage to establish that the corporation was operated as a mere instrumentality of the shareholder; therefore, G.S. 1-54(2) ’s one-year statute of limitations was tolled as to the shareholder, and the addition of the shareholder as a party related back and did not violate N.C. R. Civ. P. 15(c). State ex rel. Cooper v. Ridgeway Brands Mfg., LLC, 362 N.C. 431 , 666 S.E.2d 107, 2008 N.C. LEXIS 687 (2008).

Plaintiff’s right to amend is lost if trial court grants defendant’s motion for judgment on the pleadings, even where trial court grants plaintiff leave to amend on the court’s own motion. Sentry Enters., Inc. v. Canal Wood Corp., 94 N.C. App. 293, 380 S.E.2d 152, 1989 N.C. App. LEXIS 476 (1989).

Effect on Jurisdiction. —

When original process has been served properly and amendments to it are to make process and pleadings consistent, the court will retain jurisdiction. Jones v. Whitaker, 59 N.C. App. 223, 296 S.E.2d 27, 1982 N.C. App. LEXIS 3074 (1982).

Clerk and Court Had Jurisdiction. —

Trial court abused its discretion by denying a private-party condemnor’s motion to amend its petition to condemn easements for a power line across two counties because the clerk of court and the trial court very clearly had jurisdiction over at least the property located in the county where the court was located, the condemnor sought leave to amend to correct its misunderstanding of the statute, and the trial court did not address any of the applicable categories. Rutherford Elec. Mbrshp. Corp. v. 130 of Chatham, LLC, 236 N.C. App. 87, 763 S.E.2d 296, 2014 N.C. App. LEXIS 972 (2014).

Burden of Party Objecting to Amendment. —

The party objecting to an amendment has the burden of specifying the grounds of objection and of satisfying the court that he will be prejudiced by admission of the evidence or by litigation of the issues raised by the evidence. The objecting party must meet these requirements in order to avoid “litigation by consent” or allowance of a motion to amend. Roberts v. William N. & Kate B. Reynolds Mem. Park, 281 N.C. 48 , 187 S.E.2d 721, 1972 N.C. LEXIS 1004 (1972); Watson v. Watson, 49 N.C. App. 58, 270 S.E.2d 542, 1980 N.C. App. LEXIS 3360 (1980).

Leave to amend should be freely given when justice so requires, and the burden is on the party objecting to the amendment to show that he would be prejudiced thereby. Vernon v. Crist, 291 N.C. 646 , 231 S.E.2d 591, 1977 N.C. LEXIS 1229 (1977); Gro-Mar Pub. Relations, Inc. v. Billy Jack Enters., Inc., 36 N.C. App. 673, 245 S.E.2d 782, 1978 N.C. App. LEXIS 2609 (1978); F. Indus., Inc. v. Cox, 45 N.C. App. 595, 263 S.E.2d 791, 1980 N.C. App. LEXIS 2697 (1980); Kinnard v. Mecklenburg Fair, Ltd., 46 N.C. App. 725, 266 S.E.2d 14, 1980 N.C. App. LEXIS 2935 , aff'd, 301 N.C. 522 , 271 S.E.2d 909, 1980 N.C. LEXIS 1182 (1980).

The party objecting to the amendment has the burden of satisfying the trial court that he would be prejudiced thereby. Carolina Garage, Inc. v. Holston, 40 N.C. App. 400, 253 S.E.2d 7, 1979 N.C. App. LEXIS 2275 (1979); Watson v. Watson, 49 N.C. App. 58, 270 S.E.2d 542, 1980 N.C. App. LEXIS 3360 (1980); Saintsing v. Taylor, 57 N.C. App. 467, 291 S.E.2d 880, 1982 N.C. App. LEXIS 2681 (1982).

The party objecting to the amendment has the burden of establishing it will be materially prejudiced by the amendment. North River Ins. Co. v. Young, 117 N.C. App. 663, 453 S.E.2d 205, 1995 N.C. App. LEXIS 59 (1995).

Plaintiffs Should Have Sought Leave to Amend Although Claim Raised in Answer. —

Where the essence of plaintiffs’ complaint and amended complaint was that defendants made unauthorized and unwarranted diversions of school bond proceeds to purposes other than those authorized by the bond resolution, namely for purchase and renovation of the Square D facility, and where neither complaint included an allegation that monies from other sources of revenue were improperly diverted, although defense, asserted in the answer of the Board of Education defendants, raised a claim of misappropriation of revenues other than bond proceeds, the trial court did not err in limiting denial of defendants’ motions to dismiss to only the allegations relating to the propriety of the expenditure of school bond proceeds on the Square D facility; if plaintiffs desired to add a claim that defendants diverted sources of revenue other than school bond proceeds, plaintiffs should have sought leave to amend under this rule. Moore v. Wykle, 107 N.C. App. 120, 419 S.E.2d 164, 1992 N.C. App. LEXIS 660 (1992).

The burden is upon the party objecting to the amendment to set forth the grounds for his objection and to establish that he will be prejudiced if the motion is allowed. Rogers v. Rogers, 39 N.C. App. 635, 251 S.E.2d 663, 1979 N.C. App. LEXIS 2531 (1979); Helena Chem. Co. v. Rivenbark, 45 N.C. App. 517, 263 S.E.2d 305, 1980 N.C. App. LEXIS 2673 (1980); Evans v. Craddock, 61 N.C. App. 438, 300 S.E.2d 908, 1983 N.C. App. LEXIS 2692 (1983).

The burden is on the objecting party to show that he would be prejudiced by an amendment. Henry v. Deen, 61 N.C. App. 189, 300 S.E.2d 707, 1983 N.C. App. LEXIS 2639 (1983), rev'd, 310 N.C. 75 , 310 S.E.2d 326, 1984 N.C. LEXIS 1560 (1984); Mauney v. Morris, 316 N.C. 67 , 340 S.E.2d 397, 1986 N.C. LEXIS 1879 (1986).

The party opposing an amendment carries the burden of demonstrating prejudice. In a complicated medical malpractice case, particularly where discovery has been hotly contested and important evidence turns up missing, merely showing delay beyond the statutory period will not suffice as evidence of prejudice. To hold otherwise would negate the very policies embodied in this rule, i.e., liberal allowance of amendments, and availability of relation back, to ensure that controversies are decided on the merits. Estrada v. Jaques, 70 N.C. App. 627, 321 S.E.2d 240, 1984 N.C. App. LEXIS 3880 (1984), limited, Osburn v. Danek Med., Inc., 135 N.C. App. 234, 520 S.E.2d 88, 1999 N.C. App. LEXIS 1045 (1999).

The party who objects to the amendment has the burden of proving prejudice. Peed v. Peed, 72 N.C. App. 549, 325 S.E.2d 275, 1985 N.C. App. LEXIS 3115 , cert. denied, 313 N.C. 604 , 330 S.E.2d 612, 1985 N.C. LEXIS 1831 (1985).

For amendment to be proper under this rule, there must be evidence of an unpleaded issue introduced without objection, and it must appear that the parties understood, or at least reasonably should have understood, that the evidence was aimed at an issue not expressly pleaded. Yet, even when the evidence is objected to on the grounds that it is not within the issues raised by the pleadings, the court will freely allow amendments to present the merits of the case when the objecting party fails to satisfy the court that he would be prejudiced in the trial on its merits. Peed v. Peed, 72 N.C. App. 549, 325 S.E.2d 275, 1985 N.C. App. LEXIS 3115 , cert. denied, 313 N.C. 604 , 330 S.E.2d 612, 1985 N.C. LEXIS 1831 (1985); Mauney v. Morris, 316 N.C. 67 , 340 S.E.2d 397, 1986 N.C. LEXIS 1879 (1986).

Consent Presumed Absent Objection on Proper Grounds. —

If opposing counsel fails to object on the proper grounds, a presumption will arise that consent is given to the broadened scope of the trial. Under this presumption all issues raised will be treated as if they were in the pleadings. Harris v. Bridges, 59 N.C. App. 195, 296 S.E.2d 299, 1982 N.C. App. LEXIS 3077 (1982).

Where a party offers evidence at trial which introduces a new issue and there is no objection by the opposing party, the opposing party is viewed as having consented to the admission of the evidence and the pleadings are deemed amended to include the new issue. Byrd v. Byrd, 62 N.C. App. 438, 303 S.E.2d 205, 1983 N.C. App. LEXIS 2949 (1983).

Where defendant did not object to the introduction of certain evidence, the pleadings were amended by implication. Formal permission of the court was not required, although the better practice is that the party benefitted should move to amend the pleadings to reflect the theory of recovery. By failing to make timely objection to the introduction of the evidence at variance with the pleadings, defendant waived his right to assert such ground on appeal. Taylor v. Gillespie, 66 N.C. App. 302, 311 S.E.2d 362, 1984 N.C. App. LEXIS 2878 (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 N.C. App. LEXIS 3092 (1984).

The defendant indicated his consent to the amended complaint, allegedly filed without leave of the court or the written consent of the defendant, by filing an answer, by responding to the allegations within it, and by submitting materials in support of his motion for summary judgment. Watts v. Cumberland County Hosp. Sys., 75 N.C. App. 1, 330 S.E.2d 242, 1985 N.C. App. LEXIS 3577 (1985), rev'd, 317 N.C. 321 , 345 S.E.2d 201, 1986 N.C. LEXIS 2791 (1986).

A formal amendment is needed only when evidence is objected to at trial as not within the scope of the pleadings. Taylor v. Gillespie, 66 N.C. App. 302, 311 S.E.2d 362, 1984 N.C. App. LEXIS 2878 (1984).

Under certain circumstances a pleading may be deemed amended by implication when evidence outside the scope of the pleading has been received without objection, which evidence constitutes a substantial feature of a case; in such situation no formal amendment of the pleading is required. Hord v. Atkinson, 68 N.C. App. 346, 315 S.E.2d 339, 1984 N.C. App. LEXIS 3291 (1984).

Unless Evidence Is Also Relevant to Support Issue Raised by Pleadings. —

Under North Carolina’s “notice theory of pleading,” a trial proceeds on the issues raised by the pleadings unless the pleadings are amended. If an issue not raised by the pleadings is tried by the “implied consent” of the parties, the pleadings are deemed amended. When, however, the evidence used to support the new issue would also be relevant to support the issue raised by the pleadings, the defendant has not been put on notice of plaintiff’s new or alternate theory. Gilbert v. Thomas, 64 N.C. App. 582, 307 S.E.2d 853, 1983 N.C. App. LEXIS 3307 (1983).

Discretion of Court. —

Whether a motion to amend a pleading is allowed or denied is addressed to the sound discretion of the court and is accorded great deference. North River Ins. Co. v. Young, 117 N.C. App. 663, 453 S.E.2d 205, 1995 N.C. App. LEXIS 59 (1995).

Trial court did not abuse the court’s discretion by allowing the public administrators’ complaints and the trustees cross-claims against a trustee to be amended because: (1) the administrators filed the amended complaints with the written consent of the trustees; (2) the administrators filed a motion to amend their complaint, seeking leave of court to file the amended complaint, although such motion was filed after the amended complaint; and (3) the trustee did not argue that the trustee was prejudiced by the filing of the amended complaints and cross-claims. Babb v. Graham, 190 N.C. App. 463, 660 S.E.2d 626, 2008 N.C. App. LEXIS 1024 (2008).

The trial court has broad discretion in permitting or denying amendments. Helson's Premiums & Gifts, Inc. v. Duncan, 9 N.C. App. 653, 177 S.E.2d 428, 1970 N.C. App. LEXIS 1429 (1970); Galligan v. Smith, 14 N.C. App. 220, 188 S.E.2d 31, 1972 N.C. App. LEXIS 2089 , cert. denied, 281 N.C. 514 , 189 S.E.2d 36, 1972 N.C. LEXIS 1093 (1972).

In a motion to amend addressed to the sound discretion of the trial judge, the trial court has broad discretion in permitting or denying amendments. Markham v. Johnson, 15 N.C. App. 139, 189 S.E.2d 588, 1972 N.C. App. LEXIS 1842 , cert. denied, 281 N.C. 758 , 191 S.E.2d 356, 1972 N.C. LEXIS 1187 (1972).

Section (a) of this rule gives trial courts extensive discretion in determining whether or not leave to amend will be granted after the time for amending as a matter of course has expired. Willow Mt. Corp. v. Parker, 37 N.C. App. 718, 247 S.E.2d 11, 1978 N.C. App. LEXIS 2836 , cert. denied, 295 N.C. 738 , 248 S.E.2d 867, 1978 N.C. LEXIS 1154 (1978); Tyson v. Ciba-Geigy Corp., 82 N.C. App. 626, 347 S.E.2d 473, 1986 N.C. App. LEXIS 2610 (1986).

A motion for leave to file an amended complaint is addressed to the discretion of the trial court. Flores v. Caldwell, 14 N.C. App. 144, 187 S.E.2d 377, 1972 N.C. App. LEXIS 2062 (1972).

The motion to amend is properly addressed to the discretion of the trial court, who must weigh the motion in light of the attendant circumstances. Gladstein v. South Square Assocs., 39 N.C. App. 171, 249 S.E.2d 827, 1978 N.C. App. LEXIS 2352 (1978), cert. denied, 296 N.C. 736 , 254 S.E.2d 178, 1979 N.C. LEXIS 1277 (1979); Saintsing v. Taylor, 57 N.C. App. 467, 291 S.E.2d 880, 1982 N.C. App. LEXIS 2681 (1982).

This rule provides for broad discretion on the part of the court in allowing motions to amend a complaint after the answer is filed. Forbes v. Pillmon, 18 N.C. App. 439, 197 S.E.2d 226, 1973 N.C. App. LEXIS 1895 (1973).

Rulings on motions to amend after the expiration of the statutory period are within the discretion of the trial court; that discretion is clearly not abused when granting the motion would be a futile gesture. Lee v. Keck, 68 N.C. App. 320, 315 S.E.2d 323, 1984 N.C. App. LEXIS 3322 (1984).

A motion to amend a pleading, made more than 30 days after the original pleading is served, is addressed to the discretion of the trial court. Norlin Indus., Inc. v. Music Arts, Inc., 67 N.C. App. 300, 313 S.E.2d 166, 1984 N.C. App. LEXIS 3061 , cert. denied, 311 N.C. 403 , 319 S.E.2d 273, 1984 N.C. LEXIS 1983 (1984).

Under this rule, the trial judge had broad discretion to permit or deny defendant’s motion to amend her answer to allege a counterclaim six months after her original answer was filed, whether the counterclaim to be alleged was compulsory or permissive. Grant & Hastings, P.A. v. Arlin, 77 N.C. App. 813, 336 S.E.2d 111, 1985 N.C. App. LEXIS 4367 (1985).

Ruling on defendant’s motion to amend its answer is within the discretion of the trial court. Hatfield v. Jefferson Std. Life Ins. Co., 85 N.C. App. 438, 355 S.E.2d 199, 1987 N.C. App. LEXIS 2616 (1987).

Trial court has broad discretion in permitting or denying amendments after the time for amending as a matter of law has expired. Banner v. Banner, 86 N.C. App. 397, 358 S.E.2d 110, 1987 N.C. App. LEXIS 2720 (1987).

Wife did not show a trial court abused its discretion under G.S. 1A-1-15(a) by denying her motion to amend her counterclaim for alimony because: (1) her claim that her husband was estopped from asserting the validity of her claims had no support in the record and was improper; and (2) her assertion that an amendment should have been allowed “in the interest of justice” offered no reason to find an abuse of discretion, and the fact that her motion was filed ten months after the husband responded to her counterclaim suggested delay as a reason justifying the denial of her motion. Coleman v. Coleman, 182 N.C. App. 25, 641 S.E.2d 332, 2007 N.C. App. LEXIS 475 (2007).

But Judge’s Discretion Is Not Unlimited. —

Although the ruling on a motion to allow supplemental pleadings is within the trial judge’s discretion, that discretion is not unlimited. Generally, however, the motion should be allowed unless its allowance would impose a substantial injustice upon the opposing party. VanDooren v. VanDooren, 37 N.C. App. 333, 246 S.E.2d 20, 1978 N.C. App. LEXIS 2744 , cert. denied, 248 S.E.2d 258 (N.C. 1978).

Although the spirit of the North Carolina Rules of Civil Procedure is to permit parties to proceed on the merits without the strict and technical pleading rules of the past, the rules still provide some protection for parties who may be prejudiced by liberal amendments. Henry v. Deen, 310 N.C. 75 , 310 S.E.2d 326, 1984 N.C. LEXIS 1560 (1984).

While the grant or denial of an opportunity to amend pleadings is within the discretion of the trial court, the refusal to grant such leave without any justifying reason for the denial is not an exercise of discretion; it is merely abuse of that discretion. Coffey v. Coffey, 94 N.C. App. 717, 381 S.E.2d 467, 1989 N.C. App. LEXIS 644 (1989).

In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be freely given. Of course, the grant or denial of an opportunity to amend is within the discretion of the court, but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion. Henry v. Deen, 61 N.C. App. 189, 300 S.E.2d 707, 1983 N.C. App. LEXIS 2639 (1983), rev'd, 310 N.C. 75 , 310 S.E.2d 326, 1984 N.C. LEXIS 1560 (1984).

Court’s Ruling Not Reviewable Absent Showing of Abuse. —

A motion to amend the pleadings is addressed to the discretion of the trial judge, and is not reviewable on appeal in the absence of a showing of an abuse of discretion. Mangum v. Surles, 12 N.C. App. 547, 183 S.E.2d 839, 1971 N.C. App. LEXIS 1400 (1971), rev'd, 281 N.C. 91 , 187 S.E.2d 697, 1972 N.C. LEXIS 1008 (1972); Carolina Garage, Inc. v. Holston, 40 N.C. App. 400, 253 S.E.2d 7, 1979 N.C. App. LEXIS 2275 (1979); Tyson v. Ciba-Geigy Corp., 82 N.C. App. 626, 347 S.E.2d 473, 1986 N.C. App. LEXIS 2610 (1986); Banner v. Banner, 86 N.C. App. 397, 358 S.E.2d 110, 1987 N.C. App. LEXIS 2720 (1987).

The discretion of the trial court in allowing amendments is not reviewable absent a showing of abuse thereof. Willow Mt. Corp. v. Parker, 37 N.C. App. 718, 247 S.E.2d 11, 1978 N.C. App. LEXIS 2836 , cert. denied, 295 N.C. 738 , 248 S.E.2d 867, 1978 N.C. LEXIS 1154 (1978); Evans v. Craddock, 61 N.C. App. 438, 300 S.E.2d 908, 1983 N.C. App. LEXIS 2692 (1983); Mauney v. Morris, 316 N.C. 67 , 340 S.E.2d 397, 1986 N.C. LEXIS 1879 (1986); Boundreau v. Baughman, 86 N.C. App. 165, 356 S.E.2d 907, 1987 N.C. App. LEXIS 2680 (1987), aff'd in part and rev'd in part, 322 N.C. 331 , 368 S.E.2d 849, 1988 N.C. LEXIS 366 (1988).

The trial judge has broad discretionary powers to permit amendments to any pleading, and the court’s ruling is not reviewable on appeal in absence of a showing of abuse of discretion. Rogers v. Rogers, 39 N.C. App. 635, 251 S.E.2d 663, 1979 N.C. App. LEXIS 2531 (1979).

While the burden is on the party objecting to the amendment to show that he would be prejudiced thereby, a motion under section (a) of this rule is addressed to the sound discretion of the trial judge, and the denial of such motion is not reviewable absent a clear showing of an abuse of discretion. Edwards v. Edwards, 43 N.C. App. 296, 259 S.E.2d 11, 1979 N.C. App. LEXIS 3064 (1979); United Leasing Corp. v. Miller, 60 N.C. App. 40, 298 S.E.2d 409, 1982 N.C. App. LEXIS 3274 (1982).

A motion to amend under this rule is addressed to the sound discretion of the trial judge, and the denial of such motion is not reviewable absent a clear showing of an abuse of discretion. Smith v. McRary, 306 N.C. 664 , 295 S.E.2d 444, 1982 N.C. LEXIS 1551 (1982); Doub v. Doub, 68 N.C. App. 718, 315 S.E.2d 732, 1984 N.C. App. LEXIS 3407 (1984), writ denied, 319 S.E.2d 281, 1984 N.C. LEXIS 2015 (N.C. 1984), modified, 313 N.C. 169 , 326 S.E.2d 259, 1985 N.C. LEXIS 1515 (1985); Mauney v. Morris, 73 N.C. App. 589, 327 S.E.2d 248, 1985 N.C. App. LEXIS 3327 (1985), rev'd, 316 N.C. 67 , 340 S.E.2d 397, 1986 N.C. LEXIS 1879 (1986).

Discretion in allowing amendment of pleadings is vested in the trial judge, and his ruling will not be disturbed on appeal absent a showing of prejudice to the opposing party. Goodrich v. Rice, 75 N.C. App. 530, 331 S.E.2d 195, 1985 N.C. App. LEXIS 3715 (1985).

A motion to amend is directed to the discretion of the trial court, and the exercise of the court’s discretion is not reviewable absent a clear showing of abuse. Martin v. Hare, 78 N.C. App. 358, 337 S.E.2d 632, 1985 N.C. App. LEXIS 4305 (1985); Pressman v. UNC, 78 N.C. App. 296, 337 S.E.2d 644, 1985 N.C. App. LEXIS 4308 (1985).

A motion to amend is addressed to the discretion of the trial court and is not reviewable on appeal absent a showing of abuse of discretion. DOT v. Bollinger, 121 N.C. App. 606, 468 S.E.2d 796, 1996 N.C. App. LEXIS 124 (1996).

After the statutory time for amending pleadings as a matter of course has elapsed, a motion to amend a complaint pursuant to section (a) of this rule is addressed to the sound discretion of the trial judge, and the denial of such motion is not reviewable on appeal absent a clear showing of abuse. Caldwell's Well Drilling, Inc. v. Moore, 79 N.C. App. 730, 340 S.E.2d 518, 1986 N.C. App. LEXIS 2124 (1986).

Summary Judgment May Precede Unverified Amended Pleadings. —

While it is error for the trial court to grant a motion for summary judgment without first ruling on a party’s motion to amend its pleadings, this error is harmless when the amended pleadings are unverified, because the trial court may not consider an unverified pleading when ruling on a motion for summary judgment. Allen R. Tew, P.A. v. Brown, 135 N.C. App. 763, 522 S.E.2d 127, 1999 N.C. App. LEXIS 1230 (1999).

Motion Must Be Weighed in Light of Circumstances. —

In deciding whether or not to allow an amendment, the trial court must weigh the motion in light of the attendant circumstances. Banner v. Banner, 86 N.C. App. 397, 358 S.E.2d 110, 1987 N.C. App. LEXIS 2720 (1987).

Absent any declared reason for denial of leave to amend, the appellate court may examine any apparent reasons for such denial. Kinnard v. Mecklenburg Fair, Ltd., 46 N.C. App. 725, 266 S.E.2d 14, 1980 N.C. App. LEXIS 2935 , aff'd, 301 N.C. 522 , 271 S.E.2d 909, 1980 N.C. LEXIS 1182 (1980); United Leasing Corp. v. Miller, 60 N.C. App. 40, 298 S.E.2d 409, 1982 N.C. App. LEXIS 3274 (1982); Banner v. Banner, 86 N.C. App. 397, 358 S.E.2d 110, 1987 N.C. App. LEXIS 2720 (1987); Delta Envtl. Consultants of N.C. Inc. v. Wysong & Miles Co., 132 N.C. App. 160, 510 S.E.2d 690, 1999 N.C. App. LEXIS 83 (1999).

Denial of a motion to amend without a justifying reason and no showing of prejudice to defendant, and apparently based on a misapprehension of the law, is an abuse of discretion and reversible error. Henry v. Deen, 61 N.C. App. 189, 300 S.E.2d 707, 1983 N.C. App. LEXIS 2639 (1983), rev'd, 310 N.C. 75 , 310 S.E.2d 326, 1984 N.C. LEXIS 1560 (1984).

Denying a motion to amend without giving a reason for the denial is an abuse of discretion. Delta Envtl. Consultants of N.C. Inc. v. Wysong & Miles Co., 132 N.C. App. 160, 510 S.E.2d 690, 1999 N.C. App. LEXIS 83 (1999).

Judge May Not Strike Motion Already Allowed by Another Judge. —

When one judge allows a motion to amend a pleading in his discretion and the amendment is made in accordance with the authority granted, a second judge may not strike it on the ground that the first erred in allowing it. He is under the necessity of observing the terms of the judgment allowing the party to amend. Calloway v. Ford Motor Co., 281 N.C. 496 , 189 S.E.2d 484, 1972 N.C. LEXIS 1089 (1972).

Nor, Absent Changed Conditions, Allow Motion Already Denied. —

When one superior court judge, in the exercise of his discretion, has made an order denying a motion to amend, absent changed conditions another superior court judge may not thereafter allow the motion. Calloway v. Ford Motor Co., 281 N.C. 496 , 189 S.E.2d 484, 1972 N.C. LEXIS 1089 (1972).

The power to allow amendments may not be exercised to upset or destroy the efficacy of a validly entered and jurisdictionally sound consent decree previously issued, in which the defense sought to be added by the amendment had been denied. Tridyn Indus., Inc. v. American Mut. Liab. Ins. Co., 46 N.C. App. 91, 264 S.E.2d 357, 1980 N.C. App. LEXIS 2743 (1980).

A superior court judge erred in allowing defendant insurer to amend its answer to reassert the defense of lack of timely notice of a claim, where the parties had earlier agreed to a consent judgment striking the late notice defense, as this action contravened the rule that one superior court judge may not modify, overrule, or change the judgment of another superior court judge in the same action, and as the consent judgment was the binding contract of the parties, which could not be modified without the parties’ consent. Tridyn Indus., Inc. v. American Mut. Liab. Ins. Co., 46 N.C. App. 91, 264 S.E.2d 357, 1980 N.C. App. LEXIS 2743 (1980).

Effect of G.S. 1A-1 , Rule 12(a)(1)a. —

In an action arising from a contract dispute, the court held that although section (a) of this rule mandates that defendant could only amend his answer after obtaining the court’s permission of plaintiff ’s written consent, G.S. 1A-1 , Rule 12(a)(1)a expressly authorized defendant to file without permission those portions of his amended answer which were a responsive pleading to the paragraphs of the complaint subject to defendant’s motion to strike. Brenner v. Little Red Sch. House, Ltd., 302 N.C. 207 , 274 S.E.2d 206, 1981 N.C. LEXIS 1044 (1981).

Amendment After Dismissal Under G.S. 1A-1 , Rule 12(b)(6). —

A motion to dismiss under G.S. 1A-1 , Rule 12(b)(6) is not a “responsive pleading” under section (a) of this rule and so does not itself terminate plaintiff’s unconditional right to amend a complaint under section (a). However, once the trial court enters its dismissal under G.S. 1A-1 , Rule 12(b)(6), plaintiff’s right to amend under section (a) is terminated. Under certain limited circumstances set forth in G.S. 1A-1, Rules 59(e) and 60(b), a plaintiff may, however, seek to reopen the trial court’s judgment and amend the complaint concurrently under section (a). Johnson v. Bollinger, 86 N.C. App. 1, 356 S.E.2d 378, 1987 N.C. App. LEXIS 2664 (1987).

Construction with G.S. 1A-1 , Rule 12(a)(1)(b). —

Specific requirements of G.S. 1A-1 , Rule 12(a)(1)(b) control where in conflict with the general requirements of G.S. 1A-1 , Rule 15(a); thus, a response to an amended complaint following a motion for a more definite statement was due within 20 days; however, because the answer was filed, albeit late, before default was entered and because there was no prejudice, it was not improper to deny a motion to strike the response. Broughton v. McClatchy Newspapers, Inc., 161 N.C. App. 20, 588 S.E.2d 20, 2003 N.C. App. LEXIS 1983 (2003).

Amendment Substituting or Adding Party. —

If the effect of an amendment is to substitute for the defendant a new party, or to add another party, such amendment amounts to a new and independent cause of action and cannot be permitted when the statute of limitations has run. Callicutt v. American Honda Motor Co., 37 N.C. App. 210, 245 S.E.2d 558, 1978 N.C. App. LEXIS 2686 (1978).

There is no time limit under this rule within which a party must move to amend. Gladstein v. South Square Assocs., 39 N.C. App. 171, 249 S.E.2d 827, 1978 N.C. App. LEXIS 2352 (1978), cert. denied, 296 N.C. 736 , 254 S.E.2d 178, 1979 N.C. LEXIS 1277 (1979); Watson v. Watson, 49 N.C. App. 58, 270 S.E.2d 542, 1980 N.C. App. LEXIS 3360 (1980).

Right to Amend Foreclosed by Dismissal of Action. —

The granting of defendants’ motion to dismiss a medical malpractice action pursuant to G.S. 1A-1 , Rule 12(c) on the grounds that the action was barred by G.S. 1-52 foreclosed the plaintiffs’ right to amend their complaint pursuant to section (a) of this rule. Harris v. Family Medical Ctr., 38 N.C. App. 716, 248 S.E.2d 768, 1978 N.C. App. LEXIS 2314 (1978).

Trial court’s denial of plaintiff’s motion to amend upheld. House of Raeford Farms, Inc. v. City of Raeford, 104 N.C. App. 280, 408 S.E.2d 885, 1991 N.C. App. LEXIS 1011 (1991).

The trial judge did not abuse his discretion in denying defendant’s second motion to amend his answer, alleging wife’s pre-divorce adultery, that was heard on the eve of trial, where the record showed: (1) that defendant amended his answer once, (2) that over four years had passed since the original answer and first amendment was filed, and (3) that extensive discovery and numerous court proceedings had occurred in the interim. Walker v. Walker, 143 N.C. App. 414, 546 S.E.2d 625, 2001 N.C. App. LEXIS 295 (2001).

Trial court’s refusal to allow plaintiffs’ last minute motion to amend their complaint for a second time on the date calendared for defendants’ motion to dismiss did not constitute an abuse of discretion. Harrold v. Dowd, 149 N.C. App. 777, 561 S.E.2d 914, 2002 N.C. App. LEXIS 309 (2002).

Homeowners association’s motion to amend its complaint was properly denied because the issues stated in the amended complaint were at the heart of another action filed by the association appealing the approval of a developer’s site plan, and the association could not be allowed to pursue concurrent actions based on the same legal arguments. Beau Rivage Homeowners Ass'n v. Billy Earl, L.L.C., 163 N.C. App. 325, 593 S.E.2d 120, 2004 N.C. App. LEXIS 366 (2004).

Trial court did not abuse its discretion in denying defendant’s motion for leave to amend answer under G.S. 1A-1 , N.C. R. Civ. P. 15(a) because it properly found that defendant failed to answer the complaint; a doctor’s letter of response did not constitute an answer on behalf of defendant because it failed to indicate that the doctor was responding on behalf of any other person or entity other than himself, was written on the doctor’s personal letterhead, and was signed solely by the doctor in his individual capacity. Bodie Island Beach Club Ass'n v. Wray, 215 N.C. App. 283, 716 S.E.2d 67, 2011 N.C. App. LEXIS 1887 (2011).

Plaintiff moved to amend more than 11 months after the filing of the complaint and three months after the first amendment, a quantum meruit claim could have been argued in the alternative in either of these filings, and plaintiff offered no explanation for the failure to argue quantum meruit in the alternative before defendant sought summary judgment; thus, the trial court did not abuse its discretion in denying the motion. Micro Capital Investors, Inc. v. Broyhill Furniture Indus., 221 N.C. App. 94, 728 S.E.2d 376, 2012 N.C. App. LEXIS 715 (2012), aff'd, 366 N.C. 371 , 736 S.E.2d 172, 2013 N.C. LEXIS 50 (2013).

Although plaintiff filed its motion to amend on the eve of the summary judgment hearing, the timing supported the finding that the trial court did not abuse its discretion in denying the motion; the court had held in case law that filing the motion to avoid an adverse summary judgment supported findings of prejudice and bad faith. Micro Capital Investors, Inc. v. Broyhill Furniture Indus., 221 N.C. App. 94, 728 S.E.2d 376, 2012 N.C. App. LEXIS 715 (2012), aff'd, 366 N.C. 371 , 736 S.E.2d 172, 2013 N.C. LEXIS 50 (2013).

Nevada limited liability company could not amend its suit to allege a tort claim of a North Carolina limited liability company after the Nevada company succeeded to the rights of the North Carolina company following a merger Nevada limited liability company could not amend its suit to allege a tort claim of a North Carolina limited liability company after the Nevada company succeeded to the rights of the North Carolina company following a merger under G.S. 55-11-06(a)(4) as it did not assert its right to file the tort claim before the claim became time-barred under G.S. 1-15(c) ; NV LLC’s suit clearly alleged violations of patent rights that had been assigned to it, and did not give notice that the suit was intended to be a re-filing of a malpractice case by NC LLC that had been dismissed under G.S. 1A-1 , N.C. R. Civ. P. 41. Even if the amendment were allowed, it would not relate back under G.S. 1A-1 , N.C. R. Civ. P. 15(c). Revolutionary Concepts, Inc. v. Clements Walker PLLC, 2012 NCBC 14, 2012 NCBC LEXIS 14 (N.C. Super. Ct. Mar. 8, 2012), aff'd in part, 227 N.C. App. 102, 744 S.E.2d 130, 2013 N.C. App. LEXIS 482 (2013).

Denial of Defendants’ Motion to Amend Answer. —

Where defendants moved to amend their answer almost a full year from filing it and after both parties had conducted extensive discovery, and where, if the trial court had allowed amendment, plaintiffs would have been required to produce evidence of party’s negligence approximately five years after the accident, at least on grounds of defendants’ undue delay and undue prejudice to plaintiffs, the trial court was justified in denying defendants’ motion to amend their answer. Patrick v. Ronald Williams, Professional Ass'n, 102 N.C. App. 355, 402 S.E.2d 452, 1991 N.C. App. LEXIS 431 (1991).

Amendment Properly Denied When Summary Judgment Granted. —

The trial court did not abuse its discretion in denying defendant’s motion to amend his answer to “elaborate on his expenses as a setoff ” where at the same time it granted summary judgment rejecting defendant’s setoff theory, as amendment of the complaint would have been futile. Olive v. Williams, 42 N.C. App. 380, 257 S.E.2d 90, 1979 N.C. App. LEXIS 2764 (1979).

Denial of Amendment on Day of Hearing Upheld. —

The trial court did not err in denying plaintiff ’s motion to amend his pleading in an action attacking an annexation ordinance to include a further section alleging failure on the part of defendant town to meet the prerequisites to annexation set forth in G.S. 160A-47(3), where the motion to amend was not made until the day of hearing, since allowance of such amendment would have constituted unnecessary delay in an expedited hearing procedure. Moody v. Town of Carrboro, 301 N.C. 318 , 271 S.E.2d 265, 1980 N.C. LEXIS 1169 (1980).

Filing of Amended Complaint During Hearing on Motion to Dismiss. —

Where the plaintiff filed his amended complaint four minutes after the hearing on defendants’ motion to dismiss began, and defendants had only filed a motion to dismiss (which was not a responsive pleading); while it was unlikely that the drafters of G.S. 1A-1 , N.C. R. Civ. P. 15(a), intended “any time” to encompass plaintiff serving his amended complaint during a hearing, defendants’ failure to present a record of objections to this last minute act by plaintiff or provide a verbatim transcript indicating whether the court took issue with the amended complaint compelled the conclusion that the complaint was timely filed. Beck v. City of Durham, 154 N.C. App. 221, 573 S.E.2d 183, 2002 N.C. App. LEXIS 1440 (2002).

Filing of Assumed Name Certificate. —

When church officials sued, in the name of the church diocese, seceders from the church to recover church property, the officials’ failure to allege the filing of an assumed name certificate was not fatal because the officials amended their complaint before the seceders filed an answer, as allowed by G.S. 1A-1 , Rule 15(a), to substitute the names of the diocesan trustees for the diocese. Daniel v. Wray, 158 N.C. App. 161, 580 S.E.2d 711, 2003 N.C. App. LEXIS 1038 (2003).

Motion to amend complaint in a negligence action by adding a verification and by precisely pleading proximate cause should have been granted even though the motion was made on the same day the court signed a summary judgment order, since the defendants would have suffered no prejudice, and the amendment to correct technical pleading defects under G.S. 1A-1 , Rule 56(e) would have facilitated consideration of the action on all the evidence available to the court. Gladstein v. South Square Assocs., 39 N.C. App. 171, 249 S.E.2d 827, 1978 N.C. App. LEXIS 2352 (1978), cert. denied, 296 N.C. 736 , 254 S.E.2d 178, 1979 N.C. LEXIS 1277 (1979).

Amendment Considered in Interests of Justice Despite Late Filing and Lack of Leave to File. —

Although plaintiff’s amended complaint was filed some 13 months after defendant’s answer was served, and the trial court did not grant leave to file the amended complaint, the Court of Appeals addressed the merits of this case to prevent manifest injustice. Truesdale v. University of N.C. 91 N.C. App. 186, 371 S.E.2d 503, 1988 N.C. App. LEXIS 805 (1988), cert. denied, 493 U.S. 808, 110 S. Ct. 50, 107 L. Ed. 2d 19, 1989 U.S. LEXIS 3697 (1989).

Denial of plaintiff ’s motion to strike amended answer is tantamount to permitting defendant to file the amended answer. Performance Motors, Inc. v. Allen, 20 N.C. App. 445, 201 S.E.2d 513, 1974 N.C. App. LEXIS 2461 (1974).

When the complaint is amended defendant should be entitled to amend his answer to meet the contents of the new complaint. Hence, the trial court erred in allowing a motion for summary judgment on the same day that he allowed plaintiff ’s motion to amend the complaint, as the defendants should have been given time within which to answer before the hearing on the motion for summary judgment. Turner Halsey Co. v. Lawrence Knitting Mills, Inc., 38 N.C. App. 569, 248 S.E.2d 342, 1978 N.C. App. LEXIS 2242 (1978).

Denial of Amendment Containing Only Surplusage. —

Where the proposed amendment is no more than surplusage, denial of the plaintiff ’s motion to amend is not an abuse of discretion. Smith v. McRary, 306 N.C. 664 , 295 S.E.2d 444, 1982 N.C. LEXIS 1551 (1982).

Denial of motion to amend answer to allege compulsory counterclaim is immediately appealable. Hudspeth v. Bunzey, 35 N.C. App. 231, 241 S.E.2d 119, 1978 N.C. App. LEXIS 2930 , cert. denied, 294 N.C. 736 , 244 S.E.2d 154, 1978 N.C. LEXIS 1304 (1978).

Denial of Motion to Amend Is Interlocutory. —

An order denying a motion to amend pleadings is an interlocutory order, and is not immediately appealable. Buchanan v. Rose, 59 N.C. App. 351, 296 S.E.2d 508, 1982 N.C. App. LEXIS 3103 (1982).

An order allowing amendment of a pleading is interlocutory and not appealable. O'Neill v. Southern Nat'l Bank, 40 N.C. App. 227, 252 S.E.2d 231, 1979 N.C. App. LEXIS 2591 (1979).

Applicability of Rule to Motions. —

The philosophy of this rule should apply not only to pleadings but also to motions where there is no material prejudice to the opposing party. Taylor v. Triangle Porsche-Audi, Inc., 27 N.C. App. 711, 220 S.E.2d 806, 1975 N.C. App. LEXIS 1952 (1975), cert. denied, 289 N.C. 619 , 223 S.E.2d 396, 1976 N.C. LEXIS 1369 (1976).

If an order allowing amendment and adding a party defendant is void for lack of notice to the original defendant, it is void for all purposes. Pask v. Corbitt, 28 N.C. App. 100, 220 S.E.2d 378, 1975 N.C. App. LEXIS 1684 (1975).

The filing of a reply is not an amendment to the pleadings. Johnson v. Johnson, 14 N.C. App. 40, 187 S.E.2d 420, 1972 N.C. App. LEXIS 2031 (1972).

Motions to Strike Are Available to Test Amended Complaints. —

G.S. 1A-1 , Rule 12(f) allows the court to strike improper allegations from any pleading. Although the reported cases do not address application of G.S. 1A-1 , Rule 12(f) to allegations added under this rule, the latter rule clearly governs pleadings practice, and motions to strike logically are available to test amended as well as original complaints. Estrada v. Jaques, 70 N.C. App. 627, 321 S.E.2d 240, 1984 N.C. App. LEXIS 3880 (1984), limited, Osburn v. Danek Med., Inc., 135 N.C. App. 234, 520 S.E.2d 88, 1999 N.C. App. LEXIS 1045 (1999).

Use of Allegations Not Denied Until Amendment of Answer as Evidential Admissions. —

Allegations in a complaint not initially denied by answer, but subsequently denied in an amended answer, may constitute evidential admissions, reflecting something which a party has once said. However, to take advantage of evidential admissions, the opponent must introduce them into evidence. The introduction of “all the admissions of record” does not place this evidence before the jury at trial in the sense of drawing the jury’s attention to the specific allegations of the complaint and the specific answers thereto. Watson v. White, 309 N.C. 498 , 308 S.E.2d 268, 1983 N.C. LEXIS 1436 (1983).

Once party amends pleading without leave of court as permitted by section (a) of this rule, the opposing party has 30 days in which to respond; the rule does not distinguish between minor and major amendments. Hyder v. Dergance, 76 N.C. App. 317, 332 S.E.2d 713, 1985 N.C. App. LEXIS 3844 (1985).

Amendment Adding Plaintiff and Alleging That Defendant Was Conducting Business Under Corporate Name. —

In an action brought by agents of a landowner seeking damages for the defendants’ failure to construct a pond, the defendants failed to demonstrate prejudice from amendments to the pleading adding an additional plaintiff — the landowner — and inserting additional language that one of the defendants was conducting business under a corporate name. Neither of these amendments brought out any new material, changed the theory of the case, or in any way surprised the defendants. Goodrich v. Rice, 75 N.C. App. 530, 331 S.E.2d 195, 1985 N.C. App. LEXIS 3715 (1985).

Motion Held Timely. —

Where plaintiff filed his motion to amend his complaint to add a cause of action to enforce a materialman’s or laborer’s lien on December 8, 1983, and the last day he had furnished material or labor to defendants’ property was June 15, 1983, his motion was thus filed within the 180-day period set forth in G.S. 44A-13(a), as the date of the filing of the motion, rather than the date on which the court ruled on it, was the crucial date in measuring the period of limitations. Plaintiff ’s amendment was therefore not barred by the statute of limitations, and whether it would “relate back” to the filing of the original complaint was immaterial. Mauney v. Morris, 316 N.C. 67 , 340 S.E.2d 397, 1986 N.C. LEXIS 1879 (1986).

Failure of trial court to state specific reasons for denial of motion to amend does not preclude appellate court from examining the reasons for denial. Martin v. Hare, 78 N.C. App. 358, 337 S.E.2d 632, 1985 N.C. App. LEXIS 4305 (1985).

The trial court did not err by denying the plaintiffs’ motion to amend complaint by adding an additional cause of action one year and seven months after the original filing of the complaint and only seven days before the hearing of a motion for summary judgment, which motion was filed nine months after the extensive discovery conducted in the case was complete. Pressman v. UNC, 78 N.C. App. 296, 337 S.E.2d 644, 1985 N.C. App. LEXIS 4308 (1985).

In civil action wherein plaintiff alleged a contract with defendants to drill a well in property owned by them, which property was conveyed by defendants to purchasers, the trial court did not abuse its discretion in denying motion to amend plaintiff ’s complaint to allege that defendants acted as agent for purchasers, which motion was made when the case came on for hearing on defendants’ motions to dismiss under G.S. 1A-1 , Rule 12(b), as in their answer defendants had alleged that they were acting as agents for purchasers in contracting with plaintiff to drill the well, which answer was filed on January 4, 1985, and plaintiff did not make its motion to amend until April 22, 1985. Caldwell's Well Drilling, Inc. v. Moore, 79 N.C. App. 730, 340 S.E.2d 518, 1986 N.C. App. LEXIS 2124 (1986).

The trial court did not err in denying plaintiff ’s motion to amend complaint where plaintiffs’ motion to amend was filed seven months after defendant’s original answer admitted that defendant owned and was operating automobile and nearly six months after defendant offered certificate of title as proof of ownership and requested plaintiffs to admit that defendant owned the automobile, and despite the fact that plaintiffs’ motion was filed only six weeks after deposition of witness to the accident was taken, codefendant being the driver of the car, co-defendant’s motion for summary judgment had already been filed and over three years had passed since the accident without any mention of liability based on codefendant’s operation of the vehicle. Brown v. Lyons, 93 N.C. App. 453, 378 S.E.2d 243, 1989 N.C. App. LEXIS 220 (1989).

Where motion to amend was filed over a year after the original complaint, and the requested amendment purported to add a seventh cause of action, but the cause of action was ambiguous and no relief was requested, the trial court did not abuse its discretion in denying the motion to amend the complaint. Outer Banks Contractors v. Daniels & Daniels Constr., Inc., 111 N.C. App. 725, 433 S.E.2d 759, 1993 N.C. App. LEXIS 925 (1993).

The trial court did not abuse its discretion in denying plaintiff’s Motion to Amend where the decision to deny was a reasoned one made to prevent unfair prejudice to the defendant town. Chicora Country Club, Inc. v. Town of Erwin, 128 N.C. App. 101, 493 S.E.2d 797, 1997 N.C. App. LEXIS 1273 (1997).

The trial court properly denied plaintiff’s motion to amend its complaint where, when several parties filed answers before plaintiff filed its motion to amend, plaintiff’s right to amend as a matter of course terminated regardless of the fact that affirmative relief was not being sought against the parties in question; furthermore, the motion had been filed at the same time as the hearing on defendants’ motion to dismiss for failure to state a claim upon which relief could be granted. Pinewood Homes, Inc. v. Harris, 184 N.C. App. 597, 646 S.E.2d 826, 2007 N.C. App. LEXIS 1630 (2007).

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 N.C. App. LEXIS 2251 (2008), rev'd, 363 N.C. 366 , 677 S.E.2d 454, 2009 N.C. LEXIS 602 (2009).

Where insufficient evidence existed to support defendant’s claim, allowing defendant to amend its pleadings to include such a claim would be futile, the trial court did not err in denying defendant’s motion to amend. IRT Property Co. v. Papagayo, Inc., 112 N.C. App. 318, 435 S.E.2d 565, 1993 N.C. App. LEXIS 1098 (1993), rev'd, 338 N.C. 293 , 449 S.E.2d 459, 1994 N.C. LEXIS 646 (1994).

Motion to Amend Denied. —

Superior court did not abuse its discretion in denying defendants’ motion to amend their answer to interpose two new defenses where the motion to amend was filed more than five years after the compliant was filed. Isenhour v. Universal Underwriters Ins. Co., 345 N.C. 151 , 478 S.E.2d 197, 1996 N.C. LEXIS 660 (1996).

Motion to Amend Allowed. —

Because the father failed to demonstrate prejudice, the trial court did not err in allowing the grandparents to amend their complaint for custody of a minor child to add a claim for child support. David N. v. Jason N., 164 N.C. App. 687, 596 S.E.2d 266, 2004 N.C. App. LEXIS 963 (2004), rev'd, 359 N.C. 303 , 608 S.E.2d 751, 2005 N.C. LEXIS 205 (2005).

Granting the bond surety’s motion to amend and allowing it to attach the appropriate order for arrest after the expiration of the 150-day period of G.S. 15A-544.5(d) was not error where the only prejudice a board of education faced was the added time of its attorney, and the surety offered to pay the board’s attorney’s fees incurred for the hearing. State v. Isaacs, 261 N.C. App. 696, 821 S.E.2d 300, 2018 N.C. App. LEXIS 955 (2018).

Denial of Motion to Amend Held Proper. —

Denial of the motion to amend was proper because the insureds did not file a motion for leave to amend until almost an hour after dismissal; an oral offer to amend at the dismissal hearing was insufficient. Hunter v. Guardian Life Ins. Co. of Am., 162 N.C. App. 477, 593 S.E.2d 595, 2004 N.C. App. LEXIS 174 (2004).

Trial court did not abuse its discretion when it denied defendant’s motion for leave to amend an answer to include the affirmative defense of contributory negligence on the basis of undue delay; defendant sought leave to amend on the day the jury was to be impaneled and offered no explanation for a nine-month delay in seeking to amend the answer. Rabon v. Hopkins, 208 N.C. App. 351, 703 S.E.2d 181, 2010 N.C. App. LEXIS 2383 (2010).

Given defendants’ failure to seek leave to add claims of unjust enrichment, a violation of N.C. Gen. Stat. ch. 75, and punitive damages earlier in the proceedings, and the trial court’s finding that plaintiff did not expressly or impliedly consent to try those claims as part of the case, the trial court’s denial of leave to amend was within its sound discretion to manage the course of the trial proceedings. Faucette v. 6303 Carmel Rd., LLC, 242 N.C. App. 267, 775 S.E.2d 316, 2015 N.C. App. LEXIS 629 (2015).

Trial court properly denied an inmate’s post-verdict motion to amend his pleadings to add federal claims under 42 U.S.C.S. § 1983 and 42 U.S.C.S. § 1988 with regard to his assault and battery suit against a deputy sheriff because such claims were only presentable in federal court. Cunningham v. Riley, 2005 N.C. App. LEXIS 511 (N.C. Ct. App. Mar. 15, 2005), op. withdrawn, 2005 N.C. App. LEXIS 569 (N.C. Ct. App. Mar. 17, 2005).

Amended Complaint Proper. —

Trial court did not err in considering an amended complaint to be the operative complaint in a personal injury action against a county; the county did not argue that the amended complaint was served on them after they had served a responsive pleading. G.S. 1A-1 , N.C. R. Civ. P. 20 and G.S. 1A-1 , N.C. R. Civ. P. 21 had no bearing on the case. Robinson v. Smith, 219 N.C. App. 518, 724 S.E.2d 629, 2012 N.C. App. LEXIS 382 (2012).

Dismissal of Complaint With Prejudice. —

Trial court did not abuse its discretion when it dismissed, with prejudice, a bank’s complaint for failure to state a claim because the record was devoid of any motion by the bank to amend its complaint and there was nothing in the record indicating that the bank moved that the dismissal be without prejudice. First Fed. Bank v. Aldridge, 230 N.C. App. 187, 749 S.E.2d 289, 2013 N.C. App. LEXIS 1163 (2013).

II.Amendments to Conform to Evidence

The pleading with particularity required by G.S. 1A-1 , Rule 9(b) is complemented by section (b) of this rule. Benfield v. Costner, 67 N.C. App. 444, 313 S.E.2d 203, 1984 N.C. App. LEXIS 3092 (1984).

Section (b) of this rule is essentially a verbatim copy of federal Rule 15(b), and therefore federal decisions interpreting this rule are apposite. Mangum v. Surles, 281 N.C. 91 , 187 S.E.2d 697, 1972 N.C. LEXIS 1008 (1972).

Section (b) of this rule was enacted to eliminate the waste, delay and injustice which sometimes resulted from belated confrontations between insufficient allegations and plenary proof. Mangum v. Surles, 281 N.C. 91 , 187 S.E.2d 697, 1972 N.C. LEXIS 1008 (1972).

Purpose in adopting section (b) of this rule was to alter the strict code doctrine of variance which existed under the prior law. W & H Graphics, Inc. v. Hamby, 48 N.C. App. 82, 268 S.E.2d 567, 1980 N.C. App. LEXIS 3188 (1980).

Section (b) of this rule represents a departure from the former strict code doctrine of variance by allowing issues to be raised by liberal amendments to pleadings, and in some cases, by the evidence. Peed v. Peed, 72 N.C. App. 549, 325 S.E.2d 275, 1985 N.C. App. LEXIS 3115 , cert. denied, 313 N.C. 604 , 330 S.E.2d 612, 1985 N.C. LEXIS 1831 (1985).

And the Significance of the Doctrine Has Been Drastically Reduced. —

Under the new Rules of Civil Procedure, the significance of the doctrine of variance has been drastically reduced. Hardison v. Williams, 21 N.C. App. 670, 205 S.E.2d 551, 1974 N.C. App. LEXIS 1898 (1974).

Under these rules the trial must proceed within the issues raised by the broad pleadings unless the pleadings are amended. But the thrust of this rule seems to destroy the former strict code doctrine of variance by allowing issues to be raised by liberal amendments to pleadings and, in some cases, by the evidence. Roberts v. William N. & Kate B. Reynolds Mem. Park, 281 N.C. 48 , 187 S.E.2d 721, 1972 N.C. LEXIS 1004 (1972).

The enactment of the North Carolina Rules of Civil Procedure, especially this rule, virtually destroyed the former strict code doctrine of variance. Southern of Rocky Mount, Inc. v. Woodward Specialty Sales, Inc., 52 N.C. App. 549, 279 S.E.2d 32, 1981 N.C. App. LEXIS 2460 (1981).

The purpose of an amendment to conform to proof is to bring the pleadings in line with the actual issues upon which the case was tried. Fowler v. Johnson, 18 N.C. App. 707, 198 S.E.2d 4, 1973 N.C. App. LEXIS 1988 (1973); Eudy v. Eudy, 288 N.C. 71 , 215 S.E.2d 782, 1975 N.C. LEXIS 883 (1975).

Need for amendment under section (b) of this rule does not arise unless the evidence raises issues. Southern of Rocky Mount, Inc. v. Woodward Specialty Sales, Inc., 52 N.C. App. 549, 279 S.E.2d 32, 1981 N.C. App. LEXIS 2460 (1981).

The trial judge is allowed broad discretion in ruling on motions under section (b) of this rule. Auman v. Easter, 36 N.C. App. 551, 244 S.E.2d 728, 1978 N.C. App. LEXIS 2545 , cert. denied, 295 N.C. 548 , 248 S.E.2d 725, 1978 N.C. LEXIS 1023 (1978).

Conforming Amendments Should Not Be Allowed Where They Fail to Support Action or Defense. —

Conforming amendments under section (b) of this rule are within the sound discretion of the court and should not be allowed where they fail to support the action or defense upon the merits. Murphy v. Murphy, 34 N.C. App. 677, 239 S.E.2d 597, 1977 N.C. App. LEXIS 1792 (1977), aff'd in part and rev'd in part, 295 N.C. 390 , 245 S.E.2d 693, 1978 N.C. LEXIS 890 (1978).

An amendment which brings in some entirely extrinsic issue or changes the theory on which the case was actually tried is not permissible, even though there is evidence in the record, introduced as relevant to some other issue, which would support the amendment. Fowler v. Johnson, 18 N.C. App. 707, 198 S.E.2d 4, 1973 N.C. App. LEXIS 1988 (1973); Eudy v. Eudy, 288 N.C. 71 , 215 S.E.2d 782, 1975 N.C. LEXIS 883 (1975).

This rule does not permit judgment by ambush. Eudy v. Eudy, 288 N.C. 71 , 215 S.E.2d 782, 1975 N.C. LEXIS 883 (1975).

And Court’s Decision May Not Be Based on Issues Tried Inadvertently. —

The implication of section (b) of this rule is that a trial court may not base its decision upon an issue that was tried inadvertently. Implied consent to the trial of an unpleaded issue is not established merely because evidence relevant to that issue was introduced without objection. At least it must appear that the parties understood the evidence to be aimed at the unpleaded issue. Munchak Corp. v. Caldwell, 37 N.C. App. 240, 246 S.E.2d 13, 1978 N.C. App. LEXIS 2731 , cert. denied, 295 N.C. 647 , 248 S.E.2d 252, 1978 N.C. LEXIS 1092 (1978).

An amendment to conform to the evidence is appropriate only where sufficient evidence has been presented at trial without objection to raise an issue not originally pleaded and where the parties understood, or reasonably should have understood, that the introduction of such evidence was directed to an issue not embraced by the pleadings. W & H Graphics, Inc. v. Hamby, 48 N.C. App. 82, 268 S.E.2d 567, 1980 N.C. App. LEXIS 3188 (1980).

In order for pleadings to be amended to conform to the proof pursuant to this rule, there must be evidence of an unpleaded issue introduced without objection, and it must appear that the parties understood, or at least reasonably should have understood, that the evidence was aimed at an issue not expressly pleaded. Eudy v. Eudy, 288 N.C. 71 , 215 S.E.2d 782, 1975 N.C. LEXIS 883 (1975); Evans v. Craddock, 61 N.C. App. 438, 300 S.E.2d 908, 1983 N.C. App. LEXIS 2692 (1983).

Under section (b) of this rule, the rule of “litigation by consent” is applied when no objection is made on the specific ground that the evidence offered is not within the issues raised by the pleadings. In such case the rule amends the pleadings to conform to the evidence and allows any issue raised by the evidence to go to the jury. Roberts v. William N. & Kate B. Reynolds Mem. Park, 281 N.C. 48 , 187 S.E.2d 721, 1972 N.C. LEXIS 1004 (1972).

Where no objection is made to evidence on the ground that it is outside the issues raised by the pleadings, the issue raised by the evidence is before the trial court for determination. Mangum v. Surles, 281 N.C. 91 , 187 S.E.2d 697, 1972 N.C. LEXIS 1008 (1972); Harris v. Bridges, 59 N.C. App. 195, 296 S.E.2d 299, 1982 N.C. App. LEXIS 3077 (1982).

Where no objection is raised at trial on the grounds that the proffered evidence is not within the scope of the pleadings, no formal amendment is required and the pleadings are deemed amended by implication. Wohlfahrt v. Schneider, 82 N.C. App. 69, 345 S.E.2d 448, 1986 N.C. App. LEXIS 2405 (1986).

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 N.C. App. LEXIS 589 (2012).

The effect of this rule is to allow amendment by implied consent to change the legal theory of the cause of action so long as the opposing party has not been prejudiced in presenting his case, i.e., where he had a fair opportunity to defend his case. Roberts v. William N. & Kate B. Reynolds Mem. Park, 281 N.C. 48 , 187 S.E.2d 721, 1972 N.C. LEXIS 1004 (1972).

Party who fails to object to evidence is initially presumed to have given implied consent by silence. He can avoid this only by satisfying the court that under the circumstances his consent to having certain issues considered by the trier of fact should not be implied from his failure to object to particular evidence. Mangum v. Surles, 281 N.C. 91 , 187 S.E.2d 697, 1972 N.C. LEXIS 1008 (1972).

Failure of a party to object to evidence offered at trial on the specific grounds that the evidence was outside the pleadings results in trial of those issues by implied consent. Lea Co. v. North Carolina Bd. of Transp., 57 N.C. App. 392, 291 S.E.2d 844, 1982 N.C. App. LEXIS 2673 (1982), aff'd, 308 N.C. 603 , 304 S.E.2d 164, 1983 N.C. LEXIS 1291 (1983).

To limit the scope of the issues raised by the evidence at trial, it is the duty of the opponent to object specifically to evidence offered at trial as being outside the scope of the pleadings. Absent objection, the party will be deemed to have impliedly consented to trial of the issues. Mobley v. Hill, 80 N.C. App. 79, 341 S.E.2d 46, 1986 N.C. App. LEXIS 2944 (1986).

Where one of the “new” issues in an amended complaint was sufficiently pled in the complaint, defendant had notice and could not complain of its amendment; where evidence sustaining the other issues in the complaint did not tend to support any properly pled issue and because defendant never specifically objected to that evidence as being outside the scope of the pleadings, he impliedly consented to trial on those issues. Smith v. Childs, 112 N.C. App. 672, 437 S.E.2d 500, 1993 N.C. App. LEXIS 1258 (1993).

Although a property owner did not plead a special duty in the owner’s complaint, after the defense to the public duty doctrine was pled, the owner’s evidence with respect to the issue, to which the North Carolina Department of Environment and Natural Resources (NCDENR) did not object, was an implied amendment to conform to the evidence under N.C. R. Civ. P. 15(b); NCDENR could not argue prejudice when it voluntarily stipulated to the facts. Watts v. N.C. Dep't of Env't & Natural Res., 182 N.C. App. 178, 641 S.E.2d 811, 2007 N.C. App. LEXIS 595 (2007), aff'd in part, modified, 362 N.C. 497 , 666 S.E.2d 752, 2008 N.C. LEXIS 806 (2008).

Absent Objection to Variance, Pleadings Deemed Amended. —

Under this rule, when the plaintiff offers evidence at trial which varies from his complaint and introduces a new issue, the defendant may object; if the defendant does not object, he is viewed as having consented to admission of the evidence, and the pleadings are deemed amended to include the new issue. Hardison v. Williams, 21 N.C. App. 670, 205 S.E.2d 551, 1974 N.C. App. LEXIS 1898 (1974).

Trial court did not err in ruling on an issue concerning the validity of a foreclosure action because, although the issue was not set forth in the complaint, plaintiff mortgage company offered evidence to the trial court regarding the issue to which defendant grantee did not object; thus, the trial court properly considered the matter pursuant to N.C. R. Civ. P. 15(b). Citifinancial Mortg. Co. v. Gray, 187 N.C. App. 82, 652 S.E.2d 321, 2007 N.C. App. LEXIS 2316 (2007).

Implied-consent principle would not apply where omitted allegation was necessary to confer jurisdiction. Eudy v. Eudy, 24 N.C. App. 516, 211 S.E.2d 536, 1975 N.C. App. LEXIS 2417 , aff'd in part, modified, 288 N.C. 71 , 215 S.E.2d 782, 1975 N.C. LEXIS 883 (1975).

Better Practice Is Motion for Leave to Amend. —

Better practice dictates that even where pleadings are deemed amended under the theory of litigation by consent, the party receiving the benefit of the rule should move for leave of court to amend, so that the pleadings will actually reflect the theory of recovery. Roberts v. William N. & Kate B. Reynolds Mem. Park, 281 N.C. 48 , 187 S.E.2d 721, 1972 N.C. LEXIS 1004 (1972); Hartley v. Ballou, 286 N.C. 51 , 209 S.E.2d 776, 1974 N.C. LEXIS 1178 (1974).

Even though technically no amendment is required when issues are tried by implied consent, the better practice is to move to amend the pleadings to actually reflect the theory of recovery. Mobley v. Hill, 80 N.C. App. 79, 341 S.E.2d 46, 1986 N.C. App. LEXIS 2944 (1986).

But failure to make the amendment will not jeopardize a verdict or judgment based upon competent evidence. If an amendment to conform the pleadings to the proof should have been made in order to support the judgment, the appellate court will presume it to have been made. Mangum v. Surles, 281 N.C. 91 , 187 S.E.2d 697, 1972 N.C. LEXIS 1008 (1972); Harris v. Bridges, 59 N.C. App. 195, 296 S.E.2d 299, 1982 N.C. App. LEXIS 3077 (1982).

Where an issue not raised by the pleadings has been tried by express or implied consent, answered by the jury or the judge, and the judgment rendered on the verdict has been affirmed on appeal, the failure to amend should not, and does not, affect the results of the trial which has been had upon the merits. Mangum v. Surles, 281 N.C. 91 , 187 S.E.2d 697, 1972 N.C. LEXIS 1008 (1972).

While it is the better practice to amend the pleadings so that they actually reflect the theory of recovery, failure to do so may be without real import. Coley v. Eudy, 51 N.C. App. 310, 276 S.E.2d 462, 1981 N.C. App. LEXIS 2224 (1981).

The pleadings are regarded as amended to conform to the proof, even though the defaulting pleader makes no formal motion to amend. Mangum v. Surles, 281 N.C. 91 , 187 S.E.2d 697, 1972 N.C. LEXIS 1008 (1972).

Amendment Should Actually Be Made Where Retrial Is Ordered. —

When a retrial is ordered for failure to submit issues raised by the evidence which were not in the pleadings, or for failure of the court to allow an amendment in order to conform the pleadings to the proof, or for erroneous entry of a dismissal or directed verdict upon the ground of a fatal variance between allegation and proof, the amendment to the pleadings must actually be made, as the judge who presides is entitled to know the theory and the state of the case confronting him. Mangum v. Surles, 281 N.C. 91 , 187 S.E.2d 697, 1972 N.C. LEXIS 1008 (1972).

The court has authority under section (b) of this rule to permit an amendment to the pleadings at any time when there is no material prejudice to the opposing party and such amendment will serve to present the action on its merits. Clark v. Barber, 20 N.C. App. 603, 202 S.E.2d 347, 1974 N.C. App. LEXIS 2502 (1974); Williams v. Sapp, 83 N.C. App. 116, 349 S.E.2d 304, 1986 N.C. App. LEXIS 2677 (1986).

An amendment to conform the pleadings to the evidence may be offered even after oral argument. Mobley v. Hill, 80 N.C. App. 79, 341 S.E.2d 46, 1986 N.C. App. LEXIS 2944 (1986).

Amendment to Conform to Evidence After Jury Argument Not Error. —

The trial judge does not commit error in permitting defendants to amend their answer to conform to the evidence after the evidence on both sides is in and after the parties have argued the case to the jury. Reid v. Consolidated Bus Lines, 16 N.C. App. 186, 191 S.E.2d 247, 1972 N.C. App. LEXIS 1672 (1972).

It is not error to allow an amendment to conform made late in the trial, even after the jury arguments. Peed v. Peed, 72 N.C. App. 549, 325 S.E.2d 275, 1985 N.C. App. LEXIS 3115 , cert. denied, 313 N.C. 604 , 330 S.E.2d 612, 1985 N.C. LEXIS 1831 (1985).

Burden of Party Objecting to Admission of Varying Evidence. —

If the defendant objects to evidence at trial which varies the complaint and introduces a new issue, he has the burden of proving that he would be prejudiced by admission of the varying evidence. Hardison v. Williams, 21 N.C. App. 670, 205 S.E.2d 551, 1974 N.C. App. LEXIS 1898 (1974).

Even when a timely specific objection is made, the party objecting must show some actual prejudice arising from a proposed amendment, i.e., some undue disadvantage or difficulty in presenting the merits of its case. Mobley v. Hill, 80 N.C. App. 79, 341 S.E.2d 46, 1986 N.C. App. LEXIS 2944 (1986).

Specific Objections Required. —

Under section (b) of this rule, a party attempting to limit the trial of issues by implied consent must object specifically to evidence outside the scope of the original pleadings; otherwise, allowing an amendment to conform the pleadings to the evidence will not be error, and, in fact, is not even technically necessary. Concrete Serv. Corp. v. Investors Group, Inc., 79 N.C. App. 678, 340 S.E.2d 755, 1986 N.C. App. LEXIS 2123 , cert. denied, 317 N.C. 333 , 346 S.E.2d 137, 1986 N.C. LEXIS 2331 (1986).

Defendant Must Have Notice of What He Is Litigating. —

Although there is an exception to the rule that where a claim is not pleaded, the trial court may not place it before the jury, which arises when no objection is made to evidence on the ground that it is outside the issues raised by the pleadings, to give rise to this exception to the pleading requirement the evidence admitted without objection must be clearly irrelevant to any causes of action properly pleaded. Otherwise a defendant would not be on notice that he was litigating an issue other than those pleaded. J.M. Westall & Co. v. Windswept View of Asheville, Inc., 97 N.C. App. 71, 387 S.E.2d 67, 1990 N.C. App. LEXIS 22 (1990).

Amendment Denied Absent Notice and Consent by Opposing Party. —

At the close of the evidence in the trial of a personal injury action, the injured party could not amend her complaint to state a claim for gross negligence because the opposing party had no notice of that claim, nor did he impliedly consent to it during the trial. Bass v. Johnson, 149 N.C. App. 152, 560 S.E.2d 841, 2002 N.C. App. LEXIS 134 (2002).

Where the evidence which supports an unpleaded issue also tends to support an issue properly raised by the pleadings, no objection to such evidence is necessary and the failure to object does not amount to implied consent to try the unpleaded issue. Tyson v. Ciba-Geigy Corp., 82 N.C. App. 626, 347 S.E.2d 473, 1986 N.C. App. LEXIS 2610 (1986).

In passing upon a trial judge’s ruling as to a directed verdict, the Court of Appeals cannot review the case as the parties might have tried it; rather, the court must review the case as it was tried below, as reflected in the record on appeal. Where evidence which supported a claim for fraud was also relevant to the issue of mutual mistake raised in plaintiff’s complaint, its admission did not constitute “implied consent” to try the issue of fraud. Accordingly, if plaintiff was to prevail on his contention that the court erred in granting defendant’s motion for a directed verdict, he was required to have done so on the pleaded ground of mutual mistake. Howell v. Waters, 82 N.C. App. 481, 347 S.E.2d 65, 1986 N.C. App. LEXIS 2513 (1986).

Amendment of Pleadings to Conform to Evidence Admitted over Objection Permitted. —

This rule permits amendment of pleadings to conform to the evidence even where the evidence is admitted over objection. Johnson v. Johnson, 14 N.C. App. 40, 187 S.E.2d 420, 1972 N.C. App. LEXIS 2031 (1972).

Absent Prejudice to Objecting Party. —

Even when the evidence is objected to on the ground that it is not within the issue raised by the pleadings, the court will freely allow amendments to present the merits of the case when the objecting party fails to satisfy the court that he would be prejudiced in the trial on its merits. Roberts v. William N. & Kate B. Reynolds Mem. Park, 281 N.C. 48 , 187 S.E.2d 721, 1972 N.C. LEXIS 1004 (1972).

Amendment Where Defendants Had Notice in Pretrial Order Not Error. —

The trial court did not err in allowing the plaintiff to amend his complaint to state a violation of the Act where the defendants clearly failed to pay him commissions earned as required by G.S. 95-25.6 and 95-25.7; and where the plaintiff raised the violation in the pretrial order which defendants signed and, thereby, put them on notice of the claims against them. Fulk v. Piedmont Music Ctr., 138 N.C. App. 425, 531 S.E.2d 476, 2000 N.C. App. LEXIS 643 (2000).

Allowance of Amendment Upheld. —

Where defendant did not object to any evidence as being outside the pleadings, it was not necessary to amend the pleadings, and there was thus no abuse of discretion in allowing plaintiff to amend its complaint to conform to the evidence. Lea Co. v. North Carolina Bd. of Transp., 57 N.C. App. 392, 291 S.E.2d 844, 1982 N.C. App. LEXIS 2673 (1982), aff'd, 308 N.C. 603 , 304 S.E.2d 164, 1983 N.C. LEXIS 1291 (1983).

Trial court did not err in granting a plaintiff the remedy of a resulting trust even though it was not specifically requested in the complaint, since the complaint and the evidence presented at trial, as well as the motion to amend, served as notice to the defendant that a resulting trust was a possible remedy. Meekins v. Box, 152 N.C. App. 379, 567 S.E.2d 422, 2002 N.C. App. LEXIS 925 (2002).

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 N.C. App. LEXIS 1698 (1975), cert. denied, 289 N.C. 298 , 222 S.E.2d 703, 1976 N.C. LEXIS 1269 (1976).

Failure to plead an affirmative defense ordinarily results in waiver thereof. However, the parties may 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, 1984 N.C. App. LEXIS 3004 (1984).

Amendment to Add Affirmative Defense of Contributory Negligence. —

Defendant was properly permitted to amend pleadings under G.S. 1A-1 , N.C. R. Civ. P. 15(b) to add an affirmative defense of contributory negligence because the evidence raised an issue of contributory negligence where plaintiff observed defendant approaching in the wrong lane and took no evasive action. Alford v. Lowery, 154 N.C. App. 486, 573 S.E.2d 543, 2002 N.C. App. LEXIS 1459 (2002).

Where the record disclosed that the case was tried as though the statute of frauds was properly pleaded, section (b) of this rule applied, and the appeal would be treated as though the statute of frauds had been properly pleaded. Bercegeay v. Surfside Realty Co., 16 N.C. App. 718, 193 S.E.2d 356, 1972 N.C. App. LEXIS 1811 (1972).

In an action to recover for injuries sustained when a golf cart rented from defendants rolled backwards down a hill and overturned while being operated by plaintiff, wherein plaintiff alleged that defendants were negligent in failing to warn him of defective brakes on the golf cart, the pleadings were amended by implied consent to conform to the evidence and broaden the issue of negligence so that the jury could consider whether defendants breached a duty to plaintiff by furnishing a golf cart which they knew had no brakes on it when going backwards, where defendants failed to object to plaintiff ’s testimony outside the pleadings that individual defendant told him at the accident scene that defendants’ golf carts had no brakes on them while going backwards. Roberts v. William N. & Kate B. Reynolds Mem. Park, 281 N.C. 48 , 187 S.E.2d 721, 1972 N.C. LEXIS 1004 (1972).

In an action to set aside a deed, where plaintiff introduced evidence, not supported by the pleadings, that defendants fraudulently induced her to sign the deed by representing the instrument to be a note, and defendants failed to object to such evidence on the ground that it was outside the issues raised by the pleadings, plaintiff was entitled as a matter of law to have the issue of fraud submitted to the jury and to amend her complaint to conform her pleadings to the evidence. Mangum v. Surles, 281 N.C. 91 , 187 S.E.2d 697, 1972 N.C. LEXIS 1008 (1972).

Fact that defendant had announced that he would not introduce evidence when motion to amend was made, nothing more appearing, did not give rise to prejudice. Mobley v. Hill, 80 N.C. App. 79, 341 S.E.2d 46, 1986 N.C. App. LEXIS 2944 (1986).

Ruling on Motion Under Section (b) of this Rule Not Reviewable Absent Abuse of Discretion. —

While amendment of pleadings may be made, even late in the trial or after judgment, in order to conform the pleadings to the evidence and raise issues tried by the express or implied consent of the parties, the trial court’s ruling upon such a motion is not reviewable absent an abuse of discretion. Mosley & Mosley Bldrs., Inc. v. Landin Ltd., 87 N.C. App. 438, 361 S.E.2d 608, 1987 N.C. App. LEXIS 3213 (1987), cert. dismissed, 322 N.C. 607 , 370 S.E.2d 416, 1988 N.C. LEXIS 457 (1988).

Reduction of Interest Being Sought. —

Where plaintiff in complaint sought interest in excess of the 12% allowed under G.S. 24-1.1 , but presented evidence as to the amount of interest when calculated at 12% per annum, the trial court did not abuse its discretion in granting an amendment to the pleadings so as to reduce the interest sought to that calculated at 12% per annum. Northwestern Bank v. Barber, 79 N.C. App. 425, 339 S.E.2d 452, 1986 N.C. App. LEXIS 2059 (1986).

Conversion of Condemnation Proceeding into Quiet Title Action. —

Trial court did not err by applying section (b) of this rule in such a way as to convert condemnation proceeding brought by private condemnors, with the consent of the parties, into an action to quiet title. VEPCO v. Tillett, 316 N.C. 73 , 340 S.E.2d 62, 1986 N.C. LEXIS 1912 (1986).

Medical Malpractice. —

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 N.C. App. LEXIS 39 (2016).

In an action alleging medical malpractice, although the plaintiff presented evidence tending to show that the defendant-physician altered emergency room records, they were not permitted to amend their pleadings under section (b) of this rule. This was not simply an “act of negligence,” but was a separate cause of action, which the defendant was not prepared to defend against and to which he did not impliedly consent to the trial of. Paris v. Kreitz, 75 N.C. App. 365, 331 S.E.2d 234, 1985 N.C. App. LEXIS 3710 (1985).

Where there was no warning in the complaint of a punitive damages claim, and no consent by defendant to such a claim, it was within the discretion of the trial court to deny plaintiff’s motion to amend to add a claim for punitive damages based upon gross negligence. Enns v. Zayre Corp., 116 N.C. App. 687, 449 S.E.2d 478, 1994 N.C. App. LEXIS 1118 (1994), cert. denied, 339 N.C. 737 , 454 S.E.2d 649, 1995 N.C. LEXIS 105 (1995), aff'd, 342 N.C. 406 , 464 S.E.2d 298, 1995 N.C. LEXIS 692 (1995).

Issue Tried With Implied Consent. —

Because no objections were raised to evidence concerning agency between defendant and a company, that issue was tried with the implied consent of the parties and the pleadings were deemed to be amended; thus, the challenge to the conclusions regarding agency failed, and enforcement of the lien did not violate the requirement under G.S. 44A-8 that a lienor had to contract with the owner because plaintiff entered into the contract with defendant’s agent, and plaintiff was entitled to enforce its lien. Young & McQueen Grading Co. v. Mar-Comm & Assocs., 221 N.C. App. 178, 728 S.E.2d 1, 2012 N.C. App. LEXIS 723 (2012).

Motion To Amend Properly Denied. —

Trial court did not err in denying plaintiff’s motion to amend its pleading to conform to the invoices on personal tax returns because defendants objected to the evidence of personal tax returns; thus, an amendment to conform the pleading to that evidence was not appropriate. Rink & Robinson, PLLC v. Catawba Valley Enters., LLC, 220 N.C. App. 360, 725 S.E.2d 426, 2012 N.C. App. LEXIS 584 (2012).

III.Relation Back of Amendments

Section (c) Is More Liberal Than Federal Rule. —

Section (c) of this rule is more liberal in allowing amendments than the comparable federal rule. In North Carolina even a new cause of action can be said to relate back for amendment purposes. Humphries v. Going, 59 F.R.D. 583, 1973 U.S. Dist. LEXIS 14136 (E.D.N.C. 1973).

Federal Decisions as Aid in Construction. —

Federal decisions considering the question of whether an original pleading gave notice of a claim set forth in the amended pleading should provide enlightenment in construing this rule. Stevens v. Nimocks, 82 N.C. App. 350, 346 S.E.2d 180, 1986 N.C. App. LEXIS 2442 , cert. denied, 318 N.C. 511 , 349 S.E.2d 873, 1986 N.C. LEXIS 2705 (1986).

Guidance from New York Decisions. —

Since section (c) of this rule is modeled after Sec. 203(e) of the New York Civil Practice Law and Rules, New York decisions provide guidance for relation back in North Carolina. Stevens v. Nimocks, 82 N.C. App. 350, 346 S.E.2d 180, 1986 N.C. App. LEXIS 2442 , cert. denied, 318 N.C. 511 , 349 S.E.2d 873, 1986 N.C. LEXIS 2705 (1986).

Criteria for Determining Whether Amendment Relates Back. —

Whether an amendment to a pleading relates back under subsection (c) of this rule does not depend on an analysis of whether it states a new cause of action; it depends, rather, on whether the original pleading gives notice of the transactions, occurrences, or series of transactions or occurrences to be proved pursuant to the amended pleading. Burcl v. North Carolina Baptist Hosp., 306 N.C. 214 , 293 S.E.2d 85, 1982 N.C. LEXIS 1443 (1982).

The decisive test for relation back remains notice in the original pleading of the transactions or occurrences to be proved pursuant to the amended pleading. Estrada v. Jaques, 70 N.C. App. 627, 321 S.E.2d 240, 1984 N.C. App. LEXIS 3880 (1984), limited, Osburn v. Danek Med., Inc., 135 N.C. App. 234, 520 S.E.2d 88, 1999 N.C. App. LEXIS 1045 (1999).

Under the Rules of Civil Procedure, whether an amendment will relate back does not depend upon whether it states a new cause of action, but upon whether the original pleading gave defendants sufficient notice of the proposed new claim. Mauney v. Morris, 316 N.C. 67 , 340 S.E.2d 397, 1986 N.C. LEXIS 1879 (1986).

Whether an amended complaint will relate back to the original complaint does not depend upon whether it states a new cause of action, but instead, upon whether the original pleading gave defendants sufficient notice of the proposed amended claim. Pyco Supply Co. v. American Centennial Ins. Co., 321 N.C. 435 , 364 S.E.2d 380, 1988 N.C. LEXIS 16 (1988).

The notice requirement of this section cannot be met where an amendment has the effect of adding a new party to the action, as opposed to correcting a misnomer. Bob Killian Tire, Inc. v. Day Enters., Inc., 131 N.C. App. 330, 506 S.E.2d 752, 1998 N.C. App. LEXIS 1326 (1998).

For an amended claim to relate back to the date of the original pleading, it will depend upon whether the original pleading gave sufficient notice of the proposed amended claim; because a policyholder’s original complaint against her insurer raised claims that went only to the face of the policies and the interpretation of its terms, and since it did not provide any allegations concerning the conduct of the contracting parties, an amendment to the complaint to add a claim of fraud did not relate back to the date of the original pleading. State Farm Fire & Cas. Co. v. Darsie, 161 N.C. App. 542, 589 S.E.2d 391, 2003 N.C. App. LEXIS 2257 (2003).

Trial court properly denied an estate’s motion amend the complaint to add the new defendant doing business as the contractor/defendant because the statute of limitations expired 191 days before the motion, which amounted to adding a new party and would be futile. Estate of Rivas v. Fred Smith Constr., Inc., 258 N.C. App. 13, 812 S.E.2d 867, 2018 N.C. App. LEXIS 184 (2018).

This rule does not apply to the naming of a new party-defendant to an action; it is not authority for the relation back of a claim against a new party. Crossman v. Moore, 341 N.C. 185 , 459 S.E.2d 715, 1995 N.C. LEXIS 367 (1995).

Attempt to Amend to Add New Party Ineffective in Rezoning Dispute. —

The trial court erred in denying the Board of Commissioners’ motion to dismiss under G.S. 1A-1 , Rule 12(b)(1), (2), (4), (6) and (7) where the plaintiffs brought their action challenging a rezoning solely against the Board and not against the County and where the plaintiffs’ attempts to amend the complaint to substitute the county as the named defendant were ineffective as they occurred after the statute of limitations had run under G.S. 1-54.1 because G.S. 1A-1 , Rule 15(c) is not authority for the relation back of claims against a new party. Piland v. Hertford County Bd. of Comm'rs, 141 N.C. App. 293, 539 S.E.2d 669, 2000 N.C. App. LEXIS 1411 (2000).

An amended complaint, which named the defendant in his individual capacity, had the effect of adding a new party and did not relate back to the filing of the original complaint. White v. Crisp, 138 N.C. App. 516, 530 S.E.2d 87, 2000 N.C. App. LEXIS 638 (2000).

Nature of Time Restriction Is Not Determinative. —

The determination of whether a claim asserted in an amended pleading relates back does not hinge on whether a time restriction is deemed a statute of limitation or repose. Rather, the proper test is whether the original pleading gave notice of the transactions, occurrences, or series of transactions or occurrences which formed the basis of the amended pleading. If the original pleading gave such notice, the claim survives by relating back in time, without regard to whether the time restraint attempting to cut its life short is a statute of repose or limitation. Pyco Supply Co. v. American Centennial Ins. Co., 321 N.C. 435 , 364 S.E.2d 380, 1988 N.C. LEXIS 16 (1988).

Treatment of Supplemental Pleadings. —

For relation back purposes, supplemental pleadings filed pursuant to section (d) of this rule are treated the same as amendments filed pursuant to other sections of this rule. Burcl v. North Carolina Baptist Hosp., 306 N.C. 214 , 293 S.E.2d 85, 1982 N.C. LEXIS 1443 (1982).

Relation Back of Supplemental Pleading Changing Capacity in Which Plaintiff Sues. —

Where the original pleading gives notice of the transactions and occurrences upon which the claim is based, a supplemental pleading that merely changes the capacity in which the plaintiff sues relates back to the commencement of the action as provided in section (c) of this rule. Burcl v. North Carolina Baptist Hosp., 306 N.C. 214 , 293 S.E.2d 85, 1982 N.C. LEXIS 1443 (1982).

Where at the time defamation suits were instituted no actionable damages existed, and the claims alleged did not become actionable within the time provided by the statute of limitations for the instituting of suits in slander actions, supplementary pleadings alleging special damages could not relate back to the filing of the original complaints. Williams v. Rutherford Freight Lines, 10 N.C. App. 384, 179 S.E.2d 319, 1971 N.C. App. LEXIS 1641 (1971).

Complaint May Not Be Amended to Create New Relief Against Nonparty Strangers. —

This rule does not allow a plaintiff to abandon one cause and its relief against one set of defendants, and amend that complaint to create a new relief against a group of nonparty strangers and their interests. Lawyers Title Ins. Corp. v. Langdon, 91 N.C. App. 382, 371 S.E.2d 727, 1988 N.C. App. LEXIS 870 (1988), cert. denied, 324 N.C. 335 , 378 S.E.2d 793, 1989 N.C. LEXIS 240 (1989).

Amending a claim for a monetary award to include a G.S. 44A-13 claim to enforce a lien against non-parties without allowing any type of notice does not fall within a reasonable interpretation of section (c) of this rule. Lawyers Title Ins. Corp. v. Langdon, 91 N.C. App. 382, 371 S.E.2d 727, 1988 N.C. App. LEXIS 870 (1988), cert. denied, 324 N.C. 335 , 378 S.E.2d 793, 1989 N.C. LEXIS 240 (1989).

Medical malpractice complaint that failed to include the certification requirement of G.S. 1A-1 , Rule 9(j) could not be subsequently amended pursuant to section (a) of this rule, by adding the certification and having that amendment relate back, pursuant to section (c) of this rule. Keith v. Northern Hosp. Dist., 129 N.C. App. 402, 499 S.E.2d 200, 1998 N.C. App. LEXIS 557 (1998), limited, Thigpen v. Ngo, 143 N.C. App. 209, 545 S.E.2d 477, 2001 N.C. App. LEXIS 273 (2001).

The plaintiff could avail herself of a Rule 15 amendment to cure the lack of 9(j) certification in her medical malpractice complaint which she filed on the final day of the 120-day extension to the three-year statute of limitations. Thigpen v. Ngo, 143 N.C. App. 223, 552 S.E.2d 641, 2001 N.C. App. LEXIS 274 (2001), rev'd in part, 355 N.C. 207 , 558 S.E.2d 167, 2002 N.C. LEXIS 18 (2002).

In a medical malpractice case, the trial court erred in granting the doctor and hospital’s motions for judgment on the pleadings and denying the injured party’s motion to set aside the dismissal where the injured party filed the case on the last day of a 120-day extension, filed an amended complaint containing the expert testimony certification, voluntarily dismissed the action, and later refiled the complaint; the statute of limitations for malpractice actions under subsection (c) of this rule 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 N.C. App. LEXIS 1044 (2003), rev'd, 358 N.C. 144 , 592 S.E.2d 687, 2004 N.C. LEXIS 172 (2004).

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, 2016 N.C. App. LEXIS 653 (N.C. Ct. App. June 21, 2016), sub. op., 251 N.C. App. 494, 795 S.E.2d 781, 2016 N.C. App. LEXIS 1349 (2016).

Corut of appeals erred in affirming the dismissal of a complaint because the trial court’s denial of a patient’s motion to amend 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 G.S. 1A-1 , N.C. R. Civ. P. 9(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 N.C. LEXIS 623 (2018).

Just as G.S. 1A-1 , N.C. R. Civ. P. 9(j) does not expressly preclude such complainant’s right to utilize a voluntary dismissal, it 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 N.C. LEXIS 623 (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 N.C. LEXIS 623 (2018).

Amendment to action against a partnership which added an individual partner as defendant was tantamount to the addition of a new party, and the plaintiff’s amendment would not relate back to the filing of the original action. Stevens v. Nimocks, 82 N.C. App. 350, 346 S.E.2d 180, 1986 N.C. App. LEXIS 2442 , cert. denied, 318 N.C. 511 , 349 S.E.2d 873, 1986 N.C. LEXIS 2705 (1986).

Amendment of Date Permitted. —

Where both the original and amended complaints allege that plaintiff was injured in a collision between a vehicle driven by defendant and another vehicle in which plaintiff was a passenger, aside from the changes made by the first amended complaint, the only difference between the original and the second amended complaint is the year in which the accident occurred and that is sufficient to give the notice called for by Rule 15(c). Wooten v. Warren ex rel. Gilmer, 117 N.C. App. 350, 451 S.E.2d 342, 1994 N.C. App. LEXIS 1268 (1994).

Amendment Prior to Expiration of Statute of Limitations. —

The trial court erred in concluding that any attempt by the plaintiff to amend her complaint would have been futile in that the amendment would not relate back to the original filing of the complaint, where the plaintiff sought leave to amend her complaint prior to the expiration of the relevant statute of limitations. Zenobile v. McKecuen, 144 N.C. App. 104, 548 S.E.2d 756, 2001 N.C. App. LEXIS 328 (2001).

Amendment Would Not Relate Back. —

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, 2016 N.C. App. LEXIS 653 (N.C. Ct. App. June 21, 2016), sub. op., 251 N.C. App. 494, 795 S.E.2d 781, 2016 N.C. App. LEXIS 1349 (2016).

Amendment To Substitute Party. —

Trial court did not err in granting drivers’ motion to amend under G.S. 1A-1-15(c) to substitute a sheriff as defendant for a county sheriff’s department because the sheriff had notice that he was the target of a lawsuit dating back to the original claim; various summonses were all served on the sheriff, who was the appropriate defendant for the suit, and who was himself later substituted in place of the department as a defendant. Treadway v. Diez, 209 N.C. App. 152, 703 S.E.2d 832, 2011 N.C. App. LEXIS 57 , rev'd, 365 N.C. 288 , 715 S.E.2d 851, 2011 N.C. LEXIS 810 (2011), rev'd, 365 N.C. 289 , 715 S.E.2d 852, 2011 N.C. LEXIS 815 (2011).

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 N.C. LEXIS 16 (1988).

Amended Complaint Deemed to Relate Back. —

Where plaintiff made no contradictory allegations, and the allegations of his amended complaint were based on the same transaction or occurrence as his original complaint, pursuant to section (c) of this rule plaintiff’s amended complaint would be deemed to relate back to the filing date of his original complaint. Kwan-Sa You v. Roe, 97 N.C. App. 1, 387 S.E.2d 188, 1990 N.C. App. LEXIS 35 , cert. denied, Sparta v. Hamm, 326 N.C. 366 , 389 S.E.2d 819, 1990 N.C. LEXIS 132 (1990).

Relation Back Denied. —

Trial court did not err in refusing to allow relation back of a complaint where the proper party did not know that, but for a mistake concerning identity, the action would have brought against him within the period prescribed by law. Crossman v. Moore, 115 N.C. App. 372, 444 S.E.2d 630, 1994 N.C. App. LEXIS 617 (1994), aff'd, 341 N.C. 185 , 459 S.E.2d 715, 1995 N.C. LEXIS 367 (1995).

Plaintiff’s amended complaint did not relate back to the date of the original complaint, because the plaintiff failed to establish that the added parties received notice or should have known of the action against them within the limitation period. Stewart Enters. v. MRM Constr. Co., 116 N.C. App. 604, 449 S.E.2d 20, 1994 N.C. App. LEXIS 1089 (1994).

Since amendment to complaint could not relate back to the original pleading, plaintiffs’ claim against hospital was barred by the statute of limitations. Medford v. Haywood County Hosp. Found., 115 N.C. App. 474, 444 S.E.2d 699, 1994 N.C. App. LEXIS 674 (1994).

Because subsection (c) of this rule allows the addition of new claims, but not new parties, plaintiff’s additional claims against city and it’s officers in their official capacities did not relate back and did not take on the filing date of original complaint. Rogerson v. Fitzpatrick, 121 N.C. App. 728, 468 S.E.2d 447, 1996 N.C. App. LEXIS 146 (1996).

An amended complaint named a new party and did not relate back to the date of filing the original complaint, where a property owner brought an action against an individual to recover damages, and the amendment substituted a corporate defendant for the individual defendant. Bob Killian Tire, Inc. v. Day Enters., Inc., 131 N.C. App. 330, 506 S.E.2d 752, 1998 N.C. App. LEXIS 1326 (1998).

In an insurance case, the insured’s motion to amend his complaint to state a claim against an alleged bailee whose alleged negligence caused the destruction of the property for which insurance coverage was being sought, was properly denied, because it was made after the applicable statute of limitations had expired, and the amendment sought could not properly relate back to the filing of the original complaint under G.S. 1A-1 , N.C. R. Civ. P. 15(c). Barnes v. Erie Ins. Exch., 156 N.C. App. 270, 576 S.E.2d 681, 2003 N.C. App. LEXIS 103 (2003).

Because an estate administrator was not served until after the statute of limitations in G.S. 1-52(16) had expired, and because there was no indication of any subterfuge or delay by the administrator that prevented the driver from timely amending the complaint, pursuant to G.S. 1A-1 , N.C. R. Civ. P. 15(c), the driver’s amended complaint did not relate back to the date of the original filing of the complaint. Reece v. Smith, 188 N.C. App. 605, 655 S.E.2d 911, 2008 N.C. App. LEXIS 191 (2008).

Buyer’s breach of a real estate purchase contract against sellers was properly dismissed as time-barred because it was filed beyond the G.S. 1-52(1) three-year limitations period; because a shareholder of the buyer lacked standing to file the initial complaint, it was a nullity, and the amended complaint adding the buyer as a party did not relate back to the initial complaint under G.S. 1A-1 , N.C. R. Civ. P. 15(c). The buyer’s bankruptcy filing did not toll the statute of limitations on the contract claim. Coderre v. Futrell, 224 N.C. App. 454, 736 S.E.2d 784, 2012 N.C. App. LEXIS 1459 (2012).

Customer’s negligence complaint against a store was time-barred because the customer’s amendment to name a correct owner did not relate back, as (1) the amendment tried to substitute legal entities, since the entity first named and the entity in the amended complaint were separate corporations, and (2) a claim of the correct owner’s proper service and lack of prejudice failed, as the proper legal name of an entity with multiple names was not substituted. Williams v. Advance Auto Parts, Inc., 251 N.C. App. 712, 795 S.E.2d 647, 2017 N.C. App. LEXIS 21 (2017).

Addition of New Plaintiffs Related Back for Venue Purposes. —

When an action was amended as of right under G.S. 1A-1-15 to add new plaintiffs, who unlike the existing parties lived in the county in question, defendants’ motion for a change of venue was properly denied; as the claims of the new plaintiffs were virtually identical to those of the existing plaintiffs, and the new plaintiffs and the original ones were similarly situated, the claims would be deemed interposed as of the filing of the original complaint for venue purposes. Baldwin v. Wilkie, 179 N.C. App. 567, 635 S.E.2d 431, 2006 N.C. App. LEXIS 1977 (2006).

Relation Back of Claim for Punitive Damages. —

Plaintiff’s claim for punitive damages would not be dismissed, even though the original action did not seek punitive but only compensatory damages, as even if the request for punitive damages were a new claim, the new cause of action related back to the time of the original complaint. Porter v. Groat, 713 F. Supp. 893, 1989 U.S. Dist. LEXIS 6340 (M.D.N.C.), sub. op., 713 F. Supp. 893, 1989 U.S. Dist. LEXIS 6366 (M.D.N.C. 1989).

Amendment to Adoption Petition Held Not to Relate Back. —

Where termination order, later held to be invalid for failure to use due diligence in ascertaining the putative father’s address, was filed with an adoption petition in lieu of the affidavit required by G.S. 48-13, a subsequently filed affidavit did not relate back to the original filing date of the petition so as to cut off the rights of the putative father who filed a legitimation petition to G.S. 49-10 before the affidavit was filed. In re Adoption of Clark, 327 N.C. 61 , 393 S.E.2d 791, 1990 N.C. LEXIS 564 (1990).

Venue Held Proper. —

Under section (c) of this rule, when an amended complaint is filed as a matter of right before any responsive pleading is filed by the original defendant, and the original complaint gave notice of the transactions or occurrences referred to in the amended complaint, the claims asserted in the amended complaint are deemed to have been interposed at the time the claim in the original pleading was interposed. Thus, since corporate defendant was a resident of Wake County for venue purposes, because it had a place of business there, and was deemed to have been a defendant in the action at its commencement by operation of section (c) of this rule, though not added until later, venue there was not improper, and order of removal was erroneous. Oak Manor, Inc. v. Neil Realty Co., 88 N.C. App. 402, 363 S.E.2d 382, 1988 N.C. App. LEXIS 2 (1988).

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 N.C. App. LEXIS 2717 (2005).

IV.Supplemental Pleadings

The distinction between supplemental pleadings and amendments is that supplemental pleadings relate to occurrences, transactions and events which may have happened since the date of the pleadings sought to be supplemented, whereas amendments relate to occurrences, transactions and events that could have been, but for some reason were not, alleged in the pleadings sought to be amended. Williams v. Rutherford Freight Lines, 10 N.C. App. 384, 179 S.E.2d 319, 1971 N.C. App. LEXIS 1641 (1971).

Supplemental Pleading Not a Matter of Right. —

This rule permits but does not require a trial court to allow a supplemental pleading. In any event, it does not appear to be a matter of right, and it seems clear that a court may deny a supplemental pleading to substitute parties if the allowance of such a pleading would be unjust. Deutsch v. Fisher, 32 N.C. App. 688, 233 S.E.2d 646, 1977 N.C. App. LEXIS 2039 (1977).

Supplemental pleadings may be allowed upon a party’s motion in the trial court’s discretion, not as a matter of right, upon such terms as are just. Miller v. Ruth's of N.C. Inc., 69 N.C. App. 153, 316 S.E.2d 622, 1984 N.C. App. LEXIS 3391 (1984).

Policy with Regard to Allowing Supplemental Pleadings. —

The rule that a motion to allow supplemental pleadings should ordinarily be granted is based upon the policy that a party should be protected from the harm which may occur if he is prevented from litigating certain issues merely by virtue of the court’s denial of such a motion. VanDooren v. VanDooren, 37 N.C. App. 333, 246 S.E.2d 20, 1978 N.C. App. LEXIS 2744 , cert. denied, 248 S.E.2d 258 (N.C. 1978).

Motions to allow supplemental pleadings should be freely granted unless their allowance would impose a substantial injustice upon the opposing party. Miller v. Ruth's of N.C. Inc., 69 N.C. App. 153, 316 S.E.2d 622, 1984 N.C. App. LEXIS 3391 (1984).

When Motion to Allow Supplemental Pleading Should Be Allowed. —

Although the ruling on a motion to allow supplemental pleadings is within the trial judge’s discretion, that discretion is not unlimited. Generally, the motion should be allowed unless its allowance would impose a substantial injustice upon the opposing party, for it is the essence of the Rules of Civil Procedure that decisions be had on the merits and not avoided on the basis of mere technicalities. Foy v. Foy, 57 N.C. App. 128, 290 S.E.2d 748, 1982 N.C. App. LEXIS 2597 (1982).

In ruling on a motion to allow a supplemental pleading, the trial court should focus on any resulting unfairness which might occur to the party opposing the motion. Absent any apparent or declared reason for its denial, the motion should be granted. In order to facilitate litigation of related issues in a single action, the court may impose terms or conditions upon the allowance of the motion whenever the terms appear to be required by considerations of fairness. VanDooren v. VanDooren, 37 N.C. App. 333, 246 S.E.2d 20, 1978 N.C. App. LEXIS 2744 , cert. denied, 248 S.E.2d 258 (N.C. 1978).

Amendment to Update Amount of Arrearage Under Contract. —

Where the amount of defendant’s arrearage under a contract was an issue raised by the pleadings, and an amendment only served to bring the cause of action up-to-date, it was not error for the trial judge either to permit the plaintiff to introduce evidence of defendant’s arrearage between the date she filed and the date of the trial or to allow the plaintiff to “amend” her complaint to include the additional amount owed to her. McKnight v. McKnight, 25 N.C. App. 246, 212 S.E.2d 902, 1975 N.C. App. LEXIS 2231 , cert. denied, 287 N.C. 466 , 215 S.E.2d 624, 1975 N.C. LEXIS 1144 (1975).

Supplemental Pleading to Show Change in Capacity in Which Plaintiff Sues. —

G.S. 1A-1 , Rule 17(a) expressly authorizes the substitution of one party for another. This rule, particularly section (c), when considered in light of G.S. 1A-1 , Rule 17(a), just as clearly authorizes a change in capacity in which the same plaintiff brings his claim. Burcl v. North Carolina Baptist Hosp., 306 N.C. 214 , 293 S.E.2d 85, 1982 N.C. LEXIS 1443 (1982).

Where defendants had full notice of the transactions and occurrences upon which a wrongful death claim was based, and the claim was originally filed within the period of limitations by plaintiff in capacity as a foreign administrator, defendants could not be prejudiced by allowing plaintiff by supplemental pleading to show change in capacity to that of locally qualified ancillary administrator, even though this change occurred after the period of limitations had run. Burcl v. North Carolina Baptist Hosp., 306 N.C. 214 , 293 S.E.2d 85, 1982 N.C. LEXIS 1443 (1982).

Where the original pleading gives sufficient notice of the transaction and occurrences upon which the claim is based, a supplemental pleading that merely changes the capacity in which the plaintiff sues relates back to the commencement of the action. Westinghouse v. Hair, 107 N.C. App. 106, 418 S.E.2d 532, 1992 N.C. App. LEXIS 628 (1992).

Third-Party Complaint. —

In an insurance case, the trial court correctly granted summary judgment dismissing an insured’s claim against the bailee of the insured’s vehicle, whose alleged negligence caused a fire which destroyed the vehicle, because the insured attempted to assert that claim as a third-party claim, under G.S. 1A-1 , N.C. R. Civ. P. 14(a), after an insurer answered the insured’s original complaint, effectively amending that complaint without complying with G.S. 1A-1 , N.C. R. Civ. P. 15. Barnes v. Erie Ins. Exch., 156 N.C. App. 270, 576 S.E.2d 681, 2003 N.C. App. LEXIS 103 (2003).

Plaintiff filing a claim against a third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the defendant/third-party plaintiff must follow the requirements pursuant to G.S. 1A-1 , N.C. R. Civ. P. 15(a) in order to amend the plaintiff’s original complaint; when the defendant or third-party plaintiff has filed an answer to the plaintiff’s original complaint, in order for the plaintiff to assert a claim against the third-party defendant, he must amend his complaint by leave of court or by written consent of the adverse party. Barnes v. Erie Ins. Exch., 156 N.C. App. 270, 576 S.E.2d 681, 2003 N.C. App. LEXIS 103 (2003).

Motion to Add Wrongful Discharge Claim Improperly Denied. —

Trial court erred in denying an employee’s motion to amend his complaint under subsection (a) of this rule to add an additional claim of common law wrongful discharge as the employee’s collective bargaining agreement was not in evidence to show that the employee was not an at-will employee; the supplement to the complaint may not have been futile. Brackett v. SGL Carbon Corp., 158 N.C. App. 252, 580 S.E.2d 757, 2003 N.C. App. LEXIS 1041 (2003).

Amendment to Include Additional Retailatory Employment Acts Properly Denied Under G.S. 1A-1 , Rule 15(d). —

Trial court properly denied an employee’s motion to amend his complaint to add an additional retaliatory act as the North Carolina Retaliatory Employment Discrimination Act, G.S. 95-240 et seq., requires that the claim be filed with the North Carolina Department of Labor before initiating suit; as the claim was not filed with the NCDOL, adding the additional retaliatory act under subsection (d) of this rule was futile. Brackett v. SGL Carbon Corp., 158 N.C. App. 252, 580 S.E.2d 757, 2003 N.C. App. LEXIS 1041 (2003).

V.Decisions under Prior Law

Editor’s Note. —

The cases cited below were decided under former G.S. 1-161 , 1-163 and 1-167.

The judge has broad discretionary powers to permit amendments to any pleading, process or proceeding, either before or after judgment. George A. Hormel & Co. v. City of Winston-Salem, 263 N.C. 666 , 140 S.E.2d 362, 1965 N.C. LEXIS 1348 (1965).

The superior court possesses an inherent discretionary power to amend pleadings at any time, and amendments should be liberally allowed. Gilliam Furn., Inc. v. Bentwood, Inc., 267 N.C. 119 , 147 S.E.2d 612, 1966 N.C. LEXIS 993 (1966).

The presiding judge has almost unlimited authority to permit amendments either before or after judgment. Dobias v. White, 240 N.C. 680 , 83 S.E.2d 785, 1954 N.C. LEXIS 503 (1954); Casstevens v. Wilkes Tel. Membership Corp., 254 N.C. 746 , 120 S.E.2d 94, 1961 N.C. LEXIS 542 (1961).

The superior courts possess an inherent discretionary power to amend pleadings or 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 N.C. LEXIS 133 (1882); Cantwell v. Herring, 127 N.C. 81 , 37 S.E. 140, 1900 N.C. LEXIS 26 (1900); Wheeler v. Wheeler, 239 N.C. 646 , 80 S.E.2d 755, 1954 N.C. LEXIS 628 (1954).

The lower court may allow or disallow such amendments as it may think proper in the exercise of sound discretion, bearing in mind, of course, that the nature of the cause of action as previously chartered may not be substantially changed. Goldston Bros. v. Newkirk, 234 N.C. 279 , 67 S.E.2d 69, 1951 N.C. LEXIS 455 (1951).

By Inserting Material Allegations or Conforming Pleading or Proceeding to the Facts. —

The court in its discretion may, before or after judgment, amend any pleading by inserting other allegations material to the case, or, when the amendment does not change the claim substantially, by conforming the pleading or proceeding to the facts. Bassinov v. Finkle, 261 N.C. 109 , 134 S.E.2d 130, 1964 N.C. LEXIS 417 (1964).

And the Court’s Ruling Is Not Reviewable. —

Whether the trial court should allow an amendment to the pleadings rests in the court’s sound discretion, and the court’s ruling thereon is not reviewable on appeal. Sawyer v. Cowell, 241 N.C. 681 , 86 S.E.2d 431, 1955 N.C. LEXIS 444 (1955).

Absent Manifest Abuse. —

An order allowing plaintiff to file an amended complaint and defendant time thereafter to answer is made in the court’s discretion, and as such is not reviewable in the absence of manifest abuse. Williams v. Denning, 260 N.C. 539 , 133 S.E.2d 150, 1963 N.C. LEXIS 744 (1963).

The motion to amend is addressed to the discretion of the court and the court’s decision thereon is not subject to review, there being no showing or contention that the court abused its discretion. Perfecting Serv. Co. v. Product Dev. & Sales Co., 264 N.C. 79 , 140 S.E.2d 763, 1965 N.C. LEXIS 1118 (1965).

Where a motion to amend is denied in the discretion of the trial judge, his ruling is not reviewable in the absence of a clear showing of abuse of discretion. Consolidated Vending Co. v. Turner, 267 N.C. 576 , 148 S.E.2d 531, 1966 N.C. LEXIS 1084 (1966).

The discretionary denial by the trial court of a motion to amend the pleadings and process is not reviewable in the absence of a manifest abuse of discretion. Crump v. Eckerd's, Inc., 241 N.C. 489 , 85 S.E.2d 607, 1955 N.C. LEXIS 390 (1955).

When Amendment Is Permissible. —

Unless its effect is to add a new cause of action or change the subject matter of the original action, no objection can successfully be urged where the amendment is germane to the original action, involving substantially the same transaction and presenting no real departure from the demand as originally stated. Lefler v. C.W. Lane & Co., 170 N.C. 181 , 86 S.E. 1022, 1915 N.C. LEXIS 367 (1915); City of Wilmington v. Board of Educ., 210 N.C. 197 , 185 S.E. 767, 1936 N.C. LEXIS 54 (1936); Wheeler v. Wheeler, 239 N.C. 646 , 80 S.E.2d 755, 1954 N.C. LEXIS 628 (1954).

A trial court may permit a pleading to be amended at any time unless the amendment in effect modifies or changes the cause of action and deprives defendant of a fair opportunity to assemble and present his evidence relative to the matters asserted in the amendment. Thompson v. Seaboard Air Line R.R., 248 N.C. 577 , 104 S.E.2d 181, 1958 N.C. LEXIS 534 (1958).

An amendment is permitted, in the discretion of the court, when the amendment does not change substantially the claim or defense. Lane v. Griswold, 273 N.C. 1 , 159 S.E.2d 338, 1968 N.C. LEXIS 551 (1968).

Filing of Supplemental Complaint Is Within Court’s Discretion. —

It is within the discretionary power of the trial court to allow the filing of a supplemental complaint. Speas v. City of Greensboro, 204 N.C. 239 , 167 S.E. 807, 1933 N.C. LEXIS 371 (1933).

Court’s Power Is Broader as to Amendments Proposed Before Trial. —

The scope of the court’s power to allow amendments is broader when dealing with amendments proposed before trial than during or after trial. Modern Elec. Co. v. Dennis, 255 N.C. 64 , 120 S.E.2d 533, 1961 N.C. LEXIS 560 (1961); George A. Hormel & Co. v. City of Winston-Salem, 263 N.C. 666 , 140 S.E.2d 362, 1965 N.C. LEXIS 1348 (1965); Lane v. Griswold, 273 N.C. 1 , 159 S.E.2d 338, 1968 N.C. LEXIS 551 (1968).

Amendment Which Only Adds to Original Cause Not Abuse of Discretion. —

The allowance of an amendment which only adds to the original cause of action is not such substantial change as to amount to an abuse of discretion. Bassinov v. Finkle, 261 N.C. 109 , 134 S.E.2d 130, 1964 N.C. LEXIS 417 (1964); Gilliam Furn., Inc. v. Bentwood, Inc., 267 N.C. 119 , 147 S.E.2d 612, 1966 N.C. LEXIS 993 (1966).

Amendment to Conform to Evidence Permissible. —

An amendment to a complaint which makes the pleading conform to the evidence, and does not change the claim of the plaintiff, is permissible. Chaffin v. Brame, 233 N.C. 377 , 64 S.E.2d 276, 1951 N.C. LEXIS 305 (1951).

Right to amend pleadings does not permit the litigant to set up a wholly different cause of action or to change substantially the form of the action originally sued upon. Anderson v. Atkinson, 235 N.C. 300 , 69 S.E.2d 603, 1952 N.C. LEXIS 387 (1952); Lane v. Griswold, 273 N.C. 1 , 159 S.E.2d 338, 1968 N.C. LEXIS 551 (1968).

The court may not permit a litigant to set up by amendment a wholly different cause of action or an inconsistent cause. Bassinov v. Finkle, 261 N.C. 109 , 134 S.E.2d 130, 1964 N.C. LEXIS 417 (1964); Lane v. Griswold, 273 N.C. 1 , 159 S.E.2d 338, 1968 N.C. LEXIS 551 (1968).

When Amendment Introducing New Cause May Be Allowed. —

It is permissible to allow plaintiff to introduce a new cause of action by way of amendment if the facts constituting the new cause of action arise out of or are connected with the transactions upon which the original complaint is based. Gilliam Furn., Inc. v. Bentwood, Inc., 267 N.C. 119 , 147 S.E.2d 612, 1966 N.C. LEXIS 993 (1966).

Where no statute of limitations was involved, it was permissible to allow a plaintiff to introduce a new cause of action by way of amendment for damages for detention of property, possession of which was sought by the action as begun, if the facts constituting the new cause of action arose out of or were connected with the transactions upon which the original complaint was based. Mica Indus., Inc. v. Penland, 249 N.C. 602 , 107 S.E.2d 120, 1959 N.C. LEXIS 397 (1959).

Where plaintiff, in amendments to her complaint, for the first time stated facts sufficient to constitute a cause of action, the cause of action then stated embraced relevant facts connected with the transactions forming the subject of her prior pleadings. Hence, absent the bar of an applicable statute of limitations, such new cause of action could be introduced by way of amendment of plaintiff ’s prior pleadings. Stamey v. Rutherfordton Elec. Membership Corp., 249 N.C. 90 , 105 S.E.2d 282, 1958 N.C. LEXIS 422 (1958).

After the time allowed for answering a pleading has expired, such pleading may not be amended as a matter of right, but only in the discretion of the court. Consolidated Vending Co. v. Turner, 267 N.C. 576 , 148 S.E.2d 531, 1966 N.C. LEXIS 1084 (1966).

Extension of Time for Filing Amendment. —

Where an amended complaint is filed after expiration of the time allowed in the order permitting the filing of the amendment, the trial court has 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 which was made 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 N.C. LEXIS 521 (1952).

When Defective Summons May Be Amended. —

When a summons bears the seal of the clerk and there is evidence it actually emanated from the clerk’s office, or bears the jurat of the clerk and his signature appears below the cost bond, the paper bears internal evidence of its official character, and the defect may be cured by amendment. When it does not bear some such evidence, it is void and not subject to amendment. Boone v. Sparrow, 235 N.C. 396 , 70 S.E.2d 204, 1952 N.C. LEXIS 417 (1952).

If the summons bears internal evidence of its official origin and of the purpose for which it was issued, it comes within the definition of original process and may be amended by permitting the clerk to sign nunc pro tunc. This rule is subject to the limitation that such alteration of the record must not disturb or impair any intervening rights of third parties. Boone v. Sparrow, 235 N.C. 396 , 70 S.E.2d 204, 1952 N.C. LEXIS 417 (1952).

If 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. The curative power of amendment may not be invoked when there is nothing upon the face of the paper to give assurance that it received the sanction of the clerk before it was delivered to the sheriff to be served. Boone v. Sparrow, 235 N.C. 396 , 70 S.E.2d 204, 1952 N.C. LEXIS 417 (1952).

Amendment of Caption to Designate Plaintiff as Administratrix. —

The court has plenary power to permit plaintiff, who in fact was duly appointed administratrix at the time a complaint was filed, to amend the caption in the complaint in order to designate herself as administratrix in conformity with the allegation in the complaint. Graves v. Welborn, 260 N.C. 688 , 133 S.E.2d 761, 1963 N.C. LEXIS 817 (1963).

Bringing in Insurance Company Which Has Paid Part of Plaintiff ’s Loss. —

An insurance company which pays the insured for a part of the loss is entitled to share to the extent of its payment in the proceeds of the judgment in the action brought by the insured against the tort-feasor to recover the total amount of the loss, and may be brought into the action by the court in the exercise of its discretionary power to make new parties, at the instance of the insured or the tort-feasor, either in the capacity of an additional plaintiff or in the capacity of an additional defendant. Burgess v. Trevathan, 236 N.C. 157 , 72 S.E.2d 231, 1952 N.C. LEXIS 507 (1952) (commented on in 31 N.C.L. Rev. 224 (1953)) .

Amendment of Complaint Under Wrongful Death Statute to Bring Action Within Federal Employers’ Liability Act. —

Where complaint alleged damages for wrongful death under State statute, but the evidence showed that the deceased was an employee of a railroad company and was fatally injured while engaged in the discharge of his duties in interstate commerce, the court plainly had the power to allow plaintiff to amend so as to allege that the parties were engaged in interstate commerce and that plaintiff was the sole dependent of the deceased, so as to bring the action within the Federal Employers’ Liability Act, notwithstanding such amendment was allowed more than three years after the death of decedent. Graham v. Atlantic Coast Line R.R., 240 N.C. 338 , 82 S.E.2d 346, 1954 N.C. LEXIS 444 (1954).

Amendment Alleging Failure of Defendant to Keep Proper Lookout. —

Where the facts alleged in a complaint were sufficient to imply by a fair and reasonable intendment that defendant failed to keep a proper lookout, the court had the discretionary power, even after judgment, to permit plaintiff to amend to allege such failure specifically. Moreover, the court had the authority to allow such amendment even if the original complaint did not allege by necessary implication defendant’s failure to keep a proper lookout. Simrel v. Meeler, 238 N.C. 668 , 78 S.E.2d 766, 1953 N.C. LEXIS 608 (1953).

Amendment as to Identity of Driver of Automobile. —

In an action involving negligent operation of an automobile resulting in death, it was not error to allow, upon motion made after verdict, an amendment to conform the complaint to the finding of the jury as to the identity of the driver of the automobile, where the crucial fact in respect to defendant’s liability was not the identity of the driver, but that defendant, the owner of the automobile, permitted or directed its operation. Litaker v. Bost, 247 N.C. 298 , 101 S.E.2d 31, 1957 N.C. LEXIS 705 (1957).

Substitution of Another Corporation for Original Plaintiff Not Permitted. —

In an action for an injunction by plaintiff corporation arising out of a contract entered into between another corporation and the defendant, the trial court did not have the power to substitute the other corporation as plaintiff in lieu of the original plaintiff. Orkin Exterminating Co. v. O'Hanlon, 243 N.C. 457 , 91 S.E.2d 222, 1956 N.C. LEXIS 374 (1956).

Motion Made After Verdict. —

Where a motion for leave to amend a complaint to conform to the facts established by the verdict was not made until after the verdict, it was not error to grant it, since the trial below was conducted as if the amendment had been made and the amendment did not substantially change the plaintiff ’s claim. Litaker v. Bost, 247 N.C. 298 , 101 S.E.2d 31, 1957 N.C. LEXIS 705 (1957).

Amendment Not Permitted Five Days Before Appeal to Be Heard. —

A proposed amendment which set up a wholly different cause of action or substantially changed the action originally sued upon could not be permitted five days before an appeal was to be heard in the Supreme Court. George A. Hormel & Co. v. City of Winston-Salem, 263 N.C. 666 , 140 S.E.2d 362, 1965 N.C. LEXIS 1348 (1965); Christenbury Eye Ctr., P.A. v. Medflow, Inc., 370 N.C. 1 , 802 S.E.2d 888, 2017 N.C. LEXIS 554 (2017).

Rule 16. Pre-trial procedure; formulating issues.

  1. In any action, the court may in its discretion direct the attorneys for the parties to appear before the court for a conference to consider
    1. The simplification and formulation of the issues;
    2. The necessity or desirability of amendments to the pleadings;
    3. The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;
    4. The limitation of the number of expert witnesses;
    5. The advisability or necessity of a reference of the case, either in whole or in part;
    6. Matters of which the court is to be asked to take judicial notice;
    7. Such other matters as may aid in the disposition of the action.

      If a conference is held, the judge shall make an order which recites the action taken at the conference, any amendments allowed to the pleadings, and any agreements made by the parties as to any of the matters considered, and which may limit the issues for trial to those not disposed of by admissions or agreements of counsel; and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice. If any issue for trial as stated in the order is not raised by the pleadings in accordance with the provisions of Rule 8, upon motion of any party, the order shall require amendment of the pleadings.

  2. In a medical malpractice action as defined in G.S. 90-21.11, at the close of the discovery period scheduled pursuant to Rule 26(g), the judge shall schedule a final conference. After the conference, the judge shall refer any consent order calendaring the case for trial to the senior resident superior court judge or the chief district court judge, who shall approve the consent order unless the judge finds that:
    1. The date specified in the order is unavailable,
    2. The terms of the order unreasonably delay the trial, or
    3. The ends of justice would not be served by approving the order.

      If the senior resident superior court judge or the chief district court judge does not approve the consent order, the judge shall calendar the case for trial.

      In calendaring the case, the court shall take into consideration the nature and complexity of the case, the proximity and convenience of witnesses, the needs of counsel for both parties concerning their respective calendars, the benefits of an early disposition and such other matters as the court may deem proper.

History. 1967, c. 954, s. 1; 1987, c. 859, s. 4; 2011-199, s. 1.

Comment

While the Rules of Civil Procedure do not envisage a pretrial conference in every case, they do contemplate a significant role for such conferences. The Commission knows that where former statutes have been used systematically, excellent results have been achieved. 36 N.C.L. Rev. 521 (1958).

Two significant changes are embodied in this rule. First, whether there is to be a pretrial conference is made an entirely discretionary matter with the judge. It was the Commission’s view that pretrial cannot function effectively unless the judge himself is committed to the desirability of a resort to the procedure. Second, a requirement has been added that if the pretrial order contains an issue not raised by the pleadings, the court, on motion of any party, shall order an amendment.

OFFICIAL COMMENT

Comment to the 2011 Amendment.

In this and other rules, an effort was made to make the rules gender neutral. Thus, the introductory material in subsection (a) changes “the judge” and “him” to “the court” and “his” to “its”, and in two places in subsection (b), “he” is changed to “the judge”. No substantive change is intended by those amendments.

Subsection (a) . The portion of subsection (a) that permits the judge to direct the attorneys to appear for a conference is not changed. It still is discretionary. However, if a conference is held, the judge is required to issue an order that reflects the action taken at the conference, including any amendments to the pleadings and agreements reached by the parties. The judge, in the order, may, but is not required to, limit the issues for trial to those not disposed of by admissions or agreement at the conference.

Editor’s Note.

Session Laws 2011-199, s. 7, provides: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all explanatory comments of the drafters of this act, the North Carolina Bar Association Litigation Section E-Discovery Committee, as the Revisor may deem appropriate.”

Legal Periodicals.

For case law survey on trial practice, see 43 N.C.L. Rev. 938 (1965).

For article on pretrial and discovery, see 5 Wake Forest Intra. L. Rev. 95 (1969).

For article, “The 1980 Amendments to the Federal Rules of Civil Procedure and Proposals for North Carolina Practice,” see 16 Wake Forest L. Rev. 915 (1980).

For article analyzing the 1983 amendments to Rules 6, 7, 11, 16, 26, 52, 53 and 67, FRCP, comparing these rules with North Carolina practice, and suggesting changes in certain state and federal rules, see 20 Wake Forest L. Rev. 819 (1984).

For note on the use of motions in limine in North Carolina courts, see 35 W.F.L. Rev. 1079 (2001).

CASE NOTES

The rules achieve their purpose of insuring a speedy trial on the merits of a case by providing for and encouraging liberal amendments to conform pleadings and evidence under G.S. 1A-1 , Rule 15(a), by pretrial order under this rule, during and after reception of evidence under G.S. 1A-1 , Rule 15(b), and after entry of judgment under G.S. 1A-1, Rules 15(b), 59 and 60. Such amendments are made upon motion and with leave of court, by express consent, and by implied consent. Roberts v. William N. & Kate B. Reynolds Mem. Park, 281 N.C. 48 , 187 S.E.2d 721, 1972 N.C. LEXIS 1004 (1972).

The purpose of a pretrial conference is to consider specifics, among them motions to amend pleadings, issues, references, admissions, judicial notice, and other matters which may aid in the disposition of the cause. Whitaker v. Beasley, 261 N.C. 733 , 136 S.E.2d 127, 1964 N.C. LEXIS 590 (1964); Smith v. City of Rockingham, 268 N.C. 697 , 151 S.E.2d 568, 1966 N.C. LEXIS 1290 (1966) (decided under former G.S. 1-169.1).

Admissions or Stipulations Not to Be Forced. —

Although the pretrial conference is a mechanism intended to resolve those issues which are not genuinely in dispute, nothing in this rule affords a basis for forcing the parties into admissions or stipulations where there is a genuine dispute. Amick v. Shipley, 43 N.C. App. 507, 259 S.E.2d 329, 1979 N.C. App. LEXIS 3123 (1979).

Names of Witnesses and List of Exhibits. —

With the exception of expert trial witnesses, whose identities are discoverable under G.S. 1A-1 , Rule 26(b)(4), a party is not entitled to find out, by discovery, which witnesses his opponent intends to call, or the documents and exhibits a party opponent intends to present at the trial; instead, the names of witnesses and lists of exhibits a party opponent intends to use at trial are obtainable through a pretrial conference. King v. Koucouliotes, 108 N.C. App. 751, 425 S.E.2d 462, 1993 N.C. App. LEXIS 140 (1993).

Signed Writing Evidencing Admissions, Agreements or Stipulations. —

While this rule allows the court to enter an order reciting action taken at the conference, present custom and better practice require that admissions, agreements, or stipulations entered into by counsel at the pretrial stage be evidenced by a signed writing. Amick v. Shipley, 43 N.C. App. 507, 259 S.E.2d 329, 1979 N.C. App. LEXIS 3123 (1979).

Matters for Judicial Notice to Be Brought to Court’s Attention. —

It is desirable and contemplated by subsection (a)(6) of this rule that counsel bring to the court’s attention, in pretrial conference, those matters of which it will be asked to take judicial notice. State v. Dancy, 297 N.C. 40 , 252 S.E.2d 514, 1979 N.C. LEXIS 1128 (1979).

The trial judge is not required to make an independent search for data of which he may take judicial notice; counsel should supply him with appropriate data. State v. Dancy, 297 N.C. 40 , 252 S.E.2d 514, 1979 N.C. LEXIS 1128 (1979).

Discretion of Court. —

Admission of evidence not delineated in the pretrial order is within the sound discretion of the trial court. Alston v. Monk, 92 N.C. App. 59, 373 S.E.2d 463, 1988 N.C. App. LEXIS 987 (1988).

Trial court properly dismissed, pursuant to G.S. 1A-1 , N.C. R. Civ. P. 12, plaintiff’s action seeking to recover money allegedly owed to plaintiff by defendants from the sale and consignment of jewelry; pursuant to G.S. 55-15-02 , a foreign corporation that transacted business in North Carolina was barred from maintaining an action in any state court unless it had obtained a certificate of authority to transact business prior to trial, plaintiff’s actions of selling and consigning jewelry to North Carolina jewelers constituted transaction of business pursuant to G.S. 55-15-01(b), the trial court acted within its discretion when it addressed this issue pursuant to G.S. 1A-1 , N.C. R. Civ. P. 16 prior to trial as the issue was dispositive of the action, and the trial court was not required by G.S. 55-15-02 to continue the case to allow plaintiff to obtain a certificate of authority. Harold Lang Jewelers, Inc. v. Johnson, 156 N.C. App. 187, 576 S.E.2d 360, 2003 N.C. App. LEXIS 73 (2003).

Pretrial Order Interlocutory and Not Appealable. —

A pretrial order denying plaintiffs’ motion to amend and resolving issues to be submitted to the jury is interlocutory and not appealable. Lazenby v. Godwin, 49 N.C. App. 300, 271 S.E.2d 69, 1980 N.C. App. LEXIS 3373 (1980).

A pretrial order is an interlocutory order, from which an appeal does not lie. Green v. Western & S. Life Ins. Co., 250 N.C. 730 , 110 S.E.2d 321, 1959 N.C. LEXIS 491 (1959); Smith v. City of Rockingham, 268 N.C. 697 , 151 S.E.2d 568, 1966 N.C. LEXIS 1290 (1966) (decided under former G.S. 1-169.1).

Exclusion of Documents Not Listed in Pretrial Order. —

In an action for malicious prosecution and intentional infliction of emotional distress, where plaintiff attempted to offer into evidence a copy of indictment and order quashing such indictment at the close of defendant’s case without advance notice to defendant listing the documents as exhibits in the pretrial order, the trial court did not abuse its discretion by not admitting the documents into evidence. Lay v. Mangum, 87 N.C. App. 251, 360 S.E.2d 481, 1987 N.C. App. LEXIS 3112 (1987).

Failure to Find Stipulated Facts. —

Especially in light of the conclusive nature of stipulations, and the binding effect of pretrial orders, failure to find facts stipulated to in a pretrial order can hardly be prejudicial. Andrews v. Andrews, 79 N.C. App. 228, 338 S.E.2d 809, 1986 N.C. App. LEXIS 2050 (1986), disapproved, Armstrong v. Armstrong, 322 N.C. 396 , 368 S.E.2d 595, 1988 N.C. LEXIS 372 (1988).

Setting Aside Pre-trial Order. —

Trial court erred in setting aside a pre-trial order, upon its own motion, prior to entry of an equitable distribution judgment because the order was entered in accordance with G.S. 50-21(d) and G.S. 1A-1 , N.C. R. Civ. P. 16(a), and Guilford County, N.C. Dist. Ct. R. 31.9, the court waited over 18 months before setting aside the order containing the parties’ binding stipulations, and the court failed to give either party notice of its intent to set aside the order. Plomaritis v. Plomaritis, 222 N.C. App. 94, 730 S.E.2d 784, 2012 N.C. App. LEXIS 935 (2012).

Objection At Trial Required to Preserve Denial of Motion in Limine for Appeal. —

Motion in limine is insufficient to preserve for appeal the question of the admissibility of evidence if the movant fails to further object to that evidence at the time it is offered at trial. Griffis v. Lazarovich, 161 N.C. App. 434, 588 S.E.2d 918, 2003 N.C. App. LEXIS 2200 (2003).

Right to Appeal Waived. —

Passenger waived her right to appeal the denial of her motion in limine seeking to preclude the testimony of the driver of a car involved in an accident with the car in which the passenger was riding as to her conversation with the passenger following the accident; the passenger failed to object to the testimony when it was allowed at trial. Griffis v. Lazarovich, 161 N.C. App. 434, 588 S.E.2d 918, 2003 N.C. App. LEXIS 2200 (2003).

Article 4. Parties.

Rule 17. Parties plaintiff and defendant; capacity.

  1. Real party in interest. —  Every claim shall be prosecuted in the name of the real party in interest; but an executor, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in his own name without joining with him the party for whose benefit the action is brought; and when a statute of the State so provides, an action for the use or benefit of another shall be brought in the name of the State of North Carolina. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.
  2. Infants, incompetents, etc. —
    1. Infants, etc., Sue by Guardian or Guardian Ad Litem. —  In actions or special proceedings when any of the parties plaintiff are infants or incompetent persons, whether residents or nonresidents of this State, they must appear by general or testamentary guardian, if they have any within the State or by guardian ad litem appointed as hereinafter provided; but if the action or proceeding is against such guardian, or if there is no such known guardian, then such persons may appear by guardian ad litem.
    2. Infants, etc., Defend by Guardian Ad Litem. —  In actions or special proceedings when any of the defendants are infants or incompetent persons, whether residents or nonresidents of this State, they must defend by general or testamentary guardian, if they have any within this State or by guardian ad litem appointed as hereinafter provided; and if they have no known general or testamentary guardian in the State, and any of them have been summoned, the court in which said action or special proceeding is pending, upon motion of any of the parties, may appoint some discreet person to act as guardian ad litem, to defend in behalf of such infants, or incompetent persons, and fix and tax his fee as part of the costs. The guardian so appointed shall, if the cause is a civil action, file his answer to the complaint within the time required for other defendants, unless the time is extended by the court; and if the cause is a special proceeding, a copy of the complaint, with the summons, must be served on him. After 20 days’ notice of the summons and complaint in the special proceeding, and after answer filed as above prescribed in the civil action, the court may proceed to final judgment as effectually and in the same manner as if there had been personal service upon the said infant or incompetent persons or defendants.All orders or final judgments duly entered in any action or special proceeding prior to April 8, 1974, when any of the defendants were infants or incompetent persons, whether residents or nonresidents of this State, and were defended therein by a general or testamentary guardian or guardian ad litem, and summons and complaint or petition in said action or special proceeding were duly served upon the guardian or guardian ad litem and answer duly filed by said guardian or guardian ad litem, shall be good and valid notwithstanding that said order or final judgment was entered less than 20 days after notice of the summons and complaint served upon said guardian or guardian ad litem.
    3. Appointment of Guardian Ad Litem Notwithstanding the Existence of a General or Testamentary Guardian. —  Notwithstanding the provisions of subsections (b)(1) and (b)(2), a guardian ad litem for an infant or incompetent person may be appointed in any case when it is deemed by the court in which the action is pending expedient to have the infant, or insane or incompetent person so represented, notwithstanding such person may have a general or testamentary guardian.
    4. Appointment of Guardian Ad Litem for Unborn Persons. —  In all actions in rem and quasi in rem and in all actions and special proceedings which involve the construction of wills, trusts and contracts or any instrument in writing, or which involve the determination of the ownership of property or the distribution of property, if there is a possibility that some person may thereafter be born who, if then living, would be a necessary or proper party to such action or special proceeding, the court in which said action or special proceeding is pending, upon motion of any of the parties or upon its own motion, may appoint some discreet person guardian ad litem to defend on behalf of such unborn person. Service upon the guardian ad litem appointed for such unborn person shall have the same force and effect as service upon such unborn person would have had if such person had been living. All proceedings by and against the said guardian ad litem after appointment shall be governed by all provisions of the law applicable to guardians ad litem for living persons.
    5. Appointment of Guardian Ad Litem for Corporations, Trusts, or Other Entities Not in Existence. —  In all actions which involve the construction of wills, trusts, contracts or written instruments, or the determination of the ownership of property or the disposition or distribution of property pursuant to the provisions of a will, trust, contract or written instrument, if such will, trust, contract or written instrument provides benefits for disposition or distribution of property to a corporation, a trust, or an entity thereafter to be formed for the purpose of carrying into effect some provision of the said will, trust, contract or written instrument, the court in which said action or special proceeding is pending, upon motion of any of the parties or upon its own motion, may appoint some discreet person guardian ad litem for such corporation, trust or other entity. Service upon the guardian ad litem appointed for such corporation, trust or other entity shall have the same force and effect as service upon such corporation, trust or entity would have had if such corporation, trust or other entity had been in existence. All proceedings by and against the said guardian ad litem after appointment shall be governed by all provisions of the law applicable to guardians ad litem for living persons.
    6. Repealed by Sessions Laws 1981, c. 599, s. 1.
    7. Miscellaneous Provisions. —  The provisions of this rule are in addition to any other remedies or procedures authorized or permitted by law, and it shall not be construed to repeal or to limit the doctrine of virtual representation or any other law or rule of law by which unborn persons or nonexistent corporations, trusts or other entities may be represented in or bound by any judgment or order entered in any action or special proceeding. This rule shall apply to all pending actions and special proceedings to which it may be constitutionally applicable. All judgments and orders heretofore entered in any action in which a guardian or guardians ad litem have been appointed for any unborn person or persons or any nonexistent corporations, trusts or other entities, are hereby validated as of the several dates of entry thereof in the same manner and to the full extent that they would have been valid if this rule had been in effect at the time of the appointment of such guardians ad litem; provided, however, that the provisions of this sentence shall be applicable only in such cases and to the extent to which the application thereof shall not be prevented by any constitutional limitation.
  3. Guardian ad litem for infants, insane or incompetent persons; appointment procedure. —  When a guardian ad litem is appointed to represent an infant or insane or incompetent person, he must be appointed as follows:
    1. When an infant or insane or incompetent person is plaintiff, the appointment shall be made at any time prior to or at the time of the commencement of the action, upon the written application of any relative or friend of said infant or insane or incompetent person or by the court on its own motion.
    2. When an infant is defendant and service under Rule 4(j)(1)a is made upon him the appointment may be made upon the written application of any relative or friend of said infant, or, if no such application is made within 10 days after service of summons, upon the written application of any other party to the action or, at any time by the court on its own motion.
    3. When an infant or insane or incompetent person is defendant and service can be made upon him only by publication, the appointment may be made upon the written application of any relative or friend of said infant, or upon the written application of any other party to the action, or by the court on its own motion, before completion of publication, whereupon service of the summons with copy of the complaint shall be made forthwith upon said guardian so appointed requiring him to make defense at the same time that the defendant is required to make defense in the notice of publication.
    4. When an insane or incompetent person is defendant and service by publication is not required, the appointment may be made upon the written application of any relative or friend of said defendant, or upon the written application of any other party to the action, or by the court on its own motion, prior to or at the time of the commencement of the action, and service upon the insane or incompetent defendant may thereupon be dispensed with by order of the court making such appointment.
  4. Guardian ad litem for persons not ascertained or for persons, trusts or corporations not in being. —  When under the terms of a written instrument, or for any other reason, a person or persons who are not in being, or any corporation, trust, or other legal entity which is not in being, may be or may become legally or equitably interested in any property, real or personal, the court in which an action or proceeding of any kind relative to or affecting such property is pending, may, upon the written application of any party to such action or proceeding or of other person interested, appoint a guardian ad litem to represent such person or persons not ascertained or such persons, trusts or corporations not in being.
  5. Duty of guardian ad litem; effect of judgment or decree where party represented by guardian ad litem. —  Any guardian ad litem appointed for any party pursuant to any of the provisions of this rule shall file and serve such pleadings as may be required within the times specified by these rules, unless extension of time is obtained. After the appointment of a guardian ad litem under any provision of this rule and after the service and filing of such pleadings as may be required by such guardian ad litem, the court may proceed to final judgment, order or decree against any party so represented as effectually and in the same manner as if said party had been under no legal disability, had been ascertained and in being, and had been present in court after legal notice in the action in which such final judgment, order or decree is entered.

History. 1967, c. 954, s. 1; 1969, c. 895, ss. 5, 6; 1971, c. 1156, ss. 3, 4; 1973, c. 1199; 1981, c. 599, s. 1; 1987, c. 550, s. 13.

Comment

For historical reasons, an apparently necessary component of any procedural code or bloc of rules is a statement of the real party in interest generality, i.e., that action must be prosecuted in the name of the “real party in interest,” as opposed to the name of any other person who may have a technical or nominal interest in the claim. This was deemed necessary for the purpose of allowing assignees of choses in action to sue in their own names to recover on the chose, a thing forbidden at common law — and this was probably the only thing had in mind in the original code. But the basic statement in the code was not so limited; hence, it was necessary also to add some obvious qualifications to the basic directive that actions can only be brought in the name of the presently beneficially interested — the “real” — party. Thus, certain fiduciaries should be allowed to sue in their own names on claims in which only their beneficiaries have beneficial — “real” — interests. Furthermore, the third-party contract beneficiary has well established substantive rights which he should be allowed to sue for in his own name, notwithstanding the contract parties alone are “real” parties to the contract and hence, possibly, to the rights arising under it. Finally, some exception was needed to take into account the fact that specific statutes may sometimes give rights to sue in their own names to parties not technically real parties in interest. Through what appears to be sheer whimsy in codification the original code “real party in interest” draft section, which put both the generality and its exception into one section, was modified in the North Carolina code version to separate the two components. Thus § 1-57 states the generality, while the exceptions were stated in former § 1-63. The federal Rule 17(a) dealing with the same matters, returns to the original code pattern and states both the generality and its exception as a connected whole. The rule as presented here tracks the federal rule, and rejects the State code separation of the concepts. No change of central substance is made from the present directive. Consequently, there is no reason to anticipate any change in real party in interest case law arising from this form of statement.

Closely related to the real party in interest generality and its exceptions is the problem of formal representation of persons not sui generis for the purpose of prosecuting and defending actions as to which the parties formally represented have the true beneficial interest — the problem, in short, of the appointment of, the appearance by, and the prosecution and defense of actions through guardians for infants and incompetents. Here, the present State statutory law is substantially retained, with some attempt to clean up and make more comprehensive the whole pattern.

OFFICIAL COMMENT

Comment to the 1969 Amendment.

  1. The 1969 amendment to Rule 17(a) eliminates another technical ground of possible dismissal. It provides that no action is to be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the section by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.
  2. (6) The amendment to Rule 17 designated as (6) [now repealed] merely acknowledges that an infant who is competent to marry, and who is 18 years of age or older, is also competent to prosecute or defend the listed domestic relations action without the appointment of a guardian ad litem.

Correction and substitution of parties was known both to the common law and the code practice. This amendment is merely another step in that direction and avoids needless delay and technical disposition of a meritorious action.

The amendment also renumbered former subsection (6) of section (b) as subsection (7).

Cross References.

As to service of summons on natural persons under disability, see G.S. 1A-1 , Rule 4(j)(2).

As to nothing in G.S. 35A-1101 et seq. interfering with the authority of a judge to appoint a guardian ad litem for a party to litigation under Rule 17(b) of the North Carolina Rules of Civil Procedure, see G.S. 35A-1102 .

As to minor veterans, see G.S. 143B-1244.

Legal Periodicals.

For note on requirement of notice for appointment of guardians ad litem and next friends, see 48 N.C.L. Rev. 92 (1969).

For article on the general scope and philosophy of the new rules, see 5 Wake Forest Intra. L. Rev. 1 (1969).

For article on parties and joinder, see 5 Wake Forest Intra. L. Rev. 119 (1969).

For article on legislative changes to the new Rules of Civil Procedure, see 6 Wake Forest Intra. L. Rev. 267 (1970).

For comment analyzing North Carolina guardianship laws, see 54 N.C.L. Rev. 389 (1976).

For a survey of 1977 law on civil procedure, see 56 N.C.L. Rev. 874 (1978).

For survey of 1982 law on torts, see 61 N.C.L. Rev. 1225 (1983).

For article, “More Reasons for Abolishing Federal Rule of Civil Procedure 17(a): The Problem of the Proper Plaintiff and Insurance Subrogation,” see 68 N.C.L. Rev. 893 (1990).

For comment, “A Clarification of the Standard of Mental Capacity in North Carolina for Legal Transactions of the Elderly,” see 32 Wake Forest L. Rev. 563 (1997).

For article, “Holding, Dictum . . . Whatever,” 25 N.C. Cent. L.J. 139 (2003).

CASE NOTES

Analysis

I.In General

Applicability of Rule to Both Plaintiff and Defendant. —

Although this rule by its terms applies only to parties plaintiff, the rule is applicable to parties defendant as well. Reliance Ins. Co. v. Walker, 33 N.C. App. 15, 234 S.E.2d 206, 1977 N.C. App. LEXIS 2090 (1977).

Motion to Change Venue. —

Neither the Rules of Civil Procedure nor the plain text of the statute prohibits a party from filing a motion for a discretionary venue change before filing an answer; as long as the party provides sufficient information in a motion, the trial court’s discretionary venue change does not need to await a party’s filing of an answer. Stokes v. Stokes, 371 N.C. 770 , 821 S.E.2d 161, 2018 N.C. LEXIS 1034 (2018).

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 subdivision (c)(2) of this rule, and accordingly, the motion was found to be insufficient. In re McKinney, 158 N.C. App. 441, 581 S.E.2d 793, 2003 N.C. App. LEXIS 1191 (2003).

The procedure for the revocation of the letters testamentary of an administratrix as set forth in G.S. 28A-9-1 is a “special proceeding,” and the Clerk had statutory authority to appoint the guardian ad litem. In re Estate of Sturman, 93 N.C. App. 473, 378 S.E.2d 204, 1989 N.C. App. LEXIS 202 (1989).

Application to Termination of Parental Rights Proceedings. —

Trial court erred in denying the father’s motion to set aside the order entered against him that terminated his parental rights in his minor daughter; the record showed that the summons that was issued in his case was not served upon him within the time limit for service of process under the civil procedure rule then in effect and since that rule applied to civil actions or special proceedings such as a termination of parental rights case, the order was entered without the trial court having acquired personal jurisdiction over the father, and thus was void. In re A.B.D., 173 N.C. App. 77, 617 S.E.2d 707, 2005 N.C. App. LEXIS 1925 (2005).

In an action to terminate the mother’s parental rights, the trial court did not err in failing to conduct a hearing on whether to appoint a guardian ad litem for the mother because there were no circumstances of the type that, of brought to the judge’s attention, would have raised a substantial question regarding the mother’s competency. In re S.N.H., 177 N.C. App. 82, 627 S.E.2d 510, 2006 N.C. App. LEXIS 717 (2006).

Because a parent was initially appointed a guardian ad litem (GAL) pursuant to G.S. 7B-602 and G.S. 1A-1-17, but not ultimately represented by a GAL during the termination hearing, an order terminating the parent’s parental rights was invalid. In re A.S.Y., 208 N.C. App. 530, 703 S.E.2d 797, 2010 N.C. App. LEXIS 2442 (2010).

G.S. 7B-1101 Did Not Require the Appointment of a Guardian Ad Litem for the Mother As the Parental Termination Proceedings Did Not Focus on the Mother’s Incompentency. —

Trial court terminated a mother’s parental rights based on: (1) neglect; (2) wilfully leaving the children in foster care for more than 12 months without showing reasonable progress; (3) wilfully failing to provide financial support to the children; and (4) abandonment of the children for at least six months immediately preceding the filing of the petition for termination of parental rights; the mother did not request that a guardian ad litem (GAL) be appointed. Also, the petition for termination of her parental rights did not allege the mother’s incapability to parent the children, and no allegations were asserted, and no showing was made that the mother was incompetent; thus, the trial court was not required to appoint a GAL to the mother under either G.S. 7B-1101 and 35A-1101, or G.S. 1A-1-17 . In re D.H., 177 N.C. App. 700, 629 S.E.2d 920, 2006 N.C. App. LEXIS 1195 (2006).

Parent’s Right to Waive Counsel and Proceed Pro Se. —

Trial court did not err under G.S. 7B-602(a) in allowing a child’s parent to waive counsel and proceed pro se because the guardian ad litem was acting only in an assistive capacity, the parent had the ability to waive counsel, and the trial court adequately determined that the parent knowingly and voluntarily waived the parent’s right to counsel. In re A.Y., 225 N.C. App. 29, 737 S.E.2d 160, 2013 N.C. App. LEXIS 67 (2013).

II.Real Party in Interest

Substitution of Real Party in Interest Required. —

Where original suit was brought against general contractor by homeowners who sought damages for alleged defects in stucco applied to their house, and in the settlement the general contractor’s insurance carrier paid the homeowners, who in exchange dismissed the general contractor and assigned all rights they had to the insurance carrier, the insurance company, not the general contractor, was the real party in interest on the third-party complaint filed by the general contractor. However, the trial court should not have granted summary judgment in third-party defendants’ favor on the third-party complaint until a reasonable time had passed for the insurance carrier to substitute itself for the general contractor, and should have refused to deal with the merits until the absent parties were brought into the action or should have corrected the defect itself. Land v. Tall House Bldg. Co., 150 N.C. App. 132, 563 S.E.2d 8, 2002 N.C. App. LEXIS 405 (2002).

Section (a) of this rule is identical to federal Rule 17(a). Crosrol Carding Devs., Inc. v. Gunter & Cooke, Inc., 12 N.C. App. 448, 183 S.E.2d 834, 1971 N.C. App. LEXIS 1382 (1971).

Section (a) of this rule deals not only with real party in interest questions, but also with questions relating to capacity to sue, which are not solely governed by G.S. 1A-1 , Rule 9. Burcl v. North Carolina Baptist Hosp., 306 N.C. 214 , 293 S.E.2d 85, 1982 N.C. LEXIS 1443 (1982).

Necessary Joinder Rules Compared with Real Party in Interest Provisions. —

While the real party in interest provisions of this rule are for the parties’ benefit and may be waived if no objection is raised, the necessary joinder rules of G.S. 1A-1 , Rule 19 place a mandatory duty on the court to protect its own jurisdiction to enter valid and binding judgments. J & B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C. App. 1, 362 S.E.2d 812, 1987 N.C. App. LEXIS 3447 (1987).

While a party may waive its right to be sued by a real party in interest, G.S. 1A-1 , Rule 19 requires the court to join as a necessary party any persons “united in interest” and/or any persons without whom a complete determination of the claim cannot be made. J & B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C. App. 1, 362 S.E.2d 812, 1987 N.C. App. LEXIS 3447 (1987).

Only Real Party in Interest May Prosecute Claim. —

Under G.S. 1-57 and section (a) of this rule, only the real party in interest may prosecute a claim. Crowell v. Chapman, 306 N.C. 540 , 293 S.E.2d 767, 1982 N.C. LEXIS 1484 (1982).

Stipulation Defined Real Party in Interest. —

Builder’s claim that the trial court lacked jurisdiction over a carpentry company’s breach of contract claim because the company was not the real party in interest pursuant to N.C. R. Civ. P. 17(a) lacked merit; although the contract was signed by the company president/owner in his individual capacity, the parties had stipulated at trial that they wished to have the contract considered as being between them, and the builder did not move to set it aside. Accelerated Framing, Inc. v. Eagle Ridge Builders, Inc., 207 N.C. App. 722, 701 S.E.2d 280, 2010 N.C. App. LEXIS 2016 (2010).

A real party in interest is a party who is benefited or injured by the judgment in the case. Reliance Ins. Co. v. Walker, 33 N.C. App. 15, 234 S.E.2d 206, 1977 N.C. App. LEXIS 2090 (1977); Carolina First Nat'l Bank v. Douglas Gallery of Homes, Ltd., 68 N.C. App. 246, 314 S.E.2d 801, 1984 N.C. App. LEXIS 3183 (1984).

And who by substantive law has the legal right to enforce the claim in question. Reliance Ins. Co. v. Walker, 33 N.C. App. 15, 234 S.E.2d 206, 1977 N.C. App. LEXIS 2090 (1977); Carolina First Nat'l Bank v. Douglas Gallery of Homes, Ltd., 68 N.C. App. 246, 314 S.E.2d 801, 1984 N.C. App. LEXIS 3183 (1984).

Party Must Be Interested in Subject Matter of Litigation. —

An interest which warrants making a person a party is not merely an interest in the action involved, but some interest in the subject matter of the litigation. Reliance Ins. Co. v. Walker, 33 N.C. App. 15, 234 S.E.2d 206, 1977 N.C. App. LEXIS 2090 (1977).

The real party in interest is the one who is entitled to receive the fruits of the litigation (i.e., the damages). Goodrich v. Rice, 75 N.C. App. 530, 331 S.E.2d 195, 1985 N.C. App. LEXIS 3715 (1985).

Attorney Not Proper Party in Action Against Medical Records Copier. —

Attorney’s action against a medical records copier, which alleged that the copier charged excessive fees for records obtained on behalf of personal injury clients, was properly dismissed where it was held that the attorney was not the real party in interest pursuant to subsection (a) of this rule and G.S. 1-57 because he was not ultimately liable for the costs thereof pursuant to the dictates of N.C. Rev. R. Prof. Conduct 1.8, and accordingly, he lacked standing to bring the action in his own name; he was not entitled to substitute his clients as the proper parties because no request to do so was made in a timely fashion. Street v. Smart Corp., 157 N.C. App. 303, 578 S.E.2d 695, 2003 N.C. App. LEXIS 544 (2003).

Beneficiary as Real Party in Interest in Wrongful Death Action. —

In an action to recover damages for wrongful death, the real party in interest is the beneficiary under the statute for whom recovery is sought, and not the administrator. King v. Grindstaff, 284 N.C. 348 , 200 S.E.2d 799, 1973 N.C. LEXIS 866 (1973).

The mere appointment of an agent does not make him the real party in interest. Goodrich v. Rice, 75 N.C. App. 530, 331 S.E.2d 195, 1985 N.C. App. LEXIS 3715 (1985).

In a breach of contract action, the evidence clearly established an agency relationship, as it disclosed that certain individuals, the original plaintiffs, negotiated the construction of a pond on behalf of a landowner. The real party in interest was the landowner. Goodrich v. Rice, 75 N.C. App. 530, 331 S.E.2d 195, 1985 N.C. App. LEXIS 3715 (1985).

An assignee for purposes of collection is not a “real party in interest.” Booker v. Everhart, 294 N.C. 146 , 240 S.E.2d 360, 1978 N.C. LEXIS 1192 (1978), overruled in part, M.E. v. T.J., 869 S.E.2d 624, 2022- NCSC-23, 2022 N.C. LEXIS 230 (N.C. 2022).

Assignee of Franchisor. —

In action for alleged breach of franchise agreement, plaintiff, as assignee of the franchisor, was a real party in interest, and had the right to enforce the contract against the defendant. Wiener King Sys. v. Brooks, 628 F. Supp. 843, 1986 U.S. Dist. LEXIS 29121 (W.D.N.C. 1986).

Assignee Was Real Party in Interest. —

Creditor was the real party in interest under G.S. 1A-1 , N.C. Civ. P. R. 17(a), entitled to sue a debtor and its guarantors upon nonpayment of a note, because the creditor was the assignee of the original creditor, and the guaranty was assignable and enforceable by those entitled to enforce the principal obligation. Self-Help Ventures Fund v. Custom Finish, LLC, 199 N.C. App. 743, 682 S.E.2d 746, 2009 N.C. App. LEXIS 1562 (2009).

Successor Not Real Party In Interest. —

Nevada limited liability company did not become the real party in interest under G.S. 1A-1 , N.C. Gen. R. Civ. P. 17 to bring a malpractice case previously dismissed by a North Carolina limited liability company after the Nevada company succeeded to the rights of the North Carolina company following a merger under G.S. 55-11-06(a)(4) as the Nevada company did not bring the North Carolina company’s tort claim before they became time-barred under G.S. 1-15(c) . Revolutionary Concepts, Inc. v. Clements Walker PLLC, 2012 NCBC 14, 2012 NCBC LEXIS 14 (N.C. Super. Ct. Mar. 8, 2012), aff'd in part, 227 N.C. App. 102, 744 S.E.2d 130, 2013 N.C. App. LEXIS 482 (2013).

Absence of the real party in interest did not constitute a “fatal defect” where the opposing party failed to show real prejudice in not having had the real party joined at the original trial. Carolina First Nat'l Bank v. Douglas Gallery of Homes, Ltd., 68 N.C. App. 246, 314 S.E.2d 801, 1984 N.C. App. LEXIS 3183 (1984).

Absence of necessary parties does not merit a nonsuit. Instead, the court should order a continuance so as to provide a reasonable time for them to be brought in and plead. Booker v. Everhart, 294 N.C. 146 , 240 S.E.2d 360, 1978 N.C. LEXIS 1192 (1978), overruled in part, M.E. v. T.J., 869 S.E.2d 624, 2022- NCSC-23, 2022 N.C. LEXIS 230 (N.C. 2022).

But Proceedings Should Cease Until Necessary Parties Are Brought in. —

Where a fatal defect of the parties is disclosed, the court should refuse to deal with the merits of the case until the absent parties are brought into the action. Booker v. Everhart, 294 N.C. 146 , 240 S.E.2d 360, 1978 N.C. LEXIS 1192 (1978), overruled in part, M.E. v. T.J., 869 S.E.2d 624, 2022- NCSC-23, 2022 N.C. LEXIS 230 (N.C. 2022).

Correction of Defect of Parties by Courts’ Own Motion. —

In the absence of a proper motion by a competent person, a defect of the parties should be corrected by ruling of the court ex mero motu. Booker v. Everhart, 294 N.C. 146 , 240 S.E.2d 360, 1978 N.C. LEXIS 1192 (1978), overruled in part, M.E. v. T.J., 869 S.E.2d 624, 2022- NCSC-23, 2022 N.C. LEXIS 230 (N.C. 2022).

Right of Third-Party Beneficiary to Sue. —

Whether a third-party beneficiary has a right of action depends upon the substantive law. If by substantive law the beneficiary has a right of action, the beneficiary may sue, and the party with whom or in whose name the contract was made may also sue and need not join the beneficiary. Crosrol Carding Devs., Inc. v. Gunter & Cooke, Inc., 12 N.C. App. 448, 183 S.E.2d 834, 1971 N.C. App. LEXIS 1382 (1971).

A third-party beneficiary to a contract is entitled to maintain an action for its breach, but this rule is not applicable where the contract is not made for the direct benefit of the third party and any benefit accruing to him is merely incidental. Crosrol Carding Devs., Inc. v. Gunter & Cooke, Inc., 12 N.C. App. 448, 183 S.E.2d 834, 1971 N.C. App. LEXIS 1382 (1971).

Ratification by, or Joinder or Substitution of, the Real Party in Interest. —

When church officials sued seceders from the church to recover church property, the national church was a real party in interest, because, under its canons, it could claim the property, but the failure to join the national church did not require dismissal of the complaint because, under subsection (a) of this rule, an action was not to be dismissed on the ground that it was not prosecuted in the name of the real party in interest until a reasonable time was allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest, and no real prejudice to the seceders was shown. Daniel v. Wray, 158 N.C. App. 161, 580 S.E.2d 711, 2003 N.C. App. LEXIS 1038 (2003).

Substitution of Real Party in Interest After Running of Limitations. —

Under this rule, the real party in interest in a case is not precluded from being made the plaintiff after the statute of limitations has run on a claim timely filed by one who lacked the capacity to sue because he was not the real party in interest. Rather, under this rule, a reasonable time must be allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest. Burcl v. North Carolina Baptist Hosp., 306 N.C. 214 , 293 S.E.2d 85, 1982 N.C. LEXIS 1443 (1982).

Change in Capacity in Which Plaintiff Sues. —

Section (a) of this rule expressly authorizes the substitution of one party for another, and G.S. 1A-1 , Rule 15, particularly section (c), when considered in light of section (a), just as clearly authorizes a change in capacity in which the same plaintiff brings his claim. Burcl v. North Carolina Baptist Hosp., 306 N.C. 214 , 293 S.E.2d 85, 1982 N.C. LEXIS 1443 (1982).

Where defendants had full notice of the transactions and occurrences upon which a wrongful death claim was based, and the claim was originally filed within the period of limitations by plaintiff in the capacity of a foreign administrator, they could in no way be prejudiced by allowing plaintiff by supplemental pleading to show change in capacity to that of locally qualified ancillary administrator, even though this change occurred after the period of limitations had run. Burcl v. North Carolina Baptist Hosp., 306 N.C. 214 , 293 S.E.2d 85, 1982 N.C. LEXIS 1443 (1982).

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 N.C. App. LEXIS 1565 (2009).

Standing of Association to Bring Suit. —

An association may properly bring suit only if: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Landfall Group Against Paid Transferability v. Landfall Club, Inc., 117 N.C. App. 270, 450 S.E.2d 513, 1994 N.C. App. LEXIS 1208 (1994).

Dismissal of Former Owner Mandated. —

Where plaintiff sued a class of defendants pursuant to G.S. 1A-1 , Rule 23, but thereafter lost her status as a real party in interest by conveying the property that was the subject of the suit and filed a notice of voluntary dismissal under G.S. 1A-1 , Rule 41(a), upon which the new owners were joined as plaintiffs, the trial judge should have dismissed the original plaintiff as no longer a real party in interest. Crowell v. Chapman, 306 N.C. 540 , 293 S.E.2d 767, 1982 N.C. LEXIS 1484 (1982).

Ratification of Commencement of Action. —

Participation by counsel for employer and insurance carrier in action as counsel for plaintiff was a ratification of the commencement of the action within a reasonable time after the motion of dismissal was made. Long v. Coble, 11 N.C. App. 624, 182 S.E.2d 234, 1971 N.C. App. LEXIS 1600 , cert. denied, 279 N.C. 395 , 183 S.E.2d 246, 1971 N.C. LEXIS 822 (1971).

In a bank merger, the surviving bank or its transferee has the legal right to enforce a claim because the surviving bank succeeds to the merged bank’s holder status by operation of law. Carolina First Nat'l Bank v. Douglas Gallery of Homes, Ltd., 68 N.C. App. 246, 314 S.E.2d 801, 1984 N.C. App. LEXIS 3183 (1984).

Insurer as Necessary Party. —

Where whether or not insurer’s legal title to plaintiff’s claims was partial or complete, insurer clearly acquired some enforceable legal interest in the subject matter of the action by virtue of the assignment provided by subrogation receipt, given insurer’s interest in all of plaintiff’s claims, a determination of such claims would necessarily prejudice insurer’s interests in them, and insurer was therefore a necessary party under G.S. 1A-1 , Rule 19. J & B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C. App. 1, 362 S.E.2d 812, 1987 N.C. App. LEXIS 3447 (1987).

Status of Insured Assignor — Where Insurer’s Payments Exceed Loss. —

Where there is no genuine dispute that insurer’s payments exceeded the insured’s full loss, the trial court may summarily determine an objection to the insured’s real party in interest status. J & B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C. App. 1, 362 S.E.2d 812, 1987 N.C. App. LEXIS 3447 (1987).

Status of Insured Assignor — Where Extent of Insured’s Loss Not Yet Determined. —

Trial court could not enter summary judgment against plaintiff based on section (a) of this rule where plaintiff’s status as a partial assignor and real party in interest could not be determined until the factual issue of the extent of plaintiff’s entire loss was determined. J & B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C. App. 1, 362 S.E.2d 812, 1987 N.C. App. LEXIS 3447 (1987).

Status of Insured Assignor — Where Insured Retains Separable Interest. —

If plaintiff assignor retained any separable legal interest in the subject matter of its claims, then both plaintiff and insurer assignee would be real parties in interest under section (a) of this rule in the subject matter of the litigation. J & B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C. App. 1, 362 S.E.2d 812, 1987 N.C. App. LEXIS 3447 (1987).

Trust Beneficiaries. —

Trust beneficiaries did not have standing to sue former trustees who managed a charitable remainder unitrust, and the trial court erred when it refused to dismiss the beneficiaries as parties to a lawsuit which a successor trustee filed against former trustees. Slaughter v. Swicegood, 162 N.C. App. 457, 591 S.E.2d 577, 2004 N.C. App. LEXIS 190 (2004).

Parties in Claim Under Debt Collection Act. —

Trial court erred by concluding that beneficiaries lacked standing to maintain a claim under the North Carolina Debt Collection Act because the beneficiaries sufficiently alleged they were “consumers” and that a creditor sought to collect the amount owed under a contract with purchasers on the basis they were liable for that obligation; the creditor perpetuated the beneficiaries’ impression that they were legally bound by the debt, despite the fact that they never officially assumed the original obligation. Green Tree Servicing LLC v. Locklear, 236 N.C. App. 514, 763 S.E.2d 523, 2014 N.C. App. LEXIS 1032 (2014).

Motion For Substitution Properly Denied. —

Trial court did not abuse its discretion in denying a corporation’s motion to substitute itself as the real party in interest because the corporation failed to offer any compelling reason why it failed to do so in a reasonable time after a merger. Revolutionary Concepts, Inc. v. Clements Walker PLLC, 227 N.C. App. 102, 744 S.E.2d 130, 2013 N.C. App. LEXIS 482 (2013).

Insurance carrier failed to show the trial court abused its discretion in denying its motion to substitute a party because the statute set out the procedures regarding who could bring a claim against a third party and when those claims could be instituted under the Workers’ Compensation Act, but the insurance carrier did not follow those statutory requirements to properly bring or assert the claim against a driver. Key Risk Ins. Co. v. Peck, 252 N.C. App. 127, 797 S.E.2d 354, 2017 N.C. App. LEXIS 140 (2017).

Trial court did not abuse its discretion by declining to ex mero motu substitute the real party in interest for plaintiff or by denying plaintiff’s reservation of the right to substitute a similarly named foreign company as the real party in interest where plaintiff failed to do so pursuant to G.S. 1A-1 , N.C. R. Civ. P. 17, over a three year period. K2 Asia Ventures v. Krispy Kreme Doughnut Corp., 273 N.C. App. 313, 848 S.E.2d 523, 2020 N.C. App. LEXIS 636 (2020).

Failure to Determine Real Party in Interest. —

Superior court properly dismissed a purported owner’s complaint against a timber harvester and the former majority owner of a limited partnership (the property owner) for lack of standing at the time its complaint was filed because the trial court lacked subject matter jurisdiction over the proceeding where the property owner, the entity whose property had been damaged, continued to own the right to pursue an action for compensation for such damage, while the authority to act for or control the property owner continued to be the subject of dispute, and the purported owner did not file a motion at any time to determine the real party in interest. WLAE, LLC v. Edwards, 257 N.C. App. 251, 809 S.E.2d 176, 2017 N.C. App. LEXIS 1080 (2017).

III.Infants and Incompetents

Editor’s Note. —

The case of Rutledge v. Rutledge, 10 N.C. App. 427, 179 S.E.2d 163 (1971), and similar cases cited below have expanded a trial court’s authority under this rule by giving the trial court the ability to determine competency in certain circumstances. That authority is brought into question by Culton v. Culton, 96 N.C. App. 620, 386 S.E.2d 592 (1989). In Culton, the issue before the North Carolina Supreme Court was a Court of Appeals holding that G.S. 35A-1101 et seq. preempted the Rutledge line of cases, and that the trial court therefore lacked jurisdiction to determine the defendant’s competency. The Court of Appeals had agreed with the plaintiff’s objection to the district court’s appointment of a guardian ad litem on behalf of the defendant on the grounds that before a guardian ad litem can be appointed under this rule, incompetency must be determined in a proceeding brought under G.S. 35A-1101 et seq. The North Carolina Supreme Court reversed the decision of the Court of Appeals on procedural grounds, holding that the plaintiff lacked standing to challenge on appeal the appointment of a guardian ad litem on behalf of the defendant.

Editor’s Note. —

The General Assembly, however, completely superseded the holding of the Court of Appeals in Culton by passing Session Laws 2003-236, s. 4, which amended G.S. 35A-1102 to provide that “nothing in [G.S. 35A-1101 et seq.] shall interfere with the authority of a judge to appoint a guardian ad litem for a party to litigation under Rule 17(b) of the North Carolina Rules of Civil Procedure.” .

Chapter 35A Sets Forth Sole Procedure for Determining Incompetency. —

Although this rule may have once allowed the trial court to conduct a competency hearing, that procedure was preempted on October 1, 1987, by the enactment of G.S. 35A-1101 et seq., which sets forth the sole procedure for determining incompetency of infants and adults. Culton v. Culton, 96 N.C. App. 620, 386 S.E.2d 592, 1989 N.C. App. LEXIS 1112 (1989), rev'd, 327 N.C. 624 , 398 S.E.2d 323, 1990 N.C. LEXIS 986 (1990) (holding that plaintiff lacked standing to challenge on appeal the district court’s appointment of guardian ad litem for defendant).

And Adjudication of Incompetency Must Take Place Within Perimeters of Chapter 35A. —

The language of G.S. 35A-1102 requires any adjudication of incompetency to take place within the perimeters of Chapter 35A, even if the person sought to be declared incompetent does not challenge the action. However, this rule still exists as a means of appointment of a guardian ad litem where incompetency has already been determined. Culton v. Culton, 96 N.C. App. 620, 386 S.E.2d 592, 1989 N.C. App. LEXIS 1112 (1989), rev'd, 327 N.C. 624 , 398 S.E.2d 323, 1990 N.C. LEXIS 986 (1990)(holding that plaintiff lacked standing to challenge on appeal the district court’s appointment of guardian ad litem for defendant).

Hearing Required To Determine Reasonable Basis For Believing Parent Incompetent Or Has Diminished Capacity. —

Role of the guardian ad litem should be determined based on whether the trial court determines that the parent is incompetent or whether the trial court determines that the parent has diminished capacity and cannot adequately act in his or her own interest G.S. 1A-1 , N.C. R. Civ. P. 17(e), which addresses the duties of a guardian ad litem for an incompetent person, should apply if the parent is incompetent, the role of the guardian ad litem should be one of substitution; on the other hand, if the parent has diminished capacity, G.S. 7B-1101.1(e) should apply and the role of the guardian ad litem should be one of assistance. In re P.D.R., 224 N.C. App. 460, 737 S.E.2d 152, 2012 N.C. App. LEXIS 1454 (2012).

Both G.S. 7B-1101.1(e) and G.S. 1A-1 , N.C. R. Civ. P. 17(e) can be given effect by focusing on the two separate prongs of G.S. 7B-1101.1(c) , with one authorizing appointment of a guardian ad litem if the parent is incompetent, while the second authorizing appointment of a guardian ad litem if the parent has diminished capacity; the extent of the parent’s disability logically informs the role a guardian ad litem needs to play for the parent in a termination of parental rights proceeding. In re P.D.R., 224 N.C. App. 460, 737 S.E.2d 152, 2012 N.C. App. LEXIS 1454 (2012).

Trial court acting under G.S. 7B-1101.1(c) , must conduct a hearing in accordance with the procedures required under G.S. 1A-1 , N.C. R. Civ. P. 17, in order to determine whether there is a reasonable basis for believing that a parent is incompetent or has diminished capacity and cannot adequately act in his or her own interest; if the court chooses to exercise its discretion to appoint a guardian ad litem under G.S. 7B-1101.1(c) , then the trial court must specify the prong under which it is proceeding, including findings of fact supporting its decision, and specify the role that the guardian ad litem should play, whether one of substitution or assistance. In re P.D.R., 224 N.C. App. 460, 737 S.E.2d 152, 2012 N.C. App. LEXIS 1454 (2012).

Failure to Inquire into Parent’s Competency. —

Because the psychologist who examined the mother diagnosed her with only a mild intellectual disability as she had been able to work and to attend school, she demonstrated that she had developed adaptive skills to lessen the impact of her disability, and, while working on her case plan, she completed empowerment classes to help address the issues of domestic violence in her relationship, the mother’s disability did not rise to the level of incompetence requiring the appointment of a guardian ad litem to safeguard her interests in the termination of parental rights case, and the district court did not abuse the court’s discretion when the court did not conduct an inquiry into the mother’s competency. In re Z.V.A., 373 N.C. 207 , 835 S.E.2d 425, 2019 N.C. LEXIS 1188 (2019).

Incompetent Or Has Diminished Capacity. —

Trial court erred in terminating a mother’s parental rights because she had a substance abuse history and was schizophrenic, the allegations against her partly revolved around her multiple, serious mental health conditions, her mental illness was one of the facts that led to her child’s removal, and the trial court failed to conduct an inquiry into whether it was necessary to appoint her a guardian ad litem. In re T.L.H., 237 N.C. App. 239, 765 S.E.2d 88, 2014 N.C. App. LEXIS 1178 (2014), rev'd, 368 N.C. 101 , 772 S.E.2d 451, 2015 N.C. LEXIS 453 (2015).

Infants and persons non compos mentis are peculiarly entitled to the protection of the court, and a principal means for extending this protection is by appointment of a guardian or, where appropriate, a guardian ad litem. Rutledge v. Rutledge, 10 N.C. App. 427, 179 S.E.2d 163 (1971). But see Culton v. Culton, 96 N.C. App. 620, 386 S.E.2d 592 (1989), reversed on other grounds, 327 N.C. 624 , 398 S.E.2d 323 (1990) (holding that plaintiff lacked standing to challenge on appeal the district court’s appointment of guardian ad litem for defendant), and G.S. 35A-1101 et seq .

Former Practice Changed. —

The practice which formerly prevailed in this State, that an infant plaintiff appeared by his next friend, has been changed. Sadler v. Purser, 12 N.C. App. 206, 182 S.E.2d 850, 1971 N.C. App. LEXIS 1328 (1971).

Power to Defend. —

Given supreme court precedent, the limited powers granted to a guardian of the person in G.S. 35A-1241 , and the implied requirement of North Carolina’s Rules of Civil Procedure that imposed the requirement of appointment of a guardian ad litem where no general or testamentary guardian had been appointed under G.S. 1A-1-17(b)(2), a ward of a guardian of the person was neither properly sued nor served in the absence of a guardian ad litem or general guardian, and the verdict against the ward was set aside. Clawser v. Campbell, 184 N.C. App. 526, 646 S.E.2d 779, 2007 N.C. App. LEXIS 1467 (2007).

The change effected is more than a mere change in nomenclature, since substantial differences have been recognized between the powers and duties of a next friend and those of a duly appointed guardian ad litem. Sadler v. Purser, 12 N.C. App. 206, 182 S.E.2d 850, 1971 N.C. App. LEXIS 1328 (1971).

Now Infant or Incompetent Plaintiff Must Appear by Guardian or Guardian Ad Litem. —

Now in actions or special proceedings when any of the parties plaintiff are infants or incompetent persons, they must appear by general or testamentary guardian, if they have any within the State, or by duly appointed guardian ad litem. Sadler v. Purser, 12 N.C. App. 206, 182 S.E.2d 850 (1971). But see Culton v. Culton, 96 N.C. App. 620, 386 S.E.2d 592 (1989), reversed on other grounds, 327 N.C. 624 , 398 S.E.2d 323 (1990) (holding that plaintiff lacked standing to challenge on appeal the district court’s appointment of guardian ad litem for defendant), and G.S. 35A-1101 et seq.

And Not by Next Friend. —

This rule makes no reference to a “next friend,” but provides for the appointment of a guardian or guardian ad litem for infants and incompetents who are parties, whether plaintiff or defendant, in any civil action. Rutledge v. Rutledge, 10 N.C. App. 427, 179 S.E.2d 163 (1971). But see Culton v. Culton, 96 N.C. App. 620, 386 S.E.2d 592 (1989), reversed on other grounds, 327 N.C. 624 , 398 S.E.2d 323 (1990) (holding that plaintiff lacked standing to challenge on appeal the district court’s appointment of guardian ad litem for defendant), and G.S. 35A-1101 et seq.

Whether appointment of a guardian ad litem for a minor is necessary is controlled by section (b) of this rule. In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, 1986 N.C. App. LEXIS 2344 (1986).

Substitution as Party Plaintiff. —

Where the real party in interest was a minor, and the record did not show that a guardian had been appointed, the action should not have been dismissed, but the real party must be given a reasonable opportunity to be substituted as a party plaintiff. Freeman v. Blue Cross & Blue Shield, 123 N.C. App. 260, 472 S.E.2d 595, 1996 N.C. App. LEXIS 677 (1996).

It is ordinarily desirable that an incompetent’s litigation be conducted by a general guardian, who, being in control of his ward’s affairs, can relate the effect of the litigation to the incompetent’s entire estate. Hagins v. Redevelopment Comm’n, 275 N.C. 90 , 165 S.E.2d 490 (1969). See now G.S. 35A-1101 et seq .

Jurisdiction of Court to Appoint Guardian Ad Litem for Adult Plaintiff. —

An adult plaintiff who is not an idiot or lunatic must be non compos mentis before the court has jurisdiction to appoint a guardian ad litem for him. Hagins v. Redevelopment Comm’n, 275 N.C. 90 , 165 S.E.2d 490 (1969). See now G.S. 35A-1101 et seq .

Either party, or the court upon its own motion, may initiate proceedings for appointment of a guardian ad litem before any hearing on the merits. Rutledge v. Rutledge, 10 N.C. App. 427, 179 S.E.2d 163 (1971). But see Culton v. Culton, 96 N.C. App. 620, 386 S.E.2d 592 (1989), reversed on other grounds, 327 N.C. 624 , 398 S.E.2d 323 (1990) (holding that plaintiff lacked standing to challenge on appeal the district court’s appointment of guardian ad litem for defendant), and G.S. 35A-1101 et seq .

The statute does not require, nor does it imply that it is the respondent’s responsibility to ask for appointment of the guardian ad litem. Richard v. Michna, 110 N.C. App. 810, 431 S.E.2d 485 (1993).

Guardian Ad Litem Must Always be Appointed for Minor Child in Legitimacy Proceeding. —

G.S. 49-10 specifies the procedures to be followed in a proceeding pursuant to G.S. 49-12.1 , and provides that a child is a necessary party to a legitimation proceeding. G.S. 49-12.1 (a) states specifically that if the child is a minor, a guardian ad litem must be appointed to represent the child; however, regardless of whether G.S. 49-12.1 required this, appointment of a guardian ad litem for the minor child is mandated by G.S. 1A-1 , N.C. R. Civ. P. 17. In re Papathanassiou, 195 N.C. App. 278, 671 S.E.2d 572, 2009 N.C. App. LEXIS 108 (2009).

Duty to Protect Child’s Interest in Determination of Biological Father. —

Appointment of a guardian ad litem does not dictate the form and inquiry of the proceeding; rather, the duties of the guardian ad litem are dictated by the action or proceeding in which the guardian ad litem has been appointed. In the context of a legitimation proceeding, where the inquiry of the court is whether the petitioner is the biological father of the minor child, the guardian ad litem must defend on behalf of the child in a manner that assures that the child’s interest in the determination of his or her biological father is protected. In re Papathanassiou, 195 N.C. App. 278, 671 S.E.2d 572, 2009 N.C. App. LEXIS 108 (2009).

Appeal from Order Appointing Guardian Ad Litem. —

Plaintiff gave notice of appeal from an interlocutory order, namely, one granting defendant’s motions for the appointment of a guardian ad litem. As this order was not a final judgment, for plaintiff to have been entitled to appeal of right from the order, plaintiff was required to establish that the order either: (1) affected a substantial right, or (2) in effect determined the action and prevented a judgment from which appeal might be taken, or (3) discontinued the action, or (4) granted or refused a new trial. Culton v. Culton, 327 N.C. 624 , 398 S.E.2d 323, 1990 N.C. LEXIS 986 (1990).

Standing to Challenge Appointment on Appeal. —

Because he was not an aggrieved party, plaintiff had no standing to challenge on appeal trial court’s order appointing a guardian ad litem for defendant. Culton v. Culton, 327 N.C. 624 , 398 S.E.2d 323, 1990 N.C. LEXIS 986 (1990).

Party Asserting Competency Is Entitled to Notice and Opportunity to Be Heard. —

When a party’s lack of mental capacity is asserted and denied, and he has not previously been adjudicated incompetent to manage his affairs, he is entitled to notice and an opportunity to be heard before the judge can appoint a guardian ad litem for him. Hagins v. Redevelopment Comm’n, 275 N.C. 90 , 165 S.E.2d 490 (1969). But see Culton v. Culton, 96 N.C. App. 620, 386 S.E.2d 592 (1989), reversed on other grounds, 327 N.C. 624 , 398 S.E.2d 323 (1990) (holding that plaintiff lacked standing to challenge on appeal the district court’s appointment of guardian ad litem for defendant), and G.S. 35A-1101 et seq.

Normally, a litigant has a fundamental right to select the attorney who will represent him in his lawsuit, to conduct his litigation according to his own judgment and inclination, and, if the case is to be compromised, to have it settled upon terms which are satisfactory to him. If this right is taken from him upon a factual finding which he disputes, fundamental fairness and the constitutional requirements of due process require that he be given an opportunity to defend and be heard. Hagins v. Redevelopment Comm’n, 275 N.C. 90 , 165 S.E.2d 490 (1969). See now G.S. 35A-1101 et seq .

If the trial judge determines after voir dire examination that a substantial question as to a party’s competency is raised, notice and opportunity to be heard must then be given the party for whom appointment of a guardian is proposed, as a person for whom a guardian ad litem is proposed is entitled to notice as in case of an inquisition of lunacy under G.S. 35-2 (now repealed). Rutledge v. Rutledge, 10 N.C. App. 427, 179 S.E.2d 163 (1971). But see Culton v. Culton, 96 N.C. App. 620, 386 S.E.2d 592 (1989), reversed on other grounds, 327 N.C. 624 , 398 S.E.2d 323 (1990) (holding that plaintiff lacked standing to challenge on appeal the district court’s appointment of guardian ad litem for defendant), and G.S. 35A-1101 et seq.

Appointment Made Without Notice and Opportunity to Be Heard Is Void. —

Where the plaintiff had no notice that her competency to manage her affairs was challenged nor an opportunity to be heard on the issue, the order appointing a guardian ad litem for her was void, and his settlements of her actions, notwithstanding the fact that they were approved by the court, were not binding upon her. Hagins v. Redevelopment Comm’n, 275 N.C. 90 , 165 S.E.2d 490 (1969). See now G.S. 35A-1101 et seq .

An inquisition is not always a condition precedent for appointment of a guardian ad litem. In an emergency, when it is necessary, pendente lite, to safeguard the property of a person non compos mentis whose incompetency has not been adjudicated, the protection of the court may be invoked in his behalf by one acting as guardian ad litem. Hagins v. Redevelopment Comm’n, 275 N.C. 90 , 165 S.E.2d 490 (1969). See now G.S. 35A-1101 et seq .

Guardian ad Litem’s Powers Limited. —

A guardian ad litem has no authority to receive money or administer the litigant’s property. His powers are coterminous with the beginning and end of the litigation in which he is appointed. Hagins v. Redevelopment Comm'n, 275 N.C. 90 , 165 S.E.2d 490, 1969 N.C. LEXIS 351 (1969).

A Guardian Ad Litem Must Always Be Appointed for An Incapable Parent in a Termination Proceeding. —

When a Division of Social Services pursues termination on the grounds of parental incapability under G.S. 7B-1111(a)(6), the parent has the right to counsel, and to appointed counsel in cases of indigency, unless the parent waives the right. A guardian ad litem shall also be appointed. In re Shepard, 162 N.C. App. 215, 591 S.E.2d 1, 2004 N.C. App. LEXIS 129 (2004).

When it was alleged that a mother’s parental rights to two children should be terminated because she (1) neglected them while they were in an agency’s care within the meaning of G.S. 7B-101 , under G.S. 7B-1111(a)(1), (2) willfully left the children in foster care for more than 12 months without showing reasonable progress to correct the conditions that led to their removal, under G.S. 7B-1111(a)(2), and (3) willfully failed to pay a reasonable portion of the cost of the children’s care while in an agency’s custody, under G.S. 7B-1111(a)(3), there was no requirement that a guardian ad litem be appointed for the parent, even though the petition made reference to the mother’s drug abuse and mental illness, because there was no allegation under G.S. 7B-1111(a)(6) that the mother was incapable of caring for her children, she did not seek a guardian ad litem, and the trial court properly inquired into her competency, under G.S. 1A-1 , N.C. R. Civ. P. 17. In re J.A.A., 175 N.C. App. 66, 623 S.E.2d 45, 2005 N.C. App. LEXIS 2706 (2005).

G.S. 7B-1101.1 requires that a guardian ad litem be appointed in accordance with the provisions of G.S. 1A-1 , N.C. R. Civ. P. 17 to represent a parent, meaning that where an allegation is made that parental rights should be terminated, a trial court is required to conduct a hearing to determine whether a guardian ad litem should be appointed to represent the parent, and an allegation under G.S. 7B-1111(a)(6) serves as a triggering mechanism, alerting the trial court that it should conduct a hearing to determine whether a guardian ad litem should be appointed; at the hearing, the trial court must determine whether the parents are incompetent within the meaning of G.S. 35A-1101 , such that the individual would be unable to aid in their defense at the termination of parental rights proceeding, and the trial court should always keep in mind that the appointment of a guardian ad litem will divest the parent of their fundamental right to conduct his or her litigation according to their own judgment and inclination. In re J.A.A., 175 N.C. App. 66, 623 S.E.2d 45, 2005 N.C. App. LEXIS 2706 (2005).

Appointment in Bankruptcy Cases. —

Bankruptcy court continued a hearing on a trustee’s motion to dismiss a debtor’s Chapter 13 bankruptcy case to give the debtor time to apply for a mental health evaluation and a person who was described in the debtor’s petition as his “next friend and wife” time to support the validity of her filing and to file a motion for appointment as the debtor’s guardian ad litem; although 11 U.S.C.S. § 109 and Fed. R. Bankr. P. 1004.1 allowed a debtor who claimed he was incompetent to file bankruptcy through a next friend, both North Carolina law and Rule 1004.1 required the person who filed the debtor’s petition to establish the debtor’s incompetency and obtain an order appointing that person to serve as the debtor’s guardian ad litem. In re McGlohon, 2016 Bankr. LEXIS 424 (Bankr. E.D.N.C. Feb. 10, 2016).

Substitution of General Guardian for Guardian Ad Litem. —

Since the trial court clearly had authority under this rule to determine whether it was expedient for a guardian ad litem to bring and maintain an action for an incompetent when the incompetent had a general guardian or trustee in the State, the trial court manifestly had authority to substitute the general guardian or trustee as party plaintiff for the guardian ad litem in an action brought on behalf of the incompetent. Gaskins v. McCotter, 52 N.C. App. 322, 278 S.E.2d 302 (1981). But see Culton v. Culton, 96 N.C. App. 620, 386 S.E.2d 592 (1989), reversed on other grounds, 327 N.C. 624 , 398 S.E.2d 323 (1990) (holding that plaintiff lacked standing to challenge on appeal the district court’s appointment of guardian ad litem for defendant), and G.S. 35A-1101 et seq.

Defendant could not collaterally attack a competency hearing and appointment of a general guardian for plaintiff where defendant’s intention obviously was to avoid substitution of the real party in interest, the general guardian, by attacking the validity of the proceeding in which the general guardian was appointed. Hearon v. Hearon, 44 N.C. App. 361, 261 S.E.2d 9, 1979 N.C. App. LEXIS 3256 (1979).

Where an incompetent plaintiff died after institution of action by her next friend, and the court authorized and directed substitution of her administrator as the new plaintiff, failure to make such substitution required dismissal of appeal by the court against appellant’s next friend. Ginn v. Smith, 20 N.C. App. 526, 201 S.E.2d 739, 1974 N.C. App. LEXIS 2487 (1974).

Minors Who Had Vested Interest in Who Administered Estate Were Under Purview of Rule. —

Minor heirs had a vested interest in who administered the estate of their deceased father and were entitled under G.S. 28A-9-1 to appeal the decision of the Clerk on the revocation issue. This was sufficient to bring the matter within the purview of G.S. 1A-1 , Rule 17 providing it was an “action or special proceeding.” In re Estate of Sturman, 93 N.C. App. 473, 378 S.E.2d 204, 1989 N.C. App. LEXIS 202 (1989).

Fees of Guardian Ad Litem Properly Taxed as Costs. —

Having properly appointed guardian ad litem, the trial court was within its discretion to assess as an item of costs the fees of the guardian ad litem and to tax those fees to either party or apportion them between the parties. Van Every v. McGuire, 125 N.C. App. 578, 481 S.E.2d 377, 1997 N.C. App. LEXIS 116 (1997), modified, aff'd, 348 N.C. 58 , 497 S.E.2d 689, 1998 N.C. LEXIS 154 (1998).

Costs Taxed Against Guardian Ad Litem. —

Trial court abused its discretion in taxing costs against plaintiffs’ guardian ad litem because the trial court’s order contained no finding of bad faith on the part of the guardian ad litem; G.S, 6-30 was not applicable to a guardian ad litem because G.S. 1A-1 , N.C. R. Civ. P. 17(b)(1), distinguished a “guardian” and a guardian ad litem. Stark v. Ford Motor Co., 226 N.C. App. 80, 739 S.E.2d 172, 2013 N.C. App. LEXIS 278 (2013).

G.S. 7B-602(b)(1) did not require the appointment of a guardian ad litem for the father as the dependency allegations did not focus on the father’s incapacity; rather, the majority of the dependency allegations focused on the father’s alleged abuse and neglect as exhibited by his noncompliance with court-ordered domestic violence counseling and a pattern of abuse against his wife and other children. In re H. W., 163 N.C. App. 438, 594 S.E.2d 211, 2004 N.C. App. LEXIS 414 (2004).

In a termination of parental rights action, the trial court should have inquired into the mother’s competency pursuant to G.S. 1A-1 , N.C. R. Civ. P. 17, given the allegations made by the Department of Social Services that the mother had problems controlling the mother’s anger, tended to be aggressive towards others, and lacked an understanding of the mother’s prior neglect of the minor children. In re N.A.L., 193 N.C. App. 114, 666 S.E.2d 768, 2008 N.C. App. LEXIS 1763 (2008).

Motion to Transfer Venue Improperly Granted. —

When a guardian sued a physician for personal injuries to the guardian’s minor ward, it was error to grant the physician’s motion for a change of venue as of right based on a finding that suit was brought in the wrong county because the complaint’s caption and prayer both stated suit was brought by the guardian in the guardian’s capacity as guardian of the ward’s estate, and, when the guardian had brought suit in the guardian’s capacity as the ward’s guardian ad litem, the guardian had so indicated in the complaint’s caption, so suit was brought pursuant to the guardian’s authority in G.S. 35A-1252(3) , and the guardian properly brought the suit in the county of the guardian’s residence. Stern v. Cinoman, 221 N.C. App. 231, 728 S.E.2d 373, 2012 N.C. App. LEXIS 702 (2012).

Grounds for Relief from Judgment. —

It was not an abuse of discretion to deny a daughter-in-law and grandson relief from a judgment when the trial court did not inquire into the competency of a trustor because the daughter-in-law’s and grandson’s evidence did not raise a substantial question as to competency. Davis v. Rizzo, 261 N.C. App. 9, 819 S.E.2d 574, 2018 N.C. App. LEXIS 806 (2018), cert. denied, 372 N.C. 58 , 822 S.E.2d 633, 2019 N.C. LEXIS 100 (2019).

Ineffective Assistance of Guardian Ad Litem. —

Mother’s claim of ineffective assistance of counsel in a termination of parental rights hearing from which the mother was absent had to be remanded to the trial court for further findings because (1) it could not be determined from the appellate record why the mother was absent, why counsel and the mother’s guardian ad litem did not advocate for the mother in the hearing, or whether any deficiencies in counsel’s performance deprived the mother of a fair hearing, (2) the record provided only limited evidence of the mother’s relationship with counsel, and (3) neither the parties nor the trial court addressed the issue on the record with sufficient detail. In re A.R.C., 265 N.C. App. 603, 830 S.E.2d 1, 2019 N.C. App. LEXIS 491 (2019).

IV.Decisions under Prior Law

Editor’s Note. —

Most of the cases cited below were decided under former G.S. 1-63 through G.S. 1-65 .

Fiduciaries are not made real parties in interest, but are empowered to bring an action for the real beneficiaries. Lawson v. Langley, 211 N.C. 526 , 191 S.E. 229, 1937 N.C. LEXIS 139 (1937).

The trustee of an express trust may sue without joining the cestui que trust. Richardson v. Richardson, 261 N.C. 521 , 135 S.E.2d 532, 1964 N.C. LEXIS 517 (1964).

Or May Join the Cestui Que Trust. —

A trustee may sue in his own name or may join his cestui que trust. Ingram v. Nationwide Mut. Ins. Co., 258 N.C. 632 , 129 S.E.2d 222, 1963 N.C. LEXIS 449 (1963).

Beneficiary of Express Trust Not a Necessary Party. —

Under former G.S. 1-63 , an executor or trustee of an express trust could sue without joining with him the party equitably interested. Biggs v. Williams, 66 N.C. 427 , 1872 N.C. LEXIS 95 (1872); Davidson v. Elms, 67 N.C. 228 , 1870 N.C. LEXIS 244 (1870). See Jones v. McKinnon, 87 N.C. 294 , 1882 N.C. LEXIS 63 (1882).

Beneficiary Not Excluded from Suit Involving Abuse of Trustee’s Authority. —

Former G.S. 1-63 did not apply so as to exclude the beneficiary as a necessary party in a suit involving the question of whether the trustee had exceeded his authority under the terms of the instrument creating the trust, where the interests of the beneficiary might be seriously affected. Barbee v. Penny, 172 N.C. 653 , 90 S.E. 805, 1916 N.C. LEXIS 373 (1916).

The “trustee of an express trust” does not include the personal representative of such trustee. Alexander v. Wriston, 81 N.C. 191 , 1879 N.C. LEXIS 163 (1879).

Plaintiff Assignee as Trustee of Express Trust. —

An answer setting forth that another person was the real owner of a note sued upon, but that it was assigned to the plaintiff, was to be taken as meaning that the plaintiff was trustee of an express trust, and so was properly plaintiff. Rankin v. Allison, 64 N.C. 673 , 1870 N.C. LEXIS 222 (1870).

When a person contracts in his own name for the benefit of another, he is to be regarded as the trustee of an express trust, whether the name of the beneficiary is disclosed or not. Winders v. Hill, 141 N.C. 694 , 54 S.E. 440, 1906 N.C. LEXIS 149 (1906).

Attorney Transferee as Trustee of Express Trust. —

Where a plaintiff transferred a claim, upon which an action was subsequently brought, to an attorney at law for collection, with directions to him to apply the proceeds to demands which he held for collection against the plaintiff due other parties, the effect of the transfer was to vest ownership of the claim in the attorney as a “trustee of an express trust,” and the action should have been brought in his name alone, or in conjunction with the names of the cestuis que trustent. Wynne v. Heck, 92 N.C. 414 , 1885 N.C. LEXIS 230 (1885).

As to suits by agents, see Martin v. Mask, 158 N.C. 436 , 74 S.E. 343, 1912 N.C. LEXIS 64 (1912).

Suit upon Administration Bond. —

In a suit upon an administration bond, the next of kin of the intestate are not necessary parties, and in such a suit the administrator of the principal in the bond need not be joined. Flack v. Dawson, 69 N.C. 42 , 1873 N.C. LEXIS 168 (1873).

Where a judgment creditor has assigned the judgment as security, an action may be brought by him without joining the assignee. Chatham v. Mecklenburg Realty Co., 180 N.C. 500 , 105 S.E. 329, 1920 N.C. LEXIS 122 (1920).

Where a judgment is assigned to a trustee for the benefit of a judgment debtor entitled to indemnity, trustee may maintain action for indemnity without joining the cestui que trust. Ingram v. Nationwide Mut. Ins. Co., 258 N.C. 632 , 129 S.E.2d 222, 1963 N.C. LEXIS 449 (1963).

Where a note was made payable to “J, cashier,” and collateral security was delivered to him, he being a member and cashier of the firm of “C & J,” the owners of the debt, an action for the foreclosure of the mortgage security was properly brought in his name, as he was the holder of the collateral as trustee for the firm. Jenkins v. Wilkinson, 113 N.C. 532 , 18 S.E. 696, 1893 N.C. LEXIS 119 (1893).

Where a consent judgment directed named persons to sell and convey land, to collect the proceeds, to pay the taxes lawfully due, and to distribute the balance as directed, the persons named were trustees of an express trust, notwithstanding the fact that the judgment denominated them as commissioners, and therefore such persons were authorized to maintain an action for recovery of taxes unlawfully paid, without joinder of the beneficial owners of the property. Rand v. Wilson County, 243 N.C. 43 , 89 S.E.2d 779, 1955 N.C. LEXIS 708 (1955).

Where a widow as executrix distributed in settlement the remaining personalty to herself as life tenant in accordance with the will, and the property then inured to the benefit of the remaindermen, she became functus officio as to such property. An administrator c.t.a., appointed after her death, was likewise functus officio and was not empowered to maintain an action to recover such property from her administrators, since it was no longer part of his testator’s estate and was not subject to further administration. Darden v. Boyette, 247 N.C. 26 , 100 S.E.2d 359, 1957 N.C. LEXIS 654 (1957).

Rights and Interests of Infants to Be Protected by Courts. —

Infants are favorites of the courts, and the courts are duty-bound to protect their rights and interests in all actions and proceedings whether they are represented by guardians or not; and the Supreme Court will scan with extra care all records affecting the interest of minors. Tart v. Register, 257 N.C. 161 , 125 S.E.2d 754, 1962 N.C. LEXIS 591 (1962).

The object of the appointment of a guardian ad litem is to protect the interest of the infant defendant, to which protection he is entitled at every stage of the proceeding. Graham v. Floyd, 214 N.C. 77 , 197 S.E. 873, 1938 N.C. LEXIS 266 (1938).

Power to Appoint and Remove Guardian Ad Litem. —

The superior court has, independently of statute, the power to appoint a guardian ad litem for an infant defendant. It may, at any time during the progress of the cause, for sufficient reason looking to the proper protection of the infant’s interests, remove a guardian theretofore appointed and name some other person. Moreover, there is no good reason why the clerk who acts as and for the court may not do the same in special proceedings pending before him. Carraway v. Lassiter, 139 N.C. 145 , 51 S.E. 968, 1905 N.C. LEXIS 103 (1905).

Duty of Court in Appointing Guardian Ad Litem. —

It is the duty of courts to have special regard for infants and their rights and interests when they come within their cognizance, since they cannot adequately take care of themselves. Hence, it is a serious mistake to suppose that a next friend or a guardian ad litem should be appointed upon simple suggestion; this should be done upon proper application in writing and due consideration by the court. The court should know who is appointed, and that such person is capable and trustworthy. Morris v. Gentry, 89 N.C. 248 , 1883 N.C. LEXIS 226 (1883).

Mandatory Nature of Appointment Provisions. —

Infants are, in many cases, the wards of the courts, and these forms, enacted as safeguards thrown around the helpless, who are often the victims of the crafty, are enforced as being mandatory, and not directory only. Those who venture to act in defiance of them must take the risk of their action being declared void or set aside. Moore v. Gidney, 75 N.C. 34 , 1876 N.C. LEXIS 195 (1876).

Appointment of Guardian Ad Litem Requires Presence And Participation of Guardian Ad Litem. —

In case where the trial court entered adjudication and disposition orders finding the mother’s two sons to be neglected and dependent juveniles, because the trial court determined that the mother could not adequately represent her own interests, and appointed a guardian ad litem (GAL) to represent her, conducting the adjudication and disposition hearings without the presence and participation of the GAL for the mother was error. In re D.L.P., 242 N.C. App. 597, 776 S.E.2d 241, 2015 N.C. App. LEXIS 694 (2015).

Judgments Not Vitiated by Mere Irregularities in Appointing Guardians Ad Litem. —

The provisions in regard to the appointment of guardians ad litem should be strictly observed, but mere irregularities in observing them, not affecting a substantial right, will not vitiate judgments and decrees obtained in the action or proceeding in which such irregularities exist. Ward v. Lowndes, 96 N.C. 367 , 2 S.E. 591, 1887 N.C. LEXIS 65 (1887); White v. Morris, 107 N.C. 92 , 12 S.E. 80, 1890 N.C. LEXIS 18 (1890); Cox v. Cox, 221 N.C. 19 , 18 S.E.2d 713, 1942 N.C. LEXIS 375 (1942).

Failure to Serve Minor Personally as Mere Irregularity. —

Where the interests of the minor have been presented and an answer has been filed by his general guardian or guardian ad litem, the failure to serve on the minor personally is only an irregularity, to be corrected, if at all, by motion in the cause. Matthews v. Joyce, 85 N.C. 258 , 1881 N.C. LEXIS 250 (1881); Carraway v. Lassiter, 139 N.C. 145 , 51 S.E. 968, 1905 N.C. LEXIS 103 (1905); Rackley v. Roberts, 147 N.C. 201 , 60 S.E. 975, 1908 N.C. LEXIS 38 (1908); Glisson v. Glisson, 153 N.C. 185 , 69 S.E. 55, 1910 N.C. LEXIS 49 (1910); Harris v. Bennett, 160 N.C. 339 , 76 S.E. 217, 1912 N.C. LEXIS 168 (1912); Groves v. Ware, 182 N.C. 553 , 109 S.E. 568, 1921 N.C. LEXIS 270 (1921).

Presumption of Proper Appointment. —

Where the lands of infants are sold under an order of the superior court upon an ex parte petition in which the infants are represented by next friends, it is presumed that the court protected their interests and was careful to see that they suffered no prejudice. Tyson v. Belcher, 102 N.C. 112 , 9 S.E. 634, 1889 N.C. LEXIS 19 (1889).

Appointment Valid When Infant Accepted Service. —

The appointment of a guardian ad litem was valid although the infant was not regularly served with process, but had only accepted service thereof. Cates v. Pickett, 97 N.C. 21 , 1 S.E. 763, 1887 N.C. LEXIS 101 (1887).

Plaintiff is not bound to move for appointment of a guardian ad litem for an infant defendant, and his failure to do so is not such laches as will work a discontinuance of the action. Turner v. Douglass, 72 N.C. 127 , 1875 N.C. LEXIS 163 (1875).

A mere colorable interest, if at all adverse, is sufficient to disqualify either a guardian ad litem or his attorney from appearing for an infant defendant. Molyneux v. Huey, 81 N.C. 106 , 1879 N.C. LEXIS 149 (1879); Ellis v. Massenburg, 126 N.C. 129 , 35 S.E. 240, 1900 N.C. LEXIS 201 (1900).

Person with Interest Hostile to Infants. —

Any person who has an interest in an action hostile to that of the infants involved will not be allowed to conduct the action on their behalf, whether he be guardian or next friend. George v. High, 85 N.C. 113 , 1881 N.C. LEXIS 215 (1881).

Nominal Plaintiff Disqualified to Represent Infant Defendants. —

A plaintiff of record, though nominal and made so without his consent, was utterly disqualified to appear for any infant defendants. His most faithful performance of duty and energetic and persistent defense, in every way commendable and approved by the court, would not relieve the impropriety of his appointment as guardian ad litem, so long as his name appeared on the plaintiff side of the docket. Ellis v. Massenburg, 126 N.C. 129 , 35 S.E. 240, 1900 N.C. LEXIS 201 (1900).

Appointment Where General Guardian Is Plaintiff. —

In a special proceeding by an executor to sell lands, the clerk had the power to appoint a guardian ad litem for an infant defendant, where the executor was the general guardian of such infant. Carraway v. Lassiter, 139 N.C. 145 , 51 S.E. 968, 1905 N.C. LEXIS 103 (1905).

Appointment of Guardian Ad Litem on Day of Trial. —

Where a guardian ad litem for infants and incompetents is appointed on the day of trial, and such guardian accepts service and copies of the pleadings and files his answer the same day, the judgment is irregular and may be declared void or set aside. Simms v. Sampson, 221 N.C. 379 , 20 S.E.2d 554, 1942 N.C. LEXIS 473 (1942).

Foreign or Domestic Corporation Cannot Be Appointed. —

Only a person whose fitness has first been ascertained by the court is eligible for appointment by the court as representative of a minor to institute suit, and neither a foreign nor domestic corporation may be appointed. In re Will of Roediger, 209 N.C. 470 , 184 S.E. 74, 1936 N.C. LEXIS 271 (1936).

Treatment of Suit Brought by Foreign Guardian. —

A guardian appointed in another state has no authority to represent his wards in suits and proceedings in this State, but when he brings suit for them as guardian such suit will be treated as if he were next friend. Tate v. Mott, 96 N.C. 19 , 2 S.E. 176, 1887 N.C. LEXIS 6 (1887).

Where an infant had a general guardian, such guardian was the only one who could defend on behalf of the infant, and defense by a subsequently appointed guardian ad litem was a nullity. Narron v. Musgrave, 236 N.C. 388 , 73 S.E.2d 6, 1952 N.C. LEXIS 579 (1952).

Representation of Minor Heir by Administrator in Proceeding to Sell Land. —

In an ex parte proceeding to sell land for assets, infant heirs are represented by a guardian, and the order of sale must be approved by the judge. While it is irregular for the administrator in such case to represent a minor heir as guardian, yet, where there is no suggestion of any unfair advantage having been taken in the sale, confirmation, or elsewhere in the proceeding, such irregularity will not vitiate the title of the purchaser. Syme v. Trice, 96 N.C. 243 , 1 S.E. 480, 1887 N.C. LEXIS 43 (1887); Harris v. Brown, 123 N.C. 419 , 31 S.E. 877, 1898 N.C. LEXIS 90 (1898).

Suit by Representative of Infant Widow. —

In dissenting from her husband’s will and applying for a year’s allowance, widow who was a minor without a guardian could be represented by a representative, duly appointed. Hollmon v. Hollmon, 125 N.C. 29 , 34 S.E. 99, 1899 N.C. LEXIS 162 (1899).

Appearance of Husband Unnecessary. —

Where an infant feme covert cestui que trust who had no general guardian appeared in a proceeding for the appointment of a trustee by guardian ad litem, the husband did not need to appear. Roseman v. Roseman, 127 N.C. 494 , 37 S.E. 518, 1900 N.C. LEXIS 116 (1900).

Duty of Guardian Ad Litem. —

It is the duty of a next friend to represent the infant, to see that the witnesses are present at the trial of the infant’s case, and to do all things which are required to secure a judgment favorable to the infant. Teele v. Kerr, 261 N.C. 148 , 134 S.E.2d 126, 1964 N.C. LEXIS 416 (1964).

Power of Guardian Ad Litem Limited. —

The power of a next friend is strictly limited to the performance of the precise duty imposed upon him by the order appointing him, that is, the prosecution of the particular action in which he was appointed. Teele v. Kerr, 261 N.C. 148 , 134 S.E.2d 126, 1964 N.C. LEXIS 416 (1964).

Failure to Plead Infancy of Petitioner as Waiver of Such Defense. —

Where a minor petitioned for a writ of habeas corpus in her own name, and not by next friend, and the record on appeal failed to show that the respondent pleaded the infancy of the petitioner as a defense, it was considered as waived. In re Allen, 238 N.C. 367 , 77 S.E.2d 907, 1953 N.C. LEXIS 442 (1953).

Appealability of Order Appointing Guardian Ad Litem. —

An order appointing a next friend for plaintiff is an order affecting a substantial right from which plaintiff may appeal. Hagins v. Redevelopment Comm'n, 1 N.C. App. 40, 159 S.E.2d 584, 1968 N.C. App. LEXIS 1005 (1968), rev'd, 275 N.C. 90 , 165 S.E.2d 490, 1969 N.C. LEXIS 351 (1969).

Defendant cannot object to representative appointed by trial judge. Carroll v. Montgomery, 128 N.C. 278 , 38 S.E. 874, 1901 N.C. LEXIS 385 (1901).

Authority of Guardian Ad Litem Not Subject to Collateral Attack. —

The presence of a guardian ad litem to represent an infant party, and his recognition by the court in proceeding with the cause, precludes an inquiry into his authority in a collateral proceeding. Sumner v. Sessoms, 94 N.C. 371 , 1886 N.C. LEXIS 6 5 (1886). See also, Tate v. Mott, 96 N.C. 19 , 2 S.E. 176, 1887 N.C. LEXIS 6 (1887).

When Collateral Attack on Judgment Precluded. —

Where infant defendants were served with a summons in proceedings for the partition of land and a guardian ad litem was appointed, a judgment affirming the sale could not be set aside in a collateral proceeding for alleged fraud or irregularity. Smith v. Gray, 116 N.C. 311 , 21 S.E. 200, 1895 N.C. LEXIS 211 (1895).

Binding Effect of Judgment on Represented Infants. —

Infants without general guardians may appear by their representative, appointed in the manner prescribed, and judgments rendered in such proceedings, otherwise valid, are binding upon and conclusive of the rights of infants in the same manner and to the same extent as persons sui juris. Tate v. Mott, 96 N.C. 19 , 2 S.E. 176, 1887 N.C. LEXIS 6 (1887); Settle v. Settle, 141 N.C. 553 , 54 S.E. 445, 1906 N.C. LEXIS 138 (1906).

Whether a new trial will be ordered for failure to appoint a guardian ad litem will depend upon the circumstances of the particular case as to whether the infant or infants have been fully protected in their rights and property; a new trial will not be granted for mere technical error which could have affected the result, but only for error which is prejudicial or harmful. Tart v. Register, 257 N.C. 161 , 125 S.E.2d 754, 1962 N.C. LEXIS 591 (1962).

Judgment Against Infants Neither Served Nor Represented by Guardian Ad Litem Void. —

Where it appears that there was no service of process upon infant defendants, and no guardian was appointed to protect their interests, a judgment rendered against them is absolutely void ab initio, and may be set aside at any time for irregularity. Mason v. Miles, 63 N.C. 564 , 1869 N.C. LEXIS 14 1 (1869); Larkins v. Bullard, 88 N.C. 35 , 1883 N.C. LEXIS 14 (1883). See White v. Albertson, 14 N.C. 241 , 1831 N.C. LEXIS 102 (1831); Pearson v. Nesbitt, 12 N.C. 315 , 1827 N.C. LEXIS 62 (1827).

Judgment or Order Voidable Where Infant Appears by Attorney. —

A judgment for or against an infant, when he appears by attorney but has no guardian or next friend, is not void, but only voidable. Tate v. Mott, 96 N.C. 19 , 2 S.E. 176, 1887 N.C. LEXIS 6 (1887).

In an action against an infant who appears by an attorney, an order changing the venue is not irregular or void; it is erroneous, and may be reversed or vacated upon application of the infant, upon his arriving at age of majority. Turner v. Douglass, 72 N.C. 127 , 1875 N.C. LEXIS 163 (1875).

Attainment of Majority Pendente Lite. —

Where an infant institutes an action in his own name and arrives at full age before trial, the judgment is binding on both plaintiff and defendant. Hicks v. Beam, 112 N.C. 642 , 17 S.E. 490, 1893 N.C. LEXIS 259 (1893).

Judgment Against Infant Held Void. —

Where an infant was not served, and his guardian ad litem appeared and answered but interposed no real defense, and the court entered judgment on the day of the appointment of the guardian ad litem, the judgment against the infant was void for want of jurisdiction. Narron v. Musgrave, 236 N.C. 388 , 73 S.E.2d 6, 1952 N.C. LEXIS 579 (1952).

Proceedings Held Not Conclusive upon Infant Defendants. —

A decree for the sale of land in a special proceeding was not conclusive upon infant defendants who were not served with process, but who were represented by a guardian ad litem, appointed before the petition was filed on nomination of plaintiff, and who filed an answer prepared for him at plaintiff ’s instance and without inquiry as to the rights of the infant defendants. Moore v. Gidney, 75 N.C. 34 , 1876 N.C. LEXIS 195 (1876); Gulley v. Macy, 81 N.C. 356 , 1876 N.C. LEXIS 350 (1876).

In a suit to enforce a tax lien by foreclosure, where the affidavit, orders and notices appeared sufficient in form to constitute service by publication of notice of summons in accordance with prescribed procedure upon all persons named therein, including heirs at law, both adult and minors, the minors, if any, not having been represented by a guardian ad litem, would not be bound by the judgment of confirmation rendered in the action. McIver Park v. Brinn, 223 N.C. 502 , 27 S.E.2d 548, 1943 N.C. LEXIS 312 (1943).

Infants as Real Parties Plaintiff. —

One who conducts a suit as guardian or next friend for infants is not a party of record, but the infants themselves are the real plaintiffs. George v. High, 85 N.C. 113 , 1881 N.C. LEXIS 215 (1881); Krachanake v. Acme Mfg. Co., 175 N.C. 435 , 95 S.E. 851, 1918 N.C. LEXIS 90 (1918).

It is not essential that an infant should know that an action has been brought in his favor by a representative, as his incapacity to judge for himself is presumed, but the court may inquire into the propriety of the action and take such steps as may be necessary. Tate v. Mott, 96 N.C. 19 , 2 S.E. 176, 1887 N.C. LEXIS 6 (1887).

As to defense by one appointed to prosecute right for infant, see County of Johnston v. Ellis, 226 N.C. 268 , 38 S.E.2d 31, 1946 N.C. LEXIS 441 (1946).

It is competent for attorney and guardian ad litem to waive a jury trial for infants, even where they have not been regularly served with summons. White v. Morris, 107 N.C. 92 , 12 S.E. 80, 1890 N.C. LEXIS 18 (1890).

Consent to Judgment or Compromise. —

In the case of infant parties, the guardian ad litem or guardian cannot consent to a judgment or compromise without investigation and approval by the court. State ex rel. Hagins v. Phipps, 1 N.C. App. 63, 159 S.E.2d 601, 1968 N.C. App. LEXIS 1008 (1968).

Satisfaction of Judgment in Favor of Infant. —

Under the statutes of this State, only the clerk or the legal guardian of an infant has authority to receive payment and satisfy a judgment rendered in favor of an infant, and the defendant must pay the judgment to the clerk of the superior court, who holds the funds until the minor reaches his majority or until a general guardian is appointed for him, unless the sum is $1,000 (now $2,000) or less, when he may disburse it himself under the terms of G.S. 7A-111 . Teele v. Kerr, 261 N.C. 148 , 134 S.E.2d 126, 1964 N.C. LEXIS 416 (1964).

Inquisition to Determine Insanity Not Condition Precedent to Appointment. —

The court is under duty to appoint a guardian ad litem for a defendant who is non compos mentis and who has no general guardian, and an inquisition to determine the sanity of the defendant is not a condition precedent to such appointment. Moore v. Lewis, 250 N.C. 77 , 108 S.E.2d 26, 1959 N.C. LEXIS 438 (1959).

Where allegation of insanity of husband was admitted by demurrer, suit could be brought by his next friend, even though no inquisition of lunacy was had; and the wife could bring the action as such next friend, where she was regularly appointed. Abbott v. Hancock, 123 N.C. 99 , 31 S.E. 268, 1898 N.C. LEXIS 22 (1898).

Payment of Costs by Representative. —

While the representative is not, strictly speaking, a party to the action, and generally will not be taxed with costs, yet where the court finds the fact that he officiously procured his appointment, or was guilty of mismanagement or bad faith, it may tax him with costs. Smith v. Smith, 108 N.C. 365 , 13 S.E. 113, 1891 N.C. LEXIS 334 (1891).

Attorneys’ Fees for Prosecution of Guardian. —

Where it is proper for the attorneys for a ward, employed by his representative, to receive compensation out of the estate for the prosecution of an action against the guardian, the amount is for the sole determination of the court, irrespective of any contract that may have been made, to be fixed with regard to the value of the services in relation to that of the estate. In re Stone, 176 N.C. 336 , 97 S.E. 216 (1918).

Rule 18. Joinder of claims and remedies.

  1. Joinder of claims. —  A party asserting a claim for relief as an original claim, counterclaim, cross claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal or equitable, as he has against an opposing party.
  2. Joinder of remedies; fraudulent conveyances. —  Whenever a claim is one heretofore cognizable only after another claim has been prosecuted to a conclusion, the two claims may be joined in a single action; but the court shall grant relief in that action only in accordance with the relative substantive rights of the parties. In particular, a plaintiff may state a claim for money and a claim to have set aside a conveyance fraudulent as to him, without first having obtained a judgment establishing the claim for money.

History. 1967, c. 954, s. 1; 1969, c. 895, s. 7.

Comment

The fundamental problem sought to be controlled by so-called joinder rules is that of the size which a single lawsuit shall on the one hand be compelled, and, on the other hand, permitted to assume. Hence, the rules of compulsory (minimum allowable size) and permissive (maximum allowable size) joinder. Since size depends both upon the number of claims (causes of action) and parties potentially involved, the rules of joinder have traditionally been separately framed in terms of parties and claims (causes of action).

Permissive Joinder. — The underlying policy controlling maximum permissible size is clear and has always been at least tacitly agreed upon under all procedural systems — namely, that the size should be as large as is compatible with orderly handling of issues and fairness to those parties not necessarily interested in all phases of the lawsuit as finally structured. This in turn is based upon the obvious — that economy of judicial effort is achieved by the resolution in one suit of as many claims, concluding as many parties, as is possible. The rub has come in laying down workable directions which are fairly simple in statement; which nevertheless deal adequately with the potentially two-dimensional nature of the joinder problem (both parties and causes); and which, though couched in a form concrete enough for ready application, state what is essentially a quite flexibly conceived goal, i.e., maximum size commensurate with orderly handling of issues and fairness to all parties. One way to solve what is essentially a very difficult drafting problem is to lay down a fairly rigid, hence easily expressed, limitation in the kinds of cause of action which may be joined. If this is done, the problem of too many parties tends to take care of itself, since under traditional conceptions of the structure of a “cause of action,” such a single judicial unit rarely has multiple parties aligned on either side of it (typically only when the substantive law contemplates the existence of parties jointly, or jointly or severally, entitled or obligated). Thus, in most cases of attempted joinder of multiple parties there will be a more basic joinder of causes of action which will come under control of the limitation applicable to joinder of causes. This was the common-law approach, which started out allowing only one claim to be made in any action, and finally relaxed only to the point of allowing joinder of causes when they all fell within one of the “forms of action.” The code draftsmen, wedded to this approach, essentially codified it, merely using new terminology, e.g., “contract,” in place of old “assumpsit,” to define the categories within which joinder of claims is permissive. This approach is artificial, and actually loses sight of the basic policy which should control here, but it is simple to put into directive form, and it “works,” albeit at the expense of legitimate considerations. When coupled, as it typically is in the codes, with procedural devices provided to attack misjoinder preliminary to trial, it produces a vast amount of skirmishing at this stage before trial is ever reached. This is the history of application of the code joinder rules. Here the emphasis is on artificial restriction of size, with leeway provided for movement in the direction of enlargement only through the power in judges to consolidate causes not technically subject to joinder.

Another approach, which is also simple of statement, is to go in exactly the opposite direction and state a basic directive for practically unlimited joinder of claims at the pleading stage, limited only by considerations of fairness to any parties not potentially interested in the totality of the lawsuit as then structured, leaving the burden on the judiciary to move in a restricted direction by exercise of the power of severance closer to trial time. This dispenses with pleading stage skirmishes over the alignment of the suit in terms of parties and claims, and defers ultimate structuring while preserving to the parties at this stage all the benefits of an ongoing uninterrupted lawsuit. This last is essentially a description of the federal rule approach to the problem of maximum permissible size or permissive joinder.

Compulsory Joinder. — Going to the problem of minimum allowable size (compulsory joinder), the Commission found that the underlying policy consideration here has traditionally been to insure that all “necessary” or “indispensable” parties should be involved in a lawsuit before it proceeds to trial, or certainly before it proceeds to judgment. Necessity and indispensability have always been viewed in this context as involving two aspects: First, necessity from the standpoint of the judicial economy of concluding in one lawsuit the total potential range of the controversy as defined in the pleadings; Second, necessity from the standpoint of avoiding undue practical prejudice to absent parties (notwithstanding they are not legally concluded) by proceeding to trial and judgment without their presence.

There has never been considered to be any corresponding necessity to compel joinder of several causes of action, hence there have not been rules of “compulsory joinder of causes.” The res judicata principle of merger by judgment arises at this stage in the form of the rule against “splitting a cause of action.” This, in effect, sets the minimum allowable size of a lawsuit, so far as causes of action is concerned, at one such unit. Beyond this there is no compulsion to “join.” Thus, the rules of compulsory joinder have always been rules of compulsory joinder of parties. Here, too, the problem has been to draft concretely to express the essentially flexible consideration of “necessity” above summarized. There has always been general agreement that all parties jointly entitled or obligated were “necessary” in the sense compelling their joinder, and this has been the rule from common-law days, through the codes, and under federal practice. Beyond the “jointly interested” or “united in interest” area, however, the directives have had to rely simply on general formulations of necessity in the sense above discussed. There is remarkably little change in phraseology designed to express this essential notion under the federal rule formulation from that under the codes.

Multiple Causes and Parties. — A particularly difficult problem in framing permissive joinder directives is occasioned by the necessity for taking into account the possibility of both multiple causes and parties. As indicated, despite the inextricably two-dimensional nature of the joinder problem where multiple causes and parties are involved, the traditional approach has been to frame the joinder rules as if joinder of parties and causes were two separate and independent problems. Of course, where there is but a single claim (cause of action) the joinder rule directed solely at the party joinder limitations is completely adequate to control the matter. But where separately framed directives are used, they must be interrelated in some fashion in order to take into account the possibility of joinder of both claims and parties in a single suit. This poses a logical difficulty which has actually defied any but artificial solutions in any system which has sought to impose separately conceived limitations on joinder of parties and causes, and then to interrelate these limitations. Thus, one code solution has been (as in North Carolina) to resolve this logical dilemma by adding to the basic limitations on joinder of causes the all inclusive limitation that all causes must affect all parties. This is a possible solution, but it achieves relative certainty (only relative) at the expense of truly valid considerations of maximum permissible lawsuit size. Another approach, much more likely to achieve the desired goals, is to allow unlimited joinder of claims as such, and to impose limitations only in respect of parties, which limitations apply whether there is but a single or multiple causes of action (claims) involved. This is the federal rules approach and it has proven in practice not only to be more certain of application in given cases, but also to allow closer approximation to the true goals of permissive joinder, i.e., to allow as much to be concluded in any lawsuit as is commensurate with orderly handling of issues and fairness to parties not interested in the entire scope of the suit. Here again, ultimate protection against confusion of issues and unfairness can be provided by severance power reposed in the judiciary, and so it is under the federal rules approach.

OFFICIAL COMMENT

Comment on Rule 18 as Originally Enacted.

This is an exact tracking of the federal rule. This reflects the view that the joinder conceptions expressed in this rule are much preferable to the code approach as previously incorporated essentially in former §§ 1-123, 1-68 and 1-69.

The first sentence of section (a) starts with the simplest possible situation by stating the basic rule for permissive joinder of claims as between just two parties. This rule is simply for potentially unlimited joinder, without regard to number and nature. If this be thought to open the door to vast confusion by encouraging an unfettered joinder of numerous completely unrelated claims, two things should be remembered. First, as a practical matter, human affairs do not often contrive to give many legal claims to any particular individual against another particular individual at times close enough together to raise even the possibility of their joinder in a single action. Furthermore, to the extent multiple claims do arise close enough in point of time to raise the joinder possibility, they are extremely likely to arise out of the same basic historical occurrences or transactions, thus presenting fair ground for inclusion in one lawsuit. Secondly, if, however, too numerous claims are allowed to be joined in the pleadings in a particular case, this does not mean that they must therefore be tried in the same case. Both Rules 20(b) and 42(b) contain express mandates to sever claims prior to trial for separate trial where orderliness and fairness require this.

The second sentence posits the more complicated situation of multiple parties and multiple claims, and reiterates the basic rule of unlimited joinder of claims in this situation but with the proviso that the limitations on permissive party joinder (as expressed in Rules 19, 20, and 22) are to be observed. As indicated in the General Comment to this bloc of rules, this is a much more preferable way in logic to handle the difficult problem of interrelating limitations on multiple claim and multiple party joinder than is the code way. The party joinder rules impose quite realistic and sufficient restrictions on unfettered joinder of claims here. For where both multiple claims and multiple parties are involved, two unifying factors in respect of the various parties vis-a-vis the various claims must exist to allow the claims to be joined, i.e., (1) all the claims must arise out of the same aggregation of historical facts (same “transaction or occurrence, etc.”), and (2) there must be in respect of all parties some common question of law or fact necessarily to be determined in the action. This is a much more easily understandable and applicable restriction than is the vague “all causes must affect all parties” restriction which underlies all other tests for permissive joinder of claims under the former code approach. It also gets more truly at the valid limiting consideration which should control the maximum size, i.e., the avoidance of too numerous historically unrelated issues in a single action wherein not all the parties are interested in the resolution of all the issues.

The third sentence quite logically makes these rules for permissive joinder of claims and of parties and claims applicable to crossclaims and third-party claims when the integral requirements for prosecuting such claims are met.

By contrast with this logically conceived and well-stated directive for permissive joinder of claims in both the single and multiple party situations, the code approach in former § 1-123 was poorly conceived and has led to logically absurd and unjustifiable results. Thus, for example, in a single party context under this statute, A may sue B in one action for breach of two entirely different contracts, since both causes fall within one of the listed categories of joinable claims, Lyon v. Atlantic C.L.R.R., 165 N.C. 143 , 81 S.E. 1 (1914); but A may not in one action sue B, his employer, for (1) negligent injury, and (2) wrongful discharge from employment when A refuses to sign a release as to the negligence claim, because the two causes do not fall within any of the listed categories, not even the “same transaction” category. Pressley v. Great Atl. & Pac. Tea Co., 226 N.C. 518 , 39 S.E.2d 382 (1946). In the multiple party context the “joker provision” that notwithstanding claims may be otherwise joinable, they may not be joined if all of them do not affect all parties, has given rise to quite unpredictable results from case to case. For example, in Branch Banking & Trust Co. v. Pierce, 195 N.C. 717 , 143 S.E. 524 (1928), against the contention that all causes did not affect all parties, plaintiff was allowed to join several claims against various officers and directors of a corporation, alleging mismanagement notwithstanding the alleged several acts extended over a period of years during all of which it did not appear all the defendants were serving; while in Gattis v. Kilgo, 125 N.C. 133 , 34 S.E. 246 (1899), A was not allowed to join a cause of action against B for slander with a cause against B and three others for subsequent publication of the same slander, because all causes did not affect all parties. Legitimate considerations of trial convenience were frequently not served by this Code directive. Thus, most typically, while it will prevent A and B from joining in a negligence case against C from injuries received by the same actionable negligence of C, the courts quite frequently consolidate for trial the separate nonjoinable claims of A and B for trial convenience.

Section (b) establishes a rule of permissive joinder, whose obvious import is to avoid the circuity of action necessitated by successive actions if such joinder were not expressly authorized by rule. The effect of this rule is to codify North Carolina case law in respect of the money claim, fraudulent conveyance joinder. Dawson Bank v. Harris, 84 N.C. 206 (1881) (establishing rule consistently followed since).

OFFICIAL COMMENT

Comment on 1969 Amendment to Rule 18.

  1. Although Rule 18(a) was rewritten by the 1969 amendment, it appears that together with other rules affecting joinder of claims, especially Rules 13 and 14, a very liberal joinder of claims practice will be permissible. If there are multiple parties, then the parties’ rules will have to be consulted.

Legal Periodicals.

For article on legislative changes to the new Rules of Civil Procedure, see 6 Wake Forest Intra. L. Rev. 267 (1970).

CASE NOTES

Rules Not Applicable to Counterclaims. —

This rule applies to joinder of claims and remedies and not to counterclaims, which are controlled by G.S. 1A-1 , Rule 13. Reichler v. Tillman, 21 N.C. App. 38, 203 S.E.2d 68, 1974 N.C. App. LEXIS 1703 (1974).

Combination of Remedies by Holder of Note. —

The holder of a note secured by a deed of trust may sue the makers in personam for the debt and may sue in rem to subject the mortgaged property to the payment of the note, and may combine the two remedies in one civil action. Watson v. Carr, 4 N.C. App. 287, 166 S.E.2d 503, 1969 N.C. App. LEXIS 1486 (1969) (decided under former G.S. 1-123).

Plaintiff Could Not Proceed in One Action with Petition for Certiorari and Complaint. —

Plaintiff’s petition for writ of certiorari to review town’s decision denying plaintiff’s subdivision permit application was improperly joined with her complaint against the town in which she alleged constitutional violations and sought damages, costs, and attorneys’ fees pursuant to this section. Batch v. Town of Chapel Hill, 326 N.C. 1 , 387 S.E.2d 655, 1990 N.C. LEXIS 6 , cert. denied, 496 U.S. 931, 110 S. Ct. 2631, 110 L. Ed. 2d 651, 1990 U.S. LEXIS 3095 (1990).

Joinder Permissible. —

Joinder of claims was permissible pursuant to G.S. 1A-1 , N.C. R. Civ. P. 18(a), where a property owner had properly alleged indemnification pursuant to G.S. 1A-1 , N.C. R. Civ. P. 14 in a third-party complaint. Duke Energy Carolinas, LLC v. Bruton Cable Serv., 233 N.C. App. 468, 756 S.E.2d 863, 2014 N.C. App. LEXIS 363 (2014).

It was error to deny a husband’s motion to change venue because (1) removal of all claims filed in the same action was required, and (2) all removal prerequisites were met. Dechkovskaia v. Dechkovskaia, 244 N.C. App. 26, 780 S.E.2d 175, 2015 N.C. App. LEXIS 956 (2015).

Rule 19. Necessary joinder of parties.

  1. Necessary joinder. —  Subject to the provisions of Rule 23, those who are united in interest must be joined as plaintiffs or defendants; but if the consent of anyone who should have been joined as plaintiff cannot be obtained he may be made a defendant, the reason therefor being stated in the complaint; provided, however, in all cases of joint contracts, a claim may be asserted against all or any number of the persons making such contracts.
  2. Joinder of parties not united in interest. —  The court may determine any claim before it when it can do so without prejudice to the rights of any party or to the rights of others not before the court; but when a complete determination of such claim cannot be made without the presence of other parties, the court shall order such other parties summoned to appear in the action.
  3. Joinder of parties not united in interest — Names of omitted persons and reasons for nonjoinder to be pleaded. —  In any pleading in which relief is asked, the pleader shall set forth the names, if known to him, of persons who ought to be parties if complete relief is to be accorded between those already parties, but who are not joined, and shall state why they are omitted.
  4. Necessary Joinder of House of Representatives and Senate. —  The Speaker of the House of Representatives and the President Pro Tempore of the Senate, as agents of the State through the General Assembly, must be joined as defendants in any civil action challenging the validity of a North Carolina statute or provision of the North Carolina Constitution under State or federal law.

History. 1967, c. 954, s. 1; 2017-57, s. 6.7(j).

Comment

This rule deals with the problem of the minimum allowable size of a lawsuit, from the standpoint of parties required to be joined in order to proceed to trial. There is no compulsory joinder of causes of action, separately conceived, as noted in the General Comments to this bloc of joinder rules.

As framed, this rule is essentially a recodification of existing and former North Carolina statutes. Specifically, section (a), down to the proviso, is substantially a rewrite of the first sentence of former § 1-70. The introductory phrase, “subject to the provisions of Rule 23,” makes the compulsory joinder directive subject to the class-action exception, which is now separately treated in Rule 23. The proviso is substantially a recodification of § 1-72 to carry forward the option to join or not join joint contract obligors plainly stated therein. Section (b) is substantially a tracking of the first sentence of former § 1-73, to express the general notion of “necessary party” based not on substantive jointness of claim but on the more general consideration of fairness and judicial economy of effort developed in the General Comments to this bloc of joinder rules. Adoption of this language involves rejection of the more sophisticated federal rules approach which posits the more refined categories of “indispensable” and “conditionally necessary parties.” The code language is retained in the belief that roughly the same functional results are reached under its directive and the case law evolution under it of “proper” and “necessary” parties, and that no sufficiently good purpose would be served by introducing the new and more refined concepts and terminology to justify the risk of confusion from their introduction.

Section (c) is a direct counterpart of federal Rule 19(c). It is adopted because it forces explanation in the first instance of that which may be otherwise extracted by separate and time consuming later motion to require joinder. As such it should save wasted motion and time, if there is an adequate reason, such as unavailability of a party, to explain his nonjoinder in the first place.

Cross References.

For statutory provision similar to the proviso in section (a) of this rule, see G.S. 1-72 .

As to real parties in interest, see G.S. 1A-1 , Rule 17.

Editor’s Note.

Session Laws 2017-57, s. 6.7(o), made subsection (d), as added by Session Laws 2017-57, s. 6.7(j), effective June 28, 2017, and applicable to pending and future actions.

Session Laws 2017-57, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2017.’ ”

Session Laws 2017-57, s. 39.6, is a severability clause.

Effect of Amendments.

Session Laws 2017-57, s. 6.7.(j), added subsection (d). For effective date and applicability, see editor’s note.

Legal Periodicals.

For case law survey as to alternative joinder of parties, see 45 N.C.L. Rev. 838 (1967).

For note, “Civil Procedure — A Definition of ‘Class’ Under North Carolina Rule 23 — Crow v. Citicorp Acceptance Co.,” see 23 Wake Forest L. Rev. 491 (1988).

CASE NOTES

Analysis

I.In General

This Rule Adopts Prior Case Law Rather Than Federal Rule. —

This rule has specifically adopted the prior case law of this jurisdiction concerning proper and necessary parties, rather than the federal rule classifications of “indispensable” and “conditionally necessary” parties. Swenson v. Thibaut, 39 N.C. App. 77, 250 S.E.2d 279, 1978 N.C. App. LEXIS 2346 (1978).

The heart of this rule lies in the proposition that all parties should be joined whose presence is necessary to a complete determination of the controversy. Thomas v. Thomas, 43 N.C. App. 638, 260 S.E.2d 163, 1979 N.C. App. LEXIS 3146 (1979).

Sections (a) and (b) of this rule make no substantive change in the rules relating to joinder of parties as they formerly existed. Crosrol Carding Devs., Inc. v. Gunter & Cooke, Inc., 12 N.C. App. 448, 183 S.E.2d 834, 1971 N.C. App. LEXIS 1382 (1971).

This rule makes no change in the categorizing of parties as necessary, proper and formal or in the underlying principles upon which the categories have been based. Crosrol Carding Devs., Inc. v. Gunter & Cooke, Inc., 12 N.C. App. 448, 183 S.E.2d 834, 1971 N.C. App. LEXIS 1382 (1971).

Former G.S. 1-73 Compared. —

The enactment of this rule has not changed the essence of law, as found by the courts of this State in cases decided under the former G.S. 1-73 . Thomas v. Thomas, 43 N.C. App. 638, 260 S.E.2d 163, 1979 N.C. App. LEXIS 3146 (1979).

A person is “united in interest” with another party when that person’s presence is necessary in order for the court to determine a claim without prejudicing the rights of a party before it or the rights of others not before the court. Ludwig v. Hart, 40 N.C. App. 188, 252 S.E.2d 270, 1979 N.C. App. LEXIS 2611 , cert. denied, 297 N.C. 454 , 256 S.E.2d 807, 1979 N.C. LEXIS 1445 (1979).

Judgment Void for Nonjoinder of Party “United in Interest.” —

A judgment which is determinative of a claim arising in an action to which one who is “united in interest” with one of the parties has not been joined is void. Ludwig v. Hart, 40 N.C. App. 188, 252 S.E.2d 270, 1979 N.C. App. LEXIS 2611 , cert. denied, 297 N.C. 454 , 256 S.E.2d 807, 1979 N.C. LEXIS 1445 (1979).

Joinder Required Where Complete Determination Cannot Otherwise Be Had. —

When a complete determination of the matter cannot be had without the presence of other parties, the court must cause them to be brought in. MacPherson v. City of Asheville, 283 N.C. 299 , 196 S.E.2d 200, 1973 N.C. LEXIS 959 (1973); Booker v. Everhart, 294 N.C. 146 , 240 S.E.2d 360, 1978 N.C. LEXIS 1192 (1978), overruled in part, M.E. v. T.J., 869 S.E.2d 624, 2022- NCSC-23, 2022 N.C. LEXIS 230 (N.C. 2022).

In a condemnation action brought against a homeowner’s association relating to common area property owned by the homeowner’s association, the trial court did not err in ordering joinder of each individual record owner of a lot in the townhouse development since those individual owners had an easement of enjoyment in and to the common area at issue. N.C. DOT v. Stagecoach Vill., 174 N.C. App. 825, 622 S.E.2d 142, 2005 N.C. App. LEXIS 2594 (2005).

Trial court properly dismissed a homeowners association’s reformation counterclaim because without all necessary parties, the trial court lack authority to decide the claim. Conleys Creek Limited Partnership v. Smoky Mt. Country Club Prop. Owners Ass'n, 255 N.C. App. 236, 805 S.E.2d 147, 2017 N.C. App. LEXIS 740 (2017).

Mandatory Duty of Court. —

While the real party in interest provisions of G.S. 1A-1 , Rule 17 are for the parties’ benefit and may be waived if no objection is raised, the necessary joinder rules of this rule place a mandatory duty on the court to protect its own jurisdiction to enter valid and binding judgments. J & B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C. App. 1, 362 S.E.2d 812, 1987 N.C. App. LEXIS 3447 (1987).

While a party may waive its right to be sued by a real party in interest, this rule requires the court to join as a necessary party any persons “united in interest” and/or any persons without whom a complete determination of the claim cannot be made. J & B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C. App. 1, 362 S.E.2d 812, 1987 N.C. App. LEXIS 3447 (1987).

A sound criterion for deciding whether particular persons must be joined in litigation between others appears in the definition of necessary parties as those persons who have rights which must be ascertained and settled before the rights of the parties to the suit can be determined. Wall v. Sneed, 13 N.C. App. 719, 187 S.E.2d 454, 1972 N.C. App. LEXIS 2317 (1972).

Necessary parties must be joined in an action. Crosrol Carding Devs., Inc. v. Gunter & Cooke, Inc., 12 N.C. App. 448, 183 S.E.2d 834, 1971 N.C. App. LEXIS 1382 (1971); Booker v. Everhart, 294 N.C. 146 , 240 S.E.2d 360, 1978 N.C. LEXIS 1192 (1978), overruled in part, M.E. v. T.J., 869 S.E.2d 624, 2022- NCSC-23, 2022 N.C. LEXIS 230 (N.C. 2022); Long v. City of Charlotte, 306 N.C. 187 , 293 S.E.2d 101, 1982 N.C. LEXIS 1456 (1982).

Order setting aside the sale and vacating a foreclosure order was vacated and the matter was remanded for further proceedings upon joinder of all necessary parties where (1) appellant, record owner of the property who purchased it without notice of infirmity of title at a judicial sale, was a necessary party in the non-resident owners’ motion to set aside the foreclosure sale; and (2) when both the non-resident owners’ and appellant failed to move to join appellant as a necessary party, the trial court should have intervened ex mero motu to ensure his joinder. In re Foreclosure of a Lien by Hunters Creek Townhouse Homeowners Ass'n v. Barbot, 200 N.C. App. 316, 683 S.E.2d 450, 2009 N.C. App. LEXIS 1608 (2009).

Effect of Failure to Join Necessary Parties. —

A judgment which is determinative of a claim arising in an action in which necessary parties have not been joined is null and void. Rice v. Randolph, 96 N.C. App. 112, 384 S.E.2d 295, 1989 N.C. App. LEXIS 924 (1989).

Trial court did not err in failing to dismiss plaintiff’s suit for failure to join a necessary party. Defendant’s liability as the former operator of a landfill was separate from the current operator’s liability. State ex rel. Regan v. WASCO, LLC, 269 N.C. App. 292, 837 S.E.2d 565, 2020 N.C. App. LEXIS 16 (2020).

Who Are Necessary Parties. —

A necessary party is one who is so vitally interested in the controversy that a valid judgment cannot be rendered in the action completely and finally determining the controversy without his presence. Crosrol Carding Devs., Inc. v. Gunter & Cooke, Inc., 12 N.C. App. 448, 183 S.E.2d 834, 1971 N.C. App. LEXIS 1382 (1971); Wall v. Sneed, 13 N.C. App. 719, 187 S.E.2d 454, 1972 N.C. App. LEXIS 2317 (1972); Booker v. Everhart, 294 N.C. 146 , 240 S.E.2d 360, 1978 N.C. LEXIS 1192 (1978), overruled in part, M.E. v. T.J., 869 S.E.2d 624, 2022- NCSC-23, 2022 N.C. LEXIS 230 (N.C. 2022).

A person is a necessary party to an action if his interest is such that no decree can be rendered which will not affect him. Wall v. Sneed, 13 N.C. App. 719, 187 S.E.2d 454, 1972 N.C. App. LEXIS 2317 (1972).

The term “necessary parties” embraces all persons who have or claim material interests in the subject matter of a controversy, which interests will be directly affected by an adjudication of the controversy. Wall v. Sneed, 13 N.C. App. 719, 187 S.E.2d 454, 1972 N.C. App. LEXIS 2317 (1972); Rice v. Randolph, 96 N.C. App. 112, 384 S.E.2d 295, 1989 N.C. App. LEXIS 924 (1989).

A necessary party is one whose presence is required for a complete determination of the claim, and whose interest will be directly affected by the outcome of the litigation. Begley v. Employment Sec. Comm'n, 50 N.C. App. 432, 274 S.E.2d 370, 1981 N.C. App. LEXIS 2137 (1981); Brown v. Miller, 63 N.C. App. 694, 306 S.E.2d 502, 1983 N.C. App. LEXIS 3182 (1983).

An insurance company is only a necessary party plaintiff when it has compensated the insured for the insured’s entire loss. Howard v. Smoky Mt. Enters., Inc., 76 N.C. App. 123, 332 S.E.2d 200, 1985 N.C. App. LEXIS 3728 (1985).

When a third party holds legal title to property which is claimed to be marital property, that third party is a necessary party to the equitable distribution proceeding, with their participation limited to the issue of the ownership of that property. Upchurch v. Upchurch, 122 N.C. App. 172, 468 S.E.2d 61, 1996 N.C. App. LEXIS 216 (1996).

Corporate owners were not necessary parties to a prior suit against their corporation under G.S. 1A-1-19(a), which certain prospective buyers of a manufactured home had filed against the corporation to recover a deposit that they had paid; thus, res judicata did not bar the buyers’ second action against the corporation and the owners, in which the buyers sought to pierce the corporate veil and hold the owners personally liable on the prior judgment. Blair v. Robinson, 178 N.C. App. 357, 631 S.E.2d 217, 2006 N.C. App. LEXIS 1394 (2006).

Lien holders were not necessary parties under G.S. 1A-1 , N.C. R. Civ. P. 19 in a county’s suit seeking injunctive relief under G.S. 113A-64.1 , as even during a foreclosure suit, lien holders were not necessary parties. Durham County v. Graham, 191 N.C. App. 600, 663 S.E.2d 467, 2008 N.C. App. LEXIS 1505 (2008).

Although under G.S. 113A-64.1 , a county had independent statutory authority to require the operators of a landfill to fix any excess disturbances they might have caused, and under G.S. 113A-64.1 , the county’s suit seeking injunctive relief did not require the inclusion of any other party besides the operators, a lender that currently owned the property was a necessary party under G.S. 1A-1 , N.C. R. Civ. P. 19 as if the lender was not joined as a party, its right to determine the legal use of its property might be abrogated. Durham County v. Graham, 191 N.C. App. 600, 663 S.E.2d 467, 2008 N.C. App. LEXIS 1505 (2008).

City was not a necessary party under G.S. 1A-1 , N.C. R. Civ. P. 19 in a county’s suit seeking injunctive relief under G.S. 113A-64.1 , even though the operators of a landfill would have to petition the City for a zoning grant to comply with an injunction, as if the City denied such a petition, the operators could then argue before the trial court that they were unable to comply; the City had no interest in the property, although it might later become an interested party. Durham County v. Graham, 191 N.C. App. 600, 663 S.E.2d 467, 2008 N.C. App. LEXIS 1505 (2008).

Husband of the mother of a child born during the parties’ marriage is presumed to be the father of that child and, thus, enjoys all the parental rights and privileges, as well as obligations, to that child. A determination that a petitioner in a legitimation action, and not the husband, is the biological father of the child terminates the husband’s rights to the child, conferring them onto petitioner pursuant to G.S. 49-11 ; thus, unless the husband has previously been determined not to be the child’s father, he is a necessary party to the proceeding pursuant to G.S. 1A-1 , N.C. R. Civ. P. 19(b). In re Papathanassiou, 195 N.C. App. 278, 671 S.E.2d 572, 2009 N.C. App. LEXIS 108 (2009).

In property owners’ action against an electric company seeking to quiet title to their property and alleging that the company’s agents had trespassed upon their property, trial court did not err by denying a reconsideration motion, which was predicated on a contention that trial court erred by failing to require an energy company to join all necessary and proper parties to an action as the owners of other tracts that were part of the original property were not necessary parties required to be joined in the case; other persons owning interests in the property were not directly affected by trial court’s decision. DeRossett v. Duke Energy Carolinas, LLC, 206 N.C. App. 647, 698 S.E.2d 455, 2010 N.C. App. LEXIS 1628 (2010).

When a bank sought a deficiency judgment, following foreclosure, against a borrower and guarantors, and then dismissed the borrower, the borrower was properly re-joined pursuant to the guarantors’ motion because (1) G.S. 26-12(b) granted a trial court such discretion, and (2) the re-joinder did not improperly expand the guarantors’ defenses. High Point Bank & Trust Co. v. Highmark Props., LLC, 231 N.C. App. 31, 750 S.E.2d 886, 2013 N.C. App. LEXIS 1240 (2013), aff'd in part, modified, 368 N.C. 301 , 776 S.E.2d 838, 2015 N.C. LEXIS 936 (2015).

To the extent the trial court acted on the wife’s motion to join the mother as a necessary party to an equitable distribution action with the husband, the action was appropriate as it was not necessary for the mother to be a party or to have notice or to participate in the determination of that motion. Tanner v. Tanner, 248 N.C. App. 828, 789 S.E.2d 888, 2016 N.C. App. LEXIS 801 (2016).

Trial court order imposing a constructive trust on a mother’s funds for the benefit of the martial estate of her son and his wife was void where the order finally determined that the funds in the mother’s bank account were part of the marital estate; thus, the mother was a necessary party and should have been joined to the equitable distribution action, but she was not a party to the action at the time of the hearing. Tanner v. Tanner, 248 N.C. App. 828, 789 S.E.2d 888, 2016 N.C. App. LEXIS 801 (2016).

Company and the subsidiary limited liability companies (LLCs) were necessary parties to the proceedings because as plaintiff was not able to receive a salary in excess of a certain amount, the company and LLCs were not able to pay a salary to plaintiff above that amount; as a complete determination of plaintiff’s and defendant’s equitable distribution claims could not be reached without the presence of the company and LLCs, the trial court was required to add them as parties to the action. Geoghagan v. Geoghagan, 254 N.C. App. 247, 803 S.E.2d 172, 2017 N.C. App. LEXIS 495 (2017).

In a declaratory judgment action in which insurers sought a declaration as to coverage obligations in an underlying automobile accident case, it was error to consider an insurance company’s claim because (1) the owner of the subject vehicle was a necessary party, and (2) the owner had not been joined. Smith v. USAA Cas. Ins. Co., 261 N.C. App. 40, 819 S.E.2d 610, 2018 N.C. App. LEXIS 799 (2018).

Necessary Party Not Required to File Separate Pleading. —

Lot owners were entitled to a determination of their claim for riparian rights even though they did not file a separate complaint after they were joined as parties, as the rule of civil procedure governing necessary parties did not specifically require that joined parties file a separate pleading. Nor had any court imposed such a requirement. Warrender v. Gull Harbor Yacht Club, Inc., 228 N.C. App. 520, 747 S.E.2d 592, 2013 N.C. App. LEXIS 815 (2013).

Necessary Parties In Equitable Distribution Case.—

Although the company was a closely-held corporation owned by plaintiff and defendant, and the subsidiary limited liability companies (LLCs) owned by the company were managed by plaintiff, the trial court was not free to ignore the corporate form nor the existence of the subsidiary LLCs when entering the equitable distribution order; it was necessary for the trial court to ex mero motu join them. Geoghagan v. Geoghagan, 254 N.C. App. 247, 803 S.E.2d 172, 2017 N.C. App. LEXIS 495 (2017).

Who Are Proper Parties. —

A proper party is one whose interest may be affected by a decree, but whose presence is not essential in order for the court to adjudicate the rights of others. Crosrol Carding Devs., Inc. v. Gunter & Cooke, Inc., 12 N.C. App. 448, 183 S.E.2d 834, 1971 N.C. App. LEXIS 1382 (1971).

Proper Parties May Be Joined. —

However, whether proper parties will be ordered joined rests within the sound discretion of the trial court. Crosrol Carding Devs., Inc. v. Gunter & Cooke, Inc., 12 N.C. App. 448, 183 S.E.2d 834, 1971 N.C. App. LEXIS 1382 (1971); Booker v. Everhart, 294 N.C. 146 , 240 S.E.2d 360, 1978 N.C. LEXIS 1192 (1978), overruled in part, M.E. v. T.J., 869 S.E.2d 624, 2022- NCSC-23, 2022 N.C. LEXIS 230 (N.C. 2022); Long v. City of Charlotte, 306 N.C. 187 , 293 S.E.2d 101, 1982 N.C. LEXIS 1456 (1982).

Sisters, although united in interest with their brother in trust estate, were proper, not necessary, parties and did not have to be joined in his claim against decedent’s estate for his alleged breach of his fiduciary duty as trustee. Pittman v. Barker, 117 N.C. App. 580, 452 S.E.2d 326, 1995 N.C. App. LEXIS 17 , writ denied, 340 N.C. 261 , 456 S.E.2d 833, 1995 N.C. LEXIS 269 (1995).

Trial court did not err in denying a motion to dismiss for failure to join necessary parties filed by an owners’ association because subdivision lot owners were proper parties to the action seeking to declare amendments to the association’s declaration invalid and unenforceable, but they were not necessary parties; the amendments did not extinguish any property rights of the owners. Wallach v. Linville Owners Ass'n, 234 N.C. App. 632, 760 S.E.2d 23, 2014 N.C. App. LEXIS 728 (2014).

Court Should Correct Defect of Parties by Own Motion. —

In the absence of a proper motion by a competent person, a defect of the parties should be corrected by ruling of the court ex mero motu. Booker v. Everhart, 294 N.C. 146 , 240 S.E.2d 360, 1978 N.C. LEXIS 1192 (1978), overruled in part, M.E. v. T.J., 869 S.E.2d 624, 2022- NCSC-23, 2022 N.C. LEXIS 230 (N.C. 2022).

When the absence of a necessary party is disclosed, the trial court should refuse to deal with the merits of the action until the necessary party is brought into the action. Any such defect should be corrected by the trial court ex mero motu in the absence of a proper motion by a competent person. White v. Pate, 308 N.C. 759 , 304 S.E.2d 199, 1983 N.C. LEXIS 1294 (1983).

Since a judgment without necessary joinder is void, a trial court should, on its own motion, order a continuance to provide a reasonable time for necessary parties to be joined. J & B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C. App. 1, 362 S.E.2d 812, 1987 N.C. App. LEXIS 3447 (1987).

Discretion of Court in Making Parties. —

When not regulated by statute, the procedural processes which will best promote the administration of justice are left to the judicial discretion of the trial judge. He has plenary power with respect to those who ought to be made parties to facilitate the administration of justice. Crosrol Carding Devs., Inc. v. Gunter & Cooke, Inc., 12 N.C. App. 448, 183 S.E.2d 834, 1971 N.C. App. LEXIS 1382 (1971).

Absence of the real party in interest did not constitute a “fatal defect” where the opposing party failed to show real prejudice in not having had the real party joined at the original trial. Carolina First Nat'l Bank v. Douglas Gallery of Homes, Ltd., 68 N.C. App. 246, 314 S.E.2d 801, 1984 N.C. App. LEXIS 3183 (1984).

Absence of necessary parties does not merit a nonsuit. Instead, the court should order a continuance so as to provide a reasonable time for them to be brought in and plead. Booker v. Everhart, 294 N.C. 146 , 240 S.E.2d 360, 1978 N.C. LEXIS 1192 (1978), overruled in part, M.E. v. T.J., 869 S.E.2d 624, 2022- NCSC-23, 2022 N.C. LEXIS 230 (N.C. 2022).

Absence of necessary party does not merit dismissal. The absence of a necessary party under this rule does not merit dismissal of the action. City of Albemarle v. Security Bank and Trust Co., 106 N.C. App. 75, 415 S.E.2d 96, 1992 N.C. App. LEXIS 335 (1992).

But Proceedings Should Cease Until Necessary Parties Are Present. —

Where a fatal defect of the parties is disclosed, the court should refuse to deal with the merits of the case until the absent parties are brought into the action. Booker v. Everhart, 294 N.C. 146 , 240 S.E.2d 360, 1978 N.C. LEXIS 1192 (1978), overruled in part, M.E. v. T.J., 869 S.E.2d 624, 2022- NCSC-23, 2022 N.C. LEXIS 230 (N.C. 2022).

Trial court erred in granting a town’s motion for a directed verdict on a police officer’s civil rights claim because, inter alia, the officer presented “more than a scintilla” of evidence to support his claim that he was fired for running for sheriff, and as it could not be determined whom the trial court believed to be necessary parties or why, even if they might be proper parties, they would be necessary, the trial court should allow the named parties to be heard on whether any other parties should be joined. Lambert v. Town of Sylva, 259 N.C. App. 294, 816 S.E.2d 187, 2018 N.C. App. LEXIS 439 (2018).

Court Should Correct Defect of Parties by Own Motion. —

Where a trial court granted partial summary judgment to original plaintiffs on their claims for breach of restrictive covenants and simultaneously ordered that a homeowners association and all current property owners in the subdivision were hereby joined, ex mero motu, as necessary parties, the individual defendants, which sought to impair the opposing lot owners’ property rights, did not have standing to protect the rights of non-party lot owners by arguing on appeal that they were not joined as necessary parties when required. Warrender v. Gull Harbor Yacht Club, Inc., 228 N.C. App. 520, 747 S.E.2d 592, 2013 N.C. App. LEXIS 815 (2013).

Procedure upon Motion to Dismiss Under G.S. 1A-1 , Rule 12(b)(7). —

When faced with a motion to dismiss under G.S. 1A-1 , Rule 12(b)(7) for failure to join a necessary party, the court will decide if the absent party should be joined as a party. If it decides in the affirmative, the court will order him brought into the action. However, if the absentee cannot be joined, the court must then determine, by balancing the guiding factors set forth in section (b) of this rule, whether to proceed without him or to dismiss the action. A dismissal under G.S. 1A-1 , Rule 12(b)(7) is not considered to be on the merits and is without prejudice. Crosrol Carding Devs., Inc. v. Gunter & Cooke, Inc., 12 N.C. App. 448, 183 S.E.2d 834, 1971 N.C. App. LEXIS 1382 (1971).

Necessary Parties in Divorce Action. —

There are but two necessary parties to an action for divorce: husband and wife. Thomas v. Thomas, 43 N.C. App. 638, 260 S.E.2d 163, 1979 N.C. App. LEXIS 3146 (1979).

Children Are Not Proper Parties in Divorce Action. —

Where there are children born to a marriage, it is neither proper nor necessary for them to be made parties to an action for divorce between their parents. Thomas v. Thomas, 43 N.C. App. 638, 260 S.E.2d 163, 1979 N.C. App. LEXIS 3146 (1979).

Necessary Parties in Action to Set Aside Divorce Decree After Spouse’s Death. —

The only necessary parties in an action to set aside an absolute divorce decree after the husband’s death are the surviving spouse and the personal representative of the deceased spouse. Thomas v. Thomas, 43 N.C. App. 638, 260 S.E.2d 163, 1979 N.C. App. LEXIS 3146 (1979).

Father and brother of decedent’s ex-wife were not necessary parties in a dispute between decedent’s new wife and his ex-wife involving a settlement agreement clause which allowed the ex-wife, her father and her brother the option of purchasing certain property if the ex-husband failed to bequeath it to his wife or children; while they certainly had interests in the outcome, their interests were “not of such a nature as to render it impossible for the court to finally adjudicate the question [presented].” Williamson v. Bullington, 139 N.C. App. 571, 534 S.E.2d 254, 2000 N.C. App. LEXIS 987 (2000), aff'd, 353 N.C. 363 , 544 S.E.2d 221, 2001 N.C. LEXIS 277 (2001).

Husband of plaintiff in paternity suit was not a necessary party where a court had previously determined that he was not the father. Only the interests of the defendant, the alleged father, would be directly affected by the outcome of the litigation. Lombroia v. Peek, 107 N.C. App. 745, 421 S.E.2d 784, 1992 N.C. App. LEXIS 800 (1992).

Presumed Father in Paternity Action. —

When a putative father sought custody of the child he believed he had fathered, he was required, under G.S. 1A-1 , N.C. R. Civ. P. 19(b), to give notice to the husband of the child’s mother, who was the child’s presumed father, and, therefore, a necessary party. Smith v. Barbour, 154 N.C. App. 402, 571 S.E.2d 872, 2002 N.C. App. LEXIS 1450 (2002), cert. denied, 599 S.E.2d 408, 2004 N.C. LEXIS 841 (N.C. 2004).

Joinder of Nonparent Granted Limited Contact Under Uniform Deployed Parents Custody And Visitation Act. —

Order on appeal granted the stepmother, a nonparent as defined by the Uniform Deployed Parents Custody and Visitation Act, limited contact with the eldest child, so she should have been made a party to the action until the grant of limited contact was terminated; however, the fact that the trial court did not formally order the stepmother to be added as a party did not impair the appellate court’s jurisdiction because she could be made a party even after judgment and by the appellate court when the case was appealed. Roybal v. Raulli, 266 N.C. App. 318, 832 S.E.2d 202, 2019 N.C. App. LEXIS 625 (2019).

In an action to recover for breach of trust by defendants as directors of a corporation, the corporation was not a necessary party plaintiff, since plaintiff, in claiming that a portion of proceeds from sale of stock had been earmarked to repay her for a loan to the corporation, claimed an injury peculiar or personal to herself and did not claim injury to the corporation. Snyder v. Freeman, 300 N.C. 204 , 266 S.E.2d 593, 1980 N.C. LEXIS 1067 (1980).

Suit by Beneficiary of Contract. —

A party to a contract is ordinarily not a necessary party in a suit brought against the other contracting party by a beneficiary who claims the contract has been breached. Crosrol Carding Devs., Inc. v. Gunter & Cooke, Inc., 12 N.C. App. 448, 183 S.E.2d 834, 1971 N.C. App. LEXIS 1382 (1971).

Trustee and Note Holder Necessary Parties in Inverse Condemnation Action. —

In an inverse condemnation action, alleged diminution in market value of the property made trustee and holder of the note secured by the deed of trust on that property persons united in interest with the owners, whose presence was necessary for a determination of the claim without prejudice to their rights. Long v. City of Charlotte, 306 N.C. 187 , 293 S.E.2d 101, 1982 N.C. LEXIS 1456 (1982).

Necessary Parties in Adjacent Landowners’ Action. —

In a private nuisance action alleging that the separate development of the lands owned by adjacent landowners together caused flooding damages, this claim could not be fully adjudicated without the addition of one of these landowners; thus, it was a necessary party. Bjornsson v. Mize, 75 N.C. App. 289, 330 S.E.2d 520, 1985 N.C. App. LEXIS 3614 (1985).

Action to Enjoin Demolition of Adjacent Structures. —

Pursuant to this rule, nonparty property owners were required to be joined in an action, brought by others in their subdivision, to enjoin defendants from demolishing three residential and historic structures adjacent to plaintiffs’ properties; defendants’ change-of-circumstances affirmative defense had the potential to result in the invalidation of restrictive covenant requiring residential use of property in the subdivision. Karner v. Roy White Flowers, Inc., 351 N.C. 433 , 527 S.E.2d 40, 2000 N.C. LEXIS 232 (2000).

A dispute as to the extinguishment of a subdivision easement by abandonment or adverse possession could not be resolved without the joinder of the grantor or his heirs, who retained fee title to the soil, and the record owners of lots in the subdivision, who had user rights in the easement. Rice v. Randolph, 96 N.C. App. 112, 384 S.E.2d 295, 1989 N.C. App. LEXIS 924 (1989).

Order requiring other lot owners in a subdivision to be joined as necessary parties did not deprive a property owner and owners’ association of their asserted substantial right, and their interlocutory appeal was dismissed, because they individually had no such substantial right; because the owner and association sought a determination that they had rights in an easement to an access area, and the other owners in the subdivision had user rights in the access area, they were necessary parties. Regency Lake Owners' Ass'n v. Regency Lake, LLC, 258 N.C. App. 636, 814 S.E.2d 121, 2018 N.C. App. LEXIS 311 (2018).

Because the trial court did not order a new trial, a property owner and owners’ association were not entitled to an interlocutory appeal of the trial court’s order requiring other lot owners in a subdivision to be joined as necessary parties; the trial court’s decree to rehear evidence was not an order for a new trial because a judgment had not been rendered in the case. Regency Lake Owners' Ass'n v. Regency Lake, LLC, 258 N.C. App. 636, 814 S.E.2d 121, 2018 N.C. App. LEXIS 311 (2018).

Dispute As To Restrictive Covenants In A Development. —

In a recreational amenity owner’s action to collect amenity fees from homeowners’ associations in a development, all property owners in the development were not necessary parties within the meaning of N.C. R. Civ. P. 19(a) because only the owner could enforce the covenant to pay an amenity fee, and the extinguishment of the restrictive covenant would not deprive the other property owners of any property right. Midsouth Golf, LLC v. Fairfield Harbourside Condo. Ass'n, 187 N.C. App. 22, 652 S.E.2d 378, 2007 N.C. App. LEXIS 2269 (2007), cert. dismissed, 362 N.C. 473 , 666 S.E.2d 123, 2008 N.C. LEXIS 1293 (2008).

As plaintiffs sought injunctive relief to enforce protective covenants of a subdivision that required the involvement and approval of an architectural control committee, the committee should have been joined as a necessary party pursuant to G.S. 1A-1-19(b); thus, a trial court’s judgment on the merits was void. McCraw v. Aux, 205 N.C. App. 717, 696 S.E.2d 739, 2010 N.C. App. LEXIS 1311 , dismissed without prejudice, 364 N.C. 617 , 705 S.E.2d 369, 2010 N.C. LEXIS 1034 (2010).

Insurer as Necessary Party. —

Where whether or not insurer’s legal title to plaintiff’s claims was partial or complete, insurer clearly acquired some enforceable legal interest in the subject matter of the action by virtue of assignment provided by subrogation receipt, given insurer’s interest in all of plaintiff’s claims, a determination of such claims would necessarily prejudice insurer’s interests in them, and insurer was therefore a necessary party under this rule. J & B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C. App. 1, 362 S.E.2d 812, 1987 N.C. App. LEXIS 3447 (1987).

Insured as Necessary Party Where Certain Claims Not Reimbursed by Insurer. —

In action for breach of warranty against encumbrances arising out of the mislocation of a septic tank, initially brought by grantee of residential property who was insured under a title insurance policy issued by company, in which insured-grantee sought funds which he forfeited when his loan could not be refinanced, the extra interest paid and to be paid on his current loan, incident to breach, as well as the expense to relocate the septic tank on his property, substitution of insurance company for insured-grantee as party-plaintiff was error necessitating remand to the trial court for joinder of necessary parties, where insured-grantee had been reimbursed by company only for expenses incurred to relocate the septic tank, as since the record did not reveal that insured-grantee released or otherwise dismissed his claims for forfeited funds and extra interest, insured-grantee was a necessary party to the action. Commonwealth Land Title Ins. Co. v. Stephenson, 97 N.C. App. 123, 387 S.E.2d 77, 1990 N.C. App. LEXIS 25 (1990).

Since plaintiff’s claim for loss of consortium derived from his wife’s cause of action for her personal injuries, plaintiff was united in interest with his spouse and thus a necessary party to her action. The court, therefore, erred in denying plaintiff’s motion to join his loss of consortium claim with his wife’s action and in dismissing his claim for loss of consortium on the ground that it was not joined with his wife’s action. Mrosla v. Feldman, 90 N.C. App. 261, 368 S.E.2d 39, 1988 N.C. App. LEXIS 407 (1988).

Lessor, Rather Than Assignee of Lease, Held to Be Real Party in Interest in Action Against Lessees. —

Language of an assignment of a lease clearly established that lessor assigned only the right to rent payments, and plaintiff retained all other rights under the lease, including right to enforce lessees’ tax obligation under lease; thus, the lessor was a real party in interest in action against lessees who defaulted under lease. Martin v. Ray Lackey Enters., Inc., 100 N.C. App. 349, 396 S.E.2d 327, 1990 N.C. App. LEXIS 986 (1990).

Since assignee of lease received no right in the assignment to collect taxes from lessees, assignee’s presence in the case brought by assignor/lessor against lessee for failure to pay taxes under lease was not necessary for a complete determination, and any judgment entered could not prejudice either assignees or the lessees. Martin v. Ray Lackey Enters., Inc., 100 N.C. App. 349, 396 S.E.2d 327, 1990 N.C. App. LEXIS 986 (1990).

Preservation for Review. —

In a dispute over the regulation of spray irrigation systems, a claim that there was a failure to join necessary parties was not preserved for appellate review because it was not raised before the trial court; moreover, failure to join a necessary party did not negate a court’s subject matter jurisdiction. Phillips v. Orange County Health Dep't, 237 N.C. App. 249, 765 S.E.2d 811, 2014 N.C. App. LEXIS 1142 (2014).

II.Decisions under Prior Law

Editor’s Note. —

The cases cited below were decided under former G.S. 1-70 , 1-73 and 1-123.

Intent of Former G.S. 1-73 . —

Former G.S. 1-73 contemplated that all persons necessary to a complete determination of the controversy, the matter in litigation, and affected by the same in some way, as between the original parties to the action, could in some instances be made parties plaintiff or defendant and in others had to be made parties. But it did not imply that any person who might have a cause of action against the plaintiff alone, or a cause of action against the defendant alone, unaffected by the cause of action as between the plaintiff and defendant, could or had to be made a party. It did not contemplate the determination of two separate and distinct causes of action, as between the plaintiff and a third party, or the defendant and a third party, in the same action. It was only when, as between the original parties litigant, other parties were material or interested, that it was proper to make them parties. McDonald v. Morris, 89 N.C. 99 , 1883 N.C. LEXIS 189 (1883); Moore v. Massengill, 227 N.C. 244 , 41 S.E.2d 655, 1947 N.C. LEXIS 378 (1947).

Who Are Necessary Parties. —

Necessary or indispensable parties are those whose interests are such that no decree can be rendered which will not affect them, and therefore the court cannot proceed until they are brought in. Pickelsimer v. Pickelsimer, 255 N.C. 408 , 121 S.E.2d 586, 1961 N.C. LEXIS 598 (1961).

A person is a necessary party to an action when he is so vitally interested in the controversy involved in the action that a valid judgment cannot be rendered in the action completely and finally determining the controversy without his presence as a party. Garrett v. Rose, 236 N.C. 299 , 72 S.E.2d 843, 1952 N.C. LEXIS 561 (1952); Manning v. Hart, 255 N.C. 368 , 121 S.E.2d 721, 1961 N.C. LEXIS 712 (1961); Strickland v. Hughes, 273 N.C. 481 , 160 S.E.2d 313, 1968 N.C. LEXIS 624 (1968); Maryland Cas. Co. v. Hall, 2 N.C. App. 198, 162 S.E.2d 691, 1968 N.C. App. LEXIS 899 (1968).

Persons in interest are necessary parties to a final adjudication. Meadows v. Marsh, 123 N.C. 189 , 31 S.E. 476, 1898 N.C. LEXIS 45 (1898).

As to persons held necessary or unnecessary parties, see Browning v. Pratt, 17 N.C. 44 , 1831 N.C. LEXIS 13 (1831); Harris v. Bryant, 83 N.C. 568 , 1880 N.C. LEXIS 120 (1880); Peacock v. Harris, 85 N.C. 146 , 1881 N.C. LEXIS 226 (1881); Dawkins v. Dawkins, 93 N.C. 283 , 1885 N.C. LEXIS 59 (1885).

Joinder of Necessary Parties Mandatory. —

Provision of former G.S. 1-73 that the court must cause necessary parties to be brought in was mandatory, and contemplated only the making of necessary parties. Simon v. Raleigh City Bd. of Educ., 258 N.C. 381 , 128 S.E.2d 785, 1963 N.C. LEXIS 416 (1963).

Former G.S. 1-73 made it mandatory when a complete determination of the controversy could not be made without the presence of other parties for these others to be made parties to the action. They were necessary parties. Overton v. Tarkington, 249 N.C. 340 , 106 S.E.2d 717, 1959 N.C. LEXIS 372 (1959); Maryland Cas. Co. v. Hall, 2 N.C. App. 198, 162 S.E.2d 691, 1968 N.C. App. LEXIS 899 (1968).

When Additional Parties Must Be Brought in. —

When a complete determination of the matter cannot be had without the presence of other parties, the court must cause them to be brought in. W.F. Kornegay & Co. v. Farmers & Merchants' Steamboat Co., 107 N.C. 115 , 12 S.E. 123, 1890 N.C. LEXIS 21 (1890); Maxwell v. Barringer, 110 N.C. 76 , 14 S.E. 516, 1892 N.C. LEXIS 15 (1892); Parton v. Allison, 111 N.C. 429 , 16 S.E. 415, 1892 N.C. LEXIS 200 (1892); Burnett v. Lyman, 141 N.C. 500 , 54 S.E. 412, 1906 N.C. LEXIS 132 (1906), dismissed, 146 N.C. 597 , 59 S.E. 877 (1907); McKeel v. Holloman, 163 N.C. 132 , 79 S.E. 445, 1913 N.C. LEXIS 134 (1913); Barbee v. Cannady, 191 N.C. 529 , 132 S.E. 572, 1926 N.C. LEXIS 116 (1926); Fry v. Pomona Mills, Inc., 206 N.C. 768 , 175 S.E. 156, 1934 N.C. LEXIS 308 (1934).

When a complete determination of a controversy cannot be made without the presence of a party, the court must cause such party to be brought in, because such party is a necessary party and has an absolute right to intervene in a pending action. Strickland v. Hughes, 273 N.C. 481 , 160 S.E.2d 313, 1968 N.C. LEXIS 624 (1968).

It is the duty of the court to bring in all parties necessary to a complete determination of the controversy. State ex rel. Jones v. Griggs, 219 N.C. 700 , 14 S.E.2d 836, 1941 N.C. LEXIS 127 (1941).

Necessity of Bringing in Additional Parties Must Clearly Appear. —

An order to bring additional parties into an action will not be granted until the necessity for making them parties clearly appears. Lee v. Eure, 92 N.C. 283 , 1885 N.C. LEXIS 201 (1885).

Consent of the Parties. —

Unless by consent of the parties, only such new parties may regularly be admitted, by amendment, to the action as are necessary to its proper determination; but where defendants do not object to such amendment introducing new plaintiffs, their assent is to be taken as implied. Richards v. Smith, 98 N.C. 509 , 4 S.E. 625, 1887 N.C. LEXIS 314 (1887).

Requisite Interest of New Party. —

To entitle one to the benefits of provision allowing new parties to be brought in, such additional party must have a legal interest in the subject matter of the litigation, and the interest of a new party must be of such direct and immediate character that he will either gain or lose by the direct operation and effect of the judgment. Griffin & Vose, Inc. v. Non-Metallic Minerals Corp., 225 N.C. 434 , 35 S.E.2d 247, 1945 N.C. LEXIS 335 (1945).

Discretionary Power of Court. —

As a general rule the trial court has the discretionary power to make new parties, especially when necessary in order that there may be a full and final determination and adjudication of all matters involved in controversy. Service Fire Ins. Co. v. Horton Motor Lines, 225 N.C. 588 , 35 S.E.2d 879, 1945 N.C. LEXIS 374 (1945).

The fact that plaintiff alone, without joinder of the owner, could not maintain his action did not limit the discretionary power of the judge. Service Fire Ins. Co. v. Horton Motor Lines, 225 N.C. 588 , 35 S.E.2d 879, 1945 N.C. LEXIS 374 (1945).

As to review of decision, see Merrill v. Merrill, 92 N.C. 657 , 1885 N.C. LEXIS 277 (1885).

Person Refusing to Join as Plaintiff May Be Made Defendant. Hardy v. Miles, 91 N.C. 131 , 1884 N.C. LEXIS 32 (1884); Wilson v. Pearson, 102 N.C. 290 , 9 S.E. 707, 1889 N.C. LEXIS 35 (1889); Elliott v. Brady, 172 N.C. 828 , 90 S.E. 951, 1916 N.C. LEXIS 408 (1916).

But Must Be Served with Summons. Plemmons v. Southern Imp. Co., 108 N.C. 614 , 13 S.E. 188, 1891 N.C. LEXIS 119 (1891).

A judgment that determines points of law adverse to a person is not sufficient grounds for making him defendant. Clark v. W.R. Bonsal & Co., 157 N.C. 270 , 72 S.E. 954, 1911 N.C. LEXIS 42 (1911).

The term “proper party” means a party who has an interest in the controversy or subject matter which is separable from the interest of the other parties before the court, so that it may, but will not necessarily, be affected by a decree or judgment which does complete justice between the other parties. Strickland v. Hughes, 273 N.C. 481 , 160 S.E.2d 313, 1968 N.C. LEXIS 624 (1968).

Defect of Parties. —

A defect of parties occurs when there has been a failure to join either a plaintiff or a defendant whose presence in the suit is necessary to give the court jurisdiction and authority to decide the controversy. When such a defect appears from the complaint itself, it is a ground for demurrer and a fatal defect unless the necessary party is brought in. Miller v. Jones, 268 N.C. 568 , 151 S.E.2d 23, 1966 N.C. LEXIS 1259 (1966).

Continuance for Bringing in Necessary Parties. —

If other parties are necessary to a final determination of the cause, the court should order a continuance to provide a reasonable time for them to be brought in and to plead. Plemmons v. Cutshall, 230 N.C. 595 , 55 S.E.2d 74, 1949 N.C. LEXIS 396 (1949).

Right of Tenant in Common to Sue Alone. —

One tenant in common may sue without joining his cotenants for the recovery of possession of common property. Thames v. Jones, 97 N.C. 121 , 1 S.E. 692, 1887 N.C. LEXIS 123 (1887). See also, Wilson v. Arentz, 70 N.C. 670 , 1874 N.C. LEXIS 307 (1874).

Unconnected Parties Defendant with Common Interest. —

Several persons, although unconnected with each other, may be made defendants if they have a common interest centering in the point in issue in the cause. Virginia-Carolina Chem. Co. v. Floyd, 158 N.C. 455 , 74 S.E. 465, 1912 N.C. LEXIS 67 (1912).

Party Unheard of for Years. —

Where a person concerned in interest is stated in the bill to have moved away and to have not been heard of for many years, so that he cannot be served with process, that is a good reason as between third parties for not making him a party; and the court will proceed to a hearing notwithstanding. Ingram v. Lanier, 2 N.C. 221 (1795).

Insolvency of Defendant. —

Mere insolvency of a defendant cannot alone determine the right of a plaintiff to join him with others in a tort action if he is liable, since the test is in the validity of the cause of action and the good faith of the plaintiff in making the joinder, and insolvency does not destroy the remedy, but merely affects the prospects of collection. Hough v. Southern Ry., 144 N.C. 692 , 57 S.E. 469, 1907 N.C. LEXIS 207 (1907).

Where there was an allegation of mutual mistake of the common grantor of plaintiff and defendant, and of plaintiff and defendant as grantees in deeds simultaneously executed and delivered to them by said grantor, it was held proper for the court to make the grantor a party defendant. Smith v. Johnson, 209 N.C. 729 , 184 S.E. 486, 1936 N.C. LEXIS 331 (1936).

In action by purchaser against real estate brokers to recover earnest money paid, wherein the seller was a necessary party to a complete determination of the controversy, denial of motion for his joinder as additional party defendant was held reversible error. Lampros v. Chipley, 228 N.C. 236 , 45 S.E.2d 126, 1947 N.C. LEXIS 595 (1947).

Real Owners as Parties in Action Between Lessor and Lessee. —

Where lessors sued lessees for rent, and the latter showed, as a counterclaim, that the lessors had no right to make the lease, and that the real owners thereof had brought suit against one of the lessees, and would recover damages for its use during such lease, the persons claiming as real owners should have been made parties to the action. McKesson v. Mendenhall, 64 N.C. 286 , 1870 N.C. LEXIS 82 (1870).

Action to Set Aside Deed to Purchaser of Tax Sale Certificate. —

In an action to set aside a deed to a purchaser at a foreclosure of a tax sale certificate, the purchaser at the sale, the owners of the property and all persons having any interest in the property should be made parties for a complete determination of the controversy. County of Buncombe v. Penland, 206 N.C. 299 , 173 S.E. 609, 1934 N.C. LEXIS 166 (1934).

Where plaintiff claims under a voluntary conveyance made by cestui que trust, he cannot, in any form of action, obtain legal title and possession until the trustee is made a party. Matthews v. McPherson, 65 N.C. 189 , 1871 N.C. LEXIS 60 (1871).

Several parties may have a cause of action which arises out of the same motor vehicle collision, but that does not mean necessarily that all of them are required to litigate their respective rights or causes of action in one and the same action. Manning v. Hart, 255 N.C. 368 , 121 S.E.2d 721, 1961 N.C. LEXIS 712 (1961); Maryland Cas. Co. v. Hall, 2 N.C. App. 198, 162 S.E.2d 691, 1968 N.C. App. LEXIS 899 (1968).

Claim for unpaid wages due an employee can be joined in one action with similar claims assigned to him, and if the claims are assigned to joint assignees, all assignees must be parties and recover in their joint right. Morton v. Thornton, 257 N.C. 259 , 125 S.E.2d 464, 1962 N.C. LEXIS 582 (1962).

Personal Representatives as Necessary Parties in Ejectment Action. —

Where in an action of ejectment the controversy involved was whether the plaintiff owned the land in fee simple absolute, or whether the defendant owned the land in fee simple, subject to a charge payable in equal shares to the plaintiff and personal representatives of six decedents, the personal representatives of these six decedents were so vitally interested in this controversy that a valid judgment could not be rendered in the action completely and finally determining the controversy without their presence as parties. This being true, they were necessary parties to the action. Garrett v. Rose, 236 N.C. 299 , 72 S.E.2d 843, 1952 N.C. LEXIS 561 (1952).

Trustee as Necessary Party in Foreclosure Action. —

In an action for foreclosure, the trustee in the deed of trust is a necessary and indispensable party. Watson v. Carr, 4 N.C. App. 287, 166 S.E.2d 503, 1969 N.C. App. LEXIS 1486 (1969).

Where a note secured by a deed of trust is payable to joint payees, they must join as parties in an action to foreclose the deed of trust, and when one of them refuses to join as a plaintiff, such payee is properly joined as a defendant. Underwood v. Otwell, 269 N.C. 571 , 153 S.E.2d 40, 1967 N.C. LEXIS 1109 (1967).

Suit by Joint Holders of Bill or Note. —

Where a bill or note is made payable to several persons, or is endorsed or assigned to several, they are joint holders and must sue jointly as such. Underwood v. Otwell, 269 N.C. 571 , 153 S.E.2d 40, 1967 N.C. LEXIS 1109 (1967).

Where owner sued contractor for breach of contract and contractor sought to have subcontractor joined as a party defendant, former G.S. 1-73 , permitting joint tortfeasors to be brought in for enforcing contribution, was inapplicable. Gaither Corp. v. Skinner, 238 N.C. 254 , 77 S.E.2d 659, 1953 N.C. LEXIS 422 (1953).

If, prior to institution of plaintiff ’s action, defendant could have sued either the plaintiff, the other party, or both, there is no reason why the defendant would be required to join the other party as a codefendant to its cause of action on a counterclaim against plaintiff. Bullard v. Berry Coal & Oil Co., 254 N.C. 756 , 119 S.E.2d 910, 1961 N.C. LEXIS 532 (1961).

Rule 20. Permissive joinder of parties.

  1. Permissive joinder. —  All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all parties will arise in the action. All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all parties will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities.
  2. Separate trial. —  The court shall make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom he asserts no claim and who asserts no claim against him, and shall order separate trials or make other orders to prevent delay or prejudice.

History. 1967, c. 954, s. 1; 1973, c. 75.

Comment

This is an exact counterpart of federal Rule 20, and was proposed because it was felt, as developed in the General Comment to this bloc of rules, that the federal approach to permissive joinder is a much more serviceable one than was the code approach.

As pointed out in that Comment, the only limitations in respect of joinder in the federal approach are those related literally to party joinder. These limitations contemplate both single claim actions and multiple claim actions. In the multiple party-multiple claim action they are related by reference as limitations on claim joinder, as indicated in the Comment to Rule 18.

The rule is designed generally to express the notion that the limiting factors which control maximum lawsuit size in either single claim or multiple claim (by referring party joinder limitations to the claim joinder rule) litigation are (1) that the right to relief asserted by or against each party joined in the action should arise generally out of the same general aggregation of historical facts, and (2) furthermore, that in respect of all parties joined there must be involved for necessary determination in the lawsuit as structured a common question of law or fact. Beyond these limitations designed to keep the issues within bounds of fairness to parties and orderliness of handling, there is no requirement that every party must be affected by, or interested in, all the relief sought in the total action. And it is made plain, in furtherance of this notion, that the judgment entered in lawsuits involving multiple similarly aligned parties may be conformed to the possibility that not all parties are interested in all the relief to be given.

Section (b) provides the final safeguard against dangerous oversize and complexity through joinder by laying down a specific mandate for severance or such other orders as will protect parties in multiple party cases from unfairness resulting from their lack of interest or involvement in every facet of the case as permitted to be structured by the joinder rules.

Legal Periodicals.

For article on permissive joinder of parties and causes, see 34 N.C.L. Rev. 405 (1956).

For note on alternative joinder of defendants, see 42 N.C.L. Rev. 242 (1963).

For case law survey as to alternative joinder of parties, see 45 N.C.L. Rev. 838 (1967).

For survey of 1979 law on evidence, see 58 N.C.L. Rev. 1456 (1980).

CASE NOTES

Analysis

I.In General

Applicability. —

Trial court did not err in considering an amended complaint to be the operative complaint in a personal injury action against a county; the county did not argue that the amended complaint was served on them after they had served a responsive pleading. G.S. 1A-1 , N.C. R. Civ. P. 20 and G.S. 1A-1 , N.C. R. Civ. P. 21 had no bearing on the case. Robinson v. Smith, 219 N.C. App. 518, 724 S.E.2d 629, 2012 N.C. App. LEXIS 382 (2012).

Fed. R. Civ. P. 20(a) has a close counterpart in N.C. R. Civ. P. 20(a). —

Under Fed. R. Civ. P. 20(a), which has a close counterpart in N.C. R. Civ. P. 20(a), the issue of proper joinder is examined on a case-by-case basis, keeping in mind the rule’s purpose, which is to promote trial convenience, to expedite the final determination of disputes, and to prevent multiple lawsuits; even if a non-diverse defendant is not absolutely essential to the resolution of a plaintiff’s claim, the other defendants do not have the right to demand his dismissal. Guider v. Hertz Corp., 2004 U.S. Dist. LEXIS 12364 (M.D.N.C. June 28, 2004).

Power of Judge to Refuse to Allocate Damages. —

The trial court did not abuse its discretion in refusing to allow the defendants to amend the judgment, allocating the damages among defendants, where the evidence at trial tended to show: (1) that plaintiff worked for all three defendants at some point over the course of the year in question; (2) that the sole or major owner of all three entities was the same person; and (3) that all three entities, therefore, owed the plaintiff some portion of the disputed commissions. Fulk v. Piedmont Music Ctr., 138 N.C. App. 425, 531 S.E.2d 476, 2000 N.C. App. LEXIS 643 (2000).

II.Permissive Joinder

Purpose of Alternative Joinder Provisions. —

The alternative joinder provisions of this rule were drafted for the express purpose of allowing a plaintiff who is faced with uncertainty as to the cause of her injuries to present her alternative theories to a jury, which must then decide from the evidence whether liability exists and if so which of the two or more defendants joined is liable to the plaintiff. Woods v. Smith, 297 N.C. 363 , 255 S.E.2d 174, 1979 N.C. LEXIS 1253 (1979).

Alternative claims may be joined under section (a) of this rule if two tests are met. First, each claim must arise out of the same transaction, the same occurrence, or a series of either. The second test is that each claim must contain a question of law or fact, which will arise, common to all parties. Aetna Ins. Co. v. Carroll's Transf., Inc., 14 N.C. App. 481, 188 S.E.2d 612, 1972 N.C. App. LEXIS 2159 (1972).

The practical occasion for alternative joinder is that created by uncertainty as to which of several parties is entitled to recover or is liable. Aetna Ins. Co. v. Carroll's Transf., Inc., 14 N.C. App. 481, 188 S.E.2d 612, 1972 N.C. App. LEXIS 2159 (1972).

When Need for Joinder of Defendants in Alternative Arises. —

The need for joinder of defendants in the alternative most often arises when the substance of plaintiff ’s claim indicates that he is entitled to relief from someone, but he does not know which of two or more defendants is liable under the circumstances set forth in the complaint. Woods v. Smith, 297 N.C. 363 , 255 S.E.2d 174, 1979 N.C. LEXIS 1253 (1979).

Alternative Fact Allegations Not Admissions. —

Alternative fact allegations made in good faith and based on genuine doubt are not admissions against interest so as to be admissible in evidence against the pleader. The pleader states the facts in the alternative because he is uncertain as to the true facts, and he is not “admitting” anything other than his uncertainty. Woods v. Smith, 297 N.C. 363 , 255 S.E.2d 174, 1979 N.C. LEXIS 1253 (1979).

Right to Present Evidence and Submit Alternative Claims to Jury. —

A plaintiff who pleads claims in the alternative against two or more defendants when she is uncertain as to the true facts but believes she is entitled to recover from at least one of the defendants is entitled to present evidence at trial to support both claims, and if she does, to submit both claims to the jury for decision. Woods v. Smith, 297 N.C. 363 , 255 S.E.2d 174, 1979 N.C. LEXIS 1253 (1979).

As to effect of one defendant’s admission where negligence of other defendant is imputed to plaintiff, see Woods v. Smith, 297 N.C. 363 , 255 S.E.2d 174, 1979 N.C. LEXIS 1253 (1979).

Joining Insurance Company Which Has Partially Paid Loss. —

It is not error to join, as a proper party plaintiff to the action, an insurance company which has partially paid the insured for the insured’s loss, but the insurance company’s presence in the action is not required. Howard v. Smoky Mt. Enters., Inc., 76 N.C. App. 123, 332 S.E.2d 200, 1985 N.C. App. LEXIS 3728 (1985).

Slander. —

In general, slander is an individual tort, and two or more persons each uttering slander against the same individual may not be held jointly liable in the absence of a conspiracy between or among them. However, although defendants, who were not alleged to have conspired, could not be held jointly liable, plaintiff was not precluded from pursuing his claims against both defendants in the same civil action. Shuping v. Barber, 89 N.C. App. 242, 365 S.E.2d 712, 1988 N.C. App. LEXIS 289 (1988).

Corporate employee was not misjoined in an action brought against his corporate employer. —

Corporate employee, who was sued for slander per se, was not misjoined in an action brought against his corporate employer because the resolution of a breach of contract claim against the employer might involve the factual issues upon which the slander claim was based and the employer might be held vicariously liable if the employee’s statements were determined to be defamatory, not privileged, and made within the scope of his employment. Guider v. Hertz Corp., 2004 U.S. Dist. LEXIS 12364 (M.D.N.C. June 28, 2004).

Joinder of Guarantors. —

When a bank sought a deficiency judgment, following foreclosure, against a borrower and guarantors, and then dismissed the borrower, the borrower was properly re-joined pursuant to the guarantors’ motion because (1) G.S. 26-12(b) granted a trial court such discretion, and (2) the re-joinder did not improperly expand the guarantors’ defenses. High Point Bank & Trust Co. v. Highmark Props., LLC, 231 N.C. App. 31, 750 S.E.2d 886, 2013 N.C. App. LEXIS 1240 (2013), aff'd in part, modified, 368 N.C. 301 , 776 S.E.2d 838, 2015 N.C. LEXIS 936 (2015).

III.Separate Trials

Power of Judge to Order Separate Trials. —

Section (b) of this rule authorizes the judge to order separate trials or make other orders to prevent a party from being embarrassed, delayed, or put to expense by the joinder of a party. This may be done on motion of either party, and the decision whether to do so rests in the discretion of the trial judge. Aetna Ins. Co. v. Carroll's Transf., Inc., 14 N.C. App. 481, 188 S.E.2d 612, 1972 N.C. App. LEXIS 2159 (1972).

Although the basic philosophy of the party joinder provisions is to allow relatively unrestricted initial joinder, there are provisions in section (b) of this rule and in G.S. 1A-1 , Rule 42(b) for the trial judge to sever and order separate trials. Aetna Ins. Co. v. Carroll's Transf., Inc., 14 N.C. App. 481, 188 S.E.2d 612, 1972 N.C. App. LEXIS 2159 (1972); Wachovia Bank & Trust Co. v. Smith, 44 N.C. App. 685, 262 S.E.2d 646, 1980 N.C. App. LEXIS 2565 (1980).

G.S. 1A-1 , Rule 42(b) Confers Same Power Contemplated by Section (b). —

G.S. 1A-1 , Rule 42(b), which gives to the trial judge general power to sever, confers the same power contemplated by section (b) of this rule. Aetna Ins. Co. v. Carroll's Transf., Inc., 14 N.C. App. 481, 188 S.E.2d 612, 1972 N.C. App. LEXIS 2159 (1972).

Whether or not there should be severance rests in the sound discretion of the trial judge. Aetna Ins. Co. v. Carroll's Transf., Inc., 14 N.C. App. 481, 188 S.E.2d 612, 1972 N.C. App. LEXIS 2159 (1972).

IV.Decisions under Prior Law

Editor’s Note. —

The cases cited below were decided under former G.S. 1-68, 1-69, 1-70 and 1-73.

Basic Joinder Concept. —

The code of civil procedure was bottomed on the basic concept that a court ought to bring before it as parties in a particular action all persons who might have interests either by way of rights or by way of liabilities in the subject matter of the action, so that a single judgment might be rendered effectually determining all such rights and liabilities for the protection of all concerned. Burgess v. Trevathan, 236 N.C. 157 , 72 S.E.2d 231, 1952 N.C. LEXIS 507 (1952).

Object of former G.S. 1-68 was to permit all persons who came within its terms to unite as parties plaintiff, so that a single judgment might be rendered completely determining the controversy for the protection of all concerned. Hall v. DeWeld Mica Corp., 244 N.C. 182 , 93 S.E.2d 56, 1956 N.C. LEXIS 382 (1956); Whitehead v. Margel, 220 F. Supp. 933, 1963 U.S. Dist. LEXIS 7420 (W.D.N.C. 1963).

Plaintiffs’ Interests Need Not Be Identical. —

The fact that the interests of plaintiffs are legally severable, or not common or identical, is no bar to their joinder where they have a common interest in the subject of the action and the relief sought. Wilson v. Horton Motor Lines, 207 N.C. 263 , 176 S.E. 750, 1934 N.C. LEXIS 437 (1934); Peed v. Burleson's, Inc., 242 N.C. 628 , 89 S.E.2d 256, 1955 N.C. LEXIS 650 (1955).

But Their Interests Must Be Consistent. —

While it is not necessary that all parties plaintiff have the identity of interest required by the common law, it is necessary that their interests be consistent. Burton v. City of Reidsville, 240 N.C. 577 , 83 S.E.2d 651, 1954 N.C. LEXIS 491 (1954).

Two or more plaintiffs representing opposing interests with reference to the main purpose of the action may not be joined. Burton v. City of Reidsville, 240 N.C. 577 , 83 S.E.2d 651, 1954 N.C. LEXIS 491 (1954).

Joinder of Proper Parties Within Discretion of Court. —

Proper parties are those whose interest might be affected by a decree, but the court can proceed to adjudicate the rights of others without necessarily affecting them, and whether they shall be brought in or not is within the discretion of the court. Pickelsimer v. Pickelsimer, 255 N.C. 408 , 121 S.E.2d 586, 1961 N.C. LEXIS 598 (1961).

Joinder of Parties in Alternative. —

Where defendant is liable to one or two parties in the alternative, so that if he is liable to one he is not liable to the other, and defendant is not sure to which of the parties liability obtains, he is entitled to join both as plaintiffs. American Air Filter Co. v. Robb, 267 N.C. 583 , 148 S.E.2d 580, 1966 N.C. LEXIS 1085 (1966).

Joinder of defendants in the alternative is permitted where there is but one cause of action. For instance, if A wishes to sue B, the driver of a motor vehicle, and his employer for B’s negligence, but is uncertain whether C or D was the principal, he may join them both as defendants in the alternative. Conger v. Travelers Ins. Co., 260 N.C. 112 , 131 S.E.2d 889, 1963 N.C. LEXIS 640 (1963).

Where the wrongful acts of two or more persons concur in producing a single injury, with or without concert between them, they may be treated as joint tort-feasors and, as a rule, sued separately or together at the election of plaintiffs. Chumley v. Great Atl. & Pac. Tea Co., 191 F. Supp. 254, 1961 U.S. Dist. LEXIS 3179 (M.D.N.C. 1961) (citing) Raulf v. Elizabeth City Light & Power Co., 176 N.C. 691 , 97 S.E. 236, 1918 N.C. LEXIS 330 (1918).

In an action by a partner for the dissolution of the partnership and for proper application of the partnership assets, plaintiff partner may join as a defendant the transferee of the defendant partner, upon allegation that the transfer was wrongful, in order to have the entire controversy settled in one action, and plaintiff is not compelled first to bring an action to establish the fact of the existence of the partnership and then another action for an accounting. Bright v. Williams, 245 N.C. 648 , 97 S.E.2d 247, 1957 N.C. LEXIS 644 (1957).

Attack on Note Payable to Bearer. —

Where trustee in deed of trust which purported to secure payment of note payable to bearer was a party to action brought by plaintiff to set aside deed of trust on the grounds that the note was false and fictitious and participated actively in its defense, the holder of the alleged note, who was unknown to plaintiff, could not be deemed a necessary party to the action. Virginia-Carolina Laundry Supply Corp. v. Scott, 267 N.C. 145 , 148 S.E.2d 1, 1966 N.C. LEXIS 1000 (1966).

As to joinder of insured in insurer’s action to enforce subrogation, see Burgess v. Trevathan, 236 N.C. 157 , 72 S.E.2d 231, 1952 N.C. LEXIS 507 (1952) (commented on in 31 N.C.L. Rev. 224 (1953)) .

Insurance company which pays insured for part of the loss is a proper party to an action brought by the insured against a tort-feasor to recover the total amount of the loss, and may be brought into the action at the insistance of the insured or the tort-feasor, either in the capacity of an additional plaintiff or in the capacity of an additional defendant. Burgess v. Trevathan, 236 N.C. 157 , 72 S.E.2d 231 (1952); Commented on in 31 N.C.L. Rev. 224 (1953). See also Swenson v. Thibaut, 39 N.C. App. 77, 250 S.E.2d 279, 1978 N.C. App. LEXIS 2346 (1978).

Husband and Wife as Plaintiffs. —

Where plaintiffs, husband and wife, alleged that they owned home in which they lived and that defendant’s mining operations resulted in damage to it, the allegation that they owned their home was sufficient to show that both had an interest in the property, and therefore both were properly joined as plaintiffs. Hall v. DeWeld Mica Corp., 244 N.C. 182 , 93 S.E.2d 56, 1956 N.C. LEXIS 382 (1956).

Suit of Husbands on Trade Acceptances and Wives as Guarantors. —

There was no misjoinder of parties and causes of action where the plaintiff in the same proceeding sued husbands on trade acceptances and sued their wives on guaranties executed to secure such trade acceptances. Arcady Farms Milling Co. v. Wallace, 242 N.C. 686 , 89 S.E.2d 413, 1955 N.C. LEXIS 670 (1955).

Joinder of Husband and Wife in Action for Negligent Use of Property Held as Tenants by Entirety. —

A husband and wife, holding property as tenants by the entirety, may properly be named defendants and held jointly liable for injuries resulting from the negligent use of the property, unless there is evidence shown at the trial that the husband exercised such exclusive control of the property as to exonerate the wife from liability. Whitehead v. Margel, 220 F. Supp. 933, 1963 U.S. Dist. LEXIS 7420 (W.D.N.C. 1963).

Rule 21. Procedure upon misjoinder and nonjoinder.

Neither misjoinder of parties nor misjoinder of parties and claims is ground for dismissal of an action; but on such terms as are just parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action. Any claim against a party may be severed and proceeded with separately.

History. 1967, c. 954, s. 1.

Comment

This is an exact counterpart to federal Rule 21, with the addition of the phrase “nor misjoinder of parties and claims” appearing in the first sentence. The general purpose of the rule is clearly to solidify the basic notion under the federal approach that faulty structuring of a case in terms of joinder of improper parties should not give rise to any drastic interruption of its normal progress to trial. Rather, the safeguard of restructuring without interruption, through severance or dropping of parties, without dismissal, is provided as an adequate protection against the evils of proceeding to trial in an overly-complex structure. The phrase referring to misjoinder of parties and causes, while probably not strictly necessary from the logical standpoint, is inserted because of the developed North Carolina case law rule for dismissal rather than severance where there is “misjoinder of both parties and causes.” See Brandis, Permissive Joinder of Parties and Causes in North Carolina, 25 N.C.L. Rev. 1, pp. 49-53 (1946).

CASE NOTES

Applicability. —

Trial court did not err in considering an amended complaint to be the operative complaint in a personal injury action against a county; the county did not argue that the amended complaint was served on them after they had served a responsive pleading. G.S. 1A-1 , N.C. R. Civ. P. 20 and G.S. 1A-1 , N.C. R. Civ. P. 21 had no bearing on the case. Robinson v. Smith, 219 N.C. App. 518, 724 S.E.2d 629, 2012 N.C. App. LEXIS 382 (2012).

Rule Is Counterpart of Federal Rule 21. —

This rule is an exact counterpart of federal Rule 21, except for the addition of the phrase “nor misjoinder of parties and claims,” which was inserted because of the prior procedure upon “dual misjoinder”; under the prior procedure there was a misjoinder of parties and causes if any plaintiff or defendant, though interested in one or more tracts, was not interested in all tracts. Presnell v. Trollinger Inv. Co., 20 N.C. App. 722, 202 S.E.2d 493, 1974 N.C. App. LEXIS 2534 (1974).

One of the purposes of this rule is to ensure that parties properly before the court may litigate their differences without being penalized by delay due to those who are not properly before the court. Presnell v. Trollinger Inv. Co., 20 N.C. App. 722, 202 S.E.2d 493, 1974 N.C. App. LEXIS 2534 (1974).

Existing parties to a lawsuit are entitled to notice of a motion to bring in additional parties. Pask v. Corbitt, 28 N.C. App. 100, 220 S.E.2d 378, 1975 N.C. App. LEXIS 1684 (1975).

Adding New Defendant. —

N.C. R. Civ. P. 21 does not allow a plaintiff to add a new defendant when the only existing defendants have all been properly dismissed. Thigpen v. Cooper, 225 N.C. App. 798, 739 S.E.2d 165, 2013 N.C. App. LEXIS 226 (2013).

Order Void for Lack of Notice Void for All Purposes. —

If an order allowing amendment and adding a party defendant is void for lack of notice to the original defendant, it is void for all purposes. Pask v. Corbitt, 28 N.C. App. 100, 220 S.E.2d 378, 1975 N.C. App. LEXIS 1684 (1975).

Misjoinder of parties is not ground for dismissal of the action, but the court, on motion of any party or on its own initiative, may order that a misjoined party be dropped. W & H Graphics, Inc. v. Hamby, 48 N.C. App. 82, 268 S.E.2d 567, 1980 N.C. App. LEXIS 3188 (1980).

But Claims Against a Defendant May Be Dismissed if That Defendant is Misjoined in a Suit. —

Claims against a defendant may be dismissed if that defendant is misjoined in a suit, but a misjoinder of parties is not a ground for dismissing the entire action; a corporate employee, who was sued for slander per se, was not misjoined in an action brought against his corporate employer because the resolution of a breach of contract claim against the employer might involve the factual issues upon which the slander claim was based and the employer might be held vicariously liable if the employee’s statements were determined to be defamatory, not privileged, and made within the scope of his employment. Guider v. Hertz Corp., 2004 U.S. Dist. LEXIS 12364 (M.D.N.C. June 28, 2004).

Directed Verdict Not Required for Nonjoinder of Remaindermen in Action by Life Tenant. —

Plaintiff, as holder of life estate, had a right to maintain an action to protect her interests in the property, and nonjoinder of the remaindermen did not entitle defendants to a directed verdict, but at most entitled them to have the remaindermen joined as parties upon their motion to do so. Schell v. Rice, 37 N.C. App. 377, 246 S.E.2d 61, 1978 N.C. App. LEXIS 2750 , cert. denied, 295 N.C. 648 , 248 S.E.2d 253 (1978).

Summary judgment, like dismissal of the action, is not appropriate in cases of misjoinder of parties and claims. Shuping v. Barber, 89 N.C. App. 242, 365 S.E.2d 712, 1988 N.C. App. LEXIS 289 (1988).

Since plaintiff’s claim for loss of consortium derived from his wife’s cause of action for her personal injuries, plaintiff was united in interest with his spouse and thus a necessary party to her action. The court, therefore, erred in denying plaintiff’s motion to join his loss of consortium claim with his wife’s action and in dismissing his claim for loss of consortium on the ground that it was not joined with his wife’s action. Mrosla v. Feldman, 90 N.C. App. 261, 368 S.E.2d 39, 1988 N.C. App. LEXIS 407 (1988).

Rule 22. Interpleader.

  1. Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims expose or may expose the plaintiff to double or multiple liability. It is not ground for objection to the joinder that the claims of the several claimants or the titles on which their claims depend do not have a common origin or are not identical but are adverse to and independent of one another, or that the plaintiff avers that he is not liable in whole or in part to any or all of the claimants. A defendant exposed to similar liability may obtain such interpleader by way of crossclaim or counterclaim. The provisions of this rule supplement and do not in any way limit the joinder of parties permitted in Rule 20.
  2. Where funds are subject to competing claims by parties to the action, the court may order the party in possession of the funds either to deposit the funds in an interest bearing account in a federally insured depository institution or a trust institution authorized to do business in this State or to deposit the funds with the clerk. If the funds are deposited in a federally insured depository institution or a trust institution authorized to do business in this State, the court shall specify the type of interest bearing account to be used. Funds deposited with the clerk shall be invested or deposited as provided in G.S. 7A-112 and G.S. 7A-112.1 . Upon determination of the action, the judgment shall provide for disbursement of the principal and interest earned on the funds while so deposited.

History. 1967, c. 954, s. 1; 1989, c. 668, s. 1; 2017-25, s. 1(a).

Comment

This rule makes clear that a liberalized use of interpleader is to be permitted. In particular, Pomeroy’s four limitations on the use of interpleader are specifically repudiated. While the North Carolina court has not yet turned its back on these limitations, it has indicated some impatience with them. See Simon v. Raleigh City Bd. of Educ., 258 N.C. 381 , 128 S.E.2d 785 (1963).

Effect of Amendments.

Session Laws 2017-25, s. 1(a), effective June 2, 2017, in subsection (b), substituted “federally insured depository institution or a trust institution authorized to do business in this State” for “bank, savings and loan, or trust company licensed to do business in this State” the first time it appears, and for “bank, savings and loan, or trust company” the second time it appears.

Rule 23. Class actions.

  1. Representation. —  If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, one or more, as will fairly insure the adequate representation of all may, on behalf of all, sue or be sued.
  2. Secondary action by shareholders. —  In an action brought to enforce a secondary right on the part of one or more shareholders or members of a corporation or an unincorporated association because the corporation or association refuses to enforce rights which may properly be asserted by it, the complaint shall be verified by oath.
  3. Dismissal or compromise. —  A class action shall not be dismissed or compromised without the approval of the judge. In an action under this rule, notice of a proposed dismissal or compromise shall be given to all members of the class in such manner as the judge directs.
  4. Tax Class Actions. —  In addition to all of the requirements set out in this rule, a class action seeking the refund of a State tax paid due to an alleged unconstitutional statute may be brought and maintained only as provided in G.S. 105-241.18 .

History. 1967, c. 954, s. 1; 2008-107, s. 28.28(a).

Comment

Section (a). — In respect to class actions, the Commission adheres rather closely to the statutory provisions in North Carolina. See former § 1-70. It will be seen that three requirements are present. First, there must be a “class.” Second, there must be such numerosity as to make impracticable the joinder of all members of the class. Third, there must be an assurance of adequacy of representation. This last requirement, while not contained in the statute, is surely necessary if the class action is to have any binding effect on absentees. See Hansberry v. Lee, 311 U.S. 32, 61 S. Ct. 115, 85 L. Ed. 22, 132 A.L.R. 741 (1940).

Section (b). — The Commission has not followed the federal rule in this section in its requirements that a shareholder must allege that he was a shareholder at the time of the transaction of which he complains. It was the Commission’s thought that such a requirement may well deprive shareholders of any remedy when the corporation has suffered grievous injury. The Commission has also chosen not to follow the federal rule in its requirement of allegations in respect to the shareholder’s efforts to persuade the managing directors to take remedial action. The Commission does not, however, take the positive approach of saying such allegations are unnecessary. Rule 8 governing what a complaint must contain is a sufficient guide in this matter.

Section (c). — This section seems obviously desirable in the protection that it affords absentees.

Effect of Amendments.

Session Laws 2008-107, s. 28.28(a), effective October 1, 2008, and applicable to actions filed on or after that date, added subsection (d).

Legal Periodicals.

For discussion of class actions, see 26 N.C.L. Rev. 223 (1948).

For note on capacity of unincorporated associations to sue and be sued, see 30 N.C.L. Rev 465 (1952).

For note discussing preliminary injunctions in employment noncompetition cases in light of A.E.P. Industries, Inc. v. McClure, 308 N.C. 393 , 302 S.E.2d 754 (1983), see 63 N.C.L. Rev. 222 (1984).

For note, “Civil Procedure — A Definition of ‘Class’ Under North Carolina Rule 23 — Crow v. Citicorp Acceptance Co.,” see 23 Wake Forest L. Rev. 491 (1988).

For note, “Shareholder Derivative Suits Under the New North Carolina Business Corporations Act,” see 68 N.C. L. Rev. 1091 (1990).

For recent development, “In re Wachovia Shareholders Litigation: The Case for the Common Benefit Doctrine,” see 84 N.C. L. Rev. 2066 (2006).

For article, “Class Action Myopia,” see 65 Duke L.J. 843 (2016).

For article, “An ‘Insurmountable Hurdle’ to Class Action Certification? The Heightened Ascertainability Requirement’s Effect on Small Consumer Claims,” see 94 N.C.L. Rev. 1382 (2016).

CASE NOTES

Analysis

I.In General

Federal Rules and Cases. —

Both the North Carolina Rules of Civil Procedure and the Federal Rules of Civil Procedure contain a requirement that the complaint initiating a shareholder derivative action be verified under oath. Alford v. Shaw, 327 N.C. 526 , 398 S.E.2d 445, 1990 N.C. LEXIS 1009 (1990).

Because the present federal rule and its predecessors (which also contained a verification requirement) have been interpreted and discussed widely, the Supreme Court will turn to federal cases to elucidate the purpose behind this requirement. Certain aspects of this rule and the procedures in North Carolina governing derivative suits may differ from the federal approach; however, insofar as the purposes of certain of the federal and State rules are congruent, cases explaining federal rules are helpful. Alford v. Shaw, 327 N.C. 526 , 398 S.E.2d 445, 1990 N.C. LEXIS 1009 (1990).

While federal class action cases are not binding on North Carolina courts, the reasoning in such cases can be instructive, even though North Carolina’s Rule 23 is quite different from the present Fed. R. Civ. P., Rule 23. Scarvey v. First Fed. S&L Ass'n of Charlotte, 146 N.C. App. 33, 552 S.E.2d 655, 2001 N.C. App. LEXIS 790 (2001).

Origins of Section (a). —

Section (a) of this rule is closely patterned after Rule 23 of the Federal Rules of Civil Procedure as it existed prior to 1966 (the year of the Federal Rule revision) and former G.S. 1-70 . English v. Holden Beach Realty Corp., 41 N.C. App. 1, 254 S.E.2d 223, 1979 N.C. App. LEXIS 2386 , cert. denied, 297 N.C. 609 , 257 S.E.2d 217, 1979 N.C. LEXIS 1493 (1979).

Objectives of Rule. —

This rule has as its objectives the efficient resolution of the claims or liabilities of many individuals in a single action and the elimination of repetitious litigation and possible inconsistent adjudications involving common questions, related events, or requests for similar relief. English v. Holden Beach Realty Corp., 41 N.C. App. 1, 254 S.E.2d 223, 1979 N.C. App. LEXIS 2386 , cert. denied, 297 N.C. 609 , 257 S.E.2d 217, 1979 N.C. LEXIS 1493 (1979).

Purpose of section (a) of this rule is to assure adequacy of representation afforded class. Carnahan v. Reed, 53 N.C. App. 589, 281 S.E.2d 408, 1981 N.C. App. LEXIS 2702 (1981).

This rule should receive a liberal construction, and it should not be loaded down with arbitrary and technical restrictions. English v. Holden Beach Realty Corp., 41 N.C. App. 1, 254 S.E.2d 223, cert. denied, 297 N.C. 609 , 257 S.E.2d 217 (1979). In accord with main volume. See Faulkenbury v. Teachers' & State Employees' Retirement Sys., 108 N.C. App. 357, 424 S.E.2d 420, 1993 N.C. App. LEXIS 100 , aff'd, 335 N.C. 158 , 436 S.E.2d 821, 1993 N.C. LEXIS 527 (1993); Scarvey v. First Fed. S&L Ass'n of Charlotte, 146 N.C. App. 33, 552 S.E.2d 655, 2001 N.C. App. LEXIS 790 (2001).

Permissible Application of Rule. —

In general, courts focusing on this rule have given it a permissive application, so that common questions have been found to exist in a wide range of contexts. English v. Holden Beach Realty Corp., 41 N.C. App. 1, 254 S.E.2d 223, 1979 N.C. App. LEXIS 2386 , cert. denied, 297 N.C. 609 , 257 S.E.2d 217, 1979 N.C. LEXIS 1493 (1979).

Requirements of G.S. 1A-1 , N.C. R. Civ. P. 23(c) do not apply to pre-certification class-action complaints. A trial court errs in concluding that a named plaintiff in an action that had not yet been certified as a class action was required to obtain judicial approval under Rule 23(c) before obtaining a voluntary dismissal of his class-action complaint. Moody v. Sears Roebuck & Co., 191 N.C. App. 256, 664 S.E.2d 569, 2008 N.C. App. LEXIS 1324 , dismissed, 2008 NCBC 14, 2008 NCBC LEXIS 14 (N.C. Super. Ct. 2008).

The requirements for a class action are: (1) The existence of a class; (2) the class members within the jurisdiction of the court must adequately represent any class members outside the jurisdiction of the court; (3) the class must be so numerous as to make it impracticable to bring each member before the court; (4) more than one issue of law or fact common to the class should be present; (5) the party representing the class must fairly insure the representation of all class members; and (6) adequate notice must be given to the class members. Crow v. Citicorp Acceptance Co., 79 N.C. App. 447, 339 S.E.2d 437, rev’d on other grounds, 319 N.C. 274 , 354 S.E.2d 459 (1987). In accord with the main volume. See Perry v. Union Camp Corp., 100 N.C. App. 168, 394 S.E.2d 681, 1990 N.C. App. LEXIS 899 (1990).

Existence of a Class Prerequisite to Action Under Rule. —

Although not specifically mentioned in this rule, an essential prerequisite of an action under the rule is that there must be a “class.” English v. Holden Beach Realty Corp., 41 N.C. App. 1, 254 S.E.2d 223, 1979 N.C. App. LEXIS 2386 , cert. denied, 297 N.C. 609 , 257 S.E.2d 217, 1979 N.C. LEXIS 1493 (1979).

What Constitutes a “Class”. —

A “class,” for purposes of representation, is a group of persons whose interests are so closely similar that an adequate representation of the legal position of one of them will accomplish the same purpose as would be achieved were all of them present and participating in the proceeding. English v. Holden Beach Realty Corp., 41 N.C. App. 1, 254 S.E.2d 223, 1979 N.C. App. LEXIS 2386 , cert. denied, 297 N.C. 609 , 257 S.E.2d 217, 1979 N.C. LEXIS 1493 (1979).

“Class” Defined More Expansively Than Under Former Law. —

The repeal of former G.S. 1-70 and adoption of the less restrictive language of only the first sentence of the 1938 version of Federal Rule 23 reveals a legislative intent that the term “class” under this rule be defined more expansively than under former law. Crow v. Citicorp Acceptance Co., 319 N.C. 274 , 354 S.E.2d 459, 1987 N.C. LEXIS 1933 (1987).

“Community of Interest” Not Required. —

A “class” exists under this rule when the named and unnamed members each have an interest in either the same issue of law or of fact, and that issue predominates over issues affecting only individual class members. It is unnecessary for any member of the class to share a jural relationship or “community of interest” with any other member of the class. Crow v. Citicorp Acceptance Co., 319 N.C. 274 , 354 S.E.2d 459, 1987 N.C. LEXIS 1933 (1987).

Statements in cases holding or implying that the former “community of interest” standard applies under G.S. 1A-1 , Section (a) of this rule, e.g., Maffei v. Alert Cable Television of N.C. Inc., 75 N.C. App. 473, 331 S.E.2d 188 (1985), rev’d on other grounds, 316 N.C. 615 , 342 S.E.2d 867 (1986); English v. Holden Beach Realty Corp., 41 N.C. App. 1, 254 S.E.2d 223, cert. denied, 297 N.C. 609 , 257 S.E.2d 217 (1979); and Mosley v. National Fin. Co., 36 N.C. App. 109, 243 S.E.2d 145, cert. denied, 295 N.C. 467 , 246 S.E.2d 9 (1978), are disapproved by the Supreme Court. Crow v. Citicorp Acceptance Co., 319 N.C. 274 , 354 S.E.2d 459, 1987 N.C. LEXIS 1933 (1987).

Whether a class exists is a question of fact that will be determined on the basis of the circumstances of each case. English v. Holden Beach Realty Corp., 41 N.C. App. 1, 254 S.E.2d 223, 1979 N.C. App. LEXIS 2386 , cert. denied, 297 N.C. 609 , 257 S.E.2d 217, 1979 N.C. LEXIS 1493 (1979).

Whether a class exists is a question of fact to be determined by the court on a case-by-case basis. Crow v. Citicorp Acceptance Co., 79 N.C. App. 447, 339 S.E.2d 437, 1986 N.C. App. LEXIS 2069 (1986), rev'd, 319 N.C. 274 , 354 S.E.2d 459, 1987 N.C. LEXIS 1933 (1987).

Court Must Make Findings of Fact Regarding Class Certification. —

Findings of fact are required by the trial court when rendering a judgment granting or denying class certification in order for the appellate courts to afford meaningful review under the abuse of discretion standard. Such findings must be made with sufficient specificity to allow effective appellate review. Nobles v. First Carolina Communications, Inc., 108 N.C. App. 127, 423 S.E.2d 312, 1992 N.C. App. LEXIS 867 (1992).

Action Not Precluded Where Some Class Members Outside Court’s Jurisdiction. —

The fact that some members of the class are located outside the court’s jurisdiction does not prevent the institution of a class action, so long as there are class members within the jurisdiction who adequately represent those outside. English v. Holden Beach Realty Corp., 41 N.C. App. 1, 254 S.E.2d 223, 1979 N.C. App. LEXIS 2386 , cert. denied, 297 N.C. 609 , 257 S.E.2d 217, 1979 N.C. LEXIS 1493 (1979).

Class must be so numerous as to make it impracticable to bring all members before the court. English v. Holden Beach Realty Corp., 41 N.C. App. 1, 254 S.E.2d 223, 1979 N.C. App. LEXIS 2386 , cert. denied, 297 N.C. 609 , 257 S.E.2d 217, 1979 N.C. LEXIS 1493 (1979).

In order to bring a proceeding under this rule, it is necessary to make an allegation in the complaint that the defendants constitute a class so numerous as to make it impracticable to bring them all before the court. Baxter v. Jones, 14 N.C. App. 296, 188 S.E.2d 622, 1972 N.C. App. LEXIS 2123 , cert. denied, 281 N.C. 621 , 190 S.E.2d 465, 1972 N.C. LEXIS 1119 (1972).

Parties seeking to utilize this rule must establish that the class members are so numerous that it is impractical to bring them all before the court. It is not necessary that they demonstrate the impossibility of joining class members, but they must demonstrate substantial difficulty or inconvenience in joining all members of the class. Crow v. Citicorp Acceptance Co., 319 N.C. 274 , 354 S.E.2d 459, 1987 N.C. LEXIS 1933 (1987).

There is no hard and fast formula for determining what is a “numerous” class. The number is not dependent upon any arbitrary limit, but rather upon the circumstances of each case. English v. Holden Beach Realty Corp., 41 N.C. App. 1, 254 S.E.2d 223, 1979 N.C. App. LEXIS 2386 , cert. denied, 297 N.C. 609 , 257 S.E.2d 217, 1979 N.C. LEXIS 1493 (1979); Crow v. Citicorp Acceptance Co., 319 N.C. 274 , 354 S.E.2d 459, 1987 N.C. LEXIS 1933 (1987).

Test for “Impracticability”. —

The legal test for “impracticability” of joining all members of a class, thus warranting a representative or class suit by or against some of the members, is not impossibility of joinder, but only difficulty or inconvenience in joining all members of the class. English v. Holden Beach Realty Corp., 41 N.C. App. 1, 254 S.E.2d 223, 1979 N.C. App. LEXIS 2386 , cert. denied, 297 N.C. 609 , 257 S.E.2d 217, 1979 N.C. LEXIS 1493 (1979).

The pleadings should disclose the number and make-up of the class, the impracticability of bringing them all before the court and the personal interest in the action of the parties representing the class. English v. Holden Beach Realty Corp., 41 N.C. App. 1, 254 S.E.2d 223, 1979 N.C. App. LEXIS 2386 , cert. denied, 297 N.C. 609 , 257 S.E.2d 217, 1979 N.C. LEXIS 1493 (1979).

Affirmative Averment Under G.S. 1A-1 , Rule 9(a). —

Allegations that a party is a member of and properly represents a class under this rule suffice as the “affirmative averment” of “capacity and authority to sue” required by G.S. 1A-1 , Rule 9(a). Crow v. Citicorp Acceptance Co., 319 N.C. 274 , 354 S.E.2d 459, 1987 N.C. LEXIS 1933 (1987).

Plaintiffs were entitled to proceed as a class against corporate purchaser on the claims contained in the original complaint because the transfer occurred after the court certified the action as a class action, they had knowledge of the claims being asserted against seller at the time the transfer was made, and as transferee of all the assets, purchased the contracts which were the subject matter of the plaintiffs’ original complaint. Dublin v. UCR, Inc., 115 N.C. App. 209, 444 S.E.2d 455, 1994 N.C. App. LEXIS 609 (1994).

Who May Bring Class Action. —

As is obvious from the wording of section (a) of this rule, one who is not a member of the represented class may not bring a class action representing that class. Carnahan v. Reed, 53 N.C. App. 589, 281 S.E.2d 408, 1981 N.C. App. LEXIS 2702 (1981).

Suit Seeking Tax Refund. —

When taxpayers contested a tax imposed on income from out-of-state municipal bonds, and a class of such taxpayers was certified, under G.S. 1A-1-23, the requirement of G.S. 105-267 [repealed] that a taxpayer seeking a refund individually demand such relief was satisfied on behalf on all class members, despite the lack of such a demand by each member, because the demands made by the named class representatives satisfied the requirement of G.S. 105-267 [repealed] that the state be placed on notice of its potential liability, as the state possessed the information from which this liability could be determined, once it had notice of the class representatives’ claims. Dunn v. State, 179 N.C. App. 753, 635 S.E.2d 604, 2006 N.C. App. LEXIS 2163 (2006).

Representatives Must Have Personal Interest. —

Those purporting to represent the class must show that they have a personal, and not just a technical or official, interest in the action. English v. Holden Beach Realty Corp., 41 N.C. App. 1, 254 S.E.2d 223, 1979 N.C. App. LEXIS 2386 , cert. denied, 297 N.C. 609 , 257 S.E.2d 217, 1979 N.C. LEXIS 1493 (1979).

When individual taxpayers sued the state for a tax refund on behalf of themselves and others similarly situated, they could represent corporations and estates and trusts subjected to the same tax to which they objected, despite the fact that corporations and estates and trusts were taxed under different provisions, because they all alleged the unconstitutionality of G.S. 105-134.6(b)(1)b and (c)(1) (now repealed), so the individual taxpayers had more than a technical or official interest in the subject matter of the suit affecting the corporations or estates and trusts, and their interest was personal; thus, once they had standing, they could under G.S. 1A-1-23 represent both themselves and estates and trusts and corporations. Dunn v. State, 179 N.C. App. 753, 635 S.E.2d 604, 2006 N.C. App. LEXIS 2163 (2006).

And it must not appear that there is a conflict of interest between members of the class who are not parties and those members who are representing the class as parties. English v. Holden Beach Realty Corp., 41 N.C. App. 1, 254 S.E.2d 223, 1979 N.C. App. LEXIS 2386 , cert. denied, 297 N.C. 609 , 257 S.E.2d 217, 1979 N.C. LEXIS 1493 (1979).

The named representatives must show that there is no conflict of interest between them and the members of the class who are not named parties, so that the interest of the unnamed class members will be adequately and fairly protected. Crow v. Citicorp Acceptance Co., 319 N.C. 274 , 354 S.E.2d 459, 1987 N.C. LEXIS 1933 (1987).

Party or parties representing the class must be such as will fairly ensure adequate representation of all. This requirement is also one of due process. English v. Holden Beach Realty Corp., 41 N.C. App. 1, 254 S.E.2d 223, 1979 N.C. App. LEXIS 2386 , cert. denied, 297 N.C. 609 , 257 S.E.2d 217, 1979 N.C. LEXIS 1493 (1979).

The class representatives within this jurisdiction must establish that they will adequately represent those outside the jurisdiction. Crow v. Citicorp Acceptance Co., 319 N.C. 274 , 354 S.E.2d 459, 1987 N.C. LEXIS 1933 (1987).

Property owners could not represent a potential class of landowners who owned land on a line between two counties in 1992 when the line was redrawn because they did not own such property in 1992, and they could not adequately represent the class for purposes of G.S. 1A-1 , N.C. R. Civ. P. 23(a). Meadows v. Iredell County, 187 N.C. App. 785, 653 S.E.2d 925, 2007 N.C. App. LEXIS 2564 (2007).

More than one issue of law or fact common to the class should be present in order to maintain a class action. English v. Holden Beach Realty Corp., 41 N.C. App. 1, 254 S.E.2d 223, 1979 N.C. App. LEXIS 2386 , cert. denied, 297 N.C. 609 , 257 S.E.2d 217, 1979 N.C. LEXIS 1493 (1979).

Burden on Party Invoking Rule. —

The party who is invoking this rule has the burden of showing that all of the prerequisites of utilizing the class action procedure have been satisfied. English v. Holden Beach Realty Corp., 41 N.C. App. 1, 254 S.E.2d 223, 1979 N.C. App. LEXIS 2386 , cert. denied, 297 N.C. 609 , 257 S.E.2d 217, 1979 N.C. LEXIS 1493 (1979); Crow v. Citicorp Acceptance Co., 79 N.C. App. 447, 339 S.E.2d 437, 1986 N.C. App. LEXIS 2069 (1986), rev'd, 319 N.C. 274 , 354 S.E.2d 459, 1987 N.C. LEXIS 1933 (1987).

Plaintiff has the burden of showing that the alleged representatives are members of the class and that the interests of absent class members will be adequately protected. English v. Holden Beach Realty Corp., 41 N.C. App. 1, 254 S.E.2d 223, 1979 N.C. App. LEXIS 2386 , cert. denied, 297 N.C. 609 , 257 S.E.2d 217, 1979 N.C. LEXIS 1493 (1979).

Discretion of Trial Court. —

In deciding whether an action may be maintained as a class action, the trial court is accorded a degree of discretion. English v. Holden Beach Realty Corp., 41 N.C. App. 1, 254 S.E.2d 223, 1979 N.C. App. LEXIS 2386 , cert. denied, 297 N.C. 609 , 257 S.E.2d 217, 1979 N.C. LEXIS 1493 (1979).

It was within the court’s discretion to direct the defendant to assume the onus and costs of notifying putative members of the plaintiff class. Frost v. Mazda Motor of Am., 353 N.C. 188 , 540 S.E.2d 324, 2000 N.C. LEXIS 903 (2000).

Withdrawal of Motion to Certify a Class. —

Car purchasers’ appeal from a trial court’s order that, in part, required court approval for the withdrawal of a request for class certification, was dismissed because the trial court granted the motion to withdraw the request and therefore the purchasers were not parties aggrieved. Alexander v. DaimlerChrysler Corp., 158 N.C. App. 637, 582 S.E.2d 57, 2003 N.C. App. LEXIS 1220 (2003).

Court Supervision of Communications With Potential Class Members Not Abuse of Discretion. —

In a class action challenging interest rates that were charged in financing the purchase of mobile homes, trial court did not abuse its discretion in supervising communications with potential class members, as the trial court did not allow unlimited unsupervised communications with potential class members and restricted contact to the level it deemed appropriate at that stage of litigation. Gibbons v. CIT Group/Sales Fin., Inc., 101 N.C. App. 502, 400 S.E.2d 104, 1991 N.C. App. LEXIS 77 (1991).

Although this rule should receive a liberal construction and be kept free from technical restrictions, a court has broad discretion in deciding whether to allow a class action. Crow v. Citicorp Acceptance Co., 79 N.C. App. 447, 339 S.E.2d 437, 1986 N.C. App. LEXIS 2069 (1986), rev'd, 319 N.C. 274 , 354 S.E.2d 459, 1987 N.C. LEXIS 1933 (1987).

In deciding whether to certify a class, a trial judge has broad discretion and may consider factors not expressly mentioned in this rule. Maffei v. Alert Cable TV of N.C. Inc., 316 N.C. 615 , 342 S.E.2d 867, 1986 N.C. LEXIS 2152 (1986).

Court May Take into Account Considerations Not Dealt with in Rule. —

A court has broad discretion in deciding whether to allow the maintenance of a class action, and may take account of considerations not expressly dealt with in this rule in reaching a decision. English v. Holden Beach Realty Corp., 41 N.C. App. 1, 254 S.E.2d 223, 1979 N.C. App. LEXIS 2386 , cert. denied, 297 N.C. 609 , 257 S.E.2d 217, 1979 N.C. LEXIS 1493 (1979).

Statutes of Limitation. —

Statutes of limitations on claims raised in a class action complaint are tolled as to all putative members of the class from the filing of the complaint until a denial of class action certification by the trial court; if an interlocutory appeal is taken from the denial of certification, tolling continues during the pendency of the appeal. Scarvey v. First Fed. S&L Ass'n of Charlotte, 146 N.C. App. 33, 552 S.E.2d 655, 2001 N.C. App. LEXIS 790 (2001).

Notice to Members of Class Required. —

While section (a) of this rule does not require it, fundamental fairness and due process dictate that adequate notice, determined in the discretion of the trial court, be given to members of the class. English v. Holden Beach Realty Corp., 41 N.C. App. 1, 254 S.E.2d 223, 1979 N.C. App. LEXIS 2386 , cert. denied, 297 N.C. 609 , 257 S.E.2d 217, 1979 N.C. LEXIS 1493 (1979); Crow v. Citicorp Acceptance Co., 319 N.C. 274 , 354 S.E.2d 459, 1987 N.C. LEXIS 1933 (1987).

The North Carolina Supreme Court has held that fundamental fairness and due process require that adequate notice be given to the members of a class. Hamilton v. Memorex Telex Corp., 118 N.C. App. 1, 454 S.E.2d 278, 1995 N.C. App. LEXIS 80 (1995).

The trial court should require that the best notice practical under the circumstances be given to class members. Such notice should include individual notice to all members who can be identified through reasonable efforts, but it need not comply with the formalities of service of process. Notice of the action should be given as soon as possible after the action is commenced. Crow v. Citicorp Acceptance Co., 319 N.C. 274 , 354 S.E.2d 459, 1987 N.C. LEXIS 1933 (1987).

Because plaintiffs’ case was certified as a class action, the plaintiffs did not have the power to voluntarily dismiss any of the plaintiffs’ claims under G.S. 1A-1 , N.C. R. Civ. P. 41 without notice to class members as required by G.S. 1A-1 , N.C. R. Civ. P. 23(c). Kitchin v. Halifax County, 192 N.C. App. 559, 665 S.E.2d 760, 2008 N.C. App. LEXIS 1624 (2008).

Lawyer violated N.C. R. Prof. Conduct 8.4(d) because the lawyer engaged in conduct prejudicial to the administration of justice by (1) knowingly suing other parties in a court the lawyer knew had no jurisdiction, (2) failing to join necessary parties, and (3) moving for class certification without providing notice to class members. N.C. State Bar v. Livingston, 257 N.C. App. 121, 809 S.E.2d 183, 2017 N.C. App. LEXIS 1046 (2017), cert. denied, 371 N.C. 112 , 812 S.E.2d 853, 2018 N.C. LEXIS 380 (2018).

Opportunity to Request Exclusion from Class. —

As part of notification, the trial court may require that potential class members be given an opportunity to request exclusion from the class within a specified time in a manner similar to the current federal practice. Crow v. Citicorp Acceptance Co., 319 N.C. 274 , 354 S.E.2d 459, 1987 N.C. LEXIS 1933 (1987).

Refusal to Certify on Cost and Benefits Analysis. —

Although one of the basic purposes of class actions is to provide a forum whereby claims which might not be economically pursued individually can be aggregated in an efficient and economically reasonable manner, there is a level at which the costs in pursuing the class action far outweigh any economic good sense and fair use of judicial resources. Maffei v. Alert Cable TV of N.C. Inc., 316 N.C. 615 , 342 S.E.2d 867, 1986 N.C. LEXIS 2152 (1986) (upholding trial court’s refusal to certify a class where the recovery which each member stood to gain was a mere 29 cents) .

Unintentional illegality in the language of standard or uniform contracts cannot be raised as a shield to prevent plaintiffs from prosecuting a suit as a class action. Crow v. Citicorp Acceptance Co., 319 N.C. 274 , 354 S.E.2d 459, 1987 N.C. LEXIS 1933 (1987).

Plaintiff had no standing to bring suit challenging action of corporation where he failed to maintain his status as a holder of a beneficial interest in the stock of that corporation throughout the pendency of the litigation. Ashburn v. Wicker, 95 N.C. App. 162, 381 S.E.2d 876, 1989 N.C. App. LEXIS 686 (1989).

Plaintiff had no standing to challenge a loan made by defendant corporation to other defendant when plaintiff’s beneficial interest, if any, in the defendant corporation consisted of a pledge of stock which secured a debt that was paid by another pledgee of the stock before plaintiff filed suit. Ashburn v. Wicker, 95 N.C. App. 162, 381 S.E.2d 876, 1989 N.C. App. LEXIS 686 (1989).

Possibility that some class members would later be removed did not automatically defeat class certification under G.S. 1A-1 , N.C. R. Civ. P. 23 in a suit alleging a violation of the Telephone Consumer Protection Act, 47 U.S.C.S. § 277, of a proposed class that excluded persons with an established business relationship with a restaurant that sent unsolicited fax advertisements. Blitz v. Agean, Inc., 197 N.C. App. 296, 677 S.E.2d 1, 2009 N.C. App. LEXIS 675 (2009), cert. denied, 363 N.C. 800 , 690 S.E.2d 530, 2010 N.C. LEXIS 85 (2010).

Appeal of Order Dismissing Class Action. —

Although order dismissing class action without prejudice did not determine the controversy and was interlocutory, the order affected a substantial right of the unnamed plaintiffs and was immediately appealable. Crow v. Citicorp Acceptance Co., 79 N.C. App. 447, 339 S.E.2d 437, 1986 N.C. App. LEXIS 2069 (1986), rev'd, 319 N.C. 274 , 354 S.E.2d 459, 1987 N.C. LEXIS 1933 (1987).

An order denying certification of a class action is appealable. Nobles v. First Carolina Communications, Inc., 108 N.C. App. 127, 423 S.E.2d 312, 1992 N.C. App. LEXIS 867 (1992).

While an order denying a class certification is interlocutory, it is nonetheless immediately appealable as it affects a substantial right of the unnamed plaintiffs. Faulkenbury v. Teachers' & State Employees' Retirement Sys., 108 N.C. App. 357, 424 S.E.2d 420, 1993 N.C. App. LEXIS 100 , aff'd, 335 N.C. 158 , 436 S.E.2d 821, 1993 N.C. LEXIS 527 (1993).

Denial of class certification was immediately appealable in an action alleging landlords’ violations of statutes on security deposits, because, if a tenant recovered after denial of certification, other tenants’ injuries could not be corrected absent an immediate appeal. Neil v. Kuester Real Estate Servs., 237 N.C. App. 132, 764 S.E.2d 498, 2014 N.C. App. LEXIS 1130 (2014).

Review of Order Denying Class Certification. —

The decision to grant or deny class certification rests within the sound discretion of the trial court; therefore, the appropriate standard for appellate review is whether the trial court’s decision manifests an abuse of discretion. In this regard, an appellate court is bound by the court’s findings of fact if they are supported by competent evidence. Nobles v. First Carolina Communications, Inc., 108 N.C. App. 127, 423 S.E.2d 312, 1992 N.C. App. LEXIS 867 (1992).

Trial court properly denied certification of class for employees of a retailer in regard to their contract and wage claims as the proposed class was overbroad and infeasible, individual issues would have predominated over common issues, and conflicts of interest existed amongst the members of the proposed class. Harrison v. Wal-Mart Stores, Inc., 170 N.C. App. 545, 613 S.E.2d 322, 2005 N.C. App. LEXIS 1082 (2005).

Class Certification Improperly Denied. —

The trial court improperly denied class certification in an action arising out of a collateral protection insurance program, which insurance was required to be maintained by the plaintiff following the purchase of a motor vehicle, since (1) the trial court erred when ruling on the existence of this class when it considered possible defenses to the claims alleged by the plaintiff and found a class necessarily does not exist in cases involving actions for fraud, (2) the trial court improperly considered several matters when ruling on the plaintiff’s adequacy as class representative, and the plaintiff’s criminal record did not render her inadequate, and (3) the plaintiff’s allegations were sufficient to establish numerosity and that a class action was the superior method to determine the claims at issue. Pitts v. Am. Sec. Ins. Co., 144 N.C. App. 1, 550 S.E.2d 179, 2001 N.C. App. LEXIS 330 (2001), aff'd, 356 N.C. 292 , 569 S.E.2d 647, 2002 N.C. LEXIS 934 (2002).

Class Certification Properly Denied. —

Trial court did not abuse its discretion in denying a motion for class certification because the claimant failed to define a class in that the claimant failed to provide a theory of generalized proof that allowed for common questions to predominate over individual inquiries as individualized issues concerning whether sent fax advertisements were unsolicited predominated over issues of law and fact common to the proposed class members.. Blitz v. Agean, Inc., 227 N.C. App. 476, 743 S.E.2d 247, 2013 N.C. App. LEXIS 615 (2013).

It was not error to deny landowners’ motion to certify a class as to an inverse condemnation claim against the North Carolina Department of Transportation because, inter alia, the extent of each landowner’s alleged damages was not a collateral issue. Beroth Oil Co. v. N.C. DOT, 367 N.C. 333 , 757 S.E.2d 466, 2014 N.C. LEXIS 291 (2014).

It was not error to deny landowners’ motion to certify a class as to an inverse condemnation claim against the North Carolina Department of Transportation because, inter alia, liability could be established only after examining the circumstances of each property, under G.S. 136-112. Beroth Oil Co. v. N.C. DOT, 367 N.C. 333 , 757 S.E.2d 466, 2014 N.C. LEXIS 291 (2014).

It was not error to deny landowners’ motion to certify a class as to an inverse condemnation claim against the North Carolina Department of Transportation because, inter alia, the unique nature of property and the large number of diverse tracts caused individual issues to predominate over common issues of law and fact, as the proposed class included over 800 landowners with different property interests, not all of whom were affected in the same way. Beroth Oil Co. v. N.C. DOT, 367 N.C. 333 , 757 S.E.2d 466, 2014 N.C. LEXIS 291 (2014).

When tenants said landlords violated G.S. 42-50 et seq. by deducting an administrative fee from security deposits, overcharging for damages, and charging for normal wear and tear, contrary to G.S. 42-51 and G.S. 42-52 , class certification was properly denied because the tenants were not entitled to automatic full refunds of security deposits but only a refund of any sums withheld for a use not statutorily permitted, requiring individual trials and making a class action an inferior method to adjudicate the claims. Neil v. Kuester Real Estate Servs., 237 N.C. App. 132, 764 S.E.2d 498, 2014 N.C. App. LEXIS 1130 (2014).

Certification of Class Held Proper. —

The trial court properly certified suit as a class action where the class was divided into six subclasses, three of these consisting of living persons who retired as vested members of the Retirement System, and three of these subclasses consisting of living beneficiaries, heirs, or personal representatives of persons comprising the first three subclasses in an action regarding calculation of disability payments. Faulkenbury v. Teachers' & State Employees' Retirement Sys., 108 N.C. App. 357, 424 S.E.2d 420, 1993 N.C. App. LEXIS 100 , aff'd, 335 N.C. 158 , 436 S.E.2d 821, 1993 N.C. LEXIS 527 (1993).

Trial court did not err in certifying a class action by a bank’s stockholders, challenging the banks’ merger with another bank, because the court’s selection of a stockholder as the class representative did not deprive the class of adequate representation, class counsel was not inadequate, and a non-opt-out class was properly certified. Ehrenhaus v. Baker, 216 N.C. App. 59, 717 S.E.2d 9, 2011 N.C. App. LEXIS 2161 (2011).

Trial court did not err in certifying a class of current and former flue-cured tobacco producers where the derivative nature of their claims did not preclude such certification, concluding that neither the named producer nor the class members had a conflict of interest was not an abuse of discretion, and although individual damage awards might have differed, the same basic questions of fact and law would determine whether the cooperative was liable for its actions. Fisher v. Flue-Cured Tobacco Coop. Stabilization Corp., 369 N.C. 202 , 794 S.E.2d 699, 2016 N.C. LEXIS 1120 (2016).

Given the extremely large number of similarly situated current and former flue-cured tobacco producers and the impracticality of requiring them to protect their rights through filing hundreds of thousands of individual lawsuits against a cooperative, the trial court did not abuse its discretion by ruling that a class action was superior to individual litigation in the instant case. Fisher v. Flue-Cured Tobacco Coop. Stabilization Corp., 369 N.C. 202 , 794 S.E.2d 699, 2016 N.C. LEXIS 1120 (2016).

The trial court did not abuse its discretion in certifying three classes for a class action lawsuit alleging violations of the North Carolina Residential Rental Agreements Act, and the North Carolina Debt Collection Act, because the trial court acted within its broad discretion in finding that common issues of fact and law were both central for all class members and were susceptible to class-wide proof, and it did not err in its determination that a class action was superior to other available methods of adjudication. McMillan v. Blue Ridge Cos., 2021-NCSC-160, 379 N.C. 488 , 866 S.E.2d 700, 2021- NCSC-160, 2021 N.C. LEXIS 1277 (2021).

Procedure and Discovery in Shareholders’ Derivative Actions. —

For a case discussing interplay of rules and statutes governing procedure and discovery in shareholders’ derivative action, particularly with respect to former G.S. 55-55(c) (see now G.S. 55-7-40 ), this rule, and G.S. 1A-1 , Rules 12 and 56, see Alford v. Shaw, 327 N.C. 526 , 398 S.E.2d 445, 1990 N.C. LEXIS 1009 (1990).

Verification Requirement Not Jurisdictional. —

Although complaint in shareholders’ derivative suit was not properly verified, because G.S. 1A-1 , Rule 23(b) addresses the procedure to be followed in, and not the substantive elements of, a shareholder’s derivative suit, plaintiffs’ failure to comply with the verification requirement at the time the complaint was filed was not a jurisdictional defect. Alford v. Shaw, 327 N.C. 526 , 398 S.E.2d 445, 1990 N.C. LEXIS 1009 (1990).

Plaintiffs’ motion to strike a footnote in defendant’s appellate brief, pursuant to N.C. R. App. P. 10 and 37, on the basis that the footnote contained an argument based on G.S. 1A-1-23 that was not presented to the trial court or reflected in any of defendants’ assignments of error; lack of verification pursuant to G.S. 1A-1-23 was not jurisdictional, and defendants’ arguments as to the lack of verification of the complaint were waived as they were not raised before the business court. Mitchell, Brewer, Richardson, Adams, Burge & Boughman, PLLC v. Brewer, 209 N.C. App. 369, 705 S.E.2d 757, 2011 N.C. App. LEXIS 194 (2011).

Where Purposes of Verification Requirement Have Been Met. —

Because this rule’s verification requirement is not jurisdictional in nature, where the purposes behind the rule have been fulfilled by the time the objection to a defective or absent verification is lodged, dismissal or summary judgment in favor of defendants is not appropriate. Alford v. Shaw, 327 N.C. 526 , 398 S.E.2d 445, 1990 N.C. LEXIS 1009 (1990).

Defendants waived their objection to lack of proper verification in shareholders’ derivative suit by failing to raise the issue of verification until the fourth time the case was heard in the appellate division. Alford v. Shaw, 327 N.C. 526 , 398 S.E.2d 445, 1990 N.C. LEXIS 1009 (1990).

Because defendants raised the verification issue for the first time in appellate briefs before the Supreme Court, over seven years after the complaint was filed, and after many years of active litigation of the suit, defendants waived their right to complain about verification. Alford v. Shaw, 327 N.C. 526 , 398 S.E.2d 445, 1990 N.C. LEXIS 1009 (1990).

Relation Back Doctrine Applies To Moot Individual Claim. —

Relation back doctrine may be applied to relate a now-moot individual claim back to the date of the class action complaint when the event that moots the plaintiff’s claim occurs before the plaintiff has had a fair opportunity to seek class certification and provided that the plaintiff has not unduly delayed in litigating the motion for class certification. Chambers v. Moses H. Cone Mem'l Hosp., 374 N.C. 436 , 843 S.E.2d 172, 2020 N.C. LEXIS 505 (2020).

Guiding principle underlying the adoption of a pick off exception is fairness to the putative class members; however, the defendant, too, must be shielded from vexatious or unfair litigation tactics, and the test provides the appropriate balance between the interests of the respective parties in this regard. Chambers v. Moses H. Cone Mem'l Hosp., 374 N.C. 436 , 843 S.E.2d 172, 2020 N.C. LEXIS 505 (2020).

Pick off exception to mootness does not rely on any finding of bad faith or improper motive on the part of any party; it is perfectly reasonable that in order to minimize its exposure and limit its liability, a defendant would seek to end a class action lawsuit as quickly as possible before class certification. Chambers v. Moses H. Cone Mem'l Hosp., 374 N.C. 436 , 843 S.E.2d 172, 2020 N.C. LEXIS 505 (2020).

Pick off exception is not a penalty for bad actions, it is simply necessary to protect the class action mechanism as a means of promoting judicial economy, fairness, deterrence, and efficiency in the determination of disputed claims, particularly where the amount in controversy is small, but the number of potentially impacted plaintiffs is large; there is no required showing of a pattern of repeated picking off of numerous individual plaintiffs before the pick off exception applies. Chambers v. Moses H. Cone Mem'l Hosp., 374 N.C. 436 , 843 S.E.2d 172, 2020 N.C. LEXIS 505 (2020).

Where the pick off exception to mootness applies, rather than the capable of repetition, yet evading review exception, the question is whether the plaintiff had a reasonable opportunity to pursue class certification and did so without undue delay; the defendant’s actions in other cases is not relevant to that inquiry. Chambers v. Moses H. Cone Mem'l Hosp., 374 N.C. 436 , 843 S.E.2d 172, 2020 N.C. LEXIS 505 (2020).

When satisfaction of the plaintiff’s individual claim occurs before the trial court can reasonably be expected to rule on the class certification motion, the plaintiff’s stake in the litigation is not extinguished, and the case is not moot. Chambers v. Moses H. Cone Mem'l Hosp., 374 N.C. 436 , 843 S.E.2d 172, 2020 N.C. LEXIS 505 (2020).

Order affirming the dismissal of a patient’s case was remanded to the trial court to apply the appropriate legal standard was warranted because the supreme court recognized a narrow exception to the doctrine of mootness when a named plaintiff’s individual claim became moot before the plaintiff had a fair opportunity to pursue class certification and otherwise acted without undue delay regarding class certification. Chambers v. Moses H. Cone Mem'l Hosp., 374 N.C. 436 , 843 S.E.2d 172, 2020 N.C. LEXIS 505 (2020).

There is a narrow exception to the doctrine of mootness when a named plaintiff’s individual claim becomes moot before the plaintiff had an opportunity to pursue class certification and has otherwise acted without undue delay regarding certification; the named plaintiff’s claim relates back to the filing of the complaint for mootness purposes, and he or she retains the capacity to pursue class certification and class-wide relief, even though his or her individual claim may have been satisfied. Chambers v. Moses H. Cone Mem'l Hosp., 374 N.C. 436 , 843 S.E.2d 172, 2020 N.C. LEXIS 505 (2020).

Where absent class members may have unresolved claims, any prudential concerns that may guide the exercise of that constraint are outweighed by the value of serving the multiple purposes of the class action procedure; therefore, it is appropriate to adopt the standard to allow relation back of the plaintiff’s claim to the date of the filing of the complaint for purposes of the justiciability analysis in class action cases under Rule 23 of the North Carolina Rules of Civil Procedure. Chambers v. Moses H. Cone Mem'l Hosp., 374 N.C. 436 , 843 S.E.2d 172, 2020 N.C. LEXIS 505 (2020).

Requiring that a named plaintiff have a fair opportunity to present the issue of class certification to the trial court ensures that class representatives will not be picked off at the dawn of the litigation before they have had a chance to engage in appropriate discovery and otherwise prepare to seek class certification from the trial court; it will prevent both a “race to pay off named plaintiffs” and premature class certification determinations before the development of the factual record. Chambers v. Moses H. Cone Mem'l Hosp., 374 N.C. 436 , 843 S.E.2d 172, 2020 N.C. LEXIS 505 (2020).

Class Based on Underpayment of Benefits. —

A class was established where each of the parties had a claim based on contentions of underpayment of retirement benefits, and this claim predominated over issues affecting only individual class members. Faulkenbury v. Teachers' & State Emps. Retirement Sys., 345 N.C. 683 , 483 S.E.2d 422, 1997 N.C. LEXIS 188 (1997).

Inverse Condemnation. —

When a trial court denied landowners’ motion to certify a class as to an inverse condemnation claim against the North Carolina Department of Transportation, it was error to analyze the substantive merits of the claim because the relevant issue was whether the landowners met the requirements of G.S. 1A-1 , N.C. R. Civ. P. 23. Beroth Oil Co. v. N.C. DOT, 367 N.C. 333 , 757 S.E.2d 466, 2014 N.C. LEXIS 291 (2014).

Rule Does Not Bar Class Actions Against State or Counties. —

Fact that rule does not specifically mention the State of North Carolina or counties does not mean that all class actions against the State or its counties are barred by sovereign immunity; indeed, class action declaratory judgment suits that seek injunctive and payment relief against the State have been allowed. Thus, the rule did not mean that a county did not have to refund “school impact fees” improperly imposed upon developers and home builders. Durham Land Owners Ass'n v. County of Durham, 177 N.C. App. 629, 630 S.E.2d 200, 2006 N.C. App. LEXIS 1187 (2006).

Derivative Action. —

Tobacco cooperative had not shown that the trial court abused its discretion by allowing the motion for class certification notwithstanding the cooperative’s contention that the current and former flue-cured tobacco producers’ action was derivative in nature as nothing in G.S. 55-7-42 precluded class certification. Fisher v. Flue-Cured Tobacco Coop. Stabilization Corp., 369 N.C. 202 , 794 S.E.2d 699, 2016 N.C. LEXIS 1120 (2016).

Collateral Review. —

After a foreign court had fully addressed a domestic court’s due process notice concerns and the matter had been fully and fairly litigated and finally decided, review of the issues on their merits is foreclosed. However, in a class action consumer’s motion for voluntary dismissal, the trial court erred when the court failed to conduct a broad collateral review of a foreign court’s settlement of a class action suit that encompassed the matter before the trial court. Moody v. Sears Roebuck & Co., 191 N.C. App. 256, 664 S.E.2d 569, 2008 N.C. App. LEXIS 1324 , dismissed, 2008 NCBC 14, 2008 NCBC LEXIS 14 (N.C. Super. Ct. 2008).

Voluntary Dismissal of Class Action. —

When a plaintiff seeks voluntary dismissal of a pre-certification class-action complaint, a trial court should engage in a limited inquiry to determine: (a) whether the parties have abused the class-action mechanism for personal gain; and (b) whether dismissal will prejudice absent putative class members; if the trial court finds that neither of these concerns is present, the plaintiff is entitled to a voluntary dismissal. If the trial court finds that one or both of these concerns are present, the court retains discretion to hold a certification hearing, certify the class if appropriate, and order that notice be given to class members; the parties may then again seek dismissal subject to the trial court’s approval under G.S. 1A-1 , N.C. R. Civ. P. 23(c). Moody v. Sears Roebuck & Co., 191 N.C. App. 256, 664 S.E.2d 569, 2008 N.C. App. LEXIS 1324 , dismissed, 2008 NCBC 14, 2008 NCBC LEXIS 14 (N.C. Super. Ct. 2008).

II.Decisions under Prior Law

Editor’s Note. —

The cases cited below were decided under former G.S. 1-70 .

Federal Counterpart. —

Former G.S. 1-70 had its counterpart in Rule 23a of the Federal Civil Rules of Procedure. Cocke v. Duke Univ., 260 N.C. 1 , 131 S.E.2d 909, 1963 N.C. LEXIS 643 (1963).

Provisions merely provide a ready means for dispatch of business. Cocke v. Duke Univ., 260 N.C. 1 , 131 S.E.2d 909, 1963 N.C. LEXIS 643 (1963).

Exception to the general rule that all persons interested in and to be affected by suit must be made parties on one or the other side obtains when they “may be very numerous and it may be impractical to bring them all before the court,” a rule prevailing in the former equity practice. Glenn v. Farmers' Bank, 72 N.C. 626 , 1875 N.C. LEXIS 305 (1875); Bronson v. Wilmington N.C. Life Ins. Co., 85 N.C. 411 , 1881 N.C. LEXIS 285 (1881); Foster v. Hackett, 112 N.C. 546 , 17 S.E. 426, 1893 N.C. LEXIS 246 (1893). See also, Thames v. Jones, 97 N.C. 121 , 1 S.E. 692, 1887 N.C. LEXIS 123 (1887); McMillan v. Reeves, 102 N.C. 550 , 9 S.E. 449, 1889 N.C. LEXIS 62 (1889).

Showing of Authority to Join Causes of Action in Favor of Other Parties Similarly Situated. —

A party plaintiff may not join with his own cause of action against a defendant causes of action against the same defendant in favor of other parties similarly situated, in the absence of a showing of authority to bring such actions in their behalf. Nodine v. Goodyear Mtg. Corp., 260 N.C. 302 , 132 S.E.2d 631, 1963 N.C. LEXIS 697 (1963).

Where potential beneficiaries of a trust were so numerous that it was practically impossible to bring them all before the court in an action seeking modification of the trust, a beneficiary of each class could be made a party and represent the class. The court’s jurisdiction over the trust was not dependent on acquiring personal jurisdiction over every potential beneficiary. Cocke v. Duke Univ., 260 N.C. 1 , 131 S.E.2d 909, 1963 N.C. LEXIS 643 (1963).

Community of Interest of Cemetery Lot Owners. —

Plaintiff was authorized to bring an action on behalf of himself and other owners of lots in a cemetery who by reason of similar representations were induced to buy lots, as such lot owners had a community of interest. Mills v. Carolina Cem. Park Corp., 242 N.C. 20 , 86 S.E.2d 893, 1955 N.C. LEXIS 468 (1955).

Where property was conveyed to trustees for use as a community house or playground for the benefit of the residents of the community, and an action was instituted involving title to the property in which representative members of the community were made parties, the judgment in the action was binding upon the minors and all members of the community not made parties under provision for class representative. Carswell v. Creswell, 217 N.C. 40 , 7 S.E.2d 58, 1940 N.C. LEXIS 172 (1940).

Rule 24. Intervention.

  1. Intervention of right. —  Upon timely application anyone shall be permitted to intervene in an action:
    1. When a statute confers an unconditional right to intervene; or
    2. When the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
  2. Permissive intervention. —  Upon timely application anyone may be permitted to intervene in an action.
    1. When a statute confers a conditional right to intervene; or
    2. When an applicant’s claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or State governmental officer or agency or upon any regulation, order, requirement, or agreement issued or made pursuant to the statute or executive order, such officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
  3. Procedure. —  A person desiring to intervene shall serve a motion to intervene upon all parties affected thereby. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute gives a right to intervene, except when the statute prescribes a different procedure. Intervention as of right by both the Speaker of the House of Representatives and the President Pro Tempore of the Senate pursuant to G.S. 1-72.2 shall be effected upon the filing of a notice of intervention of right in the trial or appellate court in which the matter is pending regardless of the stage of the proceeding.

History. 1967, c. 954, s. 1; 2017-57, s. 6.7(k).

Comment

Section (a). — This section, providing for intervention as of right, while closely following the federal rule, spells out a practice much like that already achieved in North Carolina. Intervention now is of right in claim and delivery and in attachment by virtue of § 1-440.43 and § 1-482. In respect to subsection (2), it will be noted that the harm to the intervenor’s interest is to be considered from a “practical” standpoint, rather than technically. In other words, the intervenor need not be threatened with being bound in a strict res judicata sense. Further, it should be noted that adequate representation for the proposed intervenor is not limited to purely formal representation. But a present party may, in appropriate circumstances, be relied on to protect the intervenor’s interest even though there is no formal relationship. See Annot., 84 ALR 2d 1412 (1962).

It will be observed that in any case, the application to intervene must be “timely.” What will be “timely” will depend on the circumstances of the case.

Section (b). — This section perhaps establishes a broader base for permissive intervention than North Carolina now has but the Commission believes that the flexibility it makes possible to be highly desirable and the Commission is confident that the stated guide to the court as to what it shall consider in deciding whether or not to permit intervention will insure adequate protection for the original parties.

Section (c). — This section with its simple statement of the required procedure should be useful.

Editor’s Note.

Session Laws 2017-57, s. 6.7(o), made the last sentence in subsection (c) of this section, as added by Session Laws 2017-57, s. 6.7(k), effective June 28, 2017, and applicable to pending and future actions.

Session Laws 2017-57, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2017.’ ”

Session Laws 2017-57, s. 39.6, is a severability clause.

Effect of Amendments.

Session Laws 2017-57, s. 6.7.(k), added the last sentence in subsection (c). For effective date and applicability, see editor’s note.

Legal Periodicals.

For comment, “The Problem of Procedural Delay in Contested Case Hearings . . .” under the North Carolina APA, see 7 N.C. Cent. L.J. 347 (1976).

For survey of 1980 law on civil procedure, see 59 N.C.L. Rev. 1049 (1981).

For a survey of 1996 developments in constitutional law, see 75 N.C.L. Rev. 2252 (1997).

CASE NOTES

Analysis

I.In General

Federal Rule Substantially Similar. —

With only minor exceptions, Federal Rule 24 and this rule are substantially the same. Where the phrase “Statute of the United States” appears in the federal rule, the word “statute” is used in this rule. Ellis v. Ellis, 38 N.C. App. 81, 247 S.E.2d 274, 1978 N.C. App. LEXIS 2087 (1978).

Federal Court Holdings Instructive. —

With only minor exceptions, this Rule and Rule 24 of the Federal Rules of Civil Procedure are substantially the same; thus, the holdings of the federal circuit courts are instructive. Virmani v. Presbyterian Health Servs. Corp., 127 N.C. App. 629, 493 S.E.2d 310, 1997 N.C. App. LEXIS 1187 (1997), aff'd in part and rev'd in part, 350 N.C. 449 , 515 S.E.2d 675, 1999 N.C. LEXIS 432 (1999).

Former G.S. 150A-23(d) (now G.S. 150A-23(d)) Compared. —

While this rule contains specific requirements which control and limit intervention, former G.S. 150A-23(d) (now G.S. 150B-23(d) ) clearly provided discretionary intervention in the Commissioner of Insurance by providing that the agency may permit any interested person to intervene and participate in the proceeding to the extent deemed appropriate. This language has been construed to provide intervention broader than the permissive intervention under this rule. State ex rel. Comm'r of Ins. v. North Carolina Rate Bureau, 300 N.C. 460 , 269 S.E.2d 538, 1980 N.C. LEXIS 1126 (1980).

No Substantive Change from Former Statute. —

The rules of intervention as set out in the Rules of Civil Procedure make no substantive change in the rules as previously set out in former G.S. 1-73 . River Birch Assocs. v. City of Raleigh, 326 N.C. 100 , 388 S.E.2d 538, 1990 N.C. LEXIS 13 (1990).

Intervention pursuant to section (b) of this rule is permissive and within the discretion of the trial court. In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, 1986 N.C. App. LEXIS 2344 (1986).

Permissive Intervenor. —

G.S. 1A-1-24(b)(2) did not require a permissive intervenor to show a direct personal or pecuniary interest in the subject of the litigation, and therefore an order ruling that intervenors did not have standing to bring their claims seeking to establish an easement was independent of an earlier ruling permitting the intervention, and so was not a modification, change, or overruling of a prior order of another superior court judge. Koenig v. Town of Kure Beach, 178 N.C. App. 500, 631 S.E.2d 884, 2006 N.C. App. LEXIS 1569 (2006).

Because the time and expense involved in a second, unanticipated round of discovery in an environmental civil penalty matter was prejudicial to the property owner, as was the requirement that the property owner meet its burden of proof against both intervenors and the state agency authorized to impose the civil penalty, the ALJ abused his discretion in allowing permissive intervention. Holly Ridge Assocs., LLC v. N.C. Dep't of Env't & Natural Res., 361 N.C. 531 , 648 S.E.2d 830, 2007 N.C. LEXIS 811 (2007).

An intervenor by permission need not show a direct personal or pecuniary interest in the subject of the litigation. In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, 1986 N.C. App. LEXIS 2344 (1986).

Prerequisites to Nonstatutory Intervention. —

Subsection (a)(2) of this rule sets forth three prerequisites to nonstatutory intervention as a matter of right: (1) an interest relating to the property or transaction; (2) practical impairment of the protection of that interest; and (3) inadequate representation of that interest by existing parties. Ellis v. Ellis, 38 N.C. App. 81, 247 S.E.2d 274, 1978 N.C. App. LEXIS 2087 (1978); Howell v. Howell, 89 N.C. App. 115, 365 S.E.2d 181, 1988 N.C. App. LEXIS 220 (1988); Procter v. City of Raleigh Bd. of Adjustment, 133 N.C. App. 181, 514 S.E.2d 745, 1999 N.C. App. LEXIS 366 (1999); Councill v. Town of Boone Bd. of Adjustment, 146 N.C. App. 103, 551 S.E.2d 907, 2001 N.C. App. LEXIS 795 (2001).

It was error to deny defendant’s motion to intervene in ex parte proceedings seeking release of defendant’s personnel and educational records because (1) defendant had a clear interest in the proceedings, and (2) the ex parte nature of the proceedings satisfied the Rule’s remaining requirements. State v. Santifort, 257 N.C. App. 211, 809 S.E.2d 213, 2017 N.C. App. LEXIS 1081 (2017).

Burden on Intervenor. —

Intervenors did not satisfy the element of Rule 24(a)(2) requiring them to show their interests as they never asserted in their motion that their interests were inadequately represented; the intervenors’ main argument was that they did not have to make such a showing, and they erroneously contended it was the gas company’s burden to show that representation was adequate. Harvey Fertilizer & Gas Co. v. Pitt County, 153 N.C. App. 81, 568 S.E.2d 923, 2002 N.C. App. LEXIS 1084 (2002).

In a custody case, trial court erred in granting intervener caretaker’s motion to intervene and motion for custody because it did not contain any grounds for modification of the prior custody order and did not allege a substantial change in circumstances as required under G.S. 50-13.7(a). Bohannan v. McManaway, 208 N.C. App. 572, 705 S.E.2d 1, 2010 N.C. App. LEXIS 2446 (2010).

Intervention Timely. —

Trial court did not abuse its discretion in granting a prisoner’s motion to intervene in a proceeding brought by other prisoners, since the motion was timely filed two months after class certification was denied in the other prisoners’ suit, and the motion to intervene was filed before any hearing on the merits of the action. Hamilton v. Freeman, 147 N.C. App. 195, 554 S.E.2d 856, 2001 N.C. App. LEXIS 1147 (2001).

In determining whether motion to intervene is timely, trial court will give consideration to: (1) the status of the case; (2) the unfairness or prejudice to the existing parties; (3) the reason for any delay in moving for intervention; (4) the resulting prejudice to the applicant if the motion is denied; and (5) any unusual circumstances. State Employee's Credit Union, Inc. v. Gentry, 75 N.C. App. 260, 330 S.E.2d 645, 1985 N.C. App. LEXIS 3638 (1985); Procter v. City of Raleigh Bd. of Adjustment, 133 N.C. App. 181, 514 S.E.2d 745, 1999 N.C. App. LEXIS 366 (1999).

Motion Prior to Trial and After Judgment. —

As a general rule, motions to intervene made prior to trial are seldom denied. Conversely, motions to intervene made after judgment has been rendered are disfavored and are granted only after a finding of extraordinary and unusual circumstances and upon a strong showing of entitlement and justification. State Employee's Credit Union, Inc. v. Gentry, 75 N.C. App. 260, 330 S.E.2d 645, 1985 N.C. App. LEXIS 3638 (1985).

In situations where a judgment has been entered, motions to intervene are granted only upon a finding of extraordinary and unusual circumstances or a strong showing of entitlement and justification. Procter v. City of Raleigh Bd. of Adjustment, 133 N.C. App. 181, 514 S.E.2d 745, 1999 N.C. App. LEXIS 366 (1999).

Appellants’ motion to intervene in another party’s petition for review of an annexation ordinance was properly denied because, even assuming G.S. 1A-1-24(a) applied to appeals of annexation ordinances under G.S. 160A-50(a), judgment had already entered, intervention would have prejudiced the city and the other party, and appellants did not offer a legitimate reason for the delay. Home Builders Ass'n of Fayetteville N.C. Inc. v. City of Fayetteville, 170 N.C. App. 625, 613 S.E.2d 521, 2005 N.C. App. LEXIS 1072 (2005).

Untimely Motion to Intervene Properly Denied. —

Denial of a humane society’s G.S. 1A-1 , N.C. R. Civ. P. 24 motions to intervene in a case enjoining the prosecution of a gun club owner under G.S. 14-360 was proper because the motions were not filed until more than three years after an amendment to 15A N.C. Admin. Code 10B.0121, which amendment formed the basis of the humane society’s claim that the injunction should have been dissolved. Malloy v. Cooper, 195 N.C. App. 747, 673 S.E.2d 783, 2009 N.C. App. LEXIS 246 (2009).

A motion to intervene after the entry of default against the defendant, his liability to the plaintiff being conclusively established, the extent of liability never being in issue, was untimely. State Employee's Credit Union, Inc. v. Gentry, 75 N.C. App. 260, 330 S.E.2d 645, 1985 N.C. App. LEXIS 3638 (1985).

Intervention Improper Where Filed After Settlement Was Approved. —

Denial of a corporation’s motion to intervene in a case seeking review of an annexation ordinance was proper, since the corporation failed to comply with G.S. 160A-50 procedures by moving to intervene six months after the ordinance was adopted; intervention was also improper under G.S. 1A-1-24, due to the facts that the motion was filed after judgment approving a settlement was entered and that the proposed intervention would have prejudiced the original parties by destroying their settlement. Gates Four Homeowners Ass'n v. City of Fayetteville, 170 N.C. App. 688, 613 S.E.2d 55, 2005 N.C. App. LEXIS 1088 (2005).

An intervenor is as much a party to the action as the original parties are and has rights equally as broad. Leonard E. Warner, Inc. v. Nissan Motor Corp., 66 N.C. App. 73, 311 S.E.2d 1, 1984 N.C. App. LEXIS 2812 (1984).

Rule is silent as to the extent an intervenor may participate in the action once the court allows him in as a party. In view of the liberal philosophy of the rules as regards joinder and enlargement, anything less than full right of participation seems unduly restrictive and tends to defeat the important rules policy of avoiding multiplicity of actions. Once the intervenor becomes a party, he should be a party for all purposes. Harrington v. Overcash, 61 N.C. App. 742, 301 S.E.2d 528, 1983 N.C. App. LEXIS 2753 (1983).

The granting of a motion to intervene pursuant to this rule is not ordinarily appealable. Kahan v. Longiotti, 45 N.C. App. 367, 263 S.E.2d 345, 1980 N.C. App. LEXIS 2638 (1980).

Although the rule is not absolute, ordinarily no appeal will lie from an order permitting intervention of parties unless the order adversely affects a substantial right which the appellant may lose if not granted an appeal before final judgment. The rule applies with equal vigor without regard to whether the trial court grants a motion to intervene as a matter of right pursuant to section (a) of this rule or as permissive intervention pursuant to section (b) of this rule. Wood v. City of Fayetteville, 35 N.C. App. 738, 242 S.E.2d 640, 1978 N.C. App. LEXIS 3071 , cert. denied, 295 N.C. 264 , 245 S.E.2d 781, 1978 N.C. LEXIS 1013 (1978).

But May Be Reviewed on Appeal from Final Judgment. —

An order granting intervention may be reviewed upon appeal from the final judgment in the cause. Wood v. City of Fayetteville, 35 N.C. App. 738, 242 S.E.2d 640, 1978 N.C. App. LEXIS 3071 , cert. denied, 295 N.C. 264 , 245 S.E.2d 781, 1978 N.C. LEXIS 1013 (1978).

The de novo standard is expressly adopted when reviewing Rule 24(a)(2) decisions. Harvey Fertilizer & Gas Co. v. Pitt County, 153 N.C. App. 81, 568 S.E.2d 923, 2002 N.C. App. LEXIS 1084 (2002).

Court’s Discretion Not Reviewable Absent Abuse. —

The court’s discretion in regard to permissive intervention under subsection (b)(2) of this rule is not reviewable in the absence of a showing of abuse. Ellis v. Ellis, 38 N.C. App. 81, 247 S.E.2d 274, 1978 N.C. App. LEXIS 2087 (1978).

Service by Intervenor. —

An intervenor party who is granted permission to intervene pursuant to subsection (b)(2) of this rule is not required to then issue a summons and complaint pursuant to Rule 4. 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, 1980 N.C. App. LEXIS 2638 (1980).

A party who intervenes pursuant to this rule is not required to issue a summons and complaint pursuant to G.S. 1A-1 , Rule 4. In re Shamp, 82 N.C. App. 606, 347 S.E.2d 848, 1986 N.C. App. LEXIS 2608 (1986).

Service, pursuant to G.S. 1A-1 , Rule 5, of the motion accompanied with the pleading 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 are met. In re Shamp, 82 N.C. App. 606, 347 S.E.2d 848, 1986 N.C. App. LEXIS 2608 (1986).

Statutory or Permissive Intervention Not Considered, as Intervenor Had Right to Intervene as Necessary Party. —

Because the association had a right to intervene, the court did not address the issue of a statutory right to intervene or permissive intervention. Anderson v. Seascape at Holden Plantation, LLC, 232 N.C. App. 3, 753 S.E.2d 691, 2014 N.C. App. LEXIS 97 (2014).

Intervention by Biological Parent Whose Parental Rights Have Been Severed. —

Trial court properly denied a biological mother’s motion to intervene in a dispositional hearing because her parental rights to four of her children were severed when they were adopted by their maternal grandmother and her motion failure to include a pleading asserting a claim or defense. In re T.H., 232 N.C. App. 16, 753 S.E.2d 207, 2014 N.C. App. LEXIS 59 (2014).

Child Support Enforcement Agency’s Right to Intervene. —

Child support enforcement agencies have an unconditional statutory right of intervention where a person has accepted public assistance on behalf of a dependent child, where that person applies for and pays a fee for child support collection services, or where that person with an order under which the person is entitled to collect spousal support is also receiving child support enforcement services for a child support obligation. Therefore, a child support enforcement agency had an unconditional statutory right to intervene in an ongoing support dispute pending between two parents because a mother had contracted for child support services, and the motion was timely when it was filed one month after services were sought. Robbins v. Hunt, 246 N.C. App. 475, 784 S.E.2d 219, 2016 N.C. App. LEXIS 361 (2016).

Necessary Party Had Right to Intervene. —

Association was the owner of property that the residents alleged was defectively constructed, and no valid judgment could be entered without the association’s participation, and thus regardless of whether the residents’ claims were derivative or individual, the association, as a necessary party, had a right to intervene. Anderson v. Seascape at Holden Plantation, LLC, 232 N.C. App. 3, 753 S.E.2d 691, 2014 N.C. App. LEXIS 97 (2014).

Intervention by Foster Parents. —

In proceeding brought by Department of Social Services in which custody was put in issue by guardian ad litem and natural father, trial court did not err in permitting child’s foster parents to intervene. In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, 1986 N.C. App. LEXIS 2344 (1986) (distinguishing) Oxendine v. Catawba County Dep’t of Social Servs., 303 N.C. 699 , 281 S.E.2d 370, 1981 N.C. LEXIS 1267 (1981).

Intervention by Grandmother. —

As grandmother’s interest in obtaining compensation from defendant for amounts expended for child support would be impaired by any judgment involving defendant’s child support obligation which failed to take her claim for reimbursement into account, regardless of whether she would be bound by that judgment, and she would, as a practical matter, suffer the expense and inconvenience of bringing a separate suit against defendant, and would also be impeded by defendant’s ability to force litigation of the additional issue of res judicata, her intervention would be allowed. State ex rel. Pender County Child Support Enforcement Agency ex rel. Crews v. Parker, 319 N.C. 354 , 354 S.E.2d 501, 1987 N.C. LEXIS 1924 (1987).

Intervention by Heir. —

Trial court properly permitted nephew of decedent, who was claiming to be the sole heir of the decedent under a holographic will, to intervene at trial in a suit by the brother of the decedent, who sought specific performance of a contract by the decedent to make a will, after the brother of the decedent dismissed his claim against the nephew from the case and rested his case at trial. Taylor v. Abernethy, 149 N.C. App. 263, 560 S.E.2d 233, 2002 N.C. App. LEXIS 182 (2002).

Intervention by Insurer. —

Plaintiffs’ insurer was entitled to intervene in plaintiffs’ lawsuit, where the insurer demonstrated a direct and immediate interest in plaintiffs’ action against third-party defendants, and the insurer’s ability to protect its interest could be impaired or impeded by the disposition of plaintiffs’ action. Wichnoski v. Piedmont Fire Prot. Sys., LLC, 251 N.C. App. 385, 796 S.E.2d 29, 2016 N.C. App. LEXIS 1354 (2016).

Right to intervene under G.S. 1A-1 , N.C. R. Civ. P. 24(a)(2), does not turn upon whether a proposed intervenor-insurer has been partially or fully subrogated to the claims of its insured. Wichnoski v. Piedmont Fire Prot. Sys., LLC, 251 N.C. App. 385, 796 S.E.2d 29, 2016 N.C. App. LEXIS 1354 (2016).

Intervention in Zoning Matter. —

A motion to intervene in a setback zoning case was timely, even though it was made after the trial court entered judgment adverse to intervenors, where the intervenors’ interest previously had been adequately represented by the Board of Adjustment, and they sought to intervene only when the Board decided not to appeal. Procter v. City of Raleigh Bd. of Adjustment, 133 N.C. App. 181, 514 S.E.2d 745, 1999 N.C. App. LEXIS 366 (1999).

Neighbors were entitled to intervene in a zoning setback case in which the trial court allowed builders a special use permit, where the neighbors had an interest in preserving the character of their neighborhood, the protection of that interest was impaired by the Board of Adjustment’s decision not to appeal from the trial court’s judgment, and the neighbors’ interests were no longer adequately represented. Procter v. City of Raleigh Bd. of Adjustment, 133 N.C. App. 181, 514 S.E.2d 745, 1999 N.C. App. LEXIS 366 (1999).

Trial court did not err in allowing neighboring property owners to intervene in a developer’s appeal from a determination that property sought to be developed was in a Conservation Overlay District, because the intervenors alleged that development of the property without the performance controls required of property associated with a Conservation Overlay District would significantly increase traffic, light pollution, noise and other related pollution that will all lead to a pecuniary loss in the value of the intervenors’ properties. Bailey & Assocs. v. Wilmington Bd. of Adjustment, 202 N.C. App. 177, 689 S.E.2d 576, 2010 N.C. App. LEXIS 191 (2010).

Appeals of Annexation Ordinances. —

Petitioners’ motion under G.S. 1A-1-24(a) to intervene in another party’s petition for review of an annexation ordinance was properly denied, because G.S. 1A-1-24(a) does not apply to appeals of annexation ordinances under G.S. 160A-50(a). Home Builders Ass'n of Fayetteville N.C. Inc. v. City of Fayetteville, 170 N.C. App. 625, 613 S.E.2d 521, 2005 N.C. App. LEXIS 1072 (2005).

Class Actions. —

Appellate court affirmed a trial court’s judgment denying a motion filed by a person who represented a class of consumers to intervene in a class action filed under G.S. 75-1 et seq., where the class representative had already objected to a proposed settlement in a timely manner at a fairness hearing and had the right to appeal the trial court’s judgment approving settlement without intervening. Nicholson v. F. Hoffmann-Laroche, Ltd., 156 N.C. App. 206, 576 S.E.2d 363, 2003 N.C. App. LEXIS 71 (2003).

Successful bidder at an auction sale may intervene to contest a motion to enjoin conveyance of the property which was the subject of the auction sale. Northwestern Bank v. Robertson, 25 N.C. App. 424, 213 S.E.2d 363, 1975 N.C. App. LEXIS 2278 (1975).

In an action to quiet title brought by a mother against those of her children and their spouses who would not execute a quitclaim deed to her for her homeplace, trial judge properly denied motion to intervene brought by some of her other children who had executed a quitclaim deed and who sought to have their deed set aside, since the deed related to a different transaction, even though it involved the same property. Ellis v. Ellis, 38 N.C. App. 81, 247 S.E.2d 274, 1978 N.C. App. LEXIS 2087 (1978).

Intervention as Matter of Right in Matter Involving Environmental Civil Penalty. —

While the intervenors had a general interest in an underlying issue, whether the property owner was exempt from the Sedimentation Pollution Control Act of 1973, they did not have a direct interest in the civil penalty imposed by the North Carolina department of environment and natural resources, which was the property or transaction at issue pursuant to G.S. 113A-64(a)(5); accordingly, the ALJ erred by granting intervention as of right. Holly Ridge Assocs., LLC v. N.C. Dep't of Env't & Natural Res., 361 N.C. 531 , 648 S.E.2d 830, 2007 N.C. LEXIS 811 (2007).

Charity Could Not Intervene As of Right. —

Charity could not intervene as of right under G.S. 1A-1 , N.C. R. Civ. P. 24(a)(2) in an interpleader action that was filed because the decedent’s ex-wife was the beneficiary on the decedent’s Individual Retirement Account (IRA), but the charity and the decedent’s brother were awarded the IRA in the decedent’s will as: (1) the will gave the personal representative the N.C. Gen. Stat. ch. 28A and 32 powers, including those in G.S. 28A-18-1(a), 28A-13-3(a)(15), and 28A-13-2, to compromise and release claims; (2) the personal representative and the ex-wife entered into a settlement resolving the action; and (3) the charity did not show that its interest was not adequately represented in the interpleader action. Charles Schwab & Co. v. McEntee, 225 N.C. App. 666, 739 S.E.2d 863, 2013 N.C. App. LEXIS 223 (2013).

The refusal to grant permissive intervention is an interlocutory order. Howell v. Howell, 89 N.C. App. 115, 365 S.E.2d 181, 1988 N.C. App. LEXIS 220 (1988).

Owner of garage and wrecker service, with whom sheriff contracted to store certain cars levied on pursuant to court order, was a legal possessor, and under G.S. 44A-2(d) had a lien on the cars from the time he began towing them away; such lien was enforceable under the explicit language of G.S. 1-440.43 and this rule, by intervention. Case v. Miller, 68 N.C. App. 729, 315 S.E.2d 737, 1984 N.C. App. LEXIS 3427 (1984).

Law Firm As Interested Party. —

Law firm which had no contact with defendant/phony psychiatric resident accused of sexual misconduct with client and which had not been authorized by him to undertake his representation lacked the authority under Rule 1.2(a) of the Rules of Professional Conduct to represent him on a limited basis but could intervene under Rule 24(a)(2) as an interested party to protect its interests. Dunkley v. Shoemate, 350 N.C. 573 , 515 S.E.2d 442, 1999 N.C. LEXIS 427 (1999).

Newspaper/appellant had alternative means of obtaining a full and timely review of the issue it sought to raise without being allowed to intervene as a party and unduly delay the adjudication of the rights of the original parties; hence, trial court did not err in denying its motion to intervene under this section. Virmani v. Presbyterian Health Servs. Corp., 350 N.C. 449 , 515 S.E.2d 675, 1999 N.C. LEXIS 432 (1999).

Motion for Intervention Denied. —

Where claimants to client security fund did not have an interest in the funds held by the trustee/conservator, the trial properly denied motion for intervention. In re Gertzman, 115 N.C. App. 634, 446 S.E.2d 130, 1994 N.C. App. LEXIS 776 (1994).

Interlocutory Order Denying Motion to Intervene Was Immediately Appealable. —

Trial court’s order denying the property owners’ association’s motion to intervene was interlocutory because it did not dispose of the entire case, but the order affected a substantial right of the association because the action concerned property the association owned, and unless brought into the action, the association would lose its ability to challenge the residents’ standing to bring an action on the association’s behalf, and thus the order was immediately appealable. Anderson v. Seascape at Holden Plantation, LLC, 232 N.C. App. 3, 753 S.E.2d 691, 2014 N.C. App. LEXIS 97 (2014).

Mother could not intervene permissively in proceedings concerning children as to whom the mother’s parental rights were previously terminated because (1) the trial court found the parties provided sufficient information concerning the children’s best interests, and (2) the mother’s interests would not be adversely affected by denying intervention. In re T.H., 2013 N.C. App. LEXIS 1158 (N.C. Ct. App. Nov. 5, 2013), op. withdrawn, 2014 N.C. App. LEXIS 113 (N.C. Ct. App. Jan. 3, 2014), sub. op., 232 N.C. App. 16, 753 S.E.2d 207, 2014 N.C. App. LEXIS 59 (2014).

Mother could not intervene as a matter of right in proceedings concerning children as to whom the mother’s parental rights were previously terminated because (1) the mother had no rights to the children, under G.S. 48-1-106(c) , (2) the mother’s motion showed no authority to defend or assert an otherwise unrepresented interest, (3) the motion presented no direct or immediate interest entitling the mother to intervene, and (4) the motion defectively did not include a pleading asserting a claim or defense. In re T.H., 2013 N.C. App. LEXIS 1158 (N.C. Ct. App. Nov. 5, 2013), op. withdrawn, 2014 N.C. App. LEXIS 113 (N.C. Ct. App. Jan. 3, 2014), sub. op., 232 N.C. App. 16, 753 S.E.2d 207, 2014 N.C. App. LEXIS 59 (2014).

Denial of Motion for Permissive Intervention Not Abuse of Discretion. —

Denial of a charity’s motion to intervene under G.S. 1A-1 , N.C. R. Civ. P. 24(b) was not an abuse of discretion as the trial court could properly conclude that the charity’s interest in the interpleader action was adequately represented by the personal representative of a decedent’s estate in settling the rights under the will of the decedent’s brother and the charity to the decedent’s Individual Retirement Account with the decedent’s ex-wife; permitting intervention might have eradicated the settlement agreement and delayed adjudication of the rights of the named parties, potentially to the detriment of the creditors and other beneficiaries of the estate. Charles Schwab & Co. v. McEntee, 225 N.C. App. 666, 739 S.E.2d 863, 2013 N.C. App. LEXIS 223 (2013).

Denial Of Motion To Set Aside Intervention Order Improper. —

District court erred by not granting plaintiff’s motion under N.C. R. Civ. P. 60 to set aside an order nunc pro tunc granting a motion to intervene because the district court proceeding was concluded two and a half years before the intervention order was entered, and thus, the district court had no jurisdiction to enter the order nunc pro tunc to the original hearing date; the written order created an order with findings of fact and conclusions of law that had not previously existed. Whitworth v. Whitworth, 222 N.C. App. 771, 731 S.E.2d 707, 2012 N.C. App. LEXIS 1077 , aff'd in part, rev'd, 222 N.C. App. 783, 731 S.E.2d 721, 2012 N.C. App. LEXIS 1054 (2012).

Declaratory Judgment Actions. —

The trial court erred by denying a motion to intervene in a declaratory judgment insurance coverage action which was filed by the plaintiff in an underlying tort action. United Servs. Auto. Ass'n v. Simpson, 126 N.C. App. 393, 485 S.E.2d 337, 1997 N.C. App. LEXIS 377 (1997).

A physician and his employer did not have a right under this rule to intervene in a declaratory judgment action brought by an infant patient’s estate to determine which heirs would share in the proceeds, if any, of a wrongful death action against the physician and employer, as the physician and employer had no significantly protectable interest in the declaratory judgment action. Alford v. Davis, 131 N.C. App. 214, 505 S.E.2d 917, 1998 N.C. App. LEXIS 1311 (1998).

The Attorney General could not, pursuant to this section, either as a party or a non-party to challenge class action attorneys’ fees as “excessive.” Bailey v. North Carolina Dep't of Revenue, 353 N.C. 142 , 540 S.E.2d 313, 2000 N.C. LEXIS 896 (2000).

II.Decisions under Prior Law

Editor’s Note. —

The cases cited below were decided under former G.S. 1-70 and 1-73.

Ordinarily it is within the discretion of the court to permit proper parties to intervene. Childers v. Powell, 243 N.C. 711 , 92 S.E.2d 65, 1956 N.C. LEXIS 611 (1956); Strickland v. Hughes, 273 N.C. 481 , 160 S.E.2d 313, 1968 N.C. LEXIS 624 (1968).

But a person who is a necessary party has an absolute right to intervene in a pending action, and the court commits error when it refuses to permit him to exercise such right. Garrett v. Rose, 236 N.C. 299 , 72 S.E.2d 843, 1952 N.C. LEXIS 561 (1952).

Refusal to permit a necessary party to intervene is error. Strickland v. Hughes, 273 N.C. 481 , 160 S.E.2d 313, 1968 N.C. LEXIS 624 (1968).

Before a third party will be permitted to become a party defendant in a pending action, he must show that he has some legal interest in the subject matter of the litigation. His interest must be of such direct and immediate character that he will either gain or lose by the direct operation and effect of the judgment, and it must be involved in the subject matter of the action. One whose interest in the matter in litigation is not a direct or substantial interest, but is indirect, inconsequential, or contingent cannot claim the right to defend. Strickland v. Hughes, 273 N.C. 481 , 160 S.E.2d 313, 1968 N.C. LEXIS 624 (1968).

Intervention Where Defendant’s Failure to Answer Shows Absence of Controversy Between Parties. —

Where in an action to establish and enforce a lien for labor on defendants’ land, the defendants filed no answer, persons who claimed to hold a mortgage on the land were not entitled to intervene, since there was no controversy between plaintiff and defendant. Childers v. Powell, 243 N.C. 711 , 92 S.E.2d 65, 1956 N.C. LEXIS 611 (1956).

Intervening Plaintiffs with Interests Adverse to Original Plaintiffs. —

In an action filed by taxpayers to enjoin city from destroying low cost rental units belonging to city, intervenors were not entitled to come into case as parties plaintiff where their pleadings expressly denied all material allegations of the claims wholly antagonistic to those alleged by the plaintiffs. Burton v. City of Reidsville, 240 N.C. 577 , 83 S.E.2d 651, 1954 N.C. LEXIS 491 (1954).

Rule 25. Substitution of parties upon death, incompetency or transfer of interest; abatement.

  1. Death. —  No action abates by reason of the death of a party if the cause of action survives. In such case, the court, on motion at any time within the time specified for the presentation of claims in G.S. 28A-19-3 , may order the substitution of said party’s personal representative or collector and allow the action to be continued by or against the substituted party.
  2. Insanity or incompetency. —  No action abates by reason of the incompetency or insanity of a party. If such incompetency or insanity is adjudicated, the court, on motion at any time within one year after such adjudication, or afterwards on a supplemental complaint, may order that said party be represented by his general guardian or trustee or a guardian ad litem, and, allow the action to be continued. If there is no adjudication, any party may suggest such incompetency or insanity to the court and it shall enter such order in respect thereto as justice may require.
  3. Abatement ordered unless action continued. —  At any time after the death, insanity or incompetency of a party, the court in which an action is pending, upon notice to such person as it directs and upon motion of any party aggrieved, may order that the action be abated, unless it is continued by the proper parties, within a time to be fixed by the court, not less than six nor more than 12 months from the granting of the order.
  4. Transfer of interest. —  In case of any transfer of interest other than by death, the action shall be continued in the name of the original party; but, upon motion of any party, the court may allow the person to whom the transfer is made to be joined with the original party.
  5. Death of receiver of corporation. —  No action against a receiver of a corporation abates by reason of his death, but, upon suggestion of the facts on the record, it continues against his successor or against the corporation in case a new receiver is not appointed and such successor or the corporation is automatically substituted as a party.
  6. Public officers; death or separation from office. —
    1. When a public officer is a party to an action in his official capacity and during its pendency dies, resigns or otherwise ceases to hold office, the action does not abate and his successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution.
    2. When a public officer sues or is sued in his official capacity, he may be described as a party by his official title rather than by name; but the court may require his name to be added.
  7. No abatement after verdict. —  After a verdict is rendered in any action, the action does not abate by reason of the death of a party, whether or not the cause of action upon which it is based is a type which survives.

History. 1967, c. 954, s. 1; 1977, c. 446, s. 3.

Comment

Former § 1-74 and federal Rule 25 were generally comparable in providing for no automatic abatement of actions upon death, disability or transfer of interest of parties, but, instead, for a right to continue the action by or against substituted parties. The most important difference was in their respective ways of finally cutting off the right to continue. The federal rule allows two years within which parties may be substituted so as to continue the action, then for automatic dismissal if this has not been done within the period. Former § 1-74 allowed substitution and continuance on mere motion for one year after death or disability, and afterwards on supplemental complaint. No automatic dismissal was provided, but there was further provision that a party might be forced by the opposite party to either get substitution for continuation or suffer dismissal within a time specified by the court. Furthermore, former § 1-75 in a very awkward and questionable way imposed a duty on the adverse party to suggest to the court the death or disability of his opponent, and then a duty on the clerk to notify the proper representative to come in and file pleadings.

On balance, it was felt that the State procedure had served North Carolina well enough in this area and that accordingly the form of former § 1-74 should be followed. There has been an attempt, however, to dress the format up somewhat, using catchlines for separate sections and cleaning up some of the incomplete and ambiguous language.

Furthermore, there has been added section (f), tracking the language of federal Rule 25(d), relating to death and separation of public officers. There is no comparable provision in the current law.

Finally, former § 1-75 was omitted entirely, on the basis that it was ambiguous, and that in apparently requiring new pleadings by substituted parties, it was not desirable. Its requirements have in fact been overlooked by the North Carolina court which has allowed substitution and continuation of actions without compliance with its provisions. See Alexander v. Patton, 90 N.C. 557 (1884).

The only danger in this scheme is that a party may try to lie back until a successor in interest has lost all chance of proceeding successfully and then coming in with a supplemental complaint and trying to resurrect the successor to force a continuation within time specified under section (c). But the court has prevented plaintiffs from so acting. See Sawyer v. Cowell, 241 N.C. 681 , 86 S.E.2d 431 (1955).

Cross References.

As to receivers for corporations, see G.S. 55-14-32 .

Legal Periodicals.

For article, “Holding, Dictum . . . Whatever,” 25 N.C. Cent. L.J. 139 (2003).

CASE NOTES

Analysis

I.In General

Action to Collect Debt Survives Death of Plaintiff. —

There was no merit to defendant’s contention that action to collect a debt (a foreign judgment) abated because he had not been served with process at the time of the death of plaintiff, since a cause of action based upon the collection of a debt survives the death of a plaintiff. Mazzocone v. Drummond, 42 N.C. App. 493, 256 S.E.2d 843, 1979 N.C. App. LEXIS 2770 , cert. denied, 298 N.C. 298 , 259 S.E.2d 300, 1979 N.C. LEXIS 1591 (1979).

Supplemental Pleading. —

In order for a supplemental pleading under section (a) of this rule to be procedurally proper, it must satisfy the requirements of G.S. 1A-1 , Rule 15(d). Deutsch v. Fisher, 32 N.C. App. 688, 233 S.E.2d 646, 1977 N.C. App. LEXIS 2039 (1977) (decided under section (a) prior to 1977 amendment).

Effect of Section (c). —

Section (c) of this rule does not provide for substitution, but provides a method by which a party may place a time limitation on the right to substitution. Silverthorne v. Coastal Land Co., 42 N.C. App. 134, 256 S.E.2d 397, 1979 N.C. App. LEXIS 2800 , cert. denied, 298 N.C. 300 , 259 S.E.2d 302, 1979 N.C. LEXIS 1601 (1979).

Order provided for in section (c) of this rule is intended to be used prior to any substitution of parties, since it provides for notice to “such person as [the court] directs,” which has been correctly viewed as requiring notice to those who “would reasonably be expected to represent most closely the interest of the deceased.” It is then up to the persons interested in the estate of the deceased to arrange for substitution of the appropriate party. Silverthorne v. Coastal Land Co., 42 N.C. App. 134, 256 S.E.2d 397, 1979 N.C. App. LEXIS 2800 , cert. denied, 298 N.C. 300 , 259 S.E.2d 302, 1979 N.C. LEXIS 1601 (1979).

There is no burden on a party seeking an order of abatement to make any showing that the plaintiff ’s failure to actively prosecute the lawsuit was without excuse. Silverthorne v. Coastal Land Co., 42 N.C. App. 134, 256 S.E.2d 397, 1979 N.C. App. LEXIS 2800 , cert. denied, 298 N.C. 300 , 259 S.E.2d 302, 1979 N.C. LEXIS 1601 (1979).

Section (d) of this rule is merely a procedural rule; substantive law governs its application. Carolina First Nat'l Bank v. Douglas Gallery of Homes, Ltd., 68 N.C. App. 246, 314 S.E.2d 801, 1984 N.C. App. LEXIS 3183 (1984).

Failure to Make Substitution Directed by Court. —

Where an incompetent plaintiff died after institution of action by her next friend, and the court authorized and directed substitution of her administrator as new plaintiff, failure so to substitute required dismissal of appeal by the court against the next friend. Ginn v. Smith, 20 N.C. App. 526, 201 S.E.2d 739, 1974 N.C. App. LEXIS 2487 (1974).

Summary Judgment for Deceased Defendant Ineffective Where Motion to Substitute Personal Representative Had Never Been Ruled Upon. —

After defendant doctor died, the medical malpractice action survived only against the personal representative or collector of the estate pursuant to G.S. 28A-18-1(a), and thus where the trial court never ruled upon the motion under G.S. 25(a) to substitute the executrix of the estate the trial court’s summary judgment order with respect to the doctor had no effect. Purvis v. Moses H. Cone Mem'l Hosp. Serv. Corp., 175 N.C. App. 474, 624 S.E.2d 380, 2006 N.C. App. LEXIS 128 (2006).

Substitution Order Ineffective Where Personal Representative Not Yet Appointed. —

Where order directing the substitution of a yet-to-be-appointed personal representative for deceased defendant did not comply with G.S. 28A-18-1 or G.S. 1A-1 , Rule 25, the order could not operate retroactively to substitute him as defendant once the personal representative was appointed, and the trial court erred in granting plaintiffs’ summary judgment motion because the personal representative did not receive timely notice of the motion under G.S. 1A-1 , Rule 56. Dixon v. Hill, 174 N.C. App. 252, 620 S.E.2d 715, 2005 N.C. App. LEXIS 2393 (2005), cert. denied, 548 U.S. 906, 126 S. Ct. 2972, 165 L. Ed. 2d 954, 2006 U.S. LEXIS 4950 (2006).

Dismissal of Action for Divorce upon Husband’s Death. —

Trial court did not err in dismissing husband’s action for divorce and wife’s counterclaim for equitable distribution where husband died before decree of absolute divorce was granted. Caldwell v. Caldwell, 93 N.C. App. 740, 379 S.E.2d 271, 1989 N.C. App. LEXIS 381 (1989).

Annulment Action Survived Decedent’s Death. —

Where an executrix had filed a case on a decedent’s behalf as his guardian ad litem, seeking an annulment of the decedent’s marriage while the decedent was alive, and where substantial property rights hinged on the validity of the marriage, the action did not abate on the decedent’s death and the executrix was entitled to pursue it. Clark v. Foust-Graham, 171 N.C. App. 707, 615 S.E.2d 398, 2005 N.C. App. LEXIS 1365 (2005), cert. denied, writ denied sub nom. Goodwin v. Smith, 362 N.C. 680 , 670 S.E.2d 563, 2008 N.C. LEXIS 1038 (2008).

Effect of Chapter 35A on Continuation for Incompetency. —

Chapter 35A has had significant impact on section (b) of this rule, which discusses the continuation of an action when one party becomes incompetent. In a situation in which no incompetency adjudication has yet occurred, the action contemplated in the last clause would be referral of the competency issue to the clerk of superior court for action under Chapter 35A. Culton v. Culton, 96 N.C. App. 620, 386 S.E.2d 592, 1989 N.C. App. LEXIS 1112 (1989), rev'd, 327 N.C. 624 , 398 S.E.2d 323, 1990 N.C. LEXIS 986 (1990) (holding that plaintiff lacked standing to challenge on appeal the district court’s appointment of guardian ad litem for defendant).

Guardian Not Authorized To Continue Action. —

Trial court erred in denying the collector of an estate partial summary judgment and in granting beneficiaries, a trustee, and a limited liability company (LLC) partial summary judgment in the collector’s action challenging the formation of the LLC and a trust because at the time the trial court entered its order denying the guardian of the estate summary judgment, the guardian was no longer authorized by statute to continue the action; pursuant to G.S. 1A-1 , N.C. R. Civ. P. 25(a), the trial court substituted the collector as plaintiff, and that order was entered after the trial court granted the beneficiaries, trustee, and LLC summary judgment. White v. Harold L. & Audree S. Mills Charitable Remainder Unitrust, 222 N.C. App. 277, 730 S.E.2d 213, 2012 N.C. App. LEXIS 958 (2012).

II.Decisions under Prior Law

Editor’s Note. —

The cases cited below were decided under former G.S. 1-74 .

Common-Law Rule Changed. —

The rule of the common law that a personal right of action dies with the person was changed by former G.S. 1-74 and former G.S. 28-172 and, except in the instances specified in former G.S. 28-175, an action originally maintainable by or against a deceased person was maintainable by or against his personal representative. Suskin v. Maryland Trust Co., 214 N.C. 347 , 199 S.E. 276, 1938 N.C. LEXIS 343 (1938).

The rule of the common law that a personal right of action dies with the person has been changed. Paschal v. Autry, 256 N.C. 166 , 123 S.E.2d 569, 1962 N.C. LEXIS 426 (1962).

No action abates with death except as provided. Baggarly v. Calvert, 70 N.C. 688 , 1874 N.C. LEXIS 311 (1874); Sledge v. Reid, 73 N.C. 440 , 1875 N.C. LEXIS 9 1 (1875); Wood v. Watson, 107 N.C. 52 , 12 S.E. 49, 1890 N.C. LEXIS 9 (1890). See also, Shields v. Lawrence, 72 N.C. 43 , 1875 N.C. LEXIS 135 (1875); Latham v. Latham, 178 N.C. 12 , 100 S.E. 131, 1919 N.C. LEXIS 376 (1919).

Except by Order of Court. —

Under former G.S. 1-74 , where the right survives, an action does not abate by the death of a party, except by order of the court. Burnett v. Lyman, 141 N.C. 500 , 54 S.E. 412, 1906 N.C. LEXIS 132 (1906), dismissed, 146 N.C. 597 , 59 S.E. 877 (1907); Moore v. Moore, 151 N.C. 555 , 66 S.E. 598, 1909 N.C. LEXIS 321 (1909).

A judgment is necessary to abate an action, for the court may, ex mero motu, enter judgment when it appears that plaintiff failed for a year to prosecute his action against the representatives or successors in interest of the original defendant, whose death has been suggested, though the records show no discontinuance of the action. Rogerson v. Leggett, 145 N.C. 7 , 58 S.E. 596, 1907 N.C. LEXIS 241 (1907).

An action which survives disability or death does not abate until a judgment of the court is entered to that effect. Sawyer v. Cowell, 241 N.C. 681 , 86 S.E.2d 431, 1955 N.C. LEXIS 444 (1955).

Where a cause of action survives, the action does not abate by the death of the plaintiff ipso facto, but only upon application of the party aggrieved, and then only in the discretion of the court, and in a time to be fixed, not less than six months nor more than one year from the granting of the order. Moore v. North Carolina R.R., 74 N.C. 528 , 1876 N.C. LEXIS 137 (1876).

Continuance of Action by Personal Representative or Successor. —

In case of the death of a party, the court, at any time within one year thereafter or afterwards, on a supplemental complaint, may allow the action to be continued by or against his representative or successor in interest. Pennington v. Pennington, 75 N.C. 356 , 1876 N.C. LEXIS 294 (1876).

A decedent’s cause or right of action surviving his death can be continued and prosecuted only by his personal representative. Neal v. Associates Disct. Corp., 260 N.C. 771 , 133 S.E.2d 699, 1963 N.C. LEXIS 813 (1963).

Limit on Power to Continue Action Against Defendant’s Representative Successor. —

Power of the court to allow an action which survives the death of defendant to be continued against defendant’s personal representative or successor in interest may not be invoked by a plaintiff who has kept his action in a semidormant condition for a number of years and then calls defendant’s heir into court after the heir, by lapse of time, is unable to make good his defense or that defense which the ancestor might have made. Sawyer v. Cowell, 241 N.C. 681 , 86 S.E.2d 431, 1955 N.C. LEXIS 444 (1955).

Wrongful Death Action Does Not Abate by Death, Resignation or Removal of Representative. —

Once the personal representative of an estate is duly appointed, if such representative dies, resigns, or is removed, the law contemplates a continuity of succession until the estate has been fully administered; hence, upon the death, resignation, or removal of a representative who has properly brought an action for wrongful death, the action does not abate. Harrison v. Carter, 226 N.C. 36 , 36 S.E.2d 700, 1946 N.C. LEXIS 379 (1946).

Death, etc., of Relator in State’s Action upon Official Bonds. —

In an action brought by the State upon official bonds, the relator is but an agent of the State in seeking to recover the moneys due, and if he dies or goes out of office the action does not abate. Davenport v. McKee, 98 N.C. 500 , 4 S.E. 545, 1887 N.C. LEXIS 313 (1887).

As to binding effect of judgment against first administrator or administrator de bonis non in an action to renew it, see Thompson v. Badham, 70 N.C. 141 , 1874 N.C. LEXIS 182 (1874).

Where two of several plaintiffs died and as they had no personal representative within a year thereafter, no motion was made to continue the action as to them, but the cause remained upon the docket and was proceeded with by the remaining plaintiffs, whose rights were finally determined, and the defendants did not apply to have the action abated as to the deceased plaintiffs, it was within the discretion of the presiding judge to allow the personal representative of such deceased parties to file a supplementary complaint and prosecute the action, his motion to be allowed to do so having been made before the final judgment was rendered in the cause. State ex rel. Coggins v. Flythe, 114 N.C. 274 , 19 S.E. 701, 1894 N.C. LEXIS 54 (1894).

Action for Wrongful Cutting and Removal of Timber. —

If a cause of action for damages for the wrongful cutting and removal of timber from realty belonging to the deceased accrued, in whole or in part, during his lifetime, the action for damages would survive to his executors. However, if such an injury to the realty was committed after his death, the right of action would belong to his heirs or devisees. Paschal v. Autry, 256 N.C. 166 , 123 S.E.2d 569, 1962 N.C. LEXIS 426 (1962).

Article 5. Depositions and Discovery.

Rule 26. General provisions governing discovery.

  1. Discovery methods. —  Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission.
  2. Discovery scope and limits. —  Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
    1. In General. —  Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, electronically stored information, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence nor is it grounds for objection that the examining party has knowledge of the information as to which discovery is sought. For the purposes of these rules regarding discovery, the phrase “electronically stored information” includes reasonably accessible metadata that will enable the discovering party to have the ability to access such information as the date sent, date received, author, and recipients. The phrase does not include other metadata unless the parties agree otherwise or the court orders otherwise upon motion of a party and a showing of good cause for the production of certain metadata.

      (1a) Limitations on Frequency and Extent. — The frequency or extent of use of the discovery methods set forth in section (a) shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties' resources, and the importance of the issues at stake in the litigation. The court may act upon its own initiative after reasonable notice or pursuant to a motion under section (c).

      (1b) Specific Limitations on Electronically Stored Information. — In addition to any limitations imposed by subdivision (b)(1a) of this rule, discovery of electronically stored information is subject to the limitations set forth in Rule 34(b). The court may specify conditions for the discovery, including allocation of discovery costs.

    2. Insurance Agreements. —  A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial. For purposes of this subsection, an application for insurance shall not be treated as part of an insurance agreement.

      (2a) Bankruptcy Trust Personal Injury Claims. —

      1. Within 30 days after a civil action is filed asserting personal injury claiming disease based upon exposure to asbestos, the plaintiff shall provide to all parties a sworn statement indicating that an investigation of all bankruptcy trust claims has been conducted and that all bankruptcy trust claims that can be made by the plaintiff have been filed.
      2. The plaintiff shall provide the parties with the identity of all bankruptcy trust claims made and all materials submitted to or received from a bankruptcy trust.
      3. The plaintiff shall supplement the information and materials that plaintiff provides pursuant to this subsection within 30 days after the plaintiff files an additional bankruptcy trust claim, supplements an existing bankruptcy trust claim, or receives additional information or materials related to any claim against a bankruptcy trust.
      4. If a defendant has a reasonable belief that the plaintiff can file additional bankruptcy trust claims, the defendant may move the court to stay the civil action until the plaintiff files the bankruptcy trust claim.
      5. A defendant in the civil action may seek discovery from a bankruptcy trust. The plaintiff may not claim privilege or confidentiality to bar discovery and shall provide consent or other expression of permission that may be required by the bankruptcy trust to release information and materials sought by the defendant.
    3. Trial Preparation; Materials. —  Subject to the provisions of subsection (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subsection (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's consultant, surety, indemnitor, insurer, or agent only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court may not permit disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation in which the material is sought or work product of the attorney or attorneys of record in the particular action. A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. Upon request, a person not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for a court order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion. For purposes of this paragraph, a statement previously made is (i) a written statement signed or otherwise adopted or approved by the person making it, or (ii) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.
    4. Trial Preparation; Discovery of Experts. —  Discovery of facts known and opinions held by experts, that are otherwise discoverable under the provisions of subdivision (1) of this subsection and acquired or developed in anticipation of litigation or for trial, may be obtained only as provided by this subdivision:
      1. 1. In general. —  In order to provide openness and avoid unfair tactical advantage in the presentation of a case at trial, a party must disclose to the other parties in accordance with this subdivision the identity of any witness it may use at trial to present evidence under Rule 702, Rule 703, or Rule 705 of the North Carolina Rules of Evidence.

        2. Witnesses providing a written report. — The parties shall have the option, in connection with the disclosures required by this subdivision, of accompanying the disclosure with a written report prepared and signed by the witness if the witness is one retained or specifically employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. If the parties agree to accompany their disclosure pursuant to this subdivision with a written report, the report must contain all of the following:

      2. Depositions. —
        1. Depositions of an expert who may testify. —  A party may depose any person who has been identified as an expert pursuant to this subdivision, with such deposition to be conducted after any written report is provided or identification by response to interrogatory has been made pursuant to sub-subdivision f. of this subdivision.
        2. Expert employed only for trial preparation. —  Except as otherwise provided in this sub-sub-subdivision, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. A party may take such discovery only as provided in Rule 35(b) or upon showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.
      3. Payment. —  Unless manifest injustice would result and absent court order, the party seeking discovery under sub-subdivision b. of this subdivision shall pay the expert a reasonable fee for the time spent at that expert's deposition.
      4. Trial preparation protection for draft reports or disclosures —  Drafts of reports provided under sub-sub-subdivision 2. of sub-subdivision a. of this subdivision are protected from disclosure and are not discoverable regardless of the form in which the draft is recorded.
      5. Trial preparation protection for communications between a party's attorney and expert witness. —  Except as otherwise provided in this sub-subdivision, communications between a party's attorney and any witness providing a report pursuant to sub-sub-subdivision 2. of sub-subdivision a. of this subdivision or identified under sub-sub-subdivision 3. of sub-subdivision a. of this subdivision, regardless of the form of the communication, are protected from disclosure and are not discoverable. Such communications are discoverable only to the extent that the communications do any of the following:
        1. Relate to compensation for the expert's study or testimony.
        2. Identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed.
        3. Identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed.
      6. Time to disclose expert witness testimony. —  Parties agreeing to the submission of written reports pursuant to sub-sub-subdivision 2. of sub-subdivision a. of this subdivision or parties otherwise seeking to obtain disclosure as set forth herein by interrogatory shall, unless otherwise stipulated, set by scheduling order or otherwise ordered by the court, serve such written report or in the case of no agreement on the submission of written reports, interrogatory:
        1. At least 90 days before the date set for trial or the case to be ready for trial; or
        2. If the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under sub-subdivision a. of this subdivision, within 30 days after the other party's disclosure. If a party fails to provide timely disclosure under this rule, the court may, upon motion, take such action as it deems just, including ordering that the party may not present at trial the expert witness for whom disclosure was not timely made. The time requirements of this sub-subdivision shall not apply if all parties had less than 120-days' notice of the trial date.
      7. Supplementation. —  The parties must supplement these disclosures when required under subsection (e) of this rule.

        (5) Claiming Privilege or Protecting Trial-Preparation Materials. —

        a. Information withheld. — When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must (i) expressly make the claim and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed, and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.

        b. Information produced. — If information subject to a claim of privilege or protection as trial-preparation material is inadvertently produced in response to a discovery request, the party that produced the material may assert the claim by notifying any party that received the information of the claim and basis for it. After being notified, a party (i) must promptly return, sequester, or destroy the specified information and any copies it has, (ii) must not use or disclose the information until the claim is resolved, (iii) must take reasonable steps to retrieve the information if the party disclosed it before being notified, and (iv) may promptly present the information to the court under seal for determination of the claim. The producing party must preserve the information until the claim is resolved.

  3. Protective orders. —  Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the judge of the court in which the action is pending may make any order which justice requires to protect a party or person from unreasonable annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (i) that the discovery not be had; (ii) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (iii) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (iv) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (v) that discovery be conducted with no one present except persons designated by the court; (vi) that a deposition after being sealed be opened only by order of the court; (vii) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; (viii) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.A party seeking a protective order on the basis that electronically stored information sought is from a source identified as not reasonably accessible because of undue burden or cost has the burden of showing that the basis exists. If the showing is made, the court may nonetheless order discovery from the source if the requesting party shows good cause, but only after considering the limitations of subsection [subdivision] (b)(1a) of this rule.If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.
  4. Sequence and timing of discovery. —  Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party’s discovery. Any order or rule of court setting the time within which discovery must be completed shall be construed to fix the date after which the pendency of discovery will not be allowed to delay trial or any other proceeding before the court, but shall not be construed to prevent any party from utilizing any procedures afforded under Rules 26 through 36, so long as trial or any hearing before the court is not thereby delayed.
  5. Supplementation of responses. —  A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement the party’s response to include information thereafter acquired, except as follows:
    1. A party is under a duty seasonably to supplement the party’s response with respect to any question directly addressed to (i) the identity and location of persons having knowledge of discoverable matters, and (ii) the identity of each person expected to be called as an expert witness at trial, the subject matter on which the person is expected to testify, and the substance of the testimony.
    2. A party is under a duty seasonably to amend a prior response if the party obtains information upon the basis of which (i) the party knows that the response was incorrect when made, or (ii) the party knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.
    3. A duty to supplement responses may be imposed by order of the court, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses.
  6. Discovery meeting, discovery conference, discovery plan. —
    1. No earlier than 40 days after the complaint is filed in an action, any party’s attorney or an unrepresented party may request a meeting on the subject of discovery, including the discovery of electronically stored information. If such a request is filed, the parties shall meet in the county in which the action is pending not less than 21 days after the initial request for a meeting is filed and served upon the parties, unless agreed otherwise by the parties or their attorneys and unless an earlier time for the meeting is ordered by the court or agreed by the parties. Even if the parties or their attorneys do not seek to have a discovery meeting, at any time after commencement of an action the court may direct the parties or their attorneys to appear before it for a discovery conference.
    2. During a discovery meeting held pursuant to subdivision (f)(1) of this rule, the attorneys and any unrepresented parties shall (i) consider the nature and basis of the parties’ claims and defenses and the possibilities for promptly settling or resolving the case and (ii) discuss the preparation of a discovery plan as set forth in subdivision (f)(3) of this rule. Attorneys for the parties, and any unrepresented parties, that have appeared in the case are jointly responsible for arranging the meeting, for being prepared to discuss a discovery plan, and for attempting in good faith to agree on a discovery plan. The meeting may be held by telephone, by videoconference, or in person, or a combination thereof, unless the court, on motion, orders the attorneys and the unrepresented parties to attend in person. If a discovery plan is agreed upon, the plan shall be submitted to the court within 14 days after the meeting, and the parties may request a conference with the court regarding the plan. If the parties do not agree upon a discovery plan, they shall submit to the court within 14 days after the meeting a joint report containing those parts of a discovery plan upon which they agree and the position of each of the parties on the parts upon which they disagree. Unless the parties agree otherwise, the attorney for the first plaintiff listed on the complaint shall be responsible for submitting the discovery plan or joint report.
    3. A discovery plan shall contain the following: (i) a statement of the issues as they then appear; (ii) a proposed plan and schedule of discovery, including the discovery of electronically stored information; (iii) with respect to electronically stored information, and if appropriate under the circumstances of the case, a reference to the preservation of such information, the media form, format, or procedures by which such information will be produced, the allocation of the costs of preservation, production, and, if necessary, restoration, of such information, the method for asserting or preserving claims of privilege or of protection of the information as trial-preparation materials if different from that provided in subdivision (b)(5) of this rule, the method for asserting or preserving confidentiality and proprietary status, and any other matters addressed by the parties; (iv) any limitations proposed to be placed on discovery, including, if appropriate under the circumstances of the case, that discovery be conducted in phases or be limited to or focused on particular issues; (v) when discovery should be completed; and (vi) if appropriate under the circumstances of the case, any limitations or conditions pursuant to subsection (c) of this rule regarding protective orders.
    4. If the parties are unable to agree to a discovery plan at a meeting held pursuant to subdivision (f)(1) of this rule, they shall, upon motion of any party, appear before the court for a discovery conference at which the court shall order the entry of a discovery plan after consideration of the report required to be submitted under subdivision (f)(2) of this rule and the position of the parties. The order may address other matters, including the allocation of discovery costs, as are necessary for the proper management of discovery in the action. An order may be altered or amended as justice may require.The court may combine the discovery conference with a pretrial conference authorized by Rule 16. A discovery conference in a medical malpractice action shall be governed by subsection (f1) of this rule.

      (f1) Medical malpractice discovery conference. — In a medical malpractice action as defined in G.S. 90-21.11, upon the case coming at issue or the filing of a responsive pleading or motion requiring a determination by the court, the judge shall, within 30 days, direct the attorneys for the parties to appear for a discovery conference. At the conference the court may consider the matters set out in Rule 16 and subdivision (f)(3) of this rule and shall:

      (1) Rule on all motions;

      (2) Establish an appropriate schedule for designating expert witnesses, consistent with a discovery schedule pursuant to subdivision (3), to be complied with by all parties to the action such that there is a deadline for designating all expert witnesses within an appropriate time for all parties to implement discovery mechanisms with regard to the designated expert witnesses;

      (3) Establish by order an appropriate discovery schedule designated so that, unless good cause is shown at the conference for a longer time, and subject to further orders of the court, discovery shall be completed within 150 days after the order is issued; nothing herein shall be construed to prevent any party from utilizing any procedures afforded under Rules 26 through 36, so long as trial or any hearing before the court is not thereby delayed; and

      (4) Approve any consent order which may be presented by counsel for the parties relating to subdivisions (2) and (3) of this subsection, unless the court finds that the terms of the consent order are unreasonable.If a party fails to identify an expert witness as ordered, the court shall, upon motion by the moving party, impose an appropriate sanction, which may include dismissal of the action, entry of default against the defendant, or exclusion of the testimony of the expert witness at trial.

  7. Signing of discovery requests, responses, and objections. —  Every request for discovery or response or objection thereto made by a party represented by an attorney shall be signed by at least one attorney of record in that attorney’s name, whose address shall be stated. A party who is not represented by an attorney shall sign the request, response, or objection and state that party’s address. The signature of the attorney or party constitutes a certification that the attorney or party has read the request, response, or objection and that to the best of the knowledge, information, and belief of that attorney or party formed after a reasonable inquiry it is: (1) consistent with the rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; (2) not interposed for any improper purpose, such as to harass or cause unnecessary delay or needless increase in the cost of litigation; and (3) not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at stake in the litigation. If a request, response, or objection is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the party making the request, response, or objection and a party shall not be obligated to take any action with respect to it until it is signed.If a certification is made in violation of the rule, the court, upon motion or upon its own initiative, shall impose upon the person who made the certification, the party on whose behalf the request, response, or objection is made, or both, an appropriate sanction, which may include an order to pay the amount of the reasonable expenses incurred because of the violation, including a reasonable attorney’s fee.
  1. A complete statement of all opinions the witness will express and the basis and reasons for them.
  2. The facts or data considered by the witness in forming them.
  3. Any exhibits that will be used to summarize or support them.
  4. The witness' qualifications, including a list of all publications authored in the previous 10 years.
  5. A list of all other cases in which, during the previous four years, the witness testified as an expert at trial or by deposition.
  6. A statement of the compensation to be paid for the study and testimony in the case.

    3. Witnesses not providing expert reports. — Unless otherwise stipulated to by the parties, or ordered by the court, a party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify pursuant to Rule 702, Rule 703, or Rule 705 of the North Carolina Rules of Evidence and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

History. 1967, c. 954, s. 1; 1971, c. 750; 1975, c. 762, s. 2; 1985, c. 603, ss. 1-4; 1987, c. 859, s. 3; 2011-199, s. 2; 2015-153, s. 1; 2018-4, s. 1.

Comment

Section (a). — This section gives a broad right of discovery to any party to take the testimony of any person, including a party, by oral deposition, pursuant to Rule 30, or by written interrogatories, pursuant to Rule 31, for the purpose of discovery or for use as evidence or for both purposes. Under prior practice the depositions of persons might be taken and perpetuated by deposition, and under former § 1-568.1 et seq. the deposition of a party might be taken for the purpose of discovery or for use as evidence or for both purposes.

Under this rule the necessity of obtaining court authorization is avoided, except leave of court must be obtained when plaintiff seeks to take a deposition within 30 days after the commencement of the action. Under prior practice a deposition of a proposed witness might be taken without order of court (former § 8-71). Under former §§ 1-568.10 and 1-568.11, a court order was necessary for examination of an adverse party.

Attendance of witnesses may be compelled by subpoena; attendance of a party by notice. Sanctions are provided in Rule 37(d) in the event a party fails to respond to the notice.

The last sentence of section (a) is much broader than the federal rule, which refers only to “a person confined in prison.”

Section (b). — This section indicates the broad scope of examination and that it may cover not only evidence for use at the trial, but also inquiry into matters in themselves inadmissible at trial but which will lead to the discovery of evidence unless the court otherwise directs under Rule 30 (b) or (d).

Aside from the limitations of Rule 30(b) and (d), section (b) contains three limitations: (1) The deponent may be examined regarding any matter which is relevant to the subject matter in the pending action. (2) The deponent may not be examined regarding a matter which is privileged. (3) The deponent shall not be required to produce or submit for inspection any writing or data prescribed in the last sentence of section (b). This limitation (3) is based upon the proposed 1946 amendment to Rule 30(b).

Section (c). — This section is the same as the federal rule.

Section (d). — The use of a deposition at the trial stage is sharply limited by section (d). To be used, a deposition must not only satisfy one of the conditions of section (d), but also the limiting phrase in the first sentence of the section, “so far as admissible under the rules of evidence.”

Section (e). — This section is added out of an abundance of caution.

OFFICIAL COMMENT

Comment to the 1975 Amendment.

A limited rearrangement of the discovery rules is made, whereby certain rule provisions are transferred, as follows: Existing Rule 26(a) is transferred to Rules 30(a) and 31(a). Existing Rule 26(c) is transferred to Rule 30(c). Existing Rules 26(d) and (e) are transferred to Rule 32. Revisions of the transferred provisions, if any, are discussed in the notes appended to Rules 30, 31, and 32. In addition, Rule 30(b) is transferred to Rule 26(c). The purpose of this rearrangement is to establish Rule 26 as a rule governing discovery in general.

Section (a) — Discovery Devices. — This is a new section listing all of the discovery devices provided in the discovery rules and establishing the relationship between the general provision of Rule 26 and the specific rules for particular discovery devices. The provision that the frequency of use of these methods is not limited confirms existing law. It incorporates in general form a provision now found in Rule 33.

Section (b) — Scope of Discovery. — This section is recast to cover the scope of discovery generally. It regulates the discovery obtainable through any of the discovery devices listed in Rule 26(a).

All provisions as to scope of discovery are subject to the initial qualification that the court may limit discovery in accordance with these rules. Rule 26(c) (transferred from 30(b)) confers broad powers on the courts to regulate or prevent discovery even though the materials sought are within the scope of 26(b), and these powers have always been freely exercised. The new subsections in Rule 26(b) do not change existing law with respect to such situations.

Subsection (b)(1) — In General. — The language is changed to provide for the scope of discovery in general terms, rather than being limited to the scope of depositions. The subsection, although in terms applicable only to depositions, was incorporated by reference in existing Rules 33 and 34. Since decisions as to relevance to the subject matter of the action are made for discovery purposes well in advance of trial, a flexible treatment of relevance is required and the making of discovery, whether voluntary or under court order, is not a concession or a determination of relevance for purposes of trial. The substance of the subdivision represents no substantial change from the corresponding former provision. The provision of this subsection relating to matters within the knowledge of the party conducting discovery is taken from the existing North Carolina provision. It does not appear in the federal rule.

Subsection (b)(2) — Insurance Agreements. — This represents no change from the existing North Carolina provision.

Subsection (b)(3) — Work Product. — North Carolina had adopted a version of this rule in advance of the 1970 amendments to the federal rules. The present amendment would alter the test for compelling production from “injustice or undue hardship” to “substantial need” that cannot be satisfied without “undue hardship.” It would also expand the scope of the protection of mental impressions, conclusions, opinions or legal theories to those of an “other representative of a party,” e.g., an insurer. The wording of this subsection varies slightly from the federal rule; the basic substance of the subsection, however, remains unchanged.

Party’s Right to Own Statement. — An exception to the requirement of this subsection enables a party to secure production of his own statement without any special showing. Ordinarily, a party gives a statement without insisting on a copy because he does not yet have a lawyer and does not understand the legal consequences of his actions. Thus, the statement is given at a time when he functions at a disadvantage. Discrepancies between his trial testimony and earlier statement may result from lapse of memory or ordinary inaccuracy; a written statement produced for the first time at trial may give such discrepancies a prominence which they do not deserve. In appropriate cases the court may order a party to be deposed before his statement is produced. E.g., McCoy v. GMC, 33 F.R.D. 354 (W.D. Pa. 1963); Smith v. Central Linen Serv. Co., 39 F.R.D. 15 (D. Md. 1966); Fernandes v. United Fruit Co., 50 F.R.D. 82 (D. Md. 1970).

In order to clarify and tighten the provision on statements by a party, the term “statement” is defined. The definition is adapted from 18 U.S.C. § 3500(e) (Jencks Act). The statement of a party may of course be that of plaintiff or defendant, and it may be that of an individual or of a corporation or other organization.

Section 8-89.1, which contains a similar provision whose application is restricted to personal injury plaintiffs, is repealed in connection with the enactment of this section.

Witness’ Right to Own Statement. — A second exception to the requirement of this subsection permits a nonparty witness to obtain a copy of his own statement without any special showing. Many, though not all, of the considerations supporting a party’s right to obtain his statement apply also to the nonparty witness.

Subsection (b)(4) — Trial Preparation; Experts. — This is a new provision dealing with discovery of information (including facts and opinions) obtained by a party from an expert retained by that party in relation to litigation or obtained by the expert and not yet transmitted to the party. The subsection deals with those experts whom the party expects to call as trial witnesses. It should be noted that the subsection does not address itself to the expert whose information was not acquired in preparation for trial but rather because he was an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit. Such an expert should be treated as an ordinary witness.

Subdivision (b)(4)a deals with discovery of information obtained by or through experts who will be called as witnesses at trial. The provision is responsive to problems suggested by a relatively recent line of authorities. Many of these cases present intricate and difficult issues as to which expert testimony is likely to be determinative. Prominent among them are food and drug, patent, and condemnation cases.

In cases of this character, a prohibition against discovery of information held by expert witnesses produces in acute form the very evils that discovery has been created to prevent. Effective cross-examination of an expert witness requires advance preparation. The lawyer even with the help of his own experts frequently cannot anticipate the particular approach his adversary’s expert will take or the data on which he will base his judgment on the stand. Similarly, effective rebuttal requires advance knowledge of the line of testimony of the other side. If the latter is foreclosed by a rule against discovery, then the narrowing of issues and elimination of surprise which discovery normally produces are frustrated.

Although the trial problems flowing from lack of discovery of expert witnesses are most acute and noteworthy when the case turns largely on experts, the same problems are encountered when a single expert testifies. Thus, subdivision (b)(4)a draws no line between complex and simple cases, or between cases with many experts and those with but one. The rule established by this subdivision is patterned substantially after the result reached by a number of courts in the former absence of such a provision in the federal rules.

Past judicial restrictions on discovery of an adversary’s expert, particularly as to his opinions, reflect the fear that one side will benefit unduly from the other’s better preparation. The procedure established in subdivision (b)(4)a holds the risk to a minimum. Discovery is limited to trial witnesses, and may be obtained only at a time when the parties know who their expert witnesses will be. A party must as a practical matter prepare his own case in advance of that time, for he can hardly hope to build his case out of his opponent’s experts.

Subdivision (b)(4)a provides for discovery of an expert who is to testify at the trial. A party can require one who intends to use the expert to state the substance of the testimony that the expert is expected to give. The court may order further discovery, and it has ample power to regulate its timing and scope and to prevent abuse. Ordinarily, the order for further discovery shall compensate the expert for his time, and may compensate the party who intends to use the expert for past expenses reasonably incurred in obtaining facts or opinions from the expert. Those provisions are likely to discourage abusive practices.

Under subdivision (b)(4)b, the court is directed or authorized to issue protective orders, including an order that the expert be paid a reasonable fee for time spent in responding to discovery, and that the party whose expert is made subject to discovery be paid a fair portion of the fees and expenses that the party incurred in obtaining information from the expert. The court may issue the latter order as a condition of discovery, or it may delay the order until after discovery is completed. These provisions for fees and expenses meet the objection that it is unfair to permit one side to obtain without cost the benefit of an expert’s work for which the other side has paid, often a substantial sum.

In ordering discovery under (b)(4)a2, the court has discretion whether to award fees and expenses to the other party; its decision should depend upon whether the discovering party is simply learning about the other party’s case or is going beyond this to develop his own case.

Note: The General Assembly deleted from the drafting committee’s text a proposed provision identical to Federal Rule 26(b)(4)(B) expressly providing for discovery in very limited circumstances of experts retained in anticipation of litigation or in preparation for trial, but who are not expected to be called as witnesses. Failure to adopt this provision would not appear to foreclose such discovery on a proper showing under Rule 26(b)(3) or Rule 34.

Section (c) — Protective Orders. — The provisions of existing [former] Rule 30(b) are transferred to this section (c), as part of the rearrangement of Rule 26. The language has been changed to give it application to discovery generally.

In addition, drafting changes are made to carry out and clarify the sense of the rule. Insertions are made to avoid any possible implication that a protective order does not extend to “time” as well as to “place” or may not safeguard against “undue burden or expense.”

The new reference to trade secrets and other confidential commercial information reflects existing law. The courts have not given trade secrets automatic and complete immunity against disclosure, but have in each case weighed their claim to privacy against the need for disclosure. Frequently, they have been afforded a limited protection.

The section contains new matter relating to sanctions. When a motion for a protective order is made and the court is disposed to deny it, the court may go a step further and issue an order to provide or permit discovery. This will bring the sanctions of Rule 37(b) directly into play. Since the court has heard the contentions of all interested persons, an affirmative order is justified. In addition, the court may require the payment of expenses incurred in relation to the motion.

Section (d) — Sequence and Priority. — This new provision is concerned with the sequence in which parties may proceed with discovery and with related problems of timing. The principal effects of the new provision are first, to eliminate any fixed priority in the sequence of discovery, and second, to make clear and explicit the court’s power to establish priority by an order issued in a particular case. North Carolina has not suffered from the problems presented by rules of priority of discovery existing in some other jurisdictions under the original federal rules. This rule will insure that we do not develop any such problems. The last sentence allows discovery to continue to the time of trial so long as it does not result in a delay of trial or of any other proceeding before the court.

Section (e) — Supplementation of Responses. — The rules do not now state whether interrogatories (and questions at deposition as well as requests for inspection and admissions) impose a “continuing burden” on the responding party to supplement his answers if he obtains new information. The issue is acute when new information renders substantially incomplete or inaccurate an answer which was complete and accurate when made. It is essential that the rules provide an answer to this question. The parties can adjust to a rule either way, once they know what it is.

Arguments can be made both ways. Imposition of a continuing burden reduces the proliferation of additional sets of interrogatories. Some courts have adopted local rules establishing such a burden. Others have imposed the burden by decision. On the other hand, there are serious objections to the burden, especially in protracted cases. Although the party signs the answers, it is his lawyer who understands their significance and bears the responsibility to bring answers up to date. In a complex case all sorts of information reaches the party, who little understands its bearing on answers previously given to interrogatories. In practice, therefore, the lawyer under a continuing burden must periodically recheck all interrogatories and canvass all new information. But a full set of new answers may no longer be needed by the interrogating party. Some issues will have been dropped from the case, some questions are now seen as unimportant, and other questions must in any event be reformulated.

Section (e) provides that a party is not under a continuing burden except as expressly provided. An exception is made as to the identity of persons having knowledge of discoverable matters, because of the obvious importance to each side of knowing all witnesses and because information about witnesses routinely comes to each lawyer’s attention. Many of the decisions on the issue of a continuing burden have in fact concerned the identity of witnesses. An exception is also made as to expert trial witnesses in order to carry out the provisions of Rule 26(b)(4).

Another exception is made for the situation in which a party, or more frequently his lawyer, obtains actual knowledge that a prior response is incorrect. This exception does not impose a duty to check the accuracy of prior responses, but it prevents knowing concealment by a party or attorney. Finally, a duty to supplement may be imposed by order of the court in a particular case (including an order resulting from a pretrial conference) or by agreement of the parties. A party may of course make a new discovery request which requires supplementation of prior responses.

The duty will normally be enforced, in those limited instances where it is imposed, through sanctions imposed by the trial court, including exclusion of evidence, continuance, or other action, as the court may deem appropriate.

OFFICIAL COMMENT

Comment to the 2011 Amendment.

Subsection (b) . Subdivision (b)(1) previously contained two paragraphs. The second paragraph has been made “(b)(1a)” and entitled “Limitations on Frequency and Extent”.

Amended subdivision (b)(1) adds “electronically stored information” to the list of illustrative “things” about which a party may seek discovery. Unlike paper documents, a large amount of electronically stored information is associated with or contains information that is not readily apparent on the screen view of the file. This additional information usually is known as “metadata”. Metadata includes information about the document or file that is recorded by the computer to assist in storing and retrieving the document file. For purposes of discovery under the Rules, “electronically stored information” is defined to include not only the information contained on the screen view of the file but also reasonably accessible metadata that reflects such key information as date sent, date received, author, and recipients. Other metadata is excluded from the definition of “electronically stored information”, making that metadata not subject to discovery unless the parties agree to disclosure of metadata or the court orders disclosure.

Metadata includes file designation, create and edit dates, authorship, comments, and edit history. Indeed, electronic files may contain hundreds or even thousands of pieces of such information. For instance, email has its own metadata elements that can include 1,200 or more properties. Typical word processing documents not only include changes and edits but also hidden codes that determine such features as paragraphing, font, and line spacing.

Similarly, electronically created spreadsheets may contain calculations that are not visible in a printed version or hidden columns that can only be viewed by accessing the spreadsheet in its “native” application, that is, the software application used to create or record the information.

Understanding when metadata is relevant and needs to be preserved and produced represents one of the biggest challenges in electronic discovery. Sometimes metadata is needed to authenticate a disputed document or to establish facts material to a dispute, such as, in a suit involving theft of trade secrets, when a file was accessed. In most cases, however, metadata will have no material evidentiary value - it does not matter when a document was printed, who typed the revisions, or what edits were made before the document was circulated. There is also the real danger that information recorded by the computer as application metadata may be inaccurate. For example, when a new employee uses a word processing program to create a memorandum by using a memorandum template created by a former employee, the metadata for the new memorandum may incorrectly identify the former employee as the author. (Note, most of this language comes from or is based on Commentary to Principle 12 in the Sedona Principles: Second Edition, Best Practices Recommendations and Principles for Addressing Electronic Document Production, June 2007.)

As a result, subdivision (b)(1) has been written to focus electronic discovery on the kinds of metadata that will be relevant in most cases and to encourage parties not to engage in discovery concerning other kinds of metadata unless they agree that doing so is appropriate in a given case or unless they can show the court that there is a need to do so.

The substance of subdivision (b)(1a) has not been changed. The additions were made to distinguish the general limitations contained in subdivision (b)(1a) from the specific limitations applicable to discovery of electronically stored information contained in subdivision (b)(1b).

New subdivision (b)(1b) refers to the addition in Rule 34(b) of a specific limitation on production of electronically stored information based upon an objection that information from the source from which the information may be obtained is not reasonably accessible because of undue burden or cost. This limitation is taken from Rule 26(b)(2)(B) of the Federal Rules of Civil Procedure but is placed in different parts of the North Carolina Rules of Civil Procedure because the North Carolina Rules have not adopted the federal rules approach of requiring disclosure of information without request by a party. Subdivision (b)(1b) makes it clear the limitation in Rule 34(b), as well as the limitations on discovery provided in subdivision (b)(1a), apply when a motion for a protective order or motion to compel is made in response to a request for production of electronically stored information. In addition, subdivision (b)(1b) specifically recognizes the authority of the court to specify conditions for electronic discovery, including allocation of the costs of that discovery.

Sub-subdivision (b)(5)a. specifies the procedure by which a party may withhold information otherwise discoverable on the ground that the information is privileged or is subject to protection as trial-preparation material under subdivision (b)(3). The Rule is intended to expedite the resolution of discovery disputes by requiring the party withholding information on such grounds to expressly make the claim and set out a description of the information withheld so that the requesting party can decide whether to contest the claim and the court can resolve the dispute.

Sub-subdivision (b)(5)b. provides a mechanism for addressing the inadvertent production of privileged or trial preparation material. The risks of privilege waiver, and the work necessary to avoid it, add to the costs and delay of discovery. That risk is exacerbated in cases involving electronically stored information, where the volume and format of potentially discoverable material increases substantially.

Subdivision (b)(5) works in tandem with subsection (f), which now allows any party to request a meeting to discuss a discovery plan to address (among other things) the process for addressing issues of privilege or trial preparation material protection.

A party asserting a claim of privilege or protection after production must give notice to the receiving party. That notice should be in writing unless the circumstances preclude it. The notice should be as specific as possible in identifying the information and stating the basis for the claim. Because the receiving party must decide whether to challenge the claim and may sequester the information and submit it to the court for a ruling on whether the claimed privilege or protection applies and whether it has been waived, the notice should be sufficiently detailed so as to enable the receiving party and the court to understand the basis for the claim and to determine whether waiver has occurred.

After receiving notice, each party that received the information must promptly return, sequester, or destroy the information and any copies it has. The option of sequestering or destroying the information is included in part because the receiving party may have incorporated the information in protected trial-preparation materials. No receiving party may use or disclose the information pending resolution of the privilege claim. The receiving party may present to the court the questions whether the information is privileged or protected as trial-preparation material and whether the privilege or protection has been waived. If it does so, it must provide the court with the grounds for the claim of privilege or protection specified in the producing party’s notice and serve all parties. In presenting the question, the party may use the content of the information only to the extent permitted by the applicable law of privilege, protection for trial-preparation material, and professional responsibility.

If a party disclosed the information to nonparties before receiving notice of a claim of privilege or protection as trial-preparation material, it must take reasonable steps to retrieve the information and to return it, sequester it until the claim is resolved, or destroy it.

Whether the information is returned or not, the producing party must preserve the information pending the court’s ruling on whether the claim of privilege or protection is properly asserted and whether it has been waived.

Subsection (c) . Subsection (c) relates to amended Rule 34(b) and provides that when a protective order is sought on the basis that electronically stored information that is the subject of a discovery request is from a source not reasonably accessible because of undue burden or cost, the party seeking the protective order has the burden of showing that information from the source identified is not reasonably accessible. If that showing is made, the judge may enter a protective order that limits or denies discovery from that source or, if the requesting party shows good cause for allowing the discovery in spite of the burden or cost, allows the discovery but may allocate the cost of the discovery between or among the parties.

Subsection (e) . No substantive changes are intended.

Subsection (f) . Former subsection (f) did provide a procedure by which a discovery conference could be requested by motion of a party. However, in practice, discovery conferences were rarely held in most counties of this state, and parties and their attorneys usually would not be guided by a discovery order, the lack of which could lead to inefficiency and uncertainty. One method to provide assistance to parties is to make it easier for an attorney to seek and obtain a discovery plan, even if no other attorney wants one, if that attorney perceives a need for guidelines and express limitations regarding discovery in a particular case, especially discovery involving electronically stored information. Therefore, unlike the former rule, amended subsection (f) requires a discovery meeting and subsequent order setting forth a discovery plan if any party or party’s attorney requests such a meeting.

Parties often will know very early in the course of a lawsuit whether the nature of the claims asserted is such that a discovery meeting is advisable. Considering the realties of litigation, especially during the early part of a lawsuit, a discovery meeting should not be held too soon, because defense counsel will need some time to gain at least some familiarity with the allegations of the complaint and possible defenses. On the other hand, because of the importance of holding a discovery meeting sooner than later, especially in situations where a plaintiff serves discovery upon a defendant when the complaint is filed, the rule provides that a discovery meeting can be held as early as 61 days after the complaint is filed. Parties or their counsel should balance the desire for an early discovery meeting with the preference that everyone be sufficiently familiar with the lawsuit that a discovery meeting can be meaningful. Because subdivision (f)(1) allows the parties to agree as to when the discovery meeting is to be held, parties are encouraged, when reasonably possible, to delay holding the discovery meeting until all parties can become sufficiently familiar with the issues arising in the action and the potential sources of discoverable information that a discovery meeting likely will be meaningful, beneficial, and productive. Parties are especially encouraged to delay holding the discovery meeting until all defendants have filed a pleading in response to the complaint.

Subdivision (f)(2) does not contemplate a formal hearing if the parties agree to a discovery plan. Because it ultimately is the court that controls its docket, any proposed discovery plan must be approved by the court. Courts are encouraged to view each case separately and give significant weight to a discovery plan to which all parties have agreed.

Although amended subsection (f) does provide for a discovery meeting, parties may proceed with discovery before a discovery meeting is held or before a discovery plan is submitted and approved by the court.

Subsection (f) does not govern medical malpractice actions, although the matters set forth in subdivision (f)(3), which includes electronically stored information matters, may be considered at a discovery conference in a medical malpractice action held pursuant to subsection (f1).

The 2006 Commentary for Rule 26(f) of the Federal Rules of Civil Procedure can provide guidance regarding discovery of electronically stored information where applicable, taking into account any difference between the North Carolina rules governing discovery and the federal rules.

Subsection (f1) . By cross-reference, subsection (f1) makes clear that a judge may consider in a malpractice discovery conference the matters listed in subdivision (f)(3), including discovery of electronically stored information, as well as those listed in Rule 16.

Additional amendments to Rule 26 eliminate gender-specific references or conform references to parts of sections and are not intended to affect substance.

Cross References.

As to rebuttable presumption regarding the relevancy of bankruptcy trust claims materials pertaining to asbestos exposure personal injuries, see G.S. 8C-1 , Rule 415.

As to time for beginning and completing discovery, see General Rules of Practice, Rule 8, in the Annotated Rules of North Carolina.

Editor’s Note.

Session Laws 2011-199, s. 2, effective October 1, 2011, and applicable to actions filed on or after that date, redesignated provisions throughout this section. Many of the redesignations have not been implemented, and the section has instead been set out in the form above at the direction of the Revisor of Statutes.

Session Laws 2011-199, s. 7, provides: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all explanatory comments of the drafters of this act, the North Carolina Bar Association Litigation Section E-Discovery Committee, as the Revisor may deem appropriate.”

Session Laws 2018-4, s. 4, made subdivision (b)(2a) of this section, as added by Session Laws 2018-4, s. 1, effective June 12, 2018, and applicable to actions filed on or after that date.

Effect of Amendments.

Session Laws 2011-199, s. 2, effective October 1, 2011, and applicable to actions filed on or after that date, rewrote the section.

Session Laws 2015-153, s. 1, effective October 1, 2015, rewrote subdivision (b)(4). For applicability, see Editor’s note.

Session Laws 2018-4, s. 1, added subdivision (b)(2a). For effective date and applicability, see editor’s note.

Legal Periodicals.

For case law survey on evidence, see 43 N.C.L. Rev. 900 (1965).

For note on discovery of expert information, see 47 N.C.L. Rev. 401 (1969).

For article on the general scope and philosophy of the new rules, see 5 Wake Forest Intra. L. Rev. 1 (1969).

For article on pre-trial and discovery, see 5 Wake Forest Intra. L. Rev. 95 (1969).

For comment, “Discoverability of Liability Insurance Policy Limits in North Carolina,” see 7 Wake Forest L. Rev. 575 (1971).

For note on the scope of discovery under the 1975 amendment to this rule, see 13 Wake Forest L. Rev. 640 (1977).

For survey of 1977 law on civil procedure, see 56 N.C.L. Rev. 874 (1978).

For article, “The 1980 Amendments to the Federal Rules of Civil Procedure and Proposals for North Carolina Practice,” see 16 Wake Forest L. Rev. 915 (1980).

For article analyzing the 1983 amendments to Rules 6, 7, 11, 16, 26, 52, 53 and 67, FRCP, comparing these rules with North Carolina practice, and suggesting changes in certain state and federal rules, see 20 Wake Forest L. Rev. 819 (1984).

For note, “Discovery and Testimony of Unretained Experts: Creating a Clear and Equitable Standard to Govern Compliance with Subpoenas,” see 1987 Duke L.J. 140 (1987).

For article, “Hope Over Experience: Mandatory Informal Discovery and the Politics of Rulemaking,” see 69 N.C.L. Rev. 795 (1991).

For article, “Taking a Deposition Under North Carolina Law,” see 21 N.C. Cent. L.J. 215 (1995).

For article, “E-Notice,” see 68 Duke L.J. 218 (2018).

CASE NOTES

Analysis

I.In General

Editor’s Note. —

Some of the cases cited below were decided under section (b) of this rule and G.S. 1A-1 , Rule 30 as they stood before the 1975 amendment.

The purpose and intent of this rule is to prevent a party who has discoverable information from making evasive, incomplete, or untimely responses to requests for discovery. Green ex rel. Green v. Maness, 69 N.C. App. 292, 316 S.E.2d 917, 1984 N.C. App. LEXIS 3483 (1984).

The purpose behind section (e) of this rule is to prevent a party with discoverable information from making untimely, evasive, or incomplete responses to requests for discovery. Bumgarner v. Reneau, 332 N.C. 624 , 422 S.E.2d 686, 1992 N.C. LEXIS 579 (1992).

Existence of Privilege Is Determined by Court, Not Parties. —

Unilateral determination by a party that documents are privileged, and on that account may be withheld from discovery in defiance of a court order to produce them, rests the matter upon the ipse dixit of each defendant and not upon the judgment of the court. Determination of whether a privilege applies must be by the court, not the individual claiming the privilege, and the court may conduct a preliminary inquiry into its propriety. Midgett v. Crystal Dawn Corp., 58 N.C. App. 734, 294 S.E.2d 386, 1982 N.C. App. LEXIS 2820 (1982).

Construction of Amendment to Expert Witness Discovery. —

Considering the purpose of the amendment, to modernize discovery of expert witnesses, and the comparison of the original and amended statutes, the 2015 amendment was an altering amendment which was intended to change the substance of G.S. 1A-1 , N.C. R. Civ. P. 26(b)(4)(a)(1). Myers v. Myers, 269 N.C. App. 237, 837 S.E.2d 443, 2020 N.C. App. LEXIS 18 (2020).

Relationship to discovery in criminal cases. —

Writing or recording evidencing a witness’s assertions to a state prosecutor can qualify as a “witness statement” under G.S. 15A-903(a)(1); given the high stakes of criminal prosecutions and the special protections traditionally afforded criminal defendants, it is not untenable that the general assembly intended that “witness statement” in the criminal context would not mean the same thing as it does under G.S. 1A-1-26(b)(3). State v. Shannon, 182 N.C. App. 350, 642 S.E.2d 516, 2007 N.C. App. LEXIS 687 (2007).

Remedy for Error in Discovery Orders Is Not Open Defiance. —

When a party willfully disobeys an order entered with personal and subject matter jurisdiction, a judgment of contempt (a permissible G.S. 1A-1 , Rule 37 sanction) is appropriate even if the order was erroneously issued. Such an order is not void and is entitled to respect. The proper remedy for any error therein is not by open defiance, but by appeal. Midgett v. Crystal Dawn Corp., 58 N.C. App. 734, 294 S.E.2d 386, 1982 N.C. App. LEXIS 2820 (1982).

In Camera Inspection in Discretion of Court. —

Whether to conduct an in camera inspection of documents appears, as a general rule, to rest in the sound discretion of the trial court. Midgett v. Crystal Dawn Corp., 58 N.C. App. 734, 294 S.E.2d 386, 1982 N.C. App. LEXIS 2820 (1982).

Remand for In Camera Inspection Required. —

Remand was necessary for a trial court to review documents in camera and determine whether some of the documents were in fact privileged because, from the record, the appellate court was unable to determine whether the withheld materials were created in anticipation of litigation. In re Summons Issued to Ernst & Young, LLP, 191 N.C. App. 668, 663 S.E.2d 921, 2008 N.C. App. LEXIS 1472 (2008), modified, aff'd in part, 363 N.C. 612 , 684 S.E.2d 151, 2009 N.C. LEXIS 897 (2009).

The trial court has express authority under G.S. 1A-1 , Rule 37 to impose sanctions on a party who balks at discovery requests. Green ex rel. Green v. Maness, 69 N.C. App. 292, 316 S.E.2d 917, 1984 N.C. App. LEXIS 3483 (1984).

The imposition of sanctions under G.S. 1A-1 , Rule 37 for failure to comply with section (e) of this rule is within the sound discretion of the trial judge. Willoughby v. Wilkins, 65 N.C. App. 626, 310 S.E.2d 90 (1983), cert. denied, 310 N.C. 631 , 315 S.E.2d 697, 315 S.E.2d 698 (1984). In accord with the main volume. See Bumgarner v. Reneau, 332 N.C. 624 , 422 S.E.2d 686, 1992 N.C. LEXIS 579 (1992).

Investors’ expert was properly excluded under G.S. 1A-1 , N.C. R. Civ. P. 26(e)(2) and G.S. 37(b)(2)(b) since the investors purported to disclose the expert and his opinions on 2 October 2009 and stated that the expert would review the appraisers’ appraisals and other evidence in the case and opine that the appraisers violated the applicable standard of care for real-estate appraisals and made fraudulent appraisals, but admitted on 14 January 2010 that the expert had not yet reviewed the appraisals of any of the lots. . Williams v. United Cmty. Bank, 218 N.C. App. 361, 724 S.E.2d 543, 2012 N.C. App. LEXIS 209 (2012).

Court Authority on Compliance. —

G.S. 1A-1 , N.C. R. Civ. P. 26(b)(4)(a)(1) leaves the matter of a party’s compliance and any sanction or remedy for noncompliance within the trial court’s inherent authority and discretion. Myers v. Myers, 269 N.C. App. 237, 837 S.E.2d 443, 2020 N.C. App. LEXIS 18 (2020).

Sanction for Failure to Disclose. —

Since G.S. 1A-1 , N.C. R. Civ. P. 26(b)(4)(a)(1) does not set a particular time or method for disclosure, the trial court must make this discretionary determination based upon the particular circumstances, and since G.S. 1A-1 , N.C. R. Civ. P. 37 does not address sanctions for failure to disclose, the trial court has inherent authority to grant a remedy for the failure to disclose, which may include exclusion of the testimony or other remedies or sanctions as appropriate to the circumstances. Myers v. Myers, 269 N.C. App. 237, 837 S.E.2d 443, 2020 N.C. App. LEXIS 18 (2020).

Proceedings Under G.S. 7A-66 . —

District attorney (DA) did not have a right to discovery in a proceeding under G.S. 7A-66 since the proceeding was not a civil or criminal proceeding and this section and G.S. 15A-902 and G.S. 15A-903 did not apply; the DA was not denied the right to a fair hearing by the denial of discovery since the admissible evidence was limited to the DA’s statements in written court filings and in open court, and the applicable cases were limited to those cited in the citizen’s affidavit. In re Cline, 230 N.C. App. 11, 749 S.E.2d 91, 2013 N.C. App. LEXIS 1018 (2013), cert. denied, 574 U.S. 853, 135 S. Ct. 132, 190 L. Ed. 2d 100, 2014 U.S. LEXIS 6681 (2014).

Seasonable Supplemental Responses. —

Defendant’s supplemental response to interrogatories was not rendered “seasonable” within the meaning and intent of subsection (e)(1) of this rule by the mere fact that there was no occasion for imposition of sanctions for failing to respond to discovery request with due diligence and good faith. Green ex rel. Green v. Maness, 69 N.C. App. 292, 316 S.E.2d 917, 1984 N.C. App. LEXIS 3483 (1984).

Supplemental answers to interrogatories are not seasonable when the answers are made so close to the time of trial that the party seeking discovery thereby is prevented from preparing adequately for trial, even with the exercise of due diligence. Willoughby v. Wilkins, 65 N.C. App. 626, 310 S.E.2d 90, 1983 N.C. App. LEXIS 3567 (1983); Green ex rel. Green v. Maness, 69 N.C. App. 292, 316 S.E.2d 917, 1984 N.C. App. LEXIS 3483 (1984).

Supplementation of Admission. —

Under circumstances in which it was clear that an owner’s admission that his house had been condemned prior to a fire that destroyed the house was incorrect, and the owner attempted to supplement his response, the trial judge’s allowance of the testimony was not error; moreover, a guaranty association was not prejudiced by the allowance given its concession that it received the correction a mere 15 minutes after the admission was made. Papdopoulos v. State Capital Ins. Co., 183 N.C. App. 258, 644 S.E.2d 256, 2007 N.C. App. LEXIS 1036 (2007).

As to pretrial discovery at common law for criminal or civil litigants, see News & Observer Publishing Co. v. State ex rel. Starling, 312 N.C. 276 , 322 S.E.2d 133, 1984 N.C. LEXIS 1798 (1984).

No right of inspection of public documents existed at common law when inspection was sought merely to satisfy curiosity. News & Observer Publishing Co. v. State ex rel. Starling, 312 N.C. 276 , 322 S.E.2d 133, 1984 N.C. LEXIS 1798 (1984).

Statutes have now replaced former equitable rights of discovery and bills of discovery in equity have been abolished. News & Observer Publishing Co. v. State ex rel. Starling, 312 N.C. 276 , 322 S.E.2d 133, 1984 N.C. LEXIS 1798 (1984).

Civil discovery is now governed by statute. The Supreme Court of the United States has indicated that rules governing discovery in civil cases are a matter of legislative grace. News & Observer Publishing Co. v. State ex rel. Starling, 312 N.C. 276 , 322 S.E.2d 133, 1984 N.C. LEXIS 1798 (1984).

Civil litigants enjoy no absolute right to discovery of documents in the hands of others. News & Observer Publishing Co. v. State ex rel. Starling, 312 N.C. 276 , 322 S.E.2d 133, 1984 N.C. LEXIS 1798 (1984).

Court Permitted Further Discovery. —

Where in response to plaintiffs’ interrogatories concerning the facts and opinions to which each of defendant’s experts would testify, and the grounds therefor, defendant responded with the same standardized statement for each of his expert witnesses which was largely a disclaimer of defendant’s negligence, the court acted within its discretion in permitting further discovery. Green ex rel. Green v. Maness, 69 N.C. App. 403, 316 S.E.2d 911, 1984 N.C. App. LEXIS 3484 (1984).

Failure to Seek Additional Discovery. —

Plaintiffs were not prevented from utilizing any necessary discovery procedures by the trial court’s granting of a continuance of only 45 days on a summary judgment hearing, rather than 120 days, as plaintiffs sought no additional discovery, with the exception of one occasion on which they served defendants with written discovery requests, and as plaintiffs filed their own motion for summary judgment prior to the hearing; moreover, a summary judgment hearing was not required to take place upon completion of all factual discovery, and any argument that an order setting a date for a summary judgment hearing violated G.S. 1A-1-26(d) was erroneous. Sapp v. Yadkin County, 209 N.C. App. 430, 704 S.E.2d 909, 2011 N.C. App. LEXIS 208 (2011).

Order Compelling Production of Documents Held Proper. —

Because, despite the fact that insurers claimed that requested documents were privileged, the insurers failed to produce the 450 documents at issue for an in camera inspection, they failed to carry their burden of establishing that those documents were privileged, and an order compelling production of those 450 documents was proper. Wachovia Bank, N.A. v. Clean River Corp., 178 N.C. App. 528, 631 S.E.2d 879, 2006 N.C. App. LEXIS 1567 (2006).

Ample Opportunity for Discovery. —

Trial court did not abuse its discretion in denying customer’s request for discovery and motion to compel discovery because it was customer’s fourth request for discovery and was filed one month before trial and 20 months after commencement of the case against the restaurant; the court found per G.S. 1A-1 , Rule 26(b)(1)(a)(ii) that the customer had ample opportunity by discovery in the action to obtain the information sought. Lindsey v. Boddie-Noell Enters., 147 N.C. App. 166, 555 S.E.2d 369, 2001 N.C. App. LEXIS 1145 (2001), rev'd, 355 N.C. 487 , 562 S.E.2d 420, 2002 N.C. LEXIS 425 (2002).

Delayed Opportunity for Discovery. —

When co-trustees sought production of financial information pertaining to a limited liability company (LLC) in which the decedent had owned an interest that was passed to the trust, the electronic data from the LLC’s computer system that a former employee retained after the employee left the LLC was no longer in the employee’s possession and was not available for production until resolution of a separate action. Therefore, the court reserved ruling on the co-trustees’ motion to compel production of the data. Howard v. IOMAXIS, LLC, 2022 NCBC LEXIS 6 (N.C. Super. Ct. Jan. 27, 2022).

Amendment of Discovery Schedule. —

A medical malpractice plaintiff was not entitled to an amendment of a discovery scheduling order so that plaintiff could depose new experts, even if this were done within the deadline of the original discovery schedule, since it might not have been feasible for the defendants to depose such experts within the deadline. Alston v. Duke Univ., 133 N.C. App. 57, 514 S.E.2d 298, 1999 N.C. App. LEXIS 335 (1999).

Failure to Address Claims of Privilege. —

Trial judge erred in releasing documents to the plaintiffs without addressing the defendant’s Rule 26(b) claims of privilege. Hall v. Cumberland County Hosp. Sys., 121 N.C. App. 425, 466 S.E.2d 317, 1996 N.C. App. LEXIS 80 (1996).

Where an order was entered allowing plaintiff to examine defendants pursuant to former procedure for the purpose of securing information to file a complaint, plaintiff had a vested right to conduct such examination and did not need to move for an adverse examination under either this rule or G.S. 1A-1 , Rule 27(b) upon enactment of the Rules of Civil Procedure. Williams v. Blount, 14 N.C. App. 139, 187 S.E.2d 464, 1972 N.C. App. LEXIS 2060 (1972).

Sanction for Taking Deposition in Violation of Rules. —

Striking of the notice of the taking of a deposition and prohibiting its further use was a reasonable sanction for a deposition procured in violation of deposition rules, even though it was defendant’s counsel, and not defendant itself, who committed the acts giving rise to the sanction. Turner v. Duke Univ., 101 N.C. App. 276, 399 S.E.2d 402, 1991 N.C. App. LEXIS 22 (1991).

Sanctions for Improper Discovery. —

A motion under the more specific rule governing sanctions in the context of discovery responses is the proper avenue for sanctioning improper conduct relative to discovery. Brooks v. Giesey, 334 N.C. 303 , 432 S.E.2d 339, 1993 N.C. LEXIS 343 (1993).

Sanctions Under Subsection (g). —

The imposition of sanctions for discovery abuses under subsection (g) informs offending counsel of exactly what action is being sanctioned. This process alleviates any due process concerns an attorney might raise by claiming not to know which of his or her actions merit sanctions. Brooks v. Giesey, 334 N.C. 303 , 432 S.E.2d 339, 1993 N.C. LEXIS 343 (1993).

Trial court’s order striking an employer’s answer as a sanction for discovery violations was in error because wholly absent from former employees’ motion for sanctions was any contention that the employer was to be sanctioned on that basis. Accordingly, in light of the lack of notice provided, the trial court’s order imposing sanctions had to be vacated and the case remanded for entry of an order that was consistent with the grounds upon which the employees moved to strike the employer’s answer. Walsh v. Cornerstone Health Care, P.A., 265 N.C. App. 672, 829 S.E.2d 513, 2019 N.C. App. LEXIS 503 (2019), cert. dismissed, 838 S.E.2d 182, 2020 N.C. LEXIS 138 (N.C. 2020).

Sanctions Under Subsection (f1). —

Where an inmate did not designate his experts until almost four months after the ordered date, the trial court did not abuse its discretion by excluding the expert’s testimony. Summey v. Barker, 154 N.C. App. 448, 573 S.E.2d 534, 2002 N.C. App. LEXIS 1449 (2002), aff'd in part, modified, 357 N.C. 492 , 586 S.E.2d 247, 2003 N.C. LEXIS 1105 (2003).

Advance Disclosure of Expert Witness. —

Upon de novo review of G.S. 1A-1 , N.C. R. Civ. P. 26(b)(4)(a)(1), the court holds the rule does require advance disclosure of expert witnesses who will testify at trial, even without a discovery request, discovery plan, or court order. Myers v. Myers, 269 N.C. App. 237, 837 S.E.2d 443, 2020 N.C. App. LEXIS 18 (2020).

Sanctions for Failure to Designate Expert Witnesses by the Specified Date. —

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 N.C. LEXIS 1105 (2003).

Dismissal as Inappropriate Sanction. —

Patient’s medical malpractice lawsuit was erroneously dismissed as a sanction under G.S. 1A-1 , N.C. R. Civ. P. 26(f1) for her alleged failure to identify an expert witness in accordance with a discovery scheduling order because (1) it was impossible for the patient to have complied with the discovery order, which required compliance before the order was signed; and (2) in any event, the patient had already identified a certain doctor as an expert and thus, complied with the discovery order. Morris v. Southeastern Orthopedics Sports Med. & Shoulder Ctr., P.A., 199 N.C. App. 425, 681 S.E.2d 840, 2009 N.C. App. LEXIS 1487 (2009).

Appeal from Discovery Order Limiting Contact. —

A discovery order which prohibited defendant hospital from contact with defendant doctor other than through “the statutorily recognized methods of discovery enumerated in” this rule was not immediately appealable, where the order in no way precluded the hospital from meeting with and discussing the case with the doctor in the context of the multi-varied discovery methods detailed in this rule and, therefore, did not affect a substantial right. Norris v. Sattler, 139 N.C. App. 409, 533 S.E.2d 483, 2000 N.C. App. LEXIS 894 (2000).

Order requiring appellants to appear for depositions during jurisdictional discovery was not immediately appealable because the order did not burden appellants’ substantial right to due process since appellants voluntarily submitted the jurisdictional issue to the North Carolina General Court of Justice, and consequently appellants ultimately were bound by the North Carolina courts’ determination of personal jurisdiction and immediately were bound to abide by those legal rules governing the procedure to be followed in reaching that determination, including the North Carolina Rules of Civil Procedure; because appellants voluntarily submitted to North Carolina jurisdiction to decide the issue of personal jurisdiction in the action, they were bound to participate in what jurisdictional discovery the trial court orders, and appellants’ implicit agreement to abide by the legal rules and presumptions of the North Carolina court system necessarily included the agreement to abide by the rules governing appeal of interlocutory orders. K2 Asia Ventures v. Trota, 209 N.C. App. 716, 708 S.E.2d 106, 2011 N.C. App. LEXIS 313 (2011).

Inadequate Record for Appeal. —

Appeal had to be dismissed as appellate court was unable to review whether plaintiff consumer demonstrated a “substantial need” for requested discovery and whether an “undue hardship” existed in obtaining that material by other means, pursuant to G.S. 1A-1 , Rule 26(b)(3), as the record on appeal was not sufficient to allow for such review. Velez v. Dick Keffer Pontiac-GMC Truck, Inc., 144 N.C. App. 589, 551 S.E.2d 873, 2001 N.C. App. LEXIS 532 (2001).

Denial of Motion to Compel Presumed to Be Supported by Sufficient Facts. —

Where neither party asked the trial court to enter findings of fact or conclusions of law in its order denying the administrator’s motion to compel, the appellate court presumed that the trial court found facts sufficient to support its orders and thus, that the administrator failed to meet the heavy burden of proving an abuse of discretion. Barringer v. Wake Forest Univ. Baptist Med. Ctr., 197 N.C. App. 238, 677 S.E.2d 465, 2009 N.C. App. LEXIS 673 (2009).

Denial of Discovery Held Not Abuse of Discretion. In a broker’s breach of contract action, a trial court’s denial of the broker’s motion under G.S. 1A-1 , N.C. R. Civ. P. 26(b)(1), to compel production of a brokerage service’s corporate bank statements and tax returns on the ground that the materials were not relevant was not an abuse of discretion because it was not shown that the trial court’s determination was manifestly unreasonable. Maxwell v. Michael P. Doyle, Inc., 164 N.C. App. 319, 595 S.E.2d 759, 2004 N.C. App. LEXIS 822 (2004).

Substantial Need Shown for Document Prepared for Trial. —

Declaration prepared for use in a federal lawsuit between a bank and a vendor was protected by the work-product doctrine, but the bank was compelled to disclose it to a former bank employee who demonstrated a substantial need for the document and an inability to obtain it elsewhere; her wrongful termination action was based on the theory that she was fired because she refused to sign the allegedly inaccurate or untruthful document. Isom v. Bank of Am., N.A., 177 N.C. App. 406, 628 S.E.2d 458, 2006 N.C. App. LEXIS 970 (2006).

Appealability of Discovery Protests as to Overbreadth and Relevancy. —

In a patient’s negligence action against medical defendants, arising from injuries she sustained when a fire occurred during her surgical procedure, the appellate court lacked jurisdiction to review defendants’ contentions on appeal that were based on the trial court’s grant of the patient’s motion to compel discovery, as assertions of overbreadth and relevancy did not invoke a recognized privilege or immunity and there was no showing that they affected a substantial right. Hammond v. Saini, 229 N.C. App. 359, 748 S.E.2d 585, 2013 N.C. App. LEXIS 934 (2013), aff'd in part, modified, 367 N.C. 607 , 766 S.E.2d 590, 2014 N.C. LEXIS 956 (2014).

II.Scope of Discovery Generally

Section (b) of this rule is not unconstitutional on the grounds that it deprives a party of property without due process of law, authorizes an unreasonable search and seizure, denies equal protection of the laws, or impairs the right to contract. Marks v. Thompson, 282 N.C. 174 , 192 S.E.2d 311, 1972 N.C. LEXIS 925 (1972).

Enforced discovery as authorized by the provisions of this rule is not an unwarranted invasion of defendant’s privacy. Marks v. Thompson, 282 N.C. 174 , 192 S.E.2d 311, 1972 N.C. LEXIS 925 (1972).

Limited Discovery After Default Judgment Entered. —

Trial court did not err in limiting discovery solely to the issues of whether the seller’s conduct amounted to an unfair or deceptive trade practice where the trial court had earlier entered a default against the seller. Blankenship v. Town & Country Ford, Inc., 174 N.C. App. 764, 622 S.E.2d 638, 2005 N.C. App. LEXIS 2616 (2005).

Proper purpose existed for requiring a real estate buyer to appear for a deposition after the buyer’s default was entered because (1) the default did not establish damages or other relief, and (2) a co-buyer who sued the buyer was entitled, before a hearing on appropriate relief, to inquire into facts relevant to such relief. Li v. Zhou, 252 N.C. App. 22, 797 S.E.2d 520, 2017 N.C. App. LEXIS 93 (2017).

Notice. —

Investor’s claim that the trial court erred in not providing the investor an opportunity to be heard in relation to an order which compelled the production of client/investor documents was rejected where no notice was required under G.S. 1A-1 , Rule 26(b) for this type of discovery. Miles v. Martin, 147 N.C. App. 255, 555 S.E.2d 361, 2001 N.C. App. LEXIS 1135 (2001).

Safeguards to Protect Discovered Information. —

Trial court did not abuse its discretion in ordering that defendant bank provide factual work product, pursuant to G.S. 1A-1 , Rule 26(b)(3), to plaintiff consumer as such material was discoverable and the trial court put stringent safeguards in place to protect against abuse regarding discovery provided. Velez v. Dick Keffer Pontiac-GMC Truck, Inc., 144 N.C. App. 589, 551 S.E.2d 873, 2001 N.C. App. LEXIS 532 (2001).

Trial court’s decision not to conduct an in camera review of all of the decedent’s substance abuse treatment records was proper because the clear purpose of the trial court’s order was to enable the health care providers to have access to information useful in developing their defense. Given that the records ordered to be disclosed were reasonably calculated to lead to the discovery of evidence relevant to the issues of emotional distress and damages and such records would only be disclosed under seal, the trial court complied with 42 C.F.R. § 2.64(e)(1). Spangler v. Olchowski, 187 N.C. App. 684, 654 S.E.2d 507, 2007 N.C. App. LEXIS 2575 (2007).

N.C. Gen. Stat. § 1A-1, N.C. R. Civ. P. 45(d)(1), did not automatically entitle defendants to review all documents subpoenaed from the daughter's ex-husband as the General Assembly intended N.C. Gen. Stat. § 1A-1, N.C. R. Civ. P. 26(b)(1a), to limit access to subpoenaed privileged documents. Wing v. Goldman Sachs Trust Co., N.A., 2021-NCCOA-662, 2021 N.C. App. LEXIS 671 (December 7, 2021).

The goal of the discovery rules is to facilitate the disclosure, prior to trial, of any unprivileged information that is relevant and material to the lawsuit so as to permit the narrowing and sharpening of basic issues and facts to go to trial. Willoughby v. Wilkins, 65 N.C. App. 626, 310 S.E.2d 90, 1983 N.C. App. LEXIS 3567 (1983).

Matters Relevant to Claims and Defenses Within Scope of Discovery. —

The scope of discovery is not limited to matters relevant to claims for relief, but also includes matters relevant to defenses.Shellhorn v. Brad Ragan, Inc., 38 N.C. App. 310, 248 S.E.2d 103, 1978 N.C. App. LEXIS 2173 , cert. denied, 295 N.C. 735 , 249 S.E.2d 804, 1978 N.C. LEXIS 1138 (1978).

In a negligence action arising out of a multiple car accident, medical records concerning treatment prior to the date of the action were discoverable because under G.S. 1A-1-26 parties could obtain discovery regarding any matter, not privileged, which was relevant to the subject matter involved in the pending action, and the information could assist in determining whether the accident was a proximate cause of plaintiff’s injury or whether plaintiff’s injuries were the result of a preexisting condition. Lowd v. Reynolds, 205 N.C. App. 208, 695 S.E.2d 479, 2010 N.C. App. LEXIS 1166 (2010).

In a wrongful termination suit, the trial court did not abuse its discretion by ordering plaintiff’s production of her federal and state income tax returns because information regarding her earnings was entirely relevant to the subject matter involved in the pending action as it related to both to the defense of the party seeking discovery, specifically defendant’s defense of mitigation of damages, and to the claim of any other party, specifically plaintiff’s claim for loss of past and future earnings. Young v. Kimberly-Clark Corp., 219 N.C. App. 172, 724 S.E.2d 552, 2012 N.C. App. LEXIS 239 (2012).

In a wrongful termination suit, the trial court did not abuse its discretion by ordering plaintiff’s production of requested medical records for a period beginning five years prior to service of the discovery request because by claiming emotional distress, she waived the patient-physician privilege when she brought an action which placed her medical condition at issue. Young v. Kimberly-Clark Corp., 219 N.C. App. 172, 724 S.E.2d 552, 2012 N.C. App. LEXIS 239 (2012).

Because of co-trustee’s claims of fraud pertaining to a limited liability company (LLC) in which the decedent had owned an interest that was passed to the trust, the co-trustees were not foreclosed from their right to engage in discovery in the co-trustees’ civil action against the LLC and its members. Accordingly, the LLC was to produce requested portions of tax returns subject to the protections and procedures put forth in the parties’ consent protective order and subject to the redaction of confidential identifying information. Howard v. IOMAXIS, LLC, 2022 NCBC LEXIS 6 (N.C. Super. Ct. Jan. 27, 2022).

The provision of section (b) of this rule that “it is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence” refers only to testimony that will or might be inadmissible at trial. Wright v. Wright, 281 N.C. 159 , 188 S.E.2d 317, 1972 N.C. LEXIS 1043 (1972).

The relevancy test for discovery is not the same as the relevancy test for admissibility into evidence. Shellhorn v. Brad Ragan, Inc., 38 N.C. App. 310, 248 S.E.2d 103, 1978 N.C. App. LEXIS 2173 , cert. denied, 295 N.C. 735 , 249 S.E.2d 804, 1978 N.C. LEXIS 1138 (1978).

The test of relevancy under this rule is not the stringent test required at trial. Willis v. Duke Power Co., 291 N.C. 19 , 229 S.E.2d 191, 1976 N.C. LEXIS 932 (1976).

The test of relevancy under subsection (b) of this rule differs from the more stringent test of relevancy under G.S. 8C-1 , Rule 401. Adams v. Lovette, 105 N.C. App. 23, 411 S.E.2d 620, 1992 N.C. App. LEXIS 12 , aff'd, 332 N.C. 659 , 422 S.E.2d 575, 1992 N.C. LEXIS 576 (1992).

And determination that information is relevant for discovery is not conclusive of its admissibility as relevant evidence at trial. Shellhorn v. Brad Ragan, Inc., 38 N.C. App. 310, 248 S.E.2d 103, 1978 N.C. App. LEXIS 2173 , cert. denied, 295 N.C. 735 , 249 S.E.2d 804, 1978 N.C. LEXIS 1138 (1978).

When Information Is Relevant for Discovery. —

To be relevant for purposes of discovery, the information need only be “reasonably calculated” to lead to the discovery of admissible evidence. Shellhorn v. Brad Ragan, Inc., 38 N.C. App. 310, 248 S.E.2d 103, 1978 N.C. App. LEXIS 2173 , cert. denied, 295 N.C. 735 , 249 S.E.2d 804, 1978 N.C. LEXIS 1138 (1978).

Records Irrelevant for Discovery Purposes. —

Whether or not plaintiff’s replacement had a relationship with a high school student during his previous employment, the complete student records at high school and school personnel records were irrelevant to whether defendants intentionally inflicted emotional distress on plaintiff, constructively and wrongfully discharged her, or maliciously interfered with her contract; therefore, the trial court did not abuse its discretion in denying motion to compel discovery. Wagoner v. Elkin City Schs. Bd. of Educ., 113 N.C. App. 579, 440 S.E.2d 119, 1994 N.C. App. LEXIS 151 (1994).

The underlying claims for relief must be aligned with documents requested for discovery to determine if the documents are within the scope of discovery. Shellhorn v. Brad Ragan, Inc., 38 N.C. App. 310, 248 S.E.2d 103, 1978 N.C. App. LEXIS 2173 , cert. denied, 295 N.C. 735 , 249 S.E.2d 804, 1978 N.C. LEXIS 1138 (1978).

Filing of Answer Does Not Waive Right Against Self-Incrimination. —

The mere filing of a verified answer does not operate to effectuate a waiver of the right to assert the privilege against self-incrimination. Gunn v. Hess, 90 N.C. App. 131, 367 S.E.2d 399, 1988 N.C. App. LEXIS 369 (1988).

The right of discovery must yield to the privilege against compulsory self-incrimination. Stone v. Martin, 56 N.C. App. 473, 289 S.E.2d 898, 1982 N.C. App. LEXIS 2478 (1982).

Courts cannot compel disclosure of information which would tend to incriminate the person from whom it is sought and cannot impose sanctions on one who refuses to disclose privileged information. Stone v. Martin, 56 N.C. App. 473, 289 S.E.2d 898, 1982 N.C. App. LEXIS 2478 (1982).

Discovery Order Held to Violate Right Against Self-Incrimination. —

In an action for alienation of affections and criminal conversation with plaintiff’s husband, trial court’s order compelling defendant to answer interrogatories which asked in effect whether she had committed fornication or adultery violated defendant’s right against self-incrimination. Gunn v. Hess, 90 N.C. App. 131, 367 S.E.2d 399, 1988 N.C. App. LEXIS 369 (1988).

Relevant Unprivileged Matter is Discoverable. —

Any unprivileged matter that is relevant is discoverable; on the other hand, if the matter of which discovery is sought is privileged, it is not discoverable, even if relevant, unless the interests of justice outweigh the protected privilege. Mims v. Wright, 157 N.C. App. 339, 578 S.E.2d 606, 2003 N.C. App. LEXIS 646 (2003).

Relevant matter that is privileged is not discoverable unless interests of justice outweigh the protected privilege. Shellhorn v. Brad Ragan, Inc., 38 N.C. App. 310, 248 S.E.2d 103, 1978 N.C. App. LEXIS 2173 , cert. denied, 295 N.C. 735 , 249 S.E.2d 804, 1978 N.C. LEXIS 1138 (1978).

Attorney-Client Privilege. —

Trial court did not err in ordering the production of client/investor documents where the investor failed to prove that an attorney-client privilege existed; he could not prove that he was compelled to produce the documents in violation of a privilege. Miles v. Martin, 147 N.C. App. 255, 555 S.E.2d 361, 2001 N.C. App. LEXIS 1135 (2001).

Though the Supreme Court held that a non-party’s contractual duty to defend and indemnify defendants created a tripartite attorney-client relationship, it could not conclude given the bare record before it, that the trial court abused its discretion or misapplied the law in compelling disclosure of the communications at issue. Because the order compelling discovery contained neither findings of fact nor conclusions of law (as neither party requested them), the Supreme Court presumed that the trial court found facts sufficient to support its determination that the communications at issue were not privileged. Friday Invs., LLC v. Bally Total Fitness of the Mid-Atl., Inc., 370 N.C. 235 , 805 S.E.2d 664, 2017 N.C. LEXIS 895 (2017).

Attorney’s communications with defendant and his trial strategy were protected by attorney-client privilege. State v. Khalil Abdul Farook, 274 N.C. App. 65, 850 S.E.2d 592, 2020 N.C. App. LEXIS 740 (2020), rev'd in part, aff'd, 2022- NCSC-59, 2022 N.C. LEXIS 442 (N.C. 2022).

Rule Does Not Affect Privacy Surrounding Confidential Relationships. —

The General Assembly, in enacting the Rules of Civil Procedure, did not contemplate that G.S. 1A-1 , Rule 33 and section (b) of this rule would enable husband and wife, in actions between them, to require the other to answer interrogatories relating to acts of adultery or conduct from which adultery might be implied during the subsistence of their marriage; the General Assembly did not intend in such manner to remove the cloak of privacy surrounding the confidential relationships of husband and wife. Wright v. Wright, 281 N.C. 159 , 188 S.E.2d 317, 1972 N.C. LEXIS 1043 (1972).

Strong showing of confidentiality and risk of harm was essential; without that, defendant had no good cause for certain attorneys’ eyes only (AEO) designations. Plaintiff agreed to treat the documents as “Confidential Discovery Material” under the protective order and to abide by all the applicable restrictions on use and dissemination, and defendant had not carried its burden to show that these restrictions—enforceable through the court’s contempt power—were inadequate to protect its interests. Maxwell Foods, LLC v. Smithfield Foods, Inc., 2021 NCBC LEXIS 101 (N.C. Super. Ct. Nov. 23, 2021).

Protection of Confidential Commercial Information. —

The courts under this rule should be careful in the interests of justice to prevent disclosure of confidential commercial information to avoid annoyance, embarrassment or oppression, particularly where the action is between competitors. Harrington Mfg. Co. v. Powell Mfg. Co., 26 N.C. App. 414, 216 S.E.2d 379, 1975 N.C. App. LEXIS 2065 , cert. denied, 288 N.C. 242 , 217 S.E.2d 679, 1975 N.C. LEXIS 917 (1975).

A customer list is not a trade secret. Harrington Mfg. Co. v. Powell Mfg. Co., 26 N.C. App. 414, 216 S.E.2d 379, 1975 N.C. App. LEXIS 2065 , cert. denied, 288 N.C. 242 , 217 S.E.2d 679, 1975 N.C. LEXIS 917 (1975).

G.S. 8-56 and G.S. 50-10 are distinguishable from section (b) of this rule, in that they relate to the disqualification of husband or wife as a witness with reference to specific matters, not to the admissibility or inadmissibility of the testimony of a qualified witness. Wright v. Wright, 281 N.C. 159 , 188 S.E.2d 317, 1972 N.C. LEXIS 1043 (1972).

Orders regarding matters of discovery are within the discretion of the trial court and will not be upset on appeal absent a showing of abuse of discretion. Hudson v. Hudson, 34 N.C. App. 144, 237 S.E.2d 479, 1977 N.C. App. LEXIS 1599 , cert. denied, 293 N.C. 589 , 239 S.E.2d 264, 1977 N.C. LEXIS 989 (1977); Ritter v. Kimball, 67 N.C. App. 333, 313 S.E.2d 1, 1984 N.C. App. LEXIS 3058 (1984); Weaver v. Weaver, 88 N.C. App. 634, 364 S.E.2d 706, 1988 N.C. App. LEXIS 1187 (1988).

Because a construction company was allowed to review all discoverable documents, its G.S. 1A-1-26(b)(1) motion to compel discovery was properly denied; consequently, the trial court properly granted summary judgment to the developer and its agent. Phelps-Dickson Builders, L.L.C. v. Amerimann Partners, 172 N.C. App. 427, 617 S.E.2d 664, 2005 N.C. App. LEXIS 1791 (2005).

Summary Judgment Motion Heard Before Motion to Compel. —

Where the plaintiff’s failure to seek an extension under the local rules fixed the date after which pendency of discovery “would not be allowed to delay trial or any other proceeding before the court . . . ,” the trial court did not abuse its discretion by hearing defendants’ motion for summary judgment, even though discovery was still pending. Dobson v. Harris, 134 N.C. App. 573, 521 S.E.2d 710, 1999 N.C. App. LEXIS 894 (1999), rev'd, 352 N.C. 77 , 530 S.E.2d 829, 2000 N.C. LEXIS 433 (2000).

The determination of whether and when to convene a discovery conference is a matter left to the discretion of the trial judge. Gibbons v. CIT Group/Sales Fin., Inc., 101 N.C. App. 502, 400 S.E.2d 104, 1991 N.C. App. LEXIS 77 (1991).

Discovery Plan Required for Discovery Conference. —

While G.S. 1A-1 , Rule 26(f) requires the court to impose a discovery plan if a discovery conference is held, court is not obligated to impose discovery plan if no discovery conference has been held. Gibbons v. CIT Group/Sales Fin., Inc., 101 N.C. App. 502, 400 S.E.2d 104, 1991 N.C. App. LEXIS 77 (1991).

Though discovery in annexation proceedings is not altogether forbidden, its scope is necessarily limited by the nature of the proceeding. Campbell v. City of Greensboro, 70 N.C. App. 252, 319 S.E.2d 323, 1984 N.C. App. LEXIS 3638 (1984).

Information Regarding Expert Witnesses. —

This rule permits a party to obtain by interrogatories from another party three things: (1) The identity of any expert witness the other party expects to call at trial; (2) the subject matter on which the expert is expected to testify; and (3) the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. Mack v. Moore, 91 N.C. App. 478, 372 S.E.2d 314, 1988 N.C. App. LEXIS 831 (1988).

When Identity of Expert Is Discoverable. —

Neither this rule not its federal counterpart speaks specifically to the issue of whether a party is entitled to discover the identity of a nontestifying expert. Mack v. Moore, 91 N.C. App. 478, 372 S.E.2d 314, 1988 N.C. App. LEXIS 831 (1988).

Before it can be determined if the identity of an expert is discoverable, the party resisting discovery should set forth with some specificity the reasons he believes the expert’s identity is not discoverable. The propounding party is then entitled to a determination of the expert’s status based on an in camera review by the trial court. Mack v. Moore, 91 N.C. App. 478, 372 S.E.2d 314, 1988 N.C. App. LEXIS 831 (1988).

If an expert (1) has facts and opinions otherwise discoverable under Subsection (b)(1) of this rule, (2) acquired or developed such facts and opinions in anticipation of litigation or for trial, and (3) is expected to be called as an expert witness at trial, subsection (b)(4) of this rule is controlling and his identity is discoverable. If such an expert is not expected to testify, the identity of that expert is not discoverable. Mack v. Moore, 91 N.C. App. 478, 372 S.E.2d 314, 1988 N.C. App. LEXIS 831 (1988).

Testimony of Experts Not Listed on Pre-Trial Discovery. —

Trial court properly admitted testimony of two doctors who acted as expert witnesses in a medical malpractice action; G.S. 1A-1 , N.C. R. Civ. P. 26(f1) did not prohibit the testimony, even though the experts were not listed on pre-trial discovery, because the purpose of the discovery rules was achieved and defendants were not prejudiced by any actions of plaintiffs in failing to timely notify defendants of the experts, as all parties had the opportunity to depose both experts before trial, and defendants could not claim surprise by the expert testimony of either physician and failed to show that the trial court abused its discretion in allowing into evidence the expert testimony. Coffman v. Roberson, 153 N.C. App. 618, 571 S.E.2d 255, 2002 N.C. App. LEXIS 1255 (2002).

Where witness was both a fact and expert (doctor) witness, he could be deposed without a court order, and his testimony could only be limited by objection during the deposition if he was questioned regarding his expert opinion. Green ex rel. Green v. Maness, 69 N.C. App. 403, 316 S.E.2d 911, 1984 N.C. App. LEXIS 3484 (1984).

Exclusion of Statement From Treating Physician. —

Exclusion of written response from a treating physician, which was in response to a facsimile sent by defense counsel that detailed three questions regarding causation of an employee’s alleged work-related injury and subsequent disability, was proper since the communication was ex parte and consisted of interrogatories to a non-party, which were not authorized by any caselaw precedent nor any rule of evidence. Mayfield v. Parker Hannifin, 174 N.C. App. 386, 621 S.E.2d 243, 2005 N.C. App. LEXIS 2472 (2005).

Other Witnesses and Exhibits. —

With the exception of expert trial witnesses, whose identities are discoverable under the provisions of subdivision (b)(4) of this rule, a party is not entitled to find out, by discovery, which witnesses his opponent intends to call, or the documents and exhibits a party opponent intends to present at the trial; instead, the names of witnesses and lists of exhibits a party opponent intends to use at trial are obtainable through the pretrial conference. King v. Koucouliotes, 108 N.C. App. 751, 425 S.E.2d 462, 1993 N.C. App. LEXIS 140 (1993).

Denial to Interview Child in Parental Termination Proceeding Was Not Abuse of Discretion. —

Trial court did not err by denying a mother’s motion to interview her son for whom a proceeding was initiated against the mother for termination of her parental rights because, as evidenced by the multiple findings of fact contained within multiple court orders, any contact the mother had with the child was disruptive to his own therapeutic progress and it was clear from the record that the trial court was concerned with the mother’s behavior in attempting to learn of the child’s whereabouts, particularly since the mother abducted the child from his school bus stop while he was in foster care. In re J.B., 172 N.C. App. 1, 616 S.E.2d 264, 2005 N.C. App. LEXIS 1589 (2005).

Accident Reports. —

Accident report was held to be discoverable. Cook v. Wake County Hosp. Sys., 125 N.C. App. 618, 482 S.E.2d 546, 1997 N.C. App. LEXIS 221 (1997).

Defendant hospital’s accident reporting policy existed to serve a number of nonlitigation, business purposes which imposed a duty on employees to report any extraordinary occurrences within the hospital to risk management; thus, absent any salient facts, it could not be said that hospital employee prepared accident report because of the prospect of litigation. Cook v. Wake County Hosp. Sys., 125 N.C. App. 618, 482 S.E.2d 546, 1997 N.C. App. LEXIS 221 (1997).

Documents Furnished by Applicants for Hospital Privileges. —

In a medical negligence suit, a doctor’s application for hospital privileges was not exempt from discovery under G.S. 131E-95, which applied to information generated by a medical review committee, because the allegedly privileged information was not generated by a committee, but was provided by the doctor to the hospital in his application for privileges. Cunningham v. Cannon, 187 N.C. App. 732, 654 S.E.2d 24, 2007 N.C. App. LEXIS 2529 (2007).

Public Consent Order Issued by Board of Medical Examiners is Discoverable. —

As a doctor entered into a consent order with a board of medical examiners knowing it would become a public record, the order was not protected by G.S. 90-21.22 and was discoverable in a medical negligence suit. Cunningham v. Cannon, 187 N.C. App. 732, 654 S.E.2d 24, 2007 N.C. App. LEXIS 2529 (2007).

In a medical malpractice case, because information contained in board of medical examiners’ consent order and a doctor’s application for hospital privileges provided information related to the doctor’s history of drug and alcohol abuse, it was discoverable under N.C. R. Civ. P. 26. Cunningham v. Cannon, 187 N.C. App. 732, 654 S.E.2d 24, 2007 N.C. App. LEXIS 2529 (2007).

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 N.C. App. LEXIS 108 (2009).

Work Product Doctrine Did Not Protect Against Disclosure. —

In a wrongful termination suit, the trial court did not abuse its discretion by ordering plaintiff to identify “all persons having knowledge or information relating to the subject matter of this action, including persons contacted by plaintiff or her counsel” as the identification of a person is clearly not a document or tangible thing, which was prepared in anticipation of litigation or for trial, and by or for another party or its representatives which may include an attorney, consultant agent and since the trial court’s order did not require the production of any witness statements which may have been taken by plaintiff’s counsel or any information at all beyond identification of the persons contacted, there was no abuse of discretion. Young v. Kimberly-Clark Corp., 219 N.C. App. 172, 724 S.E.2d 552, 2012 N.C. App. LEXIS 239 (2012).

In a patient’s negligence action against medical defendants, arising from injuries she sustained when a fire occurred during her surgical procedure, there was no error in requiring defendants to respond to interrogatories, despite their claim of the work product doctrine, as that doctrine only applied to documents or other tangible things. Hammond v. Saini, 229 N.C. App. 359, 748 S.E.2d 585, 2013 N.C. App. LEXIS 934 (2013), aff'd in part, modified, 367 N.C. 607 , 766 S.E.2d 590, 2014 N.C. LEXIS 956 (2014).

Trial court made a reasoned decision in granting the property sellers’ motion to compel production of the two e-mails where it conducted an in camera review of the e-mails, heard arguments from both parties, reviewed the record and the authorities presented, and exercised its judgment. Maldjian v. Bloomquist, 245 N.C. App. 222, 782 S.E.2d 80, 2016 N.C. App. LEXIS 128 (2016).

Remand for Further Review Under Work Product Doctrine Required. —

In a patient’s negligence action against medical defendants, arising from injuries she sustained when a fire occurred during her surgical procedure, defendants’ claim of the work product doctrine with respect to requested documents required a remand, as it was unclear whether notes regarding the fire had been written pursuant to a mandated hospital policy, in preparation for litigation, or for another purpose. Hammond v. Saini, 229 N.C. App. 359, 748 S.E.2d 585, 2013 N.C. App. LEXIS 934 (2013), aff'd in part, modified, 367 N.C. 607 , 766 S.E.2d 590, 2014 N.C. LEXIS 956 (2014).

III.Insurance Agreements

The 1971 amendment to section (b) of this rule, adding a paragraph relating to insurance agreements, was a valid exercise of legislative authority. Marks v. Thompson, 282 N.C. 174 , 192 S.E.2d 311, 1972 N.C. LEXIS 925 (1972).

Purpose of 1971 Amendment. —

The promotion of settlements was not the primary purpose of the 1971 amendment to section (b) of this rule. Rather, its primary purpose was to enable both plaintiff and defendant to have equal information concerning all facts necessary to enable each to make a fair evaluation of his position incident to settlement negotiations. Marks v. Thompson, 282 N.C. 174 , 192 S.E.2d 311, 1972 N.C. LEXIS 925 (1972).

Effect of 1971 Amendment. —

The 1971 amendment to section (b) of this rule conferred upon a party the legal right to obtain discovery of the existence and contents of insurance agreements referred to therein. Marks v. Thompson, 282 N.C. 174 , 192 S.E.2d 311, 1972 N.C. LEXIS 925 (1972).

Section (b) of this rule authorizes pretrial discovery of information concerning automobile liability insurance carried by a defendant where the only issues raised by the pleadings relate to negligence, contributory negligence and damage. Marks v. Thompson, 14 N.C. App. 272, 188 S.E.2d 22, 1972 N.C. App. LEXIS 2104 , aff'd, 282 N.C. 174 , 192 S.E.2d 311, 1972 N.C. LEXIS 925 (1972).

Authority of Judge When Party Exercises Right to Obtain Discovery of Insurance Agreement. —

When a party elects to exercise the legal right to obtain discovery of the existence and contents of insurance agreements under section (b) of this rule, the discretionary authority conferred upon the judge relates only to the time, place and circumstances of such discovery. Marks v. Thompson, 282 N.C. 174 , 192 S.E.2d 311, 1972 N.C. LEXIS 925 (1972).

IV.Trial Preparation

Materials Prepared in Anticipation of Litigation Protected. —

Any materials prepared in anticipation of any litigation by the party from whom discovery is sought are protected under subsection (b)(3) of this rule. The protection is allowed not only materials prepared after the other party has secured an attorney, but also those prepared under circumstances in which a reasonable person might anticipate a possibility of litigation. Willis v. Duke Power Co., 291 N.C. 19 , 229 S.E.2d 191, 1976 N.C. LEXIS 932 (1976).

Trial court erred by ordering an attorney, his campaign committee, and committee employees to disclose to an opponent a copy of verbatim text their attorney copied into her laptop computer from the opponent’s client files because the text was the attorney’s opinion work product and was not discoverable, especially since the opponent already had the underlying, original documents in his possession; counsel did not copy entire documents or substantial parts of documents contained in the opponent’s files but inputted very short, select pieces of documents that she considered relevant to her clients’ litigation strategy; the trial court did not abuse its discretion in determining that the verbatim text did not contain confidential or privileged information. Boyce & Isley, PLLC v. Cooper, 195 N.C. App. 625, 673 S.E.2d 694, 2009 N.C. App. LEXIS 255 (2009).

Trial court did not abuse his discretion by not requiring an attorney, his campaign committee, and committee employees to destroy the verbatim text their attorney copied into her laptop computer from an opponent’s client files because the text at issue did not contain any privileged, sensitive, or confidential information. Boyce & Isley, PLLC v. Cooper, 195 N.C. App. 625, 673 S.E.2d 694, 2009 N.C. App. LEXIS 255 (2009).

Trial court did not abuse its discretion in ruling that documents a city withheld from a landowner were trial preparation materials under the North Carolina Public Records Act, G.S. 132-1.9(b), and were not subject to inspection because the documents contained mental impressions, conclusions, opinions, or legal theories of city attorneys or other agents of the city in reasonable anticipation of litigation; at the hearing to compel production of public records, the city argued that the materials withheld all related to its research and its taking a look at legal strategies related to possible zoning enforcement, not with respect to any of the claims that the landowner suggested they could pursue against the city with respect to an administrative inspection. Wallace Farm, Inc. v. City of Charlotte, 203 N.C. App. 144, 689 S.E.2d 922, 2010 N.C. App. LEXIS 498 (2010).

Scope of Attorney-Client Privilege. —

Protection of the attorney-client privilege is absolute under this rule and the privilege under the rule is identical in scope to the traditional privilege. Willis v. Duke Power Co., 291 N.C. 19 , 229 S.E.2d 191, 1976 N.C. LEXIS 932 (1976).

Scope of “Work Product” Exception. —

Although not a privilege, the “work product” or trial preparation exception is a “qualified immunity” and extends to all materials prepared “in anticipation of litigation or for trial by or for another party or by or for that other party’s consultant, surety, indemnitor, insurer or agent.” Willis v. Duke Power Co., 291 N.C. 19 , 229 S.E.2d 191, 1976 N.C. LEXIS 932 (1976).

Materials prepared in the ordinary course of business are not protected under subsection (b)(3) of this rule, nor does the protection extend to facts known by any party. Willis v. Duke Power Co., 291 N.C. 19 , 229 S.E.2d 191, 1976 N.C. LEXIS 932 (1976).

In a medical malpractice case, it appeared that documents generated pursuant to a hospital policy “for the reporting of all unexpected events” would not be entitled to protection under G.S. 1A-1 , N.C. R. Civ. P. 26(b)(3) because they would have been prepared in the ordinary course of business; remand was required, however, to determine whether the documents in question had been generated pursuant to that policy. Diggs v. Novant Health, Inc., 177 N.C. App. 290, 628 S.E.2d 851, 2006 N.C. App. LEXIS 983 (2006).

Notes and witness statements taken by the State Bar’s investigator were not discoverable on attorney’s appeal of disbarment until there was a showing by attorney that he had a substantial need of the materials in preparation of his case and that he was unable without undue hardship to obtain the substantial equivalent. North Carolina State Bar v. Harris, 137 N.C. App. 207, 527 S.E.2d 728, 2000 N.C. App. LEXIS 317 , op. withdrawn, sub. op., 139 N.C. App. 822, 535 S.E.2d 74, 2000 N.C. App. LEXIS 1037 (2000).

Physician Not Retained for Purpose of Litigation. —

In an action for negligence in treatment and diagnosis allegedly causing the death of a patient, taking the deposition of a physician after the date set by a court order for identifying and deposing expert witnesses was not a violation of subsection (b)(4) of this rule where, even though all doctors may be considered experts in that they possess a specialized knowledge of medicine, the physician was not retained for the purpose of litigation but had treated plaintiff ’s wife and his knowledge of her case arose before her death, and the purpose of the deposition was to elicit the doctor’s observations as to her medical condition. Turner v. Duke Univ., 91 N.C. App. 446, 372 S.E.2d 320, 1988 N.C. App. LEXIS 832 (1988), rev'd, 325 N.C. 152 , 381 S.E.2d 706, 1989 N.C. LEXIS 370 (1989).

Defense counsel may not interview medical malpractice plaintiff’s nonparty treating physicians privately without plaintiff’s express consent. Defendant instead must utilize the statutorily recognized methods of discovery enumerated in this rule. Crist v. Moffatt, 326 N.C. 326 , 389 S.E.2d 41, 1990 N.C. LEXIS 118 (1990).

Doctor Not Always Expert Witness. —

Although, by general definition, all doctors may be considered experts in that they possess a specialized knowledge of medicine beyond that of the layman, not every role of a doctor as a witness in a legal controversy is in the capacity of an “expert” witness. Turner v. Duke Univ., 325 N.C. 152 , 381 S.E.2d 706, 1989 N.C. LEXIS 370 (1989).

In a malpractice case, the Court of Appeals correctly concluded that in deposing doctor after July 17, 1987, university did not violate order requiring identification and deposition of expert witnesses prior to that date; university properly listed doctor as an ordinary witness since doctor was not questioned about the standard of patient’s care at the university, the university did not retain doctor for the purpose of litigation, his knowledge of patient’s case arose before her death and before the litigation, and the purpose of the doctor’s depositions was to elicit his observations as to the patient’s medical condition. Turner v. Duke Univ., 325 N.C. 152 , 381 S.E.2d 706, 1989 N.C. LEXIS 370 (1989).

Inadequate Time to Prepare Response as Grounds for Continuance. —

In malpractice action defendant’s supplemental response to plaintiffs’ interrogatories and plaintiffs’ deposing of the new expert defense witness disclosed thereby a little over one day before trial began came too close to trial time to allow plaintiffs adequate time to prepare a response to the newly disclosed information; thus trial court erred in refusing to grant plaintiffs’ motion for continuance. Green ex rel. Green v. Maness, 69 N.C. App. 403, 316 S.E.2d 911, 1984 N.C. App. LEXIS 3484 (1984).

Work Product Immunity Granted in Error. —

Defendant attorney’s due process rights were violated by Disciplinary Hearing Committee’s failure to compel production of State Bar investigator’s witness interview notes and memoranda to defense counsel, insofar as they related to matters to which the investigator testified; by allowing its investigator to testify in defendant’s disciplinary hearing, the State Bar waived any immunity under the attorney-work product doctrine as to matters testified to by the investigator that were contained in his notes. North Carolina State Bar v. Harris, 139 N.C. App. 822, 535 S.E.2d 74, 2000 N.C. App. LEXIS 1037 (2000).

V.Protective Orders

The trial judge’s order under section (c) of this rule is discretionary and is reviewable only for abuse of that discretion. Booker v. Everhart, 33 N.C. App. 1, 234 S.E.2d 46, 1977 N.C. App. LEXIS 2089 (1977), rev'd, 294 N.C. 146 , 240 S.E.2d 360, 1978 N.C. LEXIS 1192 (1978).

The trial judge does not have unlimited authority to issue a protective order. An order under section (c) of this rule is, however, discretionary, and is reviewable only for abuse of discretion. Williams v. State Farm Mut. Auto. Ins. Co., 67 N.C. App. 271, 312 S.E.2d 905, 1984 N.C. App. LEXIS 3048 (1984); Ritter v. Kimball, 67 N.C. App. 333, 313 S.E.2d 1, 1984 N.C. App. LEXIS 3058 (1984).

Protective orders pursuant to section (c) of this rule are within the trial court’s discretion and will only be disturbed for an abuse of discretion. Hartman v. Hartman, 82 N.C. App. 167, 346 S.E.2d 196, 1986 N.C. App. LEXIS 2428 (1986), aff'd, 319 N.C. 396 , 354 S.E.2d 239, 1987 N.C. LEXIS 2626 (1987).

Motion Proper. —

Sanctions were properly granted against plaintiff for filing a motion for sanctions under G.S. 1A-1 , N.C. R. Civ. P. 11(a) against defendant where: (1) plaintiff alleged numerous discovery violations and other alleged misconduct, but had not filed a motion to compel until after summary judgment had been entered and his claims were dismissed and the summary judgment was appealed; (2) although plaintiff challenged defendant’s motion for a protective order, that motion properly challenged plaintiff’s notice of deposition as seeking testimony on topics beyond the scope of G.S. 1A-1 , N.C. R. Civ. P. 26; (3) the trial court’s findings that plaintiff attempted to create a discovery dispute and that his arguments about discovery violations were improper were supported; and (4) and the finding that plaintiff’s motion was filed for the improper purpose of costing defendant unnecessary time and expense was supported. Fatta v. M & M Props. Mgmt., 224 N.C. App. 18, 735 S.E.2d 836, 2012 N.C. App. LEXIS 1376 (2012), cert. denied, 571 U.S. 1012, 134 S. Ct. 623, 187 L. Ed. 2d 404, 2013 U.S. LEXIS 8148 (2013).

The trial court did not abuse its discretion in denying “work product” protection to a large number of the defendants-insurers’ claims diary entries, particularly ones prepared in the course of the investigatory process prior to the denial of plaintiffs’s claim. Evans v. United Servs. Auto. Ass'n, 142 N.C. App. 18, 541 S.E.2d 782, 2001 N.C. App. LEXIS 48 , cert. denied, 353 N.C. 371 , 547 S.E.2d 810, 2001 N.C. LEXIS 306 (2001).

Sanctions. —

The trial court properly denied the plaintiff’s motion for relief from a judgment under this rule that struck her designation of an expert witness, where the plaintiff sought no extension of time to designate expert witnesses in a medical malpractice case, did not offer any excuse for the late designation, and acknowledged that the failure to designate was due to her attorney’s negligence. Briley v. Farabow, 348 N.C. 537 , 501 S.E.2d 649, 1998 N.C. LEXIS 333 (1998).

Sanctions Inappropriate for Alleged Violation of Protective Order No Longer In Place. —

Because there was no binding protective order in effect under N.C. R. Civ. P. 26(f1) since the parties never stipulated to having such an order carrying over from a previous voluntarily dismissed medical malpractice action brought by a plaintiff, and the plaintiff did not violate Rule 26(e) with regard to supplementing its answers to interrogatories, no basis existed for a trial court’s exclusion of an expert witness’ testimony as a sanction imposed upon the plaintiff. Barham v. Hawk, 165 N.C. App. 708, 600 S.E.2d 1, 2004 N.C. App. LEXIS 1504 (2004), aff'd, 360 N.C. 358 , 625 S.E.2d 778, 2006 N.C. LEXIS 18 (2006).

Protective Order Upheld. —

Order of trial court granting plaintiff’s counsel’s motion for a protective order, made pursuant to a notice filed by defendant’s counsel of an intention to depose plaintiff’s counsel and to videotape the proceeding, whereby an oral deposition would not be had, but defendant would be allowed to use interrogatories, did not constitute an abuse of discretion. Weaver v. Weaver, 88 N.C. App. 634, 364 S.E.2d 706, 1988 N.C. App. LEXIS 1187 (1988).

Protective order was appropriate in malpractice action where request was tardy and constituted an undue burden as it covered voluminous medical records replete with confidential information that would require exhaustive scrutiny and extensive redaction. Fallis v. Watauga Med. Ctr., Inc., 132 N.C. App. 43, 510 S.E.2d 199, 1999 N.C. App. LEXIS 37 (1999).

Protective Order Improper. —

Protective order quashing subpoenas duces tecum issued to plaintiffs under G.S. 1A-1 , N.C. R. Civ. P. 26(c) was vacated as the subpoenas were issued by courts in other states, and the trial court lacked authority to quash them; however, defendant could have attempted to enforce the subpoenas in the out-of-state courts and attempted to introduce the documents obtained at the trial, but did not do so, and defendant was not deprived of the opportunity to obtain and present evidence in support of its claims. Capital Res., LLC v. Chelda, Inc., 223 N.C. App. 227, 735 S.E.2d 203, 2012 N.C. App. LEXIS 1251 (2012), cert. denied, 366 N.C. 436 , 736 S.E.2d 191, 2013 N.C. LEXIS 79 (2013).

Modification to Protective Order Disallowed. —

Where plaintiffs agreed to protective order and sealing provisions, arguments relating to constitutionality and presumption of access were not available to support their request for removal of protective order; wholesale declassification of the record was not, in any case, deemed appropriate. Longman v. Food Lion, Inc., 186 F.R.D. 331, 1999 U.S. Dist. LEXIS 3071 (M.D.N.C. 1999).

Where plaintiffs sought to modify protective order that they had previously agreed to, on the grounds that (1) they wanted to submit the record on appeal without the administrative burden of filing it under seal, and (2) they wanted to provide material to class members and the public at large, they failed to show a change in circumstances sufficient to warrant a reconsideration of the seal. Longman v. Food Lion, Inc., 186 F.R.D. 331, 1999 U.S. Dist. LEXIS 3071 (M.D.N.C. 1999).

Protective Order with Respect to MHOD Petition Affirmed. —

Plaintiff seller of land whose petition for Manufactured Home Overlay District (MHOD) rezoning was denied was precluded from examining a city mayor about his actions, intentions or motives with respect to the city’s denial and with respect to any other quasi-judicial or legislative matters before the council. Northfield Dev. Co. v. City of Burlington, 136 N.C. App. 272, 523 S.E.2d 743, 2000 N.C. App. LEXIS 2 , aff'd in part, 352 N.C. 671 , 535 S.E.2d 32, 2000 N.C. LEXIS 744 (2000).

Award of expenses in malpractice case against defendant was justified under section (c) of this rule because defendant’s motion to quash was denied and under G.S. 1A-1 , Rule 37(a)(4) because plaintiffs’ motion to compel was granted. Green ex rel. Green v. Maness, 69 N.C. App. 403, 316 S.E.2d 911, 1984 N.C. App. LEXIS 3484 (1984).

Nullified by Dismissal. —

Where plaintiff entered a dismissal in her action for claim and delivery, her argument that trial court erred in entering protective order concerning possession was moot, as the protective order was nullified by plaintiff’s dismissal. Doe v. Duke Univ., 118 N.C. App. 406, 455 S.E.2d 470, 1995 N.C. App. LEXIS 240 (1995).

Protective Order to Safeguard Fifth Amendment Privilege. —

Where an employee physically appeared at a deposition and invoked his Fifth Amendment privilege, the imposition of sanctions for failure to appear was not appropriate as the better course of action would have been for the employee to apply for a protective order pursuant to subsection (c) of this rule. Bd. of Drainage Comm'rs Drainage Dist. No. 3 v. Dixon, 158 N.C. App. 509, 581 S.E.2d 469, 2003 N.C. App. LEXIS 1181 (2003), aff'd, 358 N.C. 214 , 593 S.E.2d 763, 2004 N.C. LEXIS 208 (2004).

Materials Covered by the Attorney-Client Privilege. —

Twenty-one insurance diary entries which consisted of either requests to counsel for advice and opinions or counsel’s reply to such requests were properly found by the trial court to be protected by the attorney-client privilege. Evans v. United Servs. Auto. Ass'n, 142 N.C. App. 18, 541 S.E.2d 782, 2001 N.C. App. LEXIS 48 , cert. denied, 353 N.C. 371 , 547 S.E.2d 810, 2001 N.C. LEXIS 306 (2001).

Materials Not Covered by the Attorney-Client Privilege. —

The trial court properly ordered the production of an investigative report compiled by an independent claim adjusters for the defendants-insurers as well as some, but not all, of defendants’ internal memoranda and a part of defendants’ on-line procedures manual, in spite of the fact that the defendants claimed it was covered by the Attorney-Client privilege. Evans v. United Servs. Auto. Ass'n, 142 N.C. App. 18, 541 S.E.2d 782, 2001 N.C. App. LEXIS 48 , cert. denied, 353 N.C. 371 , 547 S.E.2d 810, 2001 N.C. LEXIS 306 (2001).

Protection of Social Security Number. —

The trial court did not abuse its discretion because its order compelling discovery of an employee’s social security number fell squarely within the exemption for court orders in both G.S. 132-1.10 , and the original Federal Privacy Act of 1974. The trial court took measures to minimize the potential loss of privacy resulting from the disclosure of the social security number, requiring that all records be purged upon the completion of the lawsuit pursuant to G.S. 1A-1 , N.C. R. Civ. P. 26(c). Fulmore v. Howell, 189 N.C. App. 93, 657 S.E.2d 437, 2008 N.C. App. LEXIS 429 (2008), cert. denied, 555 U.S. 1171, 129 S. Ct. 1318, 173 L. Ed. 2d 586, 2009 U.S. LEXIS 1499 (2009).

Appeal. —

County could not appeal an interlocutory order requiring a former manager to appear for a deposition because the county was not deprived of a substantial right nor did the county suffer injury warranting immediate review, as the order did not bar good-faith objections to the disclosure of privileged information at the deposition. Royal Oak Concerned Citizens Ass'n v. Brunswick County, 233 N.C. App. 145, 756 S.E.2d 833, 2014 N.C. App. LEXIS 318 (2014).

Appeal of Order Allowing Expert’s Deposition. —

Expert witness could not appeal an order allowing the witness’s deposition because, inter alia, the order did not bar the witness from subsequently seeking a protective order. In re Accutane Litig., 233 N.C. App. 319, 758 S.E.2d 13, 2014 N.C. App. LEXIS 319 (2014).

VI.Decisions under Prior Law

Editor’s Note. —

The cases cited below were decided under former G.S. 8-71 .

The competency, in proper cases, of written depositions for the production of proof in civil actions is unquestioned. In such cases, it sufficiently complies with the constitutional mandate if the testimony was taken under oath in the manner prescribed by law, with opportunity to cross-examine. Chesson v. Kieckhefer Container Co., 223 N.C. 378 , 26 S.E.2d 904, 1943 N.C. LEXIS 276 (1943).

Right of Cross-Examination. —

Where a cause has been referred and regularly proceeded with before a commissioner to take a deposition therein, the party has a right to cross-examine the witnesses of the opposing party, which may not be denied him as a matter of law. Sugg v. St. Mary's Oil Engine Co., 193 N.C. 814 , 138 S.E. 169, 1927 N.C. LEXIS 466 (1927).

Taking of Deposition Optional. —

A party may take a deposition; he is not obliged to do so and it is optional with him whether he will or not. Sparrow v. Blount, 90 N.C. 514 , 1884 N.C. LEXIS 264 (1884).

Former G.S. 8-71 did not contemplate taking the deposition of a person disqualified to give evidence in a case. Yow v. Pittman, 241 N.C. 69 , 84 S.E.2d 297, 1954 N.C. LEXIS 546 (1954); Waldron Buick Co. v. GMC, 251 N.C. 201 , 110 S.E.2d 870, 1959 N.C. LEXIS 541 (1959); Lockwood v. McCaskill, 261 N.C. 754 , 136 S.E.2d 67, 1964 N.C. LEXIS 566 (1964).

Defendants could not take the deposition of plaintiff ’s physician, because under G.S. 8-53 he was disqualified to testify as to information he acquired in attending plaintiff in a professional capacity. Waldron Buick Co. v. GMC, 251 N.C. 201 , 110 S.E.2d 870, 1959 N.C. LEXIS 541 (1959).

Hence, it had to be considered in connection with G.S. 8-53 , relating to confidential communications between physician and patient. Yow v. Pittman, 241 N.C. 69 , 84 S.E.2d 297, 1954 N.C. LEXIS 546 (1954); Waldron Buick Co. v. GMC, 251 N.C. 201 , 110 S.E.2d 870, 1959 N.C. LEXIS 541 (1959); Lockwood v. McCaskill, 261 N.C. 754 , 136 S.E.2d 67, 1964 N.C. LEXIS 566 (1964).

No Authority to Enter Order in Chambers for Pretrial Examination of Physician Regarding Confidential Communications. —

The judge of the superior court has no authority to enter an order in chambers for the pretrial examination of a physician in regard to confidential communications of his patient. Yow v. Pittman, 241 N.C. 69 , 84 S.E.2d 297, 1954 N.C. LEXIS 546 (1954).

Leading Questions. —

It is discretionary with the trial judge whether or not answers to leading questions shall be striken out of a deposition. Bank v. Carr, 130 N.C. 479 , 41 S.E. 876, 1902 N.C. LEXIS 86 (1902).

Rule 27. Depositions before action or pending appeal.

  1. Before action. —
    1. Petition. —  A person who desires to perpetuate that person’s own testimony or the testimony of another person regarding any matter may file a verified petition in the appropriate court in a county where any expected adverse party resides. The petition shall be entitled in the name of the petitioner and shall show: (i) that the petitioner expects that the petitioner, or  the petitioner’s personal representative, heirs or devisees, will be a party to an action cognizable in any court, but that the petitioner is presently unable to bring it or cause it to be brought, (ii) the subject matter of the expected action and the petitioner’s reasons for desiring to perpetuate it, (iii) the facts which the petitioner desires to establish by the proposed testimony and the petitioner’s reasons for desiring to perpetuate it, (iv) the names or a description of the persons the petitioner expects will be adverse parties and their addresses so far as known, and (v) the names and addresses of the persons to be examined and the substance of the testimony which the petitioner expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony.
    2. Notice and Service. —  The petitioner shall thereafter serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. At least 20 days before the date of hearing (or within such time as the court may direct) the notice shall be served in the manner provided in Rule 4(j)(1) or (2) for service of summons; but if such service cannot with due diligence be made upon any expected adverse party named in the petition, the court may make such order as is just for service by publication or otherwise, and shall appoint, for persons not served in the manner provided in Rule 4(j)(1) or (2), an attorney who shall represent them, in case they are not otherwise represented. If any expected adverse party is a minor or incompetent the provisions of Rule 17(c) apply.
    3. Order and Examination. —  If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written questions. The depositions may then be taken in accordance with these rules; and the court may make orders of the character provided for by Rules 34 and 35. For the purpose of applying these rules to depositions for perpetuating testimony, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed.
    4. Use of Deposition. —  If a deposition to perpetuate testimony is taken under these rules or if, although not so taken, it would be admissible in evidence in the courts of the United States or the state in which it is taken, it may be used in any action involving the same subject matter subsequently brought in a court of this State in accordance with the provisions of Rule 32(a), or in any other court under whose rules it is admissible.
  2. Pending appeal. —  If an appeal has been taken from the determination of any court or if petition for review or certiorari has been served and filed, or before the taking of an appeal or the filing of a petition for review or certiorari if the time therefor has not expired, the court in which the determination was made may allow the taking of the depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the trial court. In such case the party who desires to perpetuate the testimony may make a motion in the trial court for leave to take the depositions, upon the same notice and service thereof as if the action was pending in the trial court. The motion shall show (i) the names and addresses of the persons to be examined and the substance of the testimony which the party expects to elicit from each; (ii) the reasons for perpetuating their testimony. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken and may make orders of the character provided for by Rules 34 and 35, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in these rules for depositions taken in actions pending in the trial court.
  3. Perpetuation by action. —  This rule does not limit the power of a court to entertain an action to perpetuate testimony.

History. 1967, c. 954, s. 1; 1975, c. 762, s. 2; 2011-284, s. 5.

Comment

The objectives here are to provide simple procedures for discovery when the purpose is preservation of testimony or the obtaining of information with which to prepare a complaint and further, in appropriate cases, to provide for discovery pending appeal.

Section (a). — Former §§ 8-85 to 8-88 provided for a special proceeding or a civil action to perpetuate testimony. Under section (a), the most significant change in respect to perpetuating testimony is that no summons is necessary. But there is a requirement of notice.

Section (b) [Now Deleted]. — This section deals with discovery for the purpose of obtaining information to prepare a complaint. It carries forward all of the protections to a prospective defendant incorporated in former § 1-121. But, again, no service of process is necessary. After the contemplated order is obtained, the procedure set forth in the other discovery rules will apply.

Section (c) [Now Section (b)]. — This section adds something new in providing for the situation where it may be desirable to take a deposition pending an appeal.

OFFICIAL COMMENT

Comment to the 1975 Amendment.

This amendment deletes present Rule 27(b) which provided for depositions before action to obtain information to prepare a complaint. This provision and its predecessor generated about one half of all the appeals from orders relating to discovery in the North Carolina courts, most of them determined adversely to the party who initiated the procedure. Whatever may have been the justification for this procedure under the former code pleading practice in North Carolina, the adoption of the liberalized pleading requirements of Rule 8 would appear to have eliminated the necessity for retaining it.

The former sections (c) and (d) are redesignated as sections (b) and (c) respectively.

Effect of Amendments.

Session Laws 2011-284, s. 5, effective June 24, 2011, in subdivision (a)(1), deleted “legatees” following “heirs” in the third sentence, and made minor stylistic changes throughout; and in subsection (b), substituted “the party” for “he” in the fourth sentence.

Legal Periodicals.

For article, “The 1980 Amendments to the Federal Rules of Civil Procedure and Proposals for North Carolina Practice,” see 16 Wake Forest L. Rev. 915 (1980).

CASE NOTES

For cases construing former section (b) of this rule, which was eliminated by the 1975 amendment, see In re Lewis, 11 N.C. App. 541, 181 S.E.2d 806, 1971 N.C. App. LEXIS 1574 , cert. denied, 279 N.C. 394 , 183 S.E.2d 242, 1971 N.C. LEXIS 820 (1971); Williams v. Blount, 14 N.C. App. 139, 187 S.E.2d 464, 1972 N.C. App. LEXIS 2060 (1972).

Rule 28. Persons before whom depositions may be taken.

  1. Within the United States. —  Within the United States or within a territory or insular possession subject to the dominion of the United States, depositions shall be taken before a person authorized to administer oaths by the laws of this State, of the United States or of the place where the examination is held, or before a person appointed by the court in which the action is pending. A person so appointed has power to administer oaths and take testimony.
  2. In foreign countries. —  Depositions may be taken in a foreign country:
    1. Pursuant to any applicable treaty or convention;
    2. Pursuant to a letter of request, whether or not captioned a letter rogatory;
    3. On notice before a person authorized to administer oaths in the place where the examination is held, either by the law thereof or by the law of the United States; or
    4. Before a person commissioned by the court, and a person so commissioned shall have the power by virtue of his commission to administer any necessary oath and take testimony. A commission or a letter of request shall be issued on application and notice and on terms that are just and appropriate. It is not requisite to the issuance of a commission or a letter of request that the taking of the deposition in any other manner is impracticable or inconvenient; and both a commission and a letter of request may be issued in proper cases. A notice or commission may designate the person before whom the deposition is to be taken either by name or descriptive title. A letter of request may be addressed “To the Appropriate Authority in (here name the country).” When a letter of request or any other device is used pursuant to any applicable treaty or convention, it shall be captioned in the form prescribed by that treaty or convention. Evidence obtained in response to a letter of request need not be excluded merely because the testimony was not taken under oath, or any similar departure from the requirements for depositions taken within the United States under these rules.
  3. Disqualification for interest. —  Unless the parties agree otherwise by stipulation as provided in Rule 29, no deposition shall be taken before a person who is any of the following:
    1. A relative, employee, or attorney of any of the parties;
    2. A relative or employee of an attorney of the parties;
    3. Financially interested in the action; or
    4. An independent contractor if the contractor or the contractor’s principal is under a blanket contract for the court reporting services with an attorney of the parties, party to the action, or party having a financial interest in the action. Notwithstanding the disqualification under this rule, the party desiring to take the deposition under a stipulation shall disclose the disqualification in writing in a Rule 30(b) notice of deposition and shall inform all parties to the litigation on the record of the existence of the disqualification under this rule and of the proposed stipulation waiving the disqualification. Any party opposing the proposed stipulation as provided in the notice of deposition shall give timely written notice of his or her opposition to all parties.

      For the purposes of this rule, a blanket contract means a contract to perform court reporting services over a fixed period of time or an indefinite period of time, rather than on a case by case basis, or any other contractual arrangement which compels, guarantees, regulates, or controls the use of particular court reporting services in future cases.

      Notwithstanding any other provision of law, a person is prohibited from taking a deposition under any contractual agreement that requires transmission of the original transcript without the transcript having been certified as provided in Rule 30(f) by the person before whom the deposition was taken.

      Notwithstanding the provisions of this subsection, a person otherwise disqualified from taking a deposition under this subsection may take a deposition provided that the deposition is taken by videotape in compliance with Rule 30(b)(4) and Rule 30(f), and the notice for the taking of the deposition states the name of the person before whom the deposition will be taken and that person’s relationship, if any, to a party or a party’s attorney, provided that the deposition is also recorded by stenographic means by a nondisqualified person.

  4. Depositions to be used in foreign countries.
    1. A person desiring to take depositions in this State to be used in proceedings pending in the courts of any other country may present to a judge of the superior or district court a commission, order, notice, consent, or other authority under which the deposition is to be taken, whereupon it shall be the duty of the judge to issue the necessary subpoenas pursuant to Rule 45. Orders of the character provided in Rules 30(b), 30(d), and 45(b) may be made upon proper application therefor by the person to whom such subpoena is directed. Failure by any person without adequate excuse to obey a subpoena served upon him pursuant to this rule may be deemed a contempt of the court from which the subpoena issued.
    2. The commissioner herein provided for shall not proceed to act under and by virtue of his appointment until the party seeking to obtain such deposition has deposited with him a sufficient sum of money to cover all costs and charges incident to the taking of the deposition, including such witness fees as are allowed to witnesses in this State for attendance upon the superior court. From such deposit the commissioner shall retain whatever amount may be due him for services, pay the witness fees and other costs that may have been incurred by reason of taking such deposition, and if any balance remains in his hands, he shall pay the same to the party by whom it was advanced.

History. 1967, c. 954, s. 1; 1975, c. 762, s. 2; 1995, c. 389, s. 4; 1999-264, s. 1; 2001-379, s. 4; 2011-247, s. 2.

Comment

This rule is the same as the federal rule except that “of this State” has been inserted in section (a), and section (d) has been added.

Under section (a) depositions for use in North Carolina need not be taken within the State. They may be taken wherever the party taking the deposition desires, subject to the protective provisions of Rule 30(b). However, a subpoena to require a witness to attend the deposition will not run outside the State. Many states have statutes comparable to present G.S. 8-84 , making their subpoena power available to compel residents to appear for depositions to be used in foreign states.

Section (d) has no counterpart in the federal rules. It is designed to permit courts in this State to assist parties in proceedings in other states to take depositions in this State for use in such proceedings. North Carolina now has such a statute as indicated above. This rule also requires the party taking a deposition to make a deposit insuring the payment of all fees and costs incident to the taking of the deposition. This practice will be new.

OFFICIAL COMMENT

Comment to the 1975 Amendment.

This section is amended slightly to conform to the federal rule, but its substance remains unchanged.

Legal Periodicals.

For article, “The 1980 Amendments to the Federal Rules of Civil Procedure and Proposals for North Carolina Practice,” see 16 Wake Forest L. Rev. 915 (1980).

For article, “Taking a Deposition Under North Carolina Law,” see 21 N.C. Cent. L.J. 215 (1995).

CASE NOTES

Analysis

I.In General

Foreign Depositions. —

In a contract case in which the buyers asserted that the venue in the forum selection clause of the contract was seriously inconvenient because some witnesses were located in North Carolina and Minnesota and those states had not passed the Uniform Foreign Depositions Act, the court granted the sellers’ Fed. R. Civ. P. 12(b)(3) motion after determining that N. C. R. Civ. P. 28(d)(1) and Minn. R. Civ. P. 45.04 provided for similar enforcement mechanisms. Navickas v. Aircenter, Inc., 2003 U.S. Dist. LEXIS 14061 (E.D. Tenn. May 23, 2003).

II.Decisions under Prior Law

Editor’s Note. —

The cases cited below were decided under former G.S. 8-71 .

Qualification of Commissioner Presumed. —

A commissioner appointed to take depositions will be presumed to be properly qualified until the contrary is shown. Gregg v. Mallet, 111 N.C. 74 , 15 S.E. 936, 1892 N.C. LEXIS 124 (1892).

The commissioner should not be related to either of the parties, but the burden of proving this relationship rests upon the movant. Younce v. Broad River Lumber Co., 155 N.C. 239 , 71 S.E. 329, 1911 N.C. LEXIS 381 (1911).

Mistake in Name. —

Where notice to take depositions correctly stated the name of the commissioner appointed to take them and was otherwise regular, it was error for the trial judge to exclude the depositions as evidence on account of a slight error in the spelling of the commissioner’s name. Hardy v. Phoenix Mut. Life Ins. Co., 167 N.C. 22 , 83 S.E. 5, 1914 N.C. LEXIS 44 (1914).

Rule 29. Stipulations regarding discovery procedure.

Unless the court orders otherwise, the parties may by written stipulation (i) provide that depositions may be taken before any person, at any time or place, upon any notice, and in any manner and when so taken may be used like other depositions, and (ii) modify the procedures provided by these rules for other methods of discovery.

History. 1967, c. 954, s. 1; 1975, c. 762, s. 1.

Comment

This rule is identical with federal Rule 29. In many cases, saving time and expense is just as important as strict formality. It should be noted that the stipulation relates only to the formalities of taking depositions, and not to their use at trial. Hence, parties may stipulate as to time, place, and manner of taking of a deposition without waiving objections to its admissibility under Rule 26(d).

OFFICIAL COMMENT

Comment to the 1975 Amendment.

[Prior to the 1975 amendment] there is [was] no provision for stipulations varying the procedures by which methods of discovery other than depositions are [were] governed. It is common practice for parties to agree on such variations, and the amendment recognizes such agreements and provides a formal mechanism in the rules for giving them effect. Any stipulation varying the procedures may be superseded by court order.

Legal Periodicals.

For article, “The 1980 Amendments to the Federal Rules of Civil Procedure and Proposals for North Carolina Practice,” see 16 Wake Forest L. Rev. 915 (1980).

Rule 30. Depositions upon oral examination.

  1. When depositions may be taken. —  After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination. Leave of court, granted with or without notice, must be obtained only if the plaintiff seeks to take a deposition prior to the expiration of 30 days after service of the summons and complaint upon any defendant or service made under Rule 4(e), except that leave is not required (i) if a defendant has served a notice of taking deposition or otherwise sought discovery, or (ii) if special notice is given as provided in subsection (b)(2) of this rule. The attendance of witnesses may be compelled by subpoena as provided in Rule 45, provided that no subpoena need be served on a deponent who is a party or an officer, director or managing agent of a party, provided the party has been served with notice pursuant to subsection (b)(1) of this rule. The deposition of a person confined in prison or of a patient receiving in-patient care in or confined to an institution or hospital for the mentally ill or mentally handicapped may be taken only by leave of court on such terms as the court prescribes.
  2. Notice of examination; general requirements; place of examination; special notice; nonstenographic recording; production of documents and things; deposition of organization. —
    1. A party desiring to take the deposition of any person upon oral examination shall give notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs. If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice. The notice shall be served on all parties at least 15 days prior to the taking of the deposition when any party required to be served resides without the State and shall be served on all parties at least 10 days prior to the taking of the deposition when all of the parties required to be served reside within the State. Depositions of parties, officers, directors or managing agents of parties or of other persons designated pursuant to subsection (b)(6) hereof to testify on behalf of a party may be taken only at the following places:A resident of the State may be required to attend for examination by deposition only in the county wherein he resides or is employed or transacts his business in person. A nonresident of the State may be required to attend for such examination only in the county wherein he resides or within 50 miles of the place of service except that a judge, as defined by subdivision (h) of this rule, may, upon motion showing good cause, require that a party who selected the county where the action is pending as the forum for the action or an officer, director or managing agent of such a party, or a person designated pursuant to subsection (b)(6) hereof to testify on behalf of such a party present himself for the taking of his deposition in the county where the action is pending. The judge upon granting the motion may make any other orders allowed by Rule 26(c) with respect thereto, including orders with respect to the expenses of the deponent.
    2. Leave of court is not required for the taking of a deposition by plaintiff if the notice (i) states that the person to be examined is about to go out of the county where the action is pending and more than 100 miles from the place of trial, or is about to go out of the United States, or is bound on a voyage to sea, and will be unavailable for examination unless his deposition is taken before expiration of the 30-day period, and (ii) sets forth facts to support the statement. The plaintiff ’s attorney shall sign the notice, and his signature constitutes a certification by him that to the best of his knowledge, information, and belief the statement and supporting facts are true. The sanctions provided by Rule 11 are applicable to the certification.If a party shows that when he was served with notice under this subsection (b)(2) he was unable through the exercise of diligence to obtain counsel to represent him at the taking of the deposition, the deposition may not be used against him.
    3. The court may for cause shown enlarge or shorten the time for taking the deposition.
    4. Unless the court orders otherwise, testimony at a deposition may be recorded by sound recording, sound-and-visual, or stenographic means. If the testimony is to be taken by other means in addition to or in lieu of stenographic means, the notice shall state the methods by which it shall be taken and shall state whether a stenographer will be present at the deposition. In the case of a deposition taken by stenographic means, the party that provides for the stenographer shall provide for the transcribing of the testimony taken. If the deposition is by sound recording only, the party noticing the deposition shall provide for the transcribing of the testimony taken. If the deposition is by sound-and-visual means, the appearance or demeanor of deponents or attorneys shall not be distorted through camera techniques. Regardless of the method stated in the notice, any party or the deponent may have the testimony recorded by stenographic means.
    5. A party deponent, deponents who are officers, directors or managing agents of parties and other persons designated pursuant to subsection (b)(6) hereof to testify on behalf of a party may not be served with a subpoena duces tecum, but the notice to a party for the deposition of such a deponent may be accompanied by a request made in compliance with Rule 34 for the production of documents and tangible things at the taking of the deposition. The procedure of Rule 34, except as to time for response, shall apply to the request. When a notice to take such a deposition is accompanied by a request made in compliance with Rule 34 the notice and the request must be served at least 15 days earlier than would otherwise be required by Rule 30(b)(1), and any objections to such a request must be served at least seven days prior to the taking of the deposition.
    6. A party may in his notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which he will testify. A subpoena shall advise a nonparty organization of its duty to make such a designation. It shall not be necessary to serve a subpoena on an organization which is a party, but the notice, served on a party without an accompanying subpoena shall clearly advise such of its duty to make the required designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This subsection (b)(6) does not preclude taking a deposition by any other procedure authorized in these rules.
    7. The parties may stipulate in writing or the court may upon motion order that a deposition be taken by telephone. For the purposes of this rule and Rules 28(a), 37(a)(1) and 45(d), a deposition taken by telephone is taken in the district and the place where the deponent is to answer questions propounded to him.
  3. Examination and cross-examination; record of examination; oath; declaration; objections. —  Examination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of Rule 43(b). The person before whom the deposition is to be taken shall put the deponent on oath and shall personally, or by someone acting under the person’s direction and in the person’s presence, record the testimony of the deponent. If a deponent lacks the government-issued photographic identification necessary for the deponent to be put on oath by the person before whom the deposition is taken, the deponent’s testimony may be taken upon the deponent’s signing a declaration stating that the deponent’s testimony is given under penalty of perjury. The testimony shall be taken stenographically or recorded by any other means ordered in accordance with subsection (b)(4) of this rule. If requested by one of the parties, the testimony shall be transcribed.All objections made at the time of the examination to the qualifications of the person before whom the deposition is taken, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted upon the deposition by the person before whom the deposition is taken. Subject to any limitations imposed by orders entered pursuant to Rule 26(c) or 30(d), evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties may serve written questions in a sealed envelope on the party who served the notice of taking the deposition, and he shall transmit them to the person before whom the deposition is to be taken who shall open them at the deposition, propound them to the witness and record the answers verbatim.
  4. Motion to terminate or limit examination. —  At any time during the taking of the deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, a judge of the court in which the action is pending or any judge in the county where the deposition is being taken may order before whom the examination is being taken to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in Rule 26(c). If the order made terminates the examination, it shall be resumed thereafter only upon the order of a judge of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.
  5. Submission to deponent; changes; signing. —  The sound-and-visual recording, or the transcript of it, if any, the transcript of the sound recording, or the transcript of a deposition taken by stenographic means, shall be submitted to the deponent for examination and shall be reviewed by the deponent, unless such examination and review are waived by the deponent and by the parties. If there are changes in form or substance, the deponent shall sign a statement reciting such changes and the reasons given by the deponent for making them. The person administering the oath shall indicate in the certificate prescribed by subdivision (f)(1) whether any review was requested and, if so, shall append any changes made by the deponent. The certificate shall then be signed by the deponent, unless the parties by stipulation waive the signing or the deponent is ill or cannot be found or refuses to sign. If the certificate is not signed by the deponent within 30 days of its submission to him, the person before whom the deposition was taken shall sign the certificate and state on the certificate the fact of the waiver or of the illness or absence of the deponent or the fact of the refusal or failure to sign together with the reason, if any, given therefor; and the deposition may then be used as fully as though the certificate were signed unless on a motion to suppress under Rule 32(d)(4) the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.
  6. Certification; exhibits; copies. —
    1. The person authorized to administer the oath shall certify that the deposition is a true record of the testimony given by the deponent and either that (i) the deponent was duly sworn by the person or (ii) the deponent signed a declaration because the oath was not administered. This certificate shall be in writing and accompany the sound-and-visual or sound recording or transcript of the deposition. The person shall then place the deposition in an envelope or package endorsed with the title of the action and marked “Deposition of (here insert name of witness)” and shall personally deliver it or mail it by first class mail to the party taking the deposition or the party’s attorney who shall preserve it as the court’s copy.Documents and things produced for inspection during the examination of the deponent shall, upon the request of a party, be marked for identification and annexed to and returned with the deposition, and may be inspected and copied by any party, except that (i) the person producing the materials may substitute copies to be marked for identification, if he affords to all parties fair opportunity to verify the copies by comparison with the originals, and (ii) if the person producing the materials requests their return, the person before whom the deposition is taken shall mark them, give each party an opportunity to inspect and copy them, and return them to the person producing them, and the materials may then be used in the manner as if annexed to and returned with the deposition. Any party may move for an order that the original be annexed to and returned with the deposition to the court, pending final disposition of the case.
    2. Upon payment of reasonable charges therefor, the person administering the oath shall furnish a copy of the deposition to any party or to the deponent.
    3. Repealed by Session Laws 2005-138, s. 3, effective October 1, 2005.
  7. Failure to attend or to serve subpoena; expenses. —
    1. If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice, the judge may order the party giving the notice to pay to such other party the reasonable expenses incurred by him and his attorney in attending, including reasonable attorney’s fees.
    2. If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon him and the witness because of such failure does not attend, and if another party attends in person or by attorney because he expects the deposition of that witness to be taken, the judge may order the party giving the notice to pay to such other party the reasonable expenses incurred by him and his attorney in attending, including reasonable attorney’s fees.
  8. Judge; definition. —
    1. In respect to actions in the superior court, a judge of the court in which the action is pending shall, for the purposes of this rule, and Rule 26, Rule 31, Rule 33, Rule 34, Rule 35, Rule 36 and Rule 37, be a superior court judge who has jurisdiction pursuant to G.S. 7A-47.1 or G.S. 7A-48 in that county.
    2. In respect to actions in the district court, a judge of the court in which the action is pending shall, for the purposes of this rule, Rule 26, Rule 31, Rule 33, Rule 34, Rule 35, Rule 36 and Rule 37, be the chief district judge or any judge designated by him pursuant to G.S. 7A-192 .
    3. In respect to actions in either the superior court or the district court, a judge of the court in the county where the deposition is being taken shall, for the purposes of this rule, be a superior court judge who has jurisdiction pursuant to G.S. 7A-47.1 or G.S. 7A-48 in that county, or the chief judge of the district court or any judge designated by him pursuant to G.S. 7A-192 .
  9. Content of declaration; perjury; exhibit. —  A declaration signed by a deponent pursuant to this rule shall have the same effect as an affirmation under G.S. 14-209 , and a deponent’s willful perjury hereunder shall be subject to the same punishment as set forth therein. A declaration signed under this rule shall contain all of the following:
    1. A heading setting forth information sufficient to identify the matter for which the deposition was taken (including, but not limited to, the jurisdiction, court, district, or division in which the action is filed), the title of the action, and the name of the first party on each side with an appropriate indication of other parties.
    2. The legal name and the address of the deponent.
    3. The date of the deposition.
    4. The following statement in bolded lettering: “Under penalty of perjury, I declare that my testimony is truthful and I acknowledge that a material misstatement of fact made by me while giving my testimony may be grounds for a conviction of perjury under the laws of this State.”
    5. A line for the deponent’s signature, along with a line for the deponent to indicate the date when the document was signed.
    6. Lines for the signatures of two witnesses in whose presence the deponent signed the declaration. The deponent’s declaration shall be attached to the deposition transcript as an exhibit and filed with the transcript. A person’s preparation of the declaration does not constitute the unauthorized practice of law.

History. 1967, c. 954, s. 1; 1973, c. 828, s. 1; c. 1126, ss. 1, 2; 1975, c. 762, s. 2; 1977, c. 769; 1983, c. 201, s. 2; c. 801, ss. 1, 2; 1987 (Reg. Sess., 1988), c. 1037, s. 42; 1995, c. 353, ss. 1-3; 1995 (Reg. Sess., 1996), c. 742, s. 4; 2005-138, s. 3; 2019-147, s. 1.

Comment

This rule prescribes the procedure for taking depositions upon oral examination. Depositions upon written interrogatories are governed by Rule 31. The procedure fixed by Rule 30 governs depositions upon oral examination in all cases, whether a deposition with or without leave of court as provided in Rule 26(a), or under an order of court for the perpetuation of testimony before action under Rule 27 (a) or under order of court for the perpetuation of testimony pending appeal as provided in Rule 27(b) or under order of court as provided in Rule 27(c).

Section (a) differs from federal Rule 30 (a) in that a specific time for serving notice prior to the taking of the deposition is fixed, instead of “reasonable notice” as is found in the federal rule. Furthermore, section (a) does not authorize the court to extend or shorten the time fixed by the rule. Such a provision is contained in federal Rule 30(a).

Sections (b) and (d) provide for protection from the abuse of the discovery procedure to either the opposing party or the person to be examined. Before the taking of the deposition begins, either may apply for protection under section (b). During the taking of the deposition either may apply for protection under section (d). Under section (b) application is made to the judge of the court in which the action is pending upon motion seasonably made. “Seasonably” means as soon as the person making the motion learns that he will need the protective order. Moore’s Federal Practice, § 30.05, (2nd Ed.). Such a motion must comply with Rule 7(b), be served and filed in compliance with Rule 5, and be served within the time provided in Rule 6(d).

A change has been made in federal Rule 30(c) in that a provision has been added with respect to the payment for transcribing when the transaction is requested by a party other than the party taking the deposition. In some cases the sole purpose of the deposition may be for discovery only, and not for use at the trial. Hence, the court should have this power.

The words “or by some method by which the testimony is written or typed as it is given” are inserted in section (c) for the purpose of indicating that, in the absence of agreement, testimony may be taken by any of the methods described.

As has been indicated, section (d) provides for protection during the taking of the deposition. Such a motion may be made before a judge of a court in which an action is pending or a judge of the court in which the deposition is being taken. Section (d) authorizes the judge to order either party or the deponent to pay such costs as may be deemed reasonable upon the granting or refusing of such a motion.

Section (e) changes former procedure to the extent that the deposition need not be signed by the deponent unless one of the parties or the deponent makes such a request.

Section (f) contains no provision for opening a deposition similar to former practice (repealed § 8-71). No good reason exists for continuing that practice, since in most cases all parties have copies of the deposition, and objections which have been entered at the taking of the deposition can be passed on at the time of trial.

Section (g) is identical with federal Rule 30(g). Apparently there is no provision under present statutes for the taxing of expenses under such circumstances.

OFFICIAL COMMENT

Comment to the 1975 Amendment.

Section (a). — This section contains the provisions of existing [former] Rule 26(a), transferred here as part of the rearrangement relating to Rule 26. Existing [former] Rule 30(a) is transferred to 30(b). Changes in language have been made to conform to the new arrangement.

This section is further revised in regard to the requirement of leave of court for taking a deposition. The present procedure, requiring a plaintiff to obtain leave of court if he serves notice of taking a deposition within 30 days after commencement of the action, is changed in several respects. First, leave is required by reference to the time the deposition is to be taken rather than the date of serving notice of taking. Second, the 30-day period runs from the service of summons and complaint on any defendant, rather than the commencement of the action. Third, leave is not required beyond the time that defendant initiates discovery, thus showing that he has retained counsel. As under the present practice, a party not afforded a reasonable opportunity to appear at a deposition, because he has not yet been served with process, is protected against use of the deposition at trial against him. See Rule 32(a) transferred from [former] 26(d). Moreover, he can later redepose the witness if he so desires.

The purpose of requiring the plaintiff to obtain leave of court is to protect a defendant who has not had an opportunity to retain counsel and inform himself as to the nature of the suit. This protection, however, is relevant to the time of taking the deposition, not to the time that notice is served. Similarly, the protective period should run from the service of process rather than the filing of the complaint with the court. The new procedure is consistent in principle with the provisions of Rules 33, 34 and 36 as revised.

Plaintiff is excused from obtaining leave even during the initial 30-day period if he gives the special notice provided in subsection (b)(2). The required notice must state that the person to be examined is about to go out of the district where the action is pending and more than 100 miles from the place of trial, or out of the United States, or on a voyage to sea, and will be unavailable for examination unless deposed within the 30-day period. Defendant is protected by a provision that the deposition cannot be used against him if he was unable through exercise of diligence to obtain counsel to represent him.

The North Carolina modification of the former federal rule, requiring leave of court to depose mental patients as well as prisoners, is retained in substance.

The provision obviating the necessity of serving a subpoena on a deponent who is a party or an officer, director or managing agent of a party where the party has been served with notice of the deposition incorporates by rule the result reached by decision in most federal courts.

Section (b). — Existing [former] Rule 30(b) on protective orders has been transferred to Rule 26(c), and existing former Rule 30(a) relating to the notice of taking deposition has been transferred to this section. Because new material has been added, subsection numbers have been inserted.

Subsection (b)(1). — If a subpoena duces tecum is to be served, a copy thereof or a designation of the materials to be produced must accompany the notice. Each party is thereby enabled to prepare for the deposition more effectively. The former North Carolina requirement, designating the length of notice required, is retained in preference to the standard of reasonable notice contained in the federal rules. The provision with respect to the place of deposition is removed in a modified form to this subsection from Rule 45(d)(2), where it referred only to deponents testifying under subpoena, and not to party deponents testifying pursuant to notice only.

Subsection (b)(2). — This subsection is discussed in the note to section (a), to which it relates.

Subsection (b)(3). — This provision is new, although the power of the Court to alter the time of a deposition has probably always existed.

Subsection (b)(4). — In order to facilitate less expensive procedures, provision is made for the recording of testimony by other than stenographic means — e.g., by mechanical, electronic, or photographic means. Because these methods give rise to problems of accuracy and trustworthiness, the party taking the deposition is required to apply for a court order. The order is to specify how the testimony is to be recorded, preserved, and filed, and it may contain whatever additional safeguards the court deems necessary.

Subsection (b)(5). — A provision is added to enable a party, through service of notice, to require another party to produce documents or things at the taking of his deposition. This may now be done as to a nonparty deponent through use of subpoena duces tecum as authorized by Rule 45, but some federal courts held under the former federal rule that documents could be secured from a party only under former Rule 34, which required notice, hearing and an order finding good cause for production. With the elimination of “good cause” from Rule 34, the reason for this restrictive doctrine has disappeared.

Whether production of documents or things should be obtained directly under Rule 34 or at the deposition under this rule will depend on the nature and volume of the documents or things. Both methods are made available. When the documents are few and simple, and closely related to the oral examination, ability to proceed via this rule will facilitate discovery. If the discovering party insists on examining many and complex documents at the taking of the deposition, thereby causing undue burdens on others, the latter may, under Rules 26(c) or 30(d), apply for a court order that the examining party proceed via Rule 34 alone. The provisions as to the timing of such request eliminates an ambiguity present in the new federal rule and insures that the party giving notice of the taking of a deposition will know in advance of the deposition what documents or things the deponent declines to produce. This will allow the deposing party an opportunity to seek an order to compel production under Rule 37(a) prior to the deposition if he is so advised and will serve to minimize the risk that a deposition will be adjourned because of the previously undisclosed refusal of the deponent to produce requested documents or things.

Subsection (b)(6). — A new provision is added, whereby a party may name a corporation, partnership, association or governmental agency as the deponent and designate the matters on which he requests examination, and the organization shall then name one or more of its officers, directors, or managing agents, or other persons consenting to appear and testify on its behalf with respect to matters known or reasonably available to the organization. The organization may designate persons other than officers, directors, and managing agents, but only with their consent. Thus, an employee or agent who has an independent or conflicting personal injury case — can refuse to testify on behalf of the organization.

This procedure supplements the existing practice whereby the examining party designates the corporate official to be deposed. Thus, if the examining party believes that certain officials who have not testified pursuant to this subsection have added information, he may depose them. On the other hand, a court’s decision whether to issue a protective order may take account of the availability and use made of the procedures provided in this subsection.

The new procedure should be viewed as an added facility for discovery, one which may be advantageous to both sides as well as an improvement in the deposition process. It will reduce the difficulties now encountered in determining, prior to the taking of a deposition, whether a particular employee or agent is a “managing agent.” It will curb the “bandying” by which officers or managing agents of a corporation are deposed in turn but each disclaims knowledge of facts that are clearly known to persons in the organization and thereby to it. The provision should also assist organizations which find that an unnecessarily large number of their officers and agents are being deposed by a party uncertain of who in the organization has knowledge. Some courts have held that under the existing rules a corporation should not be burdened with choosing which person is to appear for it. This burden is not essentially different from that of answering interrogatories under Rule 33, and is in any case lighter than that of an examining party ignorant of who in the corporation has knowledge.

This rule is so phrased that notice to parties, including a party deponent, and a subpoena to a nonparty organization are required to bring the rule into play.

The wording of this subsection is slightly altered from that of the federal rule to eliminate an ambiguity as to whether the subpoena must be issued to a party.

Section (c). — A new sentence is inserted at the beginning, representing the transfer of existing [former] Rule 26(c) to this section. Another addition conforms to the new provision in subsection (b)(4).

The present rule provides that transcription shall be carried out unless all parties waive it. In view of the many depositions taken from which nothing useful is discovered, the revised language provides that transcription is to be performed if any party requests it.

Parties choosing to serve written questions rather than participate personally in an oral deposition are directed to serve their questions on the party taking the deposition, since the officer is often not identified in advance. Confidentiality is preserved, since the questions may be served in a sealed envelope.

Section (d). — The assessment of expenses incurred in relation to motions made under this section (d) is made subject to the provisions of Rule 37(a). The standards for assessment of expenses are more fully set out in Rule 37(a), and these standards should apply to the essentially similar motions of this section.

Section (e). — The provision relating to the refusal of a deponent to sign his deposition is tightened through insertion of a 30-day time period and a provision allowing use of the deposition upon the refusal or failure of the deponent to sign and return it within the required time.

Subsection (f)(1). — A provision is added which codifies in a flexible way the procedure for handling exhibits related to the deposition and at the same time assures each party that he may inspect and copy documents and things produced at a nonparty witness in response to a subpoena duces tecum. As a general rule and in the absence of agreement to the contrary or order of the court, exhibits produced without objection are to be annexed to and returned with the deposition, but a deponent may substitute copies for purposes of marking and he may obtain return of the exhibits. The right of the parties to inspect exhibits for identification and to make copies is assured.

The former requirement of North Carolina Rule 26(f)(1) that the original and one copy be filed with the clerk is abandoned. In practice it proved to have little utility and was generally waived or ignored.

Subsection (f)(3). — This provision clarifies the conflict between former Rule 30(f)(3) which required the party to give the notice, and [former] 32(e) which required the clerk to do so. It also eliminates the former requirement that the party taking the deposition furnish a copy to all other parties. Whatever the reason for the former requirement may have been, in practice it has penalized the party with limited means who must utilize depositions to make out his claim or defense.

Section (g). — This provision contained only minor changes in phraseology not affecting the substance of the rule.

Editor’s Note.

Session Laws 2019-147, s. 2, made the rewriting of subsections (c) and (f) and the addition of subsection (i) by Session Laws 2019-147, s. 1, effective October 1, 2019, and applicable to depositions taken on or after that date.

Effect of Amendments.

Session Laws 2019-147, s. 1, rewrote subsections (c) and (f); and added subsection (i). For effective date and applicability, see editor’s note.

Legal Periodicals.

For survey of 1977 law on civil procedure, see 56 N.C.L. Rev. 874 (1978).

For survey of 1979 law on evidence, see 58 N.C.L. Rev. 1456 (1980).

For article, “The 1980 Amendments to the Federal Rules of Civil Procedure and Proposals for North Carolina Practice,” see 16 Wake Forest L. Rev. 915 (1980).

For article analyzing the 1983 amendments to Rules 6, 7, 11, 16, 26, 52, 53 and 67, FRCP, comparing these rules with North Carolina practice, and suggesting changes in certain state and federal rules, see 20 Wake Forest L. Rev. 819 (1984).

For article, “Taking a Deposition Under North Carolina Law,” see 21 N.C. Cent. L.J. 215 (1995).

CASE NOTES

Analysis

I.In General

Right to take deposition granted by section (a) of this rule is unqualified, except for provision of G.S. 1A-1 , Rule 26(c) authorizing the trial court to issue “protective orders.” Tennessee-Carolina Transp., Inc. v. Strick Corp., 291 N.C. 618 , 231 S.E.2d 597, 1977 N.C. LEXIS 1226 (1977).

Effect of Adverse Testimony in Deposition Generally. —

When a party gives adverse testimony in a deposition or at trial, that testimony should not, in most instances, be conclusively binding on him to the extent that his opponent may obtain either summary judgment or a directed verdict. Woods v. Smith, 297 N.C. 363 , 255 S.E.2d 174, 1979 N.C. LEXIS 1253 (1979).

Two exceptions to the general rule regarding the effect of adverse testimony in a deposition should be noted: (1) When a party gives deliberate, unequivocal and repeated testimony which is diametrically opposed to the essential allegations of the complaint, destroying the theory of the action, which testimony is intentionally given and unremedied by any further testimony, the testimony should be treated as binding judicial admissions rather than evidential admissions; (2) When a party gives adverse testimony, and there is insufficient evidence to the contrary presented to support the allegations of the complaint, summary judgment or a directed verdict would in most cases properly be granted. Woods v. Smith, 297 N.C. 363 , 255 S.E.2d 174, 1979 N.C. LEXIS 1253 (1979).

Where witness was both a fact and an expert witness he could be deposed without a court order and his testimony could only be limited by objection during the deposition if he was questioned regarding his expert opinion. Green ex rel. Green v. Maness, 69 N.C. App. 403, 316 S.E.2d 911, 1984 N.C. App. LEXIS 3484 (1984).

Opposition to Discovery Was Correct Where Subpoena Not Issued Correctly. —

In order to compel the deposition testimony of a nonparty, a subpoena must be issued from the county in which the deposition is to be taken, and a proper subpoena should have been issued from the Clerk of Superior Court of Wake County directing a nonparty in a divorce case to appear in Wake County; therefore, nonparty and her attorney were substantially justified in opposing the discovery sought pursuant to the subpoena issued from Mecklenburg County and the trial court’s imposition of attorney fees under G.S. 1A-1 , Rule 37(a)(4) was error. Cochran v. Cochran, 93 N.C. App. 574, 378 S.E.2d 580, 1989 N.C. App. LEXIS 243 (1989).

Order Requiring Appearance for Depositions Interlocutory and Not Immediately Reviewable. —

Appellants were not entitled to immediate review of an order requiring them to appear for depositions during jurisdictional discovery based on its alleged violation of G.S. 1A-1-30(b)(1) because interlocutory discovery orders were generally not appealable, and appellants presented nothing beyond their allegation of a violation of Rule 30(b)(1) to indicate a substantial right that would be irreparably harmed absent immediate appeal; violation of appellants’ Rule 30(b)(1) “right” was not immediately appealable based on the potentially burdensome travel costs that appellants could incur by complying with the order because the time and money likely to be expended by appellants as a result of the order could not be more burdensome than the time and money expended in litigating an entire trial, and avoiding the time and expense of a trial was not a substantial right justifying immediate appeal. K2 Asia Ventures v. Trota, 209 N.C. App. 716, 708 S.E.2d 106, 2011 N.C. App. LEXIS 313 (2011).

Order setting the location of deposition was not immediately appealable because while orders on motions for change of venue based on improper venue affect a substantial right and are immediately appealable, the same right is not affected when a party is forced to litigate in an improper venue as when a party is forced to appear for a deposition in an “improper” location; any similarity between the two rights is completely overshadowed by the difference in magnitude of the burden on those rights: a decision setting venue covers the duration of the judicial process while a decision setting the location of a deposition covers only the much shorter duration of the depositions. K2 Asia Ventures v. Trota, 209 N.C. App. 716, 708 S.E.2d 106, 2011 N.C. App. LEXIS 313 (2011).

Order requiring appellants to appear for depositions during jurisdictional discovery was not immediately appealable because the order did not burden appellants’ substantial right to due process since appellants voluntarily submitted the jurisdictional issue to the North Carolina General Court of Justice, and consequently appellants ultimately were bound by the North Carolina courts’ determination of personal jurisdiction and immediately were bound to abide by those legal rules governing the procedure to be followed in reaching that determination, including the North Carolina Rules of Civil Procedure; because appellants voluntarily submitted to North Carolina jurisdiction to decide the issue of personal jurisdiction in the action, they were bound to participate in what jurisdictional discovery the trial court orders, and appellants’ implicit agreement to abide by the legal rules and presumptions of the North Carolina court system necessarily included the agreement to abide by the rules governing appeal of interlocutory orders. K2 Asia Ventures v. Trota, 209 N.C. App. 716, 708 S.E.2d 106, 2011 N.C. App. LEXIS 313 (2011).

Order requiring the North Carolina Department of Insurance to disclose subpoenaed documents affected a substantial right because if the Department was required to disclose the very documents that it alleged were protected from disclosure by statutory confidentiality provisions, then a substantial right was affected; the substantial right asserted by the Department would be lost if the trial court’s order was not reviewed before entry of a final judgment. Powell v. Cartret, 2021-NCCOA-347, 278 N.C. App. 465, 863 S.E.2d 784, 2021- NCCOA-347, 2021 N.C. App. LEXIS 357 (2021).

Deposition Disallowed In Juvenile Case. —

Trial court did not err by disallowing a deposition under the Rules of Civil Procedure; as the Juvenile Code provided for discovery, specifically including depositions, the Rules of Civil Procedure did not apply here. The trial court merely instructed the father to cancel the noticed civil deposition and affirmed that he could request a deposition later in the juvenile proceeding. In re M.M., 272 N.C. App. 55, 845 S.E.2d 888, 2020 N.C. App. LEXIS 464 (2020).

Jurisdiction of Court. —

District Court was without jurisdiction, pending the appeal, to find deponent in contempt of the order appealed from; thus, its findings and order to that effect were void. Wilson v. Wilson, 124 N.C. App. 371, 477 S.E.2d 254, 1996 N.C. App. LEXIS 1067 (1996).

Motion to compel. —

Court compelled the deposition of defendant because, inter alia, if the deposition proceeded before the LLC was served, the latter would not be bound, and would not be prejudiced by allowing plaintiffs to take defendant’s deposition. McKee v. James, 2010 NCBC LEXIS 81 (N.C. Super. Ct. Oct. 29, 2010), dismissed in part, 2013 NCBC 38, 2013 NCBC LEXIS 33 (N.C. Super. Ct. July 24, 2013).

Award of Attorney Fees Against Attorney as Discovery Sanction Inappropriate. —

It was error to award attorneys’ fees against an attorney as a discovery sanction because the attorney was not a “party” for purposes of such a sanction, nor an officer, director, or managing agent of a party, or designee to testify on behalf of a party. Ge Betz, Inc. v. Conrad, 231 N.C. App. 214, 752 S.E.2d 634, 2013 N.C. App. LEXIS 1294 (2013).

Appeal. —

Order requiring the North Carolina Department of Insurance to disclose subpoenaed documents affected a substantial right because if the Department was required to disclose the very documents that it alleged were protected from disclosure by statutory confidentiality provisions, then a substantial right was affected; the substantial right asserted by the Department would be lost if the trial court’s order was not reviewed before entry of a final judgment. Powell v. Cartret, 2021-NCCOA-347, 278 N.C. App. 465, 863 S.E.2d 784, 2021- NCCOA-347, 2021 N.C. App. LEXIS 357 (2021).

Sanctions.

Trial court did not err in imposing sanctions on the company’s deposition under this rule as the company’s motion for a protective order was denied, and the order specifically directed the company’s designees to be prepared to testify to all matters known or reasonably available on each noticed topic, but the designees were completely unprepared to testify as to certain topics. Dunhill Holdings, LLC v. Lindberg, 2022-NCCOA-125, 870 S.E.2d 636, 2022- NCCOA-125, 2022 N.C. App. LEXIS 125 (N.C. Ct. App. 2022).

II.Decisions under Prior Law

Editor’s Note. —

The cases cited below were decided under former G.S. 8-71 and G.S. 8-72.

Presumption of Regularity. —

The presumption is that a deposition has been properly taken when it appears thereon that it was taken by one named in the commission on the day named and at the designated place. Younce v. Broad River Lumber Co., 155 N.C. 239 , 71 S.E. 329, 1911 N.C. LEXIS 381 (1911).

The object of the notice is to give the party an opportunity to attend and cross-examine; and, while on the one hand, a party will not be forced to attend on Sunday, or on a day when his presence is required at another place for the purpose of that very suit, so, on the other, it held that the principle is complied with substantially, if the notice describes the place with reasonable certainty. Owens v. Kinsey, 51 N.C. 38 , 1858 N.C. LEXIS 97 (1858).

Notice to One of Several Joint Defendants. —

Upon a bill against joint administrators relative to the acts of the intestate, of which the administrators put in a joint answer, a deposition taken by the plaintiff upon notice to only one of the defendants was excluded even though it was the deposition of the plaintiff ’s only witness, who had since died. Cox v. Smitherman, 37 N.C. 66 , 1841 N.C. LEXIS 186 (1841).

Variance Between Notice and Certificate. Where a deposition certified to have been taken at the house of J.E. was objected to because the notice was to take it at the house of J.A.E., it was held that it would be presumed that the notice and certificate referred to the same person. Ellmore v. Mills, 2 N.C. 359 , 1796 N.C. LEXIS 60 (1796).

A misdescription of a place, in one small particular, in a notice to take depositions will not be fatal, if other descriptive terms are used in the notice, less liable to mistake, by which such place may be identified. Pursell v. Long, 52 N.C. 102 , 1859 N.C. LEXIS 38 (1859).

A notice to take a deposition on “the 5th or 6th” of a certain month was held sufficient. Kenedy v. Alexander, 2 N.C. 25 , 1794 N.C. LEXIS 6 (1794).

Notice to take a deposition on a particular day of every week for three successive months is not good. Bedell v. President & Dirs. of State Bank, 12 N.C. 483 , 1828 N.C. LEXIS 57 (1828).

Where notice is served that depositions will be taken at the same time in two different places, so that the party who is notified cannot be present at both, he may attend at either place designated and disregard the notice as to the other, and the deposition taken in his absence at the other place will, on motion, be quashed or suppressed, but where he elects to appear by counsel and cross-examines the witnesses without making any objection at the time, this is a waiver as to any defect in the notice. Ivey v. Bessemer City Cotton Mills, 143 N.C. 189 , 55 S.E. 613, 1906 N.C. LEXIS 333 (1906).

Where notice was given to take the deposition of certain named parties “and others,” and depositions of those particularly mentioned were not taken, it was held to be no ground for exception. McDugald v. Smith, 33 N.C. 576 , 1850 N.C. LEXIS 120 (1850).

Where the notice directed the commissioner to take the depositions of persons named “and others,” depositions taken of others than those named were admissible. In re Will of Rawlings, 170 N.C. 58 , 86 S.E. 794, 1915 N.C. LEXIS 336 (1915).

Taking of Deposition in Party’s Place of Business. —

It is not error to take a deposition in the place of business of one of the parties if such place is named in the notice and there is no suggestion that the other party suffered any prejudice thereby. Bank v. Carr, 130 N.C. 479 , 41 S.E. 876, 1902 N.C. LEXIS 86 (1902).

Duty of Witness to Answer. —

The commissioner acts for the court, and it is the duty of the witness to answer proper questions propounded by him, just as if the examination was conducted before the judge or clerk. Bradley Fertilizer Co. v. Taylor, 112 N.C. 141 , 17 S.E. 69, 1893 N.C. LEXIS 181 (1893).

Necessity of Sealing. —

A deposition must be sealed up by the commissioners, so as to prevent inspection and alteration; it need not be certified under the seal of the commissioners. Ward v. Ely, 12 N.C. 372 , 1828 N.C. LEXIS 22 (1828).

Where a deposition was found among papers, with a commission unattached, and an envelope which appeared to have been sealed up and afterwards broken open, it was held that this was sufficient evidence to justify the clerk in finding that the deposition had been taken under such commission, and had been returned to him sealed up by the commissioner, and therefore, that the clerk had done right in passing upon and allowing such deposition to be read. Hill v. Bell, 61 N.C. 122 , 1867 N.C. LEXIS 65 (1867).

Mailing of Deposition to Clerk by Attorney. —

Where the notary public taking a deposition in another state sealed the same in an envelope addressed to the clerk of the superior court, the fact that the attorney of the party offering the deposition in evidence brought the sealed envelope back with him to this state and dropped it in the mail, as requested by the notary, did not render the deposition incompetent. Randle v. Grady, 228 N.C. 159 , 45 S.E.2d 35, 1947 N.C. LEXIS 585 (1947).

When Delay in Execution of Commission Insufficient for Continuance. —

Commissions to take testimony are issued at the instance and for the benefit of one of the parties, and he will usually make them returnable at the earliest day consistent with convenience. But if through laches or from a wish to delay the trial, he should not do so, the nonexecution of the commission will be adjudged an insufficient reason for asking a continuance. Duncan v. Hill, 19 N.C. 291 , 1837 N.C. LEXIS 27 (1837).

Rule 31. Depositions upon written questions.

  1. Serving questions; notice. —  After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon written questions. The attendance of witnesses may be compelled by the use of subpoena as provided in Rule 45 provided that no subpoena need be served on a deponent who is a party or an officer, director or managing agent of a party, provided the party has been served with notice pursuant to this rule. Such a deposition shall be taken in the county where the witness resides or is employed or transacts his business in person unless the witness agrees that it may be taken elsewhere. The deposition of a person confined in prison or of a patient receiving in-patient care in or confined to an institution or hospital for the mentally ill or mentally handicapped may be taken only by leave of court on such terms as the court prescribes.A party desiring to take a deposition upon written questions shall serve them upon every other party with a notice stating (i) the name and address of the person who is to answer them, if known, and if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs, and (ii) the name or descriptive title and address of the officer before whom the deposition is to be taken. A deposition upon written questions may be taken of a public or private corporation or a partnership or association or governmental agency in accordance with the provisions of Rule 30(b)(6).Within 30 days after the notice and written questions are served, a party may serve cross questions upon all other parties. Within 10 days after being served with cross questions, a party may serve redirect questions upon all other parties. Within 10 days after being served with redirect questions, a party may serve recross questions upon all other parties. The court may for cause shown enlarge or shorten the time.
  2. Person to take responses and prepare record. —  A copy of the notice and copies of all questions served shall be delivered by the party taking the deposition to the person designated in the notice to take the deposition, who shall proceed promptly, in the manner provided by Rule 30(c), (e), and (f), to take the testimony of the deponent in response to the questions and to prepare, certify, and mail the deposition, attaching thereto the copy of the notice and the questions received by him.
  3. Repealed by Session Laws 2005-138, s. 4, effective October 1, 2005.

History. 1967, c. 954, s. 1; 1975, c. 762, s. 2; 2005-138, s. 4.

Comment

This rule provides an alternative method for taking depositions which a party may employ rather than taking the deposition on oral examination as provided for in Rule 30, and follows very closely federal Rule 31.

Under former § 8-71, when a deposition was returned to the court, the clerk was required to open and pass on it after giving parties or their attorney not less than one day’s notice. Section (c) simply requires the party taking the deposition to give notice of the filing of the deposition.

“Rule 31(d) permits a party or a deponent to make a motion in the court in which the action is pending for any protective order specified in Rule 30. The motion, however, must be made prior to the taking of the testimony of the deponent. This time limitation upon the making of the motion is perfectly proper with respect to a party, but if applied also to a motion made by a deponent, it is inconsistent with the practice that the interrogatories are not to be shown to the deponent in advance of the taking of the deposition. While the time limitation imposed by Rule 30(d) upon the making of a motion for a protective order is in terms applicable to a motion by a deponent, it is believed that the proper practice should be that the interrogatories should not be shown to the deponent in advance of the taking of his deposition, except upon consent of the parties, and that the deponent should be allowed to make a motion for a protective order during the taking of the deposition as provided in Rule 30(d) for the making of a similar motion by a deponent upon an oral examination.” 4 Moore’s Federal Practice, § 31.06.

OFFICIAL COMMENT

Comment to the 1975 Amendment.

Confusion is created by the use of the same terminology to describe both the taking of a deposition upon “written interrogatories” pursuant to this rule and the serving of “written interrogatories” upon parties pursuant to Rule 33. The distinction between these two modes of discovery will be more readily and clearly grasped through substitution of the word “questions” for “interrogatories” throughout this rule.

Section (a). — A new paragraph is inserted at the beginning of this section to conform to the rearrangement of provisions in Rules 26(a), 30(a), and 30(b).

The revised section permits designation of the deponent by general description or by class or group. This conforms to the practice for depositions on oral examination.

The new procedure provided in Rule 30(b)(6) for taking the deposition of a corporation or other organization through persons designated by the organizations is incorporated by reference.

The service of all questions, including cross, redirect, and recross, is to be made on all parties. This will inform the parties and enable them to participate fully in the procedure.

The time allowed for service of cross, redirect, and recross questions has been extended. Experience with the existing time limits under the former federal rule showed them to be unrealistically short. No special restriction is placed on the time for serving the notice of taking the deposition and the first set of questions. Since no party is required to serve cross questions less than 30 days after the notice and questions are served, the defendant has sufficient time to obtain counsel. The court may for cause shown enlarge or shorten the time.

The provision obviating the necessity of service of subpoena on a party or an officer, director or managing agent of a party conforms to revised Rule 30(a) and federal case law in the absence of a similar provision in the federal rules.

The North Carolina modification of the former federal rule, requiring leave of court to depose mental patients as well as prisoners, is retained in substance.

Section (c). — This section is amended to conform to the change in Rule 30(f)(3).

Former Section (d). — Since new Rule 26(c) provides for protective orders with respect to all discovery, and expressly provides that the court may order that one discovery device be used in place of another, section (d) is eliminated as unnecessary.

Legal Periodicals.

For article, “The 1980 Amendments to the Federal Rules of Civil Procedure and Proposals for North Carolina Practice,” see 16 Wake Forest L. Rev. 915 (1980).

CASE NOTES

Use of Deposition at Trial Stage Limited. —

Although the Rules of Civil Procedure provide extensive rights of discovery to any party, the use of a deposition in a civil case at the trial stage is sharply limited. Maness v. Bullins, 11 N.C. App. 567, 181 S.E.2d 750, 1971 N.C. App. LEXIS 1583 , cert. denied, 279 N.C. 395 , 183 S.E.2d 242, 1971 N.C. LEXIS 824 (1971).

Admission of Interrogatories Held Error. —

Where the record contained no indication by evidence or stipulation as to whereabouts of a deponent who was not a party at the time the case came on for trial, and there was no finding or inquiry by the trial judge as to the existence of any of the conditions which would have made the interrogatories competent and admissible in evidence, their admission constituted prejudicial error. Maness v. Bullins, 11 N.C. App. 567, 181 S.E.2d 750, 1971 N.C. App. LEXIS 1583 , cert. denied, 279 N.C. 395 , 183 S.E.2d 242, 1971 N.C. LEXIS 824 (1971).

In order to compel the deposition testimony of a nonparty, a subpoena must be issued from the county in which the deposition is to be taken, and a proper subpoena should have been issued from the Clerk of Superior Court of Wake County directing a nonparty in a divorce case to appear in Wake County; therefore, nonparty and her attorney were substantially justified in opposing the discovery sought pursuant to the subpoena issued from Mecklenburg County and the trial court’s imposition of attorney’s fees under G.S. 1A-1 , Rule 37(a)(4) was error. Cochran v. Cochran, 93 N.C. App. 574, 378 S.E.2d 580, 1989 N.C. App. LEXIS 243 (1989).

Award of Attorney Fees Against Attorney as Discovery Sanction Inappropriate. —

It was error to award attorneys’ fees against an attorney as a discovery sanction because the attorney was not a “party” for purposes of such a sanction, nor an officer, director, or managing agent of a party, or designee to testify on behalf of a party. Ge Betz, Inc. v. Conrad, 231 N.C. App. 214, 752 S.E.2d 634, 2013 N.C. App. LEXIS 1294 (2013).

Rule 32. Use of depositions in court proceedings.

  1. Use of depositions. —  At the trial or upon the hearing of a motion or an interlocutory proceeding or upon a hearing before a referee, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:
    1. Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.
    2. The deposition of a person called as a witness may also be used as substantive evidence by any party adverse to the party who called the deponent as a witness and it may be used by the party calling deponent as a witness as substantive evidence of such facts stated in the deposition as are in conflict with or inconsistent with the testimony of deponent as a witness.
    3. The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent, or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a public or private corporation, partnership or association or governmental agency which is a party may be used by an adverse party for any purpose, whether or not the deponent testifies at the trial or hearing.
    4. The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: that the witness is dead; or that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the United States, unless it appears that the absence of the witness was procured by the party offering the deposition; or that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting testimony of witnesses orally in open court, to allow the deposition to be used; or the witness is an expert witness whose testimony has been procured by videotape as provided for under Rule 30(b)(4).
    5. If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce any other part which is relevant to the part introduced, and any party may introduce any other parts.

      Substitution of parties pursuant to Rule 25 does not affect the right to use depositions previously taken; and, when an action in any court of the United States or of any state has been dismissed and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken in the former action and duly prepared, certified, and delivered in accordance with Rule 30 may be used in the latter as if originally taken therefor.

  2. Objections to admissibility. —  Subject to the provisions of Rules 28(b) and subsection (d)(3) of this rule, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.
  3. Effect of taking or using depositions. —  A party does not make a person his own witness for any purpose by taking his deposition. The introduction in evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition, but this shall not apply to the use by an adverse party of a deposition under subsection (a)(2) or (a)(3) of this rule. At the trial or hearing any party may rebut any relevant evidence contained in a deposition whether introduced by him or by any other party.
  4. Effect of errors and irregularities in depositions. —
    1. As to Notice. —  All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice.
    2. As to Disqualification of Person before Whom Taken. —  Objection to taking a deposition because of disqualification of the person before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.
    3. As to Taking of Deposition. —
      1. Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.
      2. Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition.
      3. Objections to the form of written questions submitted under Rule 31 are waived unless served in writing upon the party propounding them within the time allowed for serving the succeeding cross or other questions and within five days after service of the last questions authorized.
    4. As to Completion and Return of Deposition. —  Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, or otherwise dealt with by the person taking the deposition under Rules 30 and 31 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defeat is, or with due diligence might have been, ascertained.

History. 1967, c. 954, s. 1; 1975, c. 762, s. 2; 1977, c. 984; 1981, c. 599, s. 2; 2005-138, ss. 5, 6.

Comment

The purpose of this rule is to require defects in the taking of depositions to be pointed out promptly in order that the erring party may have an opportunity to correct the errors and prevent waste of time and expense by a subsequent claim to suppress a deposition based upon some technical error.

Section (a) carries forward former § 1-568.23 (a).

Under former law objection based upon the disqualification of the person before whom the deposition is to be taken could be made at any time up to trial. Under section (b) such an objection would be unavailable at trial.

Sections (c)(1) and (2) follow verbatim federal Rule 32 (c)(1) and (3) and former § 1-568.23(b) and (d).

Federal Rule 32(c)(2), which is the same as former § 1-568.23(c), has been omitted.

Section (d). — This section follows federal Rule 32(d) verbatim and is quite similar to former §§ 1-568.22 and 1-568.23(e) except in this rule objection must be made with “reasonable promptness,” whereas, under former statutes, a motion to suppress must have been made within ten days after the deposition was filed.

OFFICIAL COMMENT

Comment to the 1975 Amendment.

As part of the rearrangement of the discovery rules, existing [former] sections (d) and (e) of Rule 26 are transferred to Rule 32 as new sections (a) and (c). The provisions of Rule 32 are retained as section (d) of Rule 32 with appropriate changes in the lettering and numbering of subheadings. The new rule is given a suitable new title. A beneficial by-product of the rearrangement is that provisions which are naturally related to one another are placed in one rule.

A change is made in new Rule 32(a), whereby it is made clear that the rules of evidence are to be applied to depositions offered at trial as though the deponent were then present and testifying at trial. This eliminates the possibility of certain technical hearsay objections which are based, not on the contents of deponent’s testimony, but on his absence from court. The language of present [former] Rule 26(d) does not appear to authorize these technical objections, but it is not entirely clear.

The provisions of former Rule 26(d)(2)a and b, governing use of a deposition where the deponent testifies at trial, are preserved in Rule 32(a)(1) and (2) with the added provision that any party may use a deposition to contradict or impeach a witness who testifies at trial.

OFFICIAL COMMENT

Note present [former] Rule 26(e), transferred to Rule 32(b). An addition in Rule 32(a)(2) provides for use of a deposition of a person designated by a corporation or other organization, which is a party, to testify on its behalf. This complements the new procedure for taking the deposition of a corporation or other organization provided in Rules 30(b)(6) and 31(a). The addition is appropriate, since the deposition is in substance and effect that of the corporation or other organization which is a party.

References to other rules are changed to conform to the rearrangement, and minor verbal changes have been made for clarification. The time for objecting to written questions served under Rule 31 is slightly extended.

The somewhat unwieldy provisions of former Rule 32(e) relating to the mechanics of handling objections to all or part of a deposition are abandoned in favor of present Rule 32(b).

The absence of specific provisions relating to the time when objections of various kinds must be made has necessitated the entry of a stipulation on the subject in every carefully taken deposition. Rules 32(d)(3)a and b incorporate in the rules provisions that are almost universally stipulated by the parties in the absence of a rule.

Legal Periodicals.

For article, “Toward a Codification of the Law of Evidence in North Carolina,” see 16 Wake Forest L. Rev. 669 (1980).

For article, “The 1980 Amendments to the Federal Rules of Civil Procedure and Proposals for North Carolina Practice,” see 16 Wake Forest L. Rev. 915 (1980).

For article analyzing the 1983 amendments to Rules 6, 7, 11, 16, 26, 52, 53 and 67, FRCP, comparing these rules with North Carolina practice, and suggesting changes in certain state and federal rules, see 20 Wake Forest L. Rev. 819 (1984).

For article, “Taking a Deposition Under North Carolina Law,” see 21 N.C. Cent. L.J. 215 (1995).

CASE NOTES

Editor’s Note. —

Some of the cases cited below were decided under former sections (d) and (e) of G.S. 1A-1 , Rule 26 as it stood before the 1975 amendment.

To the extent they are in conflict, this rule takes precedence over G.S. 8-83 . Nytco Leasing, Inc. v. Southeastern Motels, Inc., 40 N.C. App. 120, 252 S.E.2d 826, 1979 N.C. App. LEXIS 2614 (1979).

But insofar as it does not conflict with this rule, § 8-83 remains in effect. Wright v. American Gen. Life Ins. Co., 59 N.C. App. 591, 297 S.E.2d 910, 1982 N.C. App. LEXIS 3203 (1982).

Plain language of the rule permits the use of a deposition of a party by an adverse party for any purpose, regardless of whether or not the deponent testifies, and therefore, the presence of defendant at trial or her availability as a witness is wholly immaterial to the issue of whether her deposition may be used against her; it was irrelevant that there were multiple defendants at trial, all co-defendants received adequate notice and they were represented, and the trial court erred in excluding the proffered portions of the deposition. Green v. Freeman, 233 N.C. App. 109, 756 S.E.2d 368, 2014 N.C. App. LEXIS 297 (2014).

Deposition of Non-Party Witness. —

To be admissible at trial, the deposition of an unavailable non-party witness must meet the requirements of both this Rule and N.C.R. Evid. 804(b)(1). Pleasant Valley Promenade v. Lechmere, Inc., 120 N.C. App. 650, 464 S.E.2d 47, 1995 N.C. App. LEXIS 910 (1995).

Rules of evidence are to be applied to depositions offered at trial as though the deponent were then present and testifying at trial. Suarez v. Wotring, 155 N.C. App. 20, 573 S.E.2d 746, 2002 N.C. App. LEXIS 1594 (2002).

Deposition of an available witness is admissible under G.S. 1A-1 , N.C. R. Civ. P. 32(a), so long as one of the enumerated purposes set forth in Rule 32(a) have been met. Suarez v. Wotring, 155 N.C. App. 20, 573 S.E.2d 746, 2002 N.C. App. LEXIS 1594 (2002).

Use After Release from Subpoena. —

Where three expert medical witnesses for the plaintiff all testified at a medical negligence trial and were released from subpoena with the health care providers’ consent, the use of their deposition testimony by the health care providers was admissible as substantive evidence. Suarez v. Wotring, 155 N.C. App. 20, 573 S.E.2d 746, 2002 N.C. App. LEXIS 1594 (2002).

Use of Depositions at Trial Stage Limited. —

Although the Rules of Civil Procedure provide extensive rights of discovery to any party, the use of a deposition in a civil case at the trial stage is sharply limited. Maness v. Bullins, 11 N.C. App. 567, 181 S.E.2d 750, 1971 N.C. App. LEXIS 1583 , cert. denied, 279 N.C. 395 , 183 S.E.2d 242, 1971 N.C. LEXIS 824 (1971); Warren v. City of Asheville, 74 N.C. App. 402, 328 S.E.2d 859, 1985 N.C. App. LEXIS 3543 (1985).

Generally, testimony by deposition is less desirable than oral testimony, and it should ordinarily be used as a substitute only if the witness is not available to testify in person. Warren v. City of Asheville, 74 N.C. App. 402, 328 S.E.2d 859, 1985 N.C. App. LEXIS 3543 (1985).

Oral testimony is more desirable, but a deposition may be used if a witness is unavailable. Investors Title Ins. Co. v. Herzig, 330 N.C. 681 , 413 S.E.2d 268, 1992 N.C. LEXIS 59 (1992).

Consideration of Deposition from Another Proceeding in Ruling on Summary Judgment. —

Trial court properly considered depositions taken in another proceeding in ruling on a city’s summary judgment motion in a landowner’s inverse condemnation and negligence action against the city, because the depositions were sworn and were at least as reliable as affidavits. Although the city did not have the opportunity to cross-examine the witnesses, the same could be said of affidavit witnesses. First Gaston Bank of N.C. v. City of Hickory, 203 N.C. App. 195, 691 S.E.2d 715, 2010 N.C. App. LEXIS 544 (2010).

Objection Based On Dead Man’s Statute Not Waived. —

Pursuant to N.C. R. Civ. P. 32(d)(3)(a), administrator did not waive objection based on Dead Man’s Statute by failing to make it at widow’s deposition. Estate of Redden v. Redden, 179 N.C. App. 113, 632 S.E.2d 794, 2006 N.C. App. LEXIS 1638 (2006).

As to nonadmissibility of depositions for purposes of corroboration, see Miller v. Kennedy, 22 N.C. App. 163, 205 S.E.2d 741, 1974 N.C. App. LEXIS 2266 , cert. denied, 285 N.C. 661 , 207 S.E.2d 755, 1974 N.C. LEXIS 1082 (1974).

Use of Party’s Deposition as Evidence Against Co-Defendants Is Explicitly Permitted When Co-Defendant Was Represented at Deposition that Adverse Party Seeks to Admit. —

Only possible confusion was that the evidence given by the president’s wife might be used against co-defendants, but it is common sense that this was the reason plaintiffs would want to use the evidence, and such use is explicitly permitted when the co-defendant was represented at the deposition which an adverse party seeks to admit; excluding the proffered portions of the wife’s deposition was error, but as the inclusion of the deposition would have had no effect on plaintiffs’ breach of fiduciary duty claims, error was not prejudicial. Green v. Freeman, 233 N.C. App. 109, 756 S.E.2d 368, 2014 N.C. App. LEXIS 297 (2014).

Use of Party’s Deposition Under Subsection (a)(3). —

While under subdivisions (2) and (9) of G.S. 8-83 the presence of a witness in court is a proper basis for excluding the witness’s deposition, it is no basis for excluding the deposition of a party, which subsection (a)(3) of this rule makes useable without restriction, if it is otherwise admissible under the rules of evidence. Stilwell v. Walden, 70 N.C. App. 543, 320 S.E.2d 329, 1984 N.C. App. LEXIS 3713 (1984).

Whether a deposition may be used at trial pursuant to subsection (a)(4) of this rule will depend upon the circumstances at the time of the trial. Tennessee-Carolina Transp., Inc. v. Strick Corp., 291 N.C. 618 , 231 S.E.2d 597, 1977 N.C. LEXIS 1226 (1977).

There is no distinction between a discovery deposition and a trial deposition, under this rule. Robertson v. Nelson, 116 N.C. App. 324, 447 S.E.2d 488, 1994 N.C. App. LEXIS 910 (1994).

Admittance of Portion of Deposition Does Not Require Admittance of Entire Deposition. —

Trial court did not err in allowing in evidence selected portions of each of the two plaintiffs’ depositions and in overruling plaintiffs’ motions that the entire depositions be admitted. Plaintiffs’ reliance on this section was misplaced since plaintiffs alleged a right to have the entire depositions admitted once a portion had been offered into evidence; this section allows the admission of “any other part which is relevant to the part introduced.” Lenins v. K-Mart Corp., 98 N.C. App. 590, 391 S.E.2d 843, 1990 N.C. App. LEXIS 442 (1990).

Continuous Search for Witness Unnecessary. —

Nothing in the plain language of this rule indicates that an attorney must maintain a continuous search for a witness until either the witness is found or the deposition is used. Econo-Travel Motor Hotel Corp. v. Foreman's, Inc., 44 N.C. App. 126, 260 S.E.2d 661, 1979 N.C. App. LEXIS 3178 (1979), cert. denied, 299 N.C. 544 , 265 S.E.2d 404, 1980 N.C. LEXIS 1054 (1980).

Incarcerated Parent in Parental Termination Proceeding. —

When an incarcerated parent is denied transportation to the hearing in contested termination cases, the better practice is for the court, when so moved, to provide the funds necessary for the deposing of the incarcerated parent. The parent’s deposition, combined with representation by counsel at the hearing, will ordinarily provide sufficient participation by the incarcerated parent so as to reduce the risk of error attributable to his absence to a level consistent with due process. In re Quevedo, 106 N.C. App. 574, 419 S.E.2d 158, 1992 N.C. App. LEXIS 560 (1992).

Admission of Interrogatories Held Error. —

Where the record contained no indication by evidence or stipulation as to the whereabouts of a deponent who was not a party at the time the case came on for trial, and there was no finding or inquiry by the trial judge as to the existence of any of the conditions specified in former subsection (d)(3) of G.S. 1A-1 , Rule 26 (similar to subsection (a)(4) of this rule) which would have made the interrogatories competent and admissible in evidence, their admission constituted prejudicial error. Maness v. Bullins, 11 N.C. App. 567, 181 S.E.2d 750, 1971 N.C. App. LEXIS 1583 , cert. denied, 279 N.C. 395 , 183 S.E.2d 242, 1971 N.C. LEXIS 824 (1971).

Admissibility of Adverse Examination of Defendant’s President in Workers’ Compensation Hearing. —

In a workers’ compensation hearing, the admissibility of an adverse examination of defendant’s president was governed by former subsection (d)(1) of G.S. 1A-1 , Rule 26 (similar to subsection (a)(3) of this rule) and portions of the adverse examination offered by plaintiffs should have been received in evidence, notwithstanding defendant’s president had testified in one of the hearings and resided within 75 miles of the hearing site. Gay v. Guaranteed Supply Co., 12 N.C. App. 149, 182 S.E.2d 664, 1971 N.C. App. LEXIS 1308 (1971).

Rule applicable to the testimony at trial of an adverse party under G.S. 1A-1 , Rule 43(b) is equally applicable to the adverse party’s testimony under adverse examination. Bowen v. Constructors Equip. Rental Co., 283 N.C. 395 , 196 S.E.2d 789, 1973 N.C. LEXIS 990 (1973).

In marking the distinction between the introduction and use of the testimony of an adverse party, whether obtained by adverse examination prior to trial or at trial, and the introduction and use of the testimony of a witness other than a party, whether obtained by deposition or at trial, both this rule and G.S. 1A-1 , Rule 43(b) recognize that the self-interest of the adverse party bears upon the credibility of that portion of his testimony which tends to exculpate him and to place blame upon another. Bowen v. Constructors Equip. Rental Co., 283 N.C. 395 , 196 S.E.2d 789, 1973 N.C. LEXIS 990 (1973).

Effect of Giving Adverse Testimony in Deposition Generally. —

When a party gives adverse testimony in a deposition or at trial, that testimony should not, in most instances, be conclusively binding on him to the extent that his opponent may obtain either summary judgment or a directed verdict. Woods v. Smith, 297 N.C. 363 , 255 S.E.2d 174, 1979 N.C. LEXIS 1253 (1979).

Two exceptions to the general rule regarding the effect of giving adverse testimony in a deposition should be noted: (1) When a party gives deliberate, unequivocal and repeated testimony which is diametrically opposed to the essential allegations of the complaint, destroying the theory of the action, which testimony is intentionally given and unremedied by any further testimony, the testimony should be treated as binding judicial admissions rather than evidential admissions; (2) When a party gives adverse testimony, and there is insufficient evidence to the contrary presented to support the allegations of the complaint, summary judgment or a directed verdict would in most cases properly be granted. Woods v. Smith, 297 N.C. 363 , 255 S.E.2d 174, 1979 N.C. LEXIS 1253 (1979).

Effect of Introducing Adverse Examination of Defendant. —

The introduction in evidence by a plaintiff of the adverse examination of the defendant no longer makes the defendant a witness for the plaintiff. Plaintiff does not thereby represent the defendant as being worthy of belief as to each and every aspect of his testimony, but may impeach him as well as contradict him. Bowen v. Constructors Equip. Rental Co., 283 N.C. 395 , 196 S.E.2d 789, 1973 N.C. LEXIS 990 (1973).

Deposition of Party Not Separately Represented at Deposition Admitted at Trial. —

Admission of the deposition of an individual at trial, where the individual was a party to the action but not separately represented during the deposition, was proper under G.S. 1A-1 , N.C. R. Civ. P. 32(a), as the individual was present at the deposition and was being represented by counsel for two other parties with similar interests, including the individual’s employer. Floyd v. McGill, 156 N.C. App. 29, 575 S.E.2d 789, 2003 N.C. App. LEXIS 35 (2003).

Cross-Examination Concerning Deposition Taken in Unrelated Case. —

In a personal injury action, defense counsel could cross-examine plaintiff concerning his deposition taken in another pending, unrelated case. And as plaintiff ’s statements concerning his lack of prior medical problems contradicted plaintiff ’s testimony as to the extent of his injuries sustained as a result of the collision with defendant, his prior inconsistent statements could be used for purposes of impeachment and were admissible. Gillespie v. Draughn, 54 N.C. App. 413, 283 S.E.2d 548, 1981 N.C. App. LEXIS 2867 (1981).

Where depositions were only offered for corroborative purposes, the trial court did not err in admitting them. Hart v. Hart, 74 N.C. App. 1, 327 S.E.2d 631, 1985 N.C. App. LEXIS 3389 (1985).

Insufficient Evidence of Witness’s Illness. —

Party’s attorney failed to offer sufficient proof of a witness’s alleged illness, and the trial court did not abuse its discretion in refusing to admit testimony under subdivision (a)(4), where the attorney orally stated that he had received the information that witness was ill from the witness’s wife over the telephone, and offered no other form of proof concerning the alleged illness. Vandervoort v. McKenzie, 117 N.C. App. 152, 450 S.E.2d 491, 1994 N.C. App. LEXIS 1218 (1994).

Judicial Notice of Distance Between Cities Not Required. —

Where an attorney sought to have a deposition admitted pursuant to subdivision (a)(4) of the Rules of Civil Procedure by asserting that the witness was more than 100 miles from the place of trial, the trial court did not abuse its discretion by declining to take judicial notice of the distance between two cities. Vandervoort v. McKenzie, 117 N.C. App. 152, 450 S.E.2d 491, 1994 N.C. App. LEXIS 1218 (1994).

Discretion of Trial Court. —

Trial court did not err in allowing the employee to play the videotaped cross-examination of a doctor who was originally deposed by the railroad; it was within the trial court’s discretion about whether to allow such testimony and no error occurred in that regard since the railroad had already shown the jury the direct examination of the doctor and, thus, could not well object to the employee playing the cross-examination of the doctor. Williams v. CSX Transp., Inc., 176 N.C. App. 330, 626 S.E.2d 716, 2006 N.C. App. LEXIS 532 (2006).

Deponent’s deposition transcript was properly admitted under G.S. 1A-1 , N.C. R. Civ. P. 32(a)(4), even though the deponent’s office was located within 100 miles of the place of the trial, where: (1) the deponent was released from a subpoena because he would be out of state at a conference during the projected first week of the trial, and his testimony would not be required until the third week of the trial; (2) when plaintiff unexpectedly dismissed the other defendants, the trial schedule was accelerated; (3) the deponent was still out of state when defendant had to present his evidence; and (4) the trial court did not abuse its discretion in holding that the deponent’s absence was acquiesced by both parties, and that in the interests of justice, the deposition could be presented to the jury. Manning v. Anagnost, 225 N.C. App. 576, 739 S.E.2d 859, 2013 N.C. App. LEXIS 181 (2013).

Reading Aloud Verbatim Transcript of Employee Deposition. —

Grant of new trial was improper under G.S. 1A-1 , N.C. R. Civ. P. 59(a)(8) and 61 since by having a former employee read aloud the verbatim transcript of the employee’s deposition, a patron had the full benefit of the prior inconsistent statements that the patron sought to introduce by having the jury view a videotaped deposition; a conclusion that the videotaped deposition was admissible to contradict the employee’s testimony as a witness and that excluding the videotape amounted to an error of law was erroneous. Harrell v. Sagebrush of N.C. LLC, 191 N.C. App. 381, 663 S.E.2d 444, 2008 N.C. App. LEXIS 1319 (2008).

Rule 33. Interrogatories to parties.

  1. Availability; procedures for use. —  Any party may serve upon any other party written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish such information as is available to the party. Interrogatories may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party.A party may direct no more than 50 interrogatories, in one or more sets, to any other party, except upon leave granted by the Court for good cause shown or by agreement of the other party. Interrogatory parts and subparts shall be counted as separate interrogatories for purposes of this rule.There shall be sufficient space following each interrogatory in which the respondent may state the response. The respondent shall: (1) state the response in the space provided, using additional pages if necessary; or (2) restate the interrogatory to be followed by the response.Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. An objection to an interrogatory shall be made by stating the objection and the reason therefor either in the space following the interrogatory or following the restated interrogatory. The answers are to be signed by the person making them, and the objections signed by the attorney making them. The party upon whom the interrogatories have been served shall serve a copy of the answers, and objections if any, within 30 days after the service of the interrogatories, except that a defendant may serve answers or objections within 45 days after service of the summons and complaint upon the defendant. The court may allow a shorter or longer time. The party submitting the interrogatories may move for an order under Rule 37(a) with respect to any objection to or other failure to answer an interrogatory.
  2. Scope; use at trial. —  Interrogatories may relate to any matters which can be inquired into under Rule 26(b), and the answers may be used to the extent permitted by the rules of evidence.An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pretrial conference or other later time.
  3. Option to produce business records. —  Where the answer to an interrogatory may be derived or ascertained from the business records, including electronically stored information, of the party upon whom the interrogatory has been served or from an examination, audit or inspection of such business records, or from a compilation, abstract or summary based thereon, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries. A specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may be ascertained.

History. 1967, c. 954, s. 1; 1971, c. 1156, s. 4.5; 1975, c. 99; c. 762, s. 2; 1987, c. 73; c. 613, s. 1; 2011-199, s. 3(c).

Comment

Under former § 1-568.17 a party might examine upon written interrogatories.

This rule provides that the scope of the interrogatories is the same as that for discovery generally, as set out in Rule 26(b). Hence, interrogatories may be used for purposes of discovery. Also, the use of answers to interrogatories is limited by Rule 26(d) as well as by ordinary rules of evidence.

The period in which plaintiff may not serve interrogatories without leave of court has been lengthened from 10 days, as in federal Rule 33, to 30 days. This corresponds to the time for filing answer or other pleading or motion and thus preserves the general scheme by which a defendant is given 30 days to take his first action unless the court otherwise orders.

It should be noted that this rule does not require notice to parties other than the one to be examined. Former § 1-568.17 required that a copy of the order for examination and a copy of the interrogatories be delivered to all other parties.

The problems which might be presented in cases where the interrogatories call for documents to be attached are covered in Rule 26(b), which governs the scope of the interrogatories.

OFFICIAL COMMENT

Comment to the 1975 Amendment. Section (a). — The mechanics of the operation of Rule 33 are substantially revised by the proposed amendment, with a view to reducing court intervention. There is generally agreement that interrogatories have spawned a greater percentage of objections and motions than any other discovery device.

The procedures provided in former Rule 33 seemed calculated to encourage objections and court motions. The time period allowed for objecting to interrogatories, 10 days, was too short. The time pressures tended to encourage objections as a means of gaining time to answer. The time for objections was even shorter than for answers, and the party ran the risk that if he failed to object in time he may have waived his objections. It often seemed easier to object than to seek an extension of time. Unlike Rules 30(d) and 37(a), Rule 33 imposed no sanction of expenses on a party whose objections were clearly unjustified. Rule 33 assured that the objections led directly to court, through its requirement that they be served with a notice of hearing. Although this procedure did not preclude an out-of-court resolution of the dispute, the procedure tended to discourage informal negotiations. If answers were served and they were thought inadequate, the interrogating party could move under Rule 37(a) for an order compelling adequate answers. There was no assurance that the hearing on objections and that on inadequate answers would be heard together.

The amendment improves the procedure of Rule 33 in the following respects:

  1. The time allowed for response applies to both answers and objections, but a defendant need not respond in less than 45 days after service of the summons and complaint upon him. As is true under existing law, the responding party who believes that some parts or all of the interrogatories are objectionable may choose to seek a protective order under new Rule 26(c) or may serve objections under this rule. Unless he applies for a protective order, he is required to serve answers or objections in response to the interrogatories, subject to the sanctions provided in Rule 37(d). Answers and objections are served together, so that a response to each interrogatory is encouraged, and any failure to respond is easily noted.
  2. In view of the enlarged time permitted for response, it is no longer necessary to require leave of court for service of interrogatories. The purpose of this requirement — that defendant have time to obtain counsel before a response must be made — is adequately fulfilled by the requirement that interrogatories be served upon a party with or after service of the summons and complaint upon him.
  3. If objections are made, the burden is on the interrogating party to move under Rule 37(a) for a court order compelling answers, in the course of which the court will pass on the objections. The change in the burden of going forward does not alter the existing obligation of an objecting party to justify his objections. If the discovering party asserts that an answer is incomplete or evasive, again he may look to Rule 37(a) for relief, and he should add this assertion to his motion to overrule objections. There is no requirement that the parties consult informally concerning their differences, but the new procedure should encourage consultation.

A change is made in section (a) which is not related to the sequence of procedures. The restriction to “adverse” parties is eliminated. The courts have generally construed this restriction as precluding interrogatories unless an issue between the parties is disclosed by the pleadings — even though the parties may have conflicting interests. The resulting distinctions have often been highly technical. Eliminating the requirement of “adverse” parties from Rule 33 brings it into line with all other discovery rules.

A second change in section (a) is the addition of the term “governmental agency” to the listing of organizations whose answers are to be made by any officer or agent of the organization. This does not involve any change in existing law. Compare the similar listing in Rule 30(b)(6).

The duty of a party to supplement his answers to interrogatories is governed by a new provision in Rule 26(e).

Section (b). — There are numerous and conflicting federal decisions on the question whether and to what extent interrogatories are limited to matters “of fact,” or may elicit opinions, contentions, and legal conclusions.

Rule 33 is amended to provide that an interrogatory is not objectionable merely because it calls for an opinion or contention that relates to fact or the application of law to fact. Efforts to draw sharp lines between facts and opinions have invariably been unsuccessful, and the clear trend of the cases is to permit “factual” opinions. As to requests for opinions or contentions that call for the application of law to fact, they can be most useful in narrowing and sharpening the issues, which is a major purpose of discovery. On the other hand, under the new language interrogatories may not extend to issues of “pure law,” i.e., legal issues unrelated to the facts of the case.

Since interrogatories involving mixed questions of law and fact may create disputes between the parties which are best resolved after much or all of the other discovery has been completed, the court is expressly authorized to defer an answer. Likewise, the court may delay determination until pretrial conference, if it believes that the dispute is best resolved in the presence of the judge.

The use of answers to interrogatories at trial is made subject to the rules of evidence. The provisions governing use of depositions, to which this rule presently refers, are not entirely apposite to answers to interrogatories, since deposition practice contemplates that all parties will ordinarily participate through cross-examination.

Certain provisions are deleted from section (b) because they are fully covered by new Rule 26(c) providing for protective orders and Rules 26(a) and 26(d). The language of the section is thus simplified without any change of substance.

Section (c). — This is a new section relating especially to interrogatories which require a party to engage in burdensome or expensive research into his own business records in order to give an answer. The section gives the party an option to make the records available and place the burden of research on the party who seeks the information. This provision, without undermining the liberal scope of interrogatory discovery, places the burden of discovery upon its potential benefitee, and alleviates a problem which in the past has troubled federal courts. The interrogating party is protected against abusive use of this provision through the requirement that the burden of ascertaining the answer be substantially the same for both sides. A respondent may not impose on an interrogating party a mass of records as to which research is feasible only for one familiar with the records. At the same time, the respondent unable to invoke this section does not on that account lose the protection available to him under new Rule 26(c) against oppressive or unduly burdensome or expensive interrogatories. And even when the respondent successfully invokes the section, the court is not deprived of its usual power, in appropriate cases, to require that the interrogating party reimburse the respondent for the expense of assembling his records and making them intelligible.

Disclosure of trial witnesses. — Prior to the 1970 revision the federal cases were in conflict as to whether a party could be required at a proper time, in response to an interrogatory or by other discovery devices, to state the names and addresses of witnesses then known, and whom he proposed to call at trial. Probably the weight of reported authority was that a party is not required so to do. But at least the judge at pretrial under Rule 16 may require disclosure in the exercise of a sound discretion in light of all the circumstances.

And the 1970 revision provides that “A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.” Rule 26(b)(4) a 1, supra.

Obtaining copies of documents, etc., by requesting a party to attach them to his answers to interrogatories. — Formerly Rule 34 required a motion showing good cause as a prerequisite to obtaining discovery and production of documents and things for inspection, copying or photographing. Accordingly, most federal authorities held that interrogatories to a party requesting copies of documents were not proper and that copies of statements or witnesses and other documents could be obtained from a party only under Rule 34 (or Rules 26 and 45) upon a showing of good cause. The present revision eliminates the good-cause requirement in Rule 34; but section (b) of that rule sets out the procedure that should be followed in obtaining inspection, etc. Rule 34 does not, however, deal with discovery of trial preparation materials. That matter is now dealt with by Rule 26(b)(3), (4), supra. Those provisions allow a party or a witness to obtain a copy of his own written statement as of right. And a party is entitled, as of right, to obtain from any other party the names of expert witnesses whom he expects to call at trial, and a statement of the substance of the facts and opinions to which the expert is expected to testify. Rule 26(b)(4) a 1, supra. As to other trial preparation materials a party must make the showing spelled out in Rule 26(b)(3), supra. This requirement, accordingly, should not be circumvented by an improper use of Rule 33 or Rule 34.

Rule 30(b)(5) does, however, provide that “The notice to a party deponent may be accompanied by a request made in compliance with Rule 34 for the production of documents and tangible things at the taking of the deposition.”

OFFICIAL COMMENT

Comment to the 2011 Amendment.

Subsection (c) . Subsection (c) is amended to parallel Rule 34(a) by recognizing the importance of electronically stored information. The term “electronically stored information” has the same broad meaning in subsection (c) as in Rule 34(a).

Special difficulties may arise in using electronically stored information, either due to its form or because it is dependent on a particular computer system. Subsection (c) allows a responding party to substitute access to documents or electronically stored information for an answer only if the burden of deriving the answer will be substantially the same for either party. Subsection (c) requires a party electing to respond to an interrogatory by providing electronically stored information to ensure that the interrogating party can locate and identify it “as readily as can the party served”. In this regard, the responding party should consider using the system on which the electronically stored information is housed to generate summary reports that can be produced as the kind of “compilation, abstract or summary” contemplated by subsection (c). Such reports can be particularly helpful when they are the same kind of reports that the producing party uses in making decisions or tracking information.

Subsection (c) also provides that the responding party must give the interrogating party a “reasonable opportunity to examine, audit, or inspect” the information. Depending on the circumstances, satisfying these provisions with regard to electronically stored information may require the responding party to provide some combination of technical support, information on application software, or other assistance. The key question is whether such support enables the interrogating party to derive or ascertain the answer from the electronically stored information as readily as can the responding party. A party that wishes to invoke subsection (c) by specifying electronically stored information may be required to provide direct access to its electronic information system, but only if that is necessary to afford the requesting party an adequate opportunity to derive or ascertain the answer to the interrogatory. The necessity question will turn on whether the requesting party can show that there is some specific reason, beyond general suspicion, to doubt the information that the producing party provides from the system involved and that the burden of providing direct access is reasonable in light of the importance of the information and the circumstances of the case. In appropriate situations, the court should consider having the parties share the cost of providing such direct access. Further, in situations where direct access becomes an issue, the responding party’s need to protect sensitive interests of confidentiality or privacy may mean that it must derive or ascertain and provide the answer itself rather than invoke subsection (c).

Editor’s Note.

Session Laws 2011-199, s. 7, provides: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all explanatory comments of the drafters of this act, the North Carolina Bar Association Litigation Section E-Discovery Committee, as the Revisor may deem appropriate.”

Legal Periodicals.

For article, “The 1980 Amendments to the Federal Rules of Civil Procedure and Proposals for North Carolina Practice,” see 16 Wake Forest L. Rev. 915 (1980).

For article analyzing the 1983 amendments to Rules 6, 7, 11, 16, 26, 52, 53 and 67, FRCP, comparing these rules with North Carolina practice, and suggesting changes in certain state and federal rules, see 20 Wake Forest L. Rev. 819 (1984).

CASE NOTES

Applicability of G.S. 8-56 and G.S. 50-10 . —

The provisions of G.S. 8-56 and G.S. 50-10 which render a husband or wife an incompetent witness apply to answers to interrogatories as well as to testimony at trial. Wright v. Wright, 281 N.C. 159 , 188 S.E.2d 317, 1972 N.C. LEXIS 1043 (1972).

The General Assembly, in enacting the Rules of Civil Procedure, did not contemplate that this rule and G.S. 1A-1 , Rule 26(b) would enable husband and wife in actions between them to require the other to answer interrogatories relating to acts of adultery or conduct from which adultery might be implied during the subsistence of their marriage; the General Assembly did not intend in such manner to remove the cloak of privacy surrounding the confidential relationships of husband and wife. Wright v. Wright, 281 N.C. 159 , 188 S.E.2d 317, 1972 N.C. LEXIS 1043 (1972).

Attestation by Defendant to Answers Not His Own. —

G.S. 1A-1 , Rule 37(d) does not come into operation if the responding party meets the requirements of this rule. However, by attesting to answers that were not his, defendant did not meet the requirements of this rule. Therefore, the imposition of sanctions of default against defendant was proper under G.S. 1A-1 , Rule 37(d). Hunter v. Spaulding, 97 N.C. App. 372, 388 S.E.2d 630, 1990 N.C. App. LEXIS 139 (1990).

No Shield of Deniability. —

Any requirement that a person supply answers that are “reasonably available” does not mean that a person may distend this rule to fashion a shield of so-called “deniability.” Hunter v. Spaulding, 97 N.C. App. 372, 388 S.E.2d 630, 1990 N.C. App. LEXIS 139 (1990).

Failure to Object to Interrogatories as Waiver. —

Ordinarily, in the absence of an extension of time, failure to object to interrogatories within the time fixed by the rule is a waiver of any objection. Golding v. Taylor, 19 N.C. App. 245, 198 S.E.2d 478, 1973 N.C. App. LEXIS 1623 , cert. denied, 284 N.C. 121 , 199 S.E.2d 659, 1973 N.C. LEXIS 789 (1973).

Where plaintiff was properly served with interrogatories but refused to answer them without good cause, and did not serve objections to any of the interrogatories on defendant or ask for an extension of time to answer, the trial court properly dismissed plaintiff ’s action. Hammer v. Allison, 20 N.C. App. 623, 202 S.E.2d 307, 1974 N.C. App. LEXIS 2506 , cert. denied, 285 N.C. 233 , 204 S.E.2d 23, 1974 N.C. LEXIS 946 (1974).

It was not an abuse of discretion to sanction a church’s alleged successor for discovery violations or to enter a protective order barring the introduction of evidence not produced in response to discovery requests because (1) the successor did not fully respond to discovery despite a consent order and waived objections, and (2) the protective order merely effectuated the court’s sanctions order. Burns v. Kingdom Impact Global Ministries, Inc., 251 N.C. App. 724, 797 S.E.2d 21, 2017 N.C. App. LEXIS 38 (2017).

Absent Some Overriding Constitutional Privilege. —

When time has lapsed the defendant will be deemed to have waived its right to object to interrogatories, absent some overriding constitutional privilege such as self-incrimination. Harrington Mfg. Co. v. Powell Mfg. Co., 26 N.C. App. 414, 216 S.E.2d 379, 1975 N.C. App. LEXIS 2065 , cert. denied, 288 N.C. 242 , 217 S.E.2d 679, 1975 N.C. LEXIS 917 (1975).

Principle that ordinarily failure to timely object to interrogatories waives objections thereto must yield to the privilege against self-incrimination guaranteed by U.S. Const., Amend. XIV. Golding v. Taylor, 19 N.C. App. 245, 198 S.E.2d 478, 1973 N.C. App. LEXIS 1623 , cert. denied, 284 N.C. 121 , 199 S.E.2d 659, 1973 N.C. LEXIS 789 (1973).

Trial court acts within its discretion in making and refusing discovery orders. George W. Shipp Travel Agency, Inc. v. Dunn, 20 N.C. App. 706, 202 S.E.2d 812, 1974 N.C. App. LEXIS 2529 , cert. denied, 285 N.C. 237 , 204 S.E.2d 23, 1974 N.C. LEXIS 965 (1974).

Where plaintiff served answers to interrogatories after defendant had filed motion to dismiss and plaintiff ’s failure to comply with this rule clearly prejudiced the defendant’s ability to prepare for trial, the court had authority to dismiss the action. Hayes v. Browne, 76 N.C. App. 98, 331 S.E.2d 763, 1985 N.C. App. LEXIS 3722 (1985).

Proper Party to Answer Interrogatories. —

The State Bar’s counsel, as an agent of that governmental agency, was the proper party to answer the defendant’s interrogatories. North Carolina State Bar v. Harris, 137 N.C. App. 207, 527 S.E.2d 728, 2000 N.C. App. LEXIS 317 , op. withdrawn, sub. op., 139 N.C. App. 822, 535 S.E.2d 74, 2000 N.C. App. LEXIS 1037 (2000).

Interrogatories as Admissions of Party Opponent. —

Defendant’s answers to interrogatories, duly signed by defendant’s attorney, were admissions of a party opponent, and as such should have been admitted into evidence. Karp v. University of N.C. 78 N.C. App. 214, 336 S.E.2d 640, 1985 N.C. App. LEXIS 4251 (1985), aff'd, 323 N.C. 473 , 373 S.E.2d 430, 1988 N.C. LEXIS 627 (1988).

Party May Not Disavow Answers at Trial Which He Gave on Interrogatories. —

This rule does not permit a party to swear to the truth of answers given on interrogatories and then, at trial, to disavow knowledge about those answers. Hunter v. Spaulding, 97 N.C. App. 372, 388 S.E.2d 630, 1990 N.C. App. LEXIS 139 (1990).

Dismissal Proper. —

Dismissal of plaintiff’s suit was affirmed as it could be inferred that the trial court considered lesser sanctions given that it stated that lesser sanctions were urged by plaintiff and that, given the severity of disobedience by plaintiff’s counsel, lesser sanctions were inappropriate; plaintiff’s misconduct was serious as plaintiff did not answer or object to any of an insurer’s discovery requests, seek a protective order, or proffer any justification for the inaction. Badillo v. Cunningham, 177 N.C. App. 732, 629 S.E.2d 909, 2006 N.C. App. LEXIS 1226 , aff'd, 361 N.C. 112 , 637 S.E.2d 538, 2006 N.C. LEXIS 1293 (2006).

Rule 34. Production of documents, electronically stored information, and things; entry upon land for inspection and other purposes.

  1. Scope. —  Any party may serve on any other party a request (i) to produce and permit the party making the request, or someone acting on that party’s behalf, to inspect and copy, test, or sample any designated documents, electronically stored information, or tangible things which constitute or contain matters within the scope of Rule 26(b) and which are in the possession, custody or control of the party upon whom the request is served; or (ii) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 26(b).
  2. Procedure. —  The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party. The request shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. The request may specify the form or forms in which electronically stored information is to be produced.

    The party upon whom the request is served shall serve a written response within 30 days after the service of the request, except that a defendant may serve a response within 45 days after service of the summons and complaint upon that defendant. The court may allow a shorter or longer time. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified. In addition to other bases for objection, the response may state an objection to production of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. The response may also state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form, or if no form is specified in the request, the party must state the form or forms it intends to use. The party submitting the request may move for an order under Rule 37(a) with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested.

    Unless otherwise stipulated by the parties or ordered by the court, the following procedures apply to producing documents or electronically stored information:

    1. A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;
    2. If a request does not specify a form for producing the electronically stored information, a party must produce it in a reasonably usable form or forms; and
    3. A party need not produce the same electronically stored information in more than one form.

      (b1) Form of response. — There shall be sufficient space following each request in which the respondent may state the response. The respondent shall: (1) state the response in the space provided, using additional pages if necessary; or (2) restate the request to be followed by the response. An objection to a request shall be made by stating the objection and the reason therefor either in the space following the request or following the restated request.

  3. Persons not parties. —  This rule does not preclude an independent action against a person not a party for production of documents and things and permission to enter upon land.

History. 1967, c. 954, s. 1; 1969, c. 895, s. 8; 1973, c. 923, s. 1; 1975, c. 762, s. 2; 1987, c. 613, s. 2; 2011-199, s. 4.

Comment

Former statutes in a pending action authorized the court to order an inspection of writings (§ 8-89) and the production of documents (§ 8-90).

The protective provisions of Rule 30(b) are incorporated in this rule by reference.

The provisions in this rule limiting the scope of the examination as permitted in Rule 26(b) and the specification in Rule 26(b) of documents which shall not be the subject of discovery would appear to provide explicit regulations on such matters and avoid complexities which have existed under the federal rules.

OFFICIAL COMMENT

Comment to the 1969 Amendment.

The 1969 amendment deleted former subsection (b) which dealt with discovery of certain documents without order of court. Since this whole area is now undergoing intensive study, it was thought desirable to delay action until a later date.

OFFICIAL COMMENT

Comment to the 1975 Amendment.

Rule 34 is revised to accomplish the following major changes in the existing rule: (1) To eliminate the requirement of good cause for production, which was formerly superimposed on the provisions regulating the permissible scope of discovery; (2) To have the rule operate without the necessity of the court’s participation; (3) To include testing and sampling as well as inspecting or photographing tangible things; and (4) To make clear that the rule does not preclude an independent action for analogous discovery against persons not parties.

Section (a). — Good cause is eliminated because it has furnished an uncertain and erratic protection to the parties from whom production is sought and is now rendered unnecessary by virtue of the more specific provisions added to Rule 26(b) relating to materials assembled in preparation for trial and to experts retained or consulted by parties.

The good-cause requirement was originally inserted in federal Rule 34 as a general protective provision in the absence of experience with the specific problems that would arise thereunder. The overwhelming proportion of the cases in which the formula of good cause has been applied to require a specific showing are those involving trial preparation. In practice, the courts have not treated documents as having a special immunity to discovery simply because of their being documents. Protection may be afforded to claims of privacy or secrecy or of undue burden or expense under what is now Rule 26(c) (previously Rule 30(b)). To be sure, an appraisal of “undue” burden inevitably entails consideration of the needs of the party seeking discovery. With special provisions added to govern trial preparation materials and experts, there is no longer any occasion to retain the requirement of good cause.

The revision of Rule 34 to have it operate extrajudicially rather than by court order is to a large extent a reflection of existing practice.

The inclusion of testing and sampling of tangible things and objects or operations on land reflects a need frequently encountered by parties in preparation for trial. If the operation of a particular machine is the basis of a claim for negligent injury, it will often be necessary to test its operating parts or to sample and test the products it is producing.

The inclusive description of “documents” is revised to accord with changing technology. It makes clear that Rule 34 applies to electronic data compilations from which information can be obtained only with the use of detection devices, and that when the data can as a practical matter be made usable by the discovering party only through respondent’s devices, respondent may be required to use his devices to translate the data into usable form. In many instances, this means that respondent will have to supply a printout of computer data. The burden thus placed on respondent will vary from case to case, and the courts have ample power under Rule 26(c) to protect respondent against undue burden or expense, either by restricting discovery or requiring that the discovering party pay costs. Similarly, if the discovering party needs to check the electronic source itself, the court may protect respondent with respect to preservation of his records, confidentiality of nondiscoverable matters, and costs.

Section (b). — The procedure provided in Rule 34 is essentially the same as that in Rule 33, as amended, and the discussion in the note appended to that rule is relevant to Rule 34 as well. Problems peculiar to Rule 34 relate to the specific arrangements that must be worked out for inspection and related acts of copying, photographing, testing, or sampling. The rule provides that a request for inspection shall set forth the items to be inspected either by item or category, describing each with reasonable particularity, and shall specify a reasonable time, place, and manner of making the inspection.

Section (c). — Rule 34 as revised continues to apply only to parties. Comments from the bar to the drafters of the federal rule made clear that in the preparation of cases for trial it is occasionally necessary to enter land or inspect large tangible things in the possession of a person not a party, and that some federal courts had dismissed independent actions in the nature of bills in equity for such discovery on the ground that Rule 34 is preemptive. While an ideal solution to this problem is to provide for discovery against persons not parties in Rule 34, both the jurisdictional and procedural problems are very complex. For the present, this section makes clear that Rule 34 does not preclude independent actions for discovery against persons not parties.

Relation to other rules. — Rule 34 does not deal with trial preparation materials, since discovery as to those materials is specially dealt with by Rule 26(b)(3), (4). Accordingly, those provisions should not be circumvented by an improper use of Rule 33 or 34.

A request made in compliance with Rule 34 may accompany the notice to a party deponent to take his oral deposition. Rule 30(b)(5).

OFFICIAL COMMENT

Comment to the 2011 Amendment.

Subsection (a) . As originally adopted, Rule 34 focused on discovery of “documents” and “things.” In 1975, Rule 34(a) was amended to include discovery of data compilations, anticipating that the use of computerized information would increase. Since then, the growth in electronically stored information and in the variety of systems for creating and storing such information has been dramatic. Lawyers and judges interpreted the term “documents” to include electronically stored information because it obviously was improper to allow a party to evade discovery obligations on the basis that the label had not kept pace with changes in information technology. But it has become increasingly difficult to say that all forms of electronically stored information, many dynamic in nature, fit within the traditional concept of a “document.” Electronically stored information may exist in dynamic databases and other forms far different from fixed expression on paper. Subsection (a) is amended to confirm that discovery of electronically stored information stands on equal footing with discovery of paper documents. The change clarifies that Rule 34 applies to information that is fixed in a tangible form and to information that is stored in a medium from which it can be retrieved and examined. At the same time, a Rule 34 request for production of “documents” should be understood to encompass, and the response should include, electronically stored information unless discovery in the action has clearly distinguished between electronically stored information and “documents.”

Discoverable information often exists in both paper and electronic form, and the same or similar information might exist in both. The wide variety of computer systems currently in use, and the rapidity of technological change, counsel against a limiting or precise definition of electronically stored information. “Electronically stored information” in subsection (a)(i) has the same meaning as in Rule 26(b)(1). It is expansive and includes any type of information that is stored electronically, except most metadata. A common example often sought in discovery is electronic communications, such as e-mail. The rule covers, either as documents or as electronically stored information, information “stored in any medium,” to encompass future developments in computer technology. Subsection (a)(i) is intended to be broad enough to cover all current types of computer-based information and flexible enough to encompass future changes and developments. References elsewhere in the rules to “electronically stored information” should be understood to invoke this expansive approach. The term used in subsection (a)(i) appears in a number of other amendments, such as those to Rules 26(b)(1), 26(b)(1b), 26(c), 26(f)(1), 26(f)(3), 33(c), 37(a)(2), 37(b1), 45(a), 45(c), and 45(d). In each of these rules, electronically stored information has the same broad meaning it has under subsection (a)(i) of this rule.

The term “electronically stored information” is broad, but whether material that falls within this term should be produced, and in what form, are separate questions that must be addressed under Rules 26(b), 26(c), and 34(b).

Subsection (b) . Subsection (b) provides that a party must produce documents as they are kept in the usual course of business or must organize and label them to correspond with the categories in the discovery request. The production of electronically stored information should be subject to comparable requirements to protect against deliberate or inadvertent production in ways that raise unnecessary obstacles for the requesting party. Subsection (b) is amended to ensure similar protection for electronically stored information.

Subsection (b) permits the requesting party to designate the form or forms in which it wants electronically stored information produced. The form of production is more important to the exchange of electronically stored information than of hard-copy materials, although a party might specify hard copy as the requested form. Specification of the desired form or forms may facilitate the orderly, efficient, and cost-effective discovery of electronically stored information. The rule recognizes that different forms of production may be appropriate for different types of electronically stored information. Using current technology, for example, a party might be called upon to produce word processing documents, e-mail messages, electronic spreadsheets, different image or sound files, and material for databases. Requiring that such diverse types of electronically stored information all be produced in the same form could prove impossible and, even if possible, could increase the cost and burdens of producing and using the information. The rule therefore provides that the requesting party may ask for different forms of production for different types of electronically stored information.

The rule does not require that the requesting party choose a form or forms of production. The requesting party may not have a preference. In some cases, the requesting party may not know what form the producing party uses to maintain its electronically stored information, although new Rule 26(f) allows for discussion of the form of production in a discovery meeting between the parties.

The second paragraph of subsection (b) provides a specific basis for objecting to discovery of electronically stored information that is in addition to objections to more traditional discovery, i.e, an objection that the potential burden or cost to the responding party of obtaining the information from the source in which it is stored makes the requirement for production unreasonable. This amendment is taken from Federal Rules of Civil Procedure, Rule 26(b)(2)(B), but is placed in Rule 34 because the North Carolina Rules, unlike the federal rules, do not require disclosure of discoverable information without request.

The amendment to subsection (b), paragraph 2, is designed to address issues raised by difficulties in locating, retrieving, and providing discovery of some electronically stored information. Electronic storage systems often make it easy to locate and retrieve information. But some sources of electronically stored information can be assessed only with substantial burden and cost. In a particular case, these burdens and costs may make the information on such sources not reasonably accessible. It is not possible to define in a rule the different types of technological features that may affect the burdens and costs of accessing electronically stored information. The duties regarding electronically stored information not reasonably accessible outlined in Rule 45(d) also apply to Rule 34(b).

Under this rule, a responding party should produce requested electronically stored information that is relevant, not privileged, and reasonably accessible, subject to the limitations that apply to all discovery. The responding party also must identify, by category or type, sources containing potentially responsive information that it is neither searching nor producing. The identification should, to the extent possible, provide enough detail to enable the requesting party to evaluate the burdens and costs of providing the discovery and the likelihood of finding responsive information on the identified sources.

If the parties cannot agree whether, or on what terms, sources identified as not reasonably accessible should be searched and discoverable information produced, the issue may be raised either by a motion to compel discovery or by a motion for a protective order. Rules 26(c) and 37(a)(2) provide that when a motion to compel discovery or for a protective order is presented to the court, the party objecting to production bears the burden of showing that the electronically stored information is not reasonably accessible. If that showing is made, the requesting party still may obtain discovery by showing good cause, considering the limitations of Rule 26(b)(1a) that balance the costs and potential benefits of discovery and Rule 26(b)(1b) that permits the court to specify conditions for the discovery, including allocation of discovery costs.

A further provision in the second paragraph of subsection (b) provides that, if a form in which the information is to be produced is specified in the request to produce, a responding party may not simply object to providing electronically stored information in the form specified; the party must propose an alternative form or forms. If the parties are unable to resolve any disagreement about form, a judge may need to resolve the disagreement.

If the form of production is not specified by party agreement or court order, the responding party must produce electronically stored information either in a form or forms in which it ordinarily is maintained or in a form or forms that are reasonably usable. In this regard, the responding party should consider using the system on which the electronically stored information is housed to generate summary reports. Such reports can be particularly helpful when they are the same kind of reports that the producing party uses in making decisions or tracking information. Generating reports to meet the needs of the litigation also can be helpful. While a system of electronically stored information may not store information in precisely the fashion sought by a requesting party and, therefore, the responding party cannot be forced to produce information in exactly the fashion sought, it may be possible to use the same system to provide reports from existing information that will provide the information needed for the litigation even though not precisely in the fashion sought.

Under some circumstances, the responding party may need to provide some reasonable amount of technical support, information on application software, or other reasonable assistance to enable the requesting party to use the information. The Rule does not require a party to produce electronically stored information in the form in which it ordinarily is maintained, so long as it is produced in a reasonably usable form. But the option to produce in a reasonably usable form does not mean that a responding party is free to convert electronically stored information from the form in which it ordinarily is maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation. If the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature.

If a party that receives produced information claims that it needs to look “behind” that information or have access to the full database or system that generated the information, the question of further production or direct access will turn on whether the requesting party can show that there is some specific reason, beyond general suspicion, to doubt the information and that the burden of providing direct access is reasonable in light of the importance of the information and the circumstances of the case. If the burden is negligible in light of the circumstances, production or access probably will follow. If the burden is heavy, the requesting party will need to have a stronger rationale for additional production.

Some electronically stored information may ordinarily be maintained in a form that is not reasonably usable by any party. One example is “legacy” data that can be used only by superseded systems. Whether a producing party should be required to convert such information to a more usable form, or should be required to produce it at all, should be addressed under Rule 26(b)(1a).

Whether or not the requesting party specified the form of production, subsection (b) provides that the same electronically stored information ordinarily need be produced in only one form.

Subsection (b1) . The last paragraph of former subsection (b) has been set out separately as new subsection (b1). Its substance has not been changed.

Editor’s Note.

Session Laws 2011-199, s. 4, effective October 1, 2011, and applicable to actions filed on or after that date, had redesignated subsection (c) as subsection (d), and added a new subsection (c). The new subsection was redesignated as subsection (b1), and subsection (c) left unchanged, at the direction of the Revisor of Statutes.

Session Laws 2011-199, s. 7, provides: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all explanatory comments of the drafters of this act, the North Carolina Bar Association Litigation Section E-Discovery Committee, as the Revisor may deem appropriate.”

Effect of Amendments.

Session Laws 2011-199, s. 4, effective October 1, 2011, and applicable to actions filed on or after that date, rewrote the section.

Legal Periodicals.

For article on legislative changes to the new Rules of Civil Procedure, see 6 Wake Forest Intra. L. Rev. 267 (1970).

For survey of 1976 case law on civil procedure, see 55 N.C.L. Rev. 914 (1977).

For article, “The 1980 Amendments to the Federal Rules of Civil Procedure and Proposals for North Carolina Practice,” see 16 Wake Forest L. Rev. 915 (1980).

CASE NOTES

Analysis

I.In General

The purpose of this rule is to prevent litigants from engaging in mere fishing expeditions to discover evidence or using the rule for harassment purposes. Williams v. State Farm Mut. Auto. Ins. Co., 67 N.C. App. 271, 312 S.E.2d 905, 1984 N.C. App. LEXIS 3048 (1984).

Requirement of Court Order Based Upon Motion and Good Cause Eliminated. —

The new procedure for obtaining production and inspection of documents has eliminated the requirement of a court order based upon motion and good cause. This new rule simply requires serving the request for production upon the other party. Willis v. Duke Power Co., 291 N.C. 19 , 229 S.E.2d 191, 1976 N.C. LEXIS 932 (1976).

Prerequisites of Production. —

This rule requires that as a prerequisite of production, documents must be (1) “designated,” (2) “within the scope” of G.S. 1A-1 , Rule 26(b), and (3) in the “possession, custody or control” of a party from whom they are sought. Willis v. Duke Power Co., 291 N.C. 19 , 229 S.E.2d 191, 1976 N.C. LEXIS 932 (1976).

Failure to Disclose. —

When it was revealed in the course of a personal injury trial that the injured party incorrectly responded to the defending motorist’s request for production, under G.S. 1A-1 , Rule 34, seeking medical reports from any medical practitioner who had ever treated the injured party for any back or neck difficulties, because the injured party did not reveal an emergency room visit for an unrelated automobile accident in which the injured party complained of neck pain, the trial court did not abuse its discretion in declining to impose sanctions because the injured party’s counsel obtained and delivered the documents in question, the motorist was given an opportunity to cross-examine the injured party about the documents, the injured party admitted her untruthful response during cross-examination, explaining that she had forgotten about the emergency room visit following the accident in which she was not seriously hurt, and she had not sought other medical treatment following the emergency room visit. Messina v. Bell, 158 N.C. App. 111, 581 S.E.2d 80, 2003 N.C. App. LEXIS 978 (2003).

Where the injured parties served the neighbor with an amended notice of deposition and a request to produce documents under G.S. 1A-1 , N.C. R. Civ. P. 34, where the neighbor responded by filing an objection to discovery and a motion for a protective order, and where the trial court overruled the neighbor’s request and ordered the neighbor to produce three letters requested by the injured parties, an order with which the neighbor complied, the injured parties were not entitled to sanctions under G.S. 1A-1 , N.C. R. Civ. P. 37(b); there was no evidence that the neighbor did not comply with the trial court’s order compelling production of the three letters. Becker v. Pierce, 168 N.C. App. 671, 608 S.E.2d 825, 2005 N.C. App. LEXIS 452 (2005).

Failure to Produce. —

Trial court did not abuse its discretion when it ordered that appellants be sanctioned for not providing a server’s login credentials. Gea, Inc. v. Luxury Auctions Mktg., 259 N.C. App. 443, 817 S.E.2d 422, 2018 N.C. App. LEXIS 489 (2018).

Trial court did not abuse its discretion when it ordered that appellants (a marketing company and its director of operations) be sanctioned unless the director of operations produced his personal laptop for inspection. Gea, Inc. v. Luxury Auctions Mktg., 259 N.C. App. 443, 817 S.E.2d 422, 2018 N.C. App. LEXIS 489 (2018).

It could be inferred from the record that the trial court considered imposing lesser sanctions on appellants’ for failing to comply with a discovery order and that the sanctions imposed were appropriate. Gea, Inc. v. Luxury Auctions Mktg., 259 N.C. App. 443, 817 S.E.2d 422, 2018 N.C. App. LEXIS 489 (2018).

Because appellants failed to comply with a trial court’s discovery order, the trial court did not abuse its discretion when it struck appellants’ defenses to appellees’ counterclaims, entered default against appellants, and denied appellants’ request for reconsideration. Gea, Inc. v. Luxury Auctions Mktg., 259 N.C. App. 443, 817 S.E.2d 422, 2018 N.C. App. LEXIS 489 (2018).

Asserting Work Product Privilege Insufficient Without Written Objection or Protective Order. —

Assertion by counsel of a work product privilege to the tapes and transcripts was insufficient to meet the requirements of this rule where he did not file a written objection nor seek a protective order, and his failure to do either entitled the opposing party to proceed under Rule 37(d). Pugh v. Pugh, 113 N.C. App. 375, 438 S.E.2d 214, 1994 N.C. App. LEXIS 28 (1994).

Blanket General Objection Improper. —

Blanket general objection based on the attorney/client privilege, the work product doctrine, or any other applicable privilege or doctrine did not satisfy G.S. 1A-1 , N.C. R. Civ. P. 34 as blanket general objections purporting to assert attorney-client privilege or work product immunity to all of the opposing parties’ discovery requests were inadequate to effect their intended purpose and did not establish a substantial right to an immediate appeal. K2 Asia Ventures v. Trota, 215 N.C. App. 443, 717 S.E.2d 1, 2011 N.C. App. LEXIS 1890 (2011).

Blanket general objections purporting to assert attorney-client privilege or work product immunity to all of the opposing parties’ discovery requests are inadequate to effect their intended purpose and do not establish a substantial right to an immediate appeal. K2 Asia Ventures v. Trota, 215 N.C. App. 443, 717 S.E.2d 1, 2011 N.C. App. LEXIS 1890 (2011).

The party seeking production must show that prerequisites are satisfied. Willis v. Duke Power Co., 291 N.C. 19 , 229 S.E.2d 191, 1976 N.C. LEXIS 932 (1976).

Burden of Proof. —

Defendants’ claim that because plaintiffs’ motion to compel did not specifically mention attorney-client privilege or work product immunity, defendants did not present oral arguments on the issue, offer any evidence in support of their privilege and immunity claims, or submit any of the requested documents for in camera review was rejected as defendants had the burden of proof with regard to attorney-client privilege and work product immunity. K2 Asia Ventures v. Trota, 215 N.C. App. 443, 717 S.E.2d 1, 2011 N.C. App. LEXIS 1890 (2011).

“Designation” by Categories. —

“Designation,” as used in this rule, does not necessarily mean that documents must be separately described. Designation by categories may be sufficient, depending upon the categories utilized. Willis v. Duke Power Co., 291 N.C. 19 , 229 S.E.2d 191, 1976 N.C. LEXIS 932 (1976).

As to what constituted good cause under this rule prior to 1975 amendment, see Stanback v. Stanback, 287 N.C. 448 , 215 S.E.2d 30, 1975 N.C. LEXIS 1130 (1975).

When a party requests production of documents under this rule, he must show good cause, which includes the elements of necessity and relevance. Williams v. State Farm Mut. Auto. Ins. Co., 67 N.C. App. 271, 312 S.E.2d 905, 1984 N.C. App. LEXIS 3048 (1984).

A mere statement that an examination is material and necessary is not sufficient to support a production order. Williams v. State Farm Mut. Auto. Ins. Co., 67 N.C. App. 271, 312 S.E.2d 905, 1984 N.C. App. LEXIS 3048 (1984).

Audit of Electronic Systems. —

It was not an abuse of discretion to order a manufacturer to submit to an audit of the manufacturer’s electronic systems because (1) the Rule did not specify the manner in which documents could be sought or compelled, and (2) such an alternative means of ensuring the production of requested documents was within a trial court’s discretion. Feeassco, LLC v. The Steel Network, Inc., 264 N.C. App. 327, 826 S.E.2d 202, 2019 N.C. App. LEXIS 221 (2019).

Dismissal Proper. —

Dismissal of plaintiff’s suit was affirmed as it could be inferred that the trial court considered lesser sanctions given that it stated that lesser sanctions were urged by plaintiff and that, given the severity of disobedience by plaintiff’s counsel, lesser sanctions were inappropriate; plaintiff’s misconduct was serious as plaintiff did not answer or object to any of an insurer’s discovery requests, seek a protective order, or proffer any justification for the inaction. Badillo v. Cunningham, 177 N.C. App. 732, 629 S.E.2d 909, 2006 N.C. App. LEXIS 1226 , aff'd, 361 N.C. 112 , 637 S.E.2d 538, 2006 N.C. LEXIS 1293 (2006).

II.Decisions under Prior Law

Editor’s Note. —

The cases cited below were decided under former G.S. 8-89 and G.S. 8-90 .

As to liberal construction of former provisions, see Abbitt v. Gregory, 196 N.C. 9 , 144 S.E. 297, 1928 N.C. LEXIS 257 (1928); H.L. Coble Constr. Co. v. Housing Auth., 244 N.C. 261 , 93 S.E.2d 98, 1956 N.C. LEXIS 392 (1956); Diocese of W.N.C. v. Sale, 254 N.C. 218 , 118 S.E.2d 399, 1961 N.C. LEXIS 377 (1961).

Former G.S. 8-89 and G.S. 8-90 did not supersede the subpoena duces tecum. Vaughan v. Broadfoot, 267 N.C. 691 , 149 S.E.2d 37, 1966 N.C. LEXIS 1110 (1966).

Former G.S. 8-89 only authorized the judge to order one party to exhibit the writing to the other and required a copy to be given him or permit him to take a copy of the same, within a specified time. It was not intended that there should be an investigation of the controversies, with witnesses and lawyers on both sides. Sheek v. Sain, 127 N.C. 266 , 37 S.E. 334, 1900 N.C. LEXIS 65 (1900).

An examination of an adverse party could be joined with an order under former G.S. 8-89 for an inspection of writings in the possession or under the control of the party to be examined. Abbitt v. Gregory, 196 N.C. 9 , 144 S.E. 297, 1928 N.C. LEXIS 257 (1928).

Substitute for Bill of Discovery. —

Former G.S. 8-89 was primarily designed and intended to afford facilities for the ascertainment of truths that were formerly supplied by a bill of discovery. Girard Nat'l Bank v. McArthur, 165 N.C. 374 , 81 S.E. 327, 1914 N.C. LEXIS 273 (1914).

Affidavit as Prerequisite to Order for Discovery and Inspection. —

As a prerequisite to an order for pretrial discovery and inspection of documents under former provisions, the courts, following their own procedure for discovery in aid of a bill of equity, required the applicant to show by affidavit the necessity for the inspection and the materiality to the issue of the documents sought to be inspected. If the affidavit was insufficient, any order based upon it was invalid. Vaughan v. Broadfoot, 267 N.C. 691 , 149 S.E.2d 37, 1966 N.C. LEXIS 1110 (1966).

The affidavit supporting an order for inspection of writings must sufficiently designate the writings sought to be inspected and show that they are material to the inquiry, and where the affidavit is insufficient an order based thereon is invalid. Dunlap v. London Guar. & Accident Co., 202 N.C. 651 , 163 S.E. 750, 1932 N.C. LEXIS 178 (1932); Flanner v. Saint Joseph Home for Blind Sisters, 227 N.C. 342 , 42 S.E.2d 225, 1947 N.C. LEXIS 421 (1947); H.L. Coble Constr. Co. v. Housing Auth., 244 N.C. 261 , 93 S.E.2d 98, 1956 N.C. LEXIS 392 (1956); Tillis v. Calvine Cotton Mills, 244 N.C. 587 , 94 S.E.2d 600, 1956 N.C. LEXIS 477 (1956).

The affidavit must set forth facts showing the materiality and necessity of the papers sought to be produced, and the mere averment that they are material and necessary is insufficient. Patterson v. Southern Ry., 219 N.C. 23 , 12 S.E.2d 652, 1941 N.C. LEXIS 266 (1941).

When Application for Order Is Sufficiently Definite. —

An application for an order for inspection of writings is sufficiently definite when it refers to papers under the exclusive control of the adverse party which relate to the immediate issue in controversy, and which cannot be more definitely described by applicant. Rivenbark v. Shell Union Oil Corp., 217 N.C. 592 , 8 S.E.2d 919, 1940 N.C. LEXIS 303 (1940).

While a “roving commission for the inspection of papers” will not be ordinarily allowed, an application for an order for inspection of writings was sufficiently definite when it referred to papers under the exclusive control of the adverse party, which related to the immediate issue in controversy and could not be definitely described, and an order based thereon would be upheld. Bell v. Murchison Nat'l Bank, 196 N.C. 233 , 145 S.E. 241, 1928 N.C. LEXIS 327 (1928).

Instrument Sought Must Be Pertinent to Issue. —

Upon motion to allow inspection or copy of books, papers, etc., before trial, it must be made to appear that the instrument in question relates to the merits of the action or is pertinent to the issue. Evans v. Seaboard Air Line Ry., 167 N.C. 415 , 83 S.E. 617, 1914 N.C. LEXIS 138 (1914).

The law will not permit a “fishing or ransacking expedition,” either by subpoena duces tecum or a bill of discovery. Vaughan v. Broadfoot, 267 N.C. 691 , 149 S.E.2d 37, 1966 N.C. LEXIS 1110 (1966).

A person will not be ordered to allow an inspection of a writing if the party making the request knows the contents thereof. Sheek v. Sain, 127 N.C. 266 , 37 S.E. 334, 1900 N.C. LEXIS 65 (1900).

Information to Be Used in Action Against Third Party. —

Plaintiff could not proceed under former G.S. 8-89 to examine defendant’s records and documents for the purpose of obtaining information to form the basis of an action against a third party. Flanner v. Saint Joseph Home for Blind Sisters, 227 N.C. 342 , 42 S.E.2d 225, 1947 N.C. LEXIS 421 (1947).

As to requirement of due notice, see Vann v. Lawrence, 111 N.C. 32 , 15 S.E. 1031, 1892 N.C. LEXIS 115 (1892).

What Constitutes Due Notice. —

Due notice is notice sufficient to enable the party to have the document when called for. McDonald v. Carson, 95 N.C. 377 , 1886 N.C. LEXIS 276 (1886).

Insufficient Notice. —

Generally if a party dwells in another town than that in which the trial is had, a service of notice upon him at the place where the trial is had, or after he has left home to attend court, to produce papers, is not sufficient. Beard v. Southern Ry., 143 N.C. 136 , 55 S.E. 505, 1906 N.C. LEXIS 326 (1906).

Duration of Notice. —

A notice to produce papers, etc., “on a trial to be had this day” is not confined to a trial on that day, but extends to a trial at a subsequent term. State v. Kimbrough, 13 N.C. 431 , 1830 N.C. LEXIS 80 (1830).

Necessity That Complaint Be Filed. —

A court could not, under former G.S. 8-90 , order the production of papers by defendant where no complaint had been filed. Branson v. Fentress, 35 N.C. 165 , 1851 N.C. LEXIS 136 (1851).

Acquiring Information Necessary to Filing of Complaint. —

In an action against a clinic and doctors for alleged tortious defamation and disclosures of confidential information acquired professionally, plaintiff was held entitled to an order requiring defendants to produce specified papers and documents to afford information necessary to the filing of the complaint. Nance v. Gilmore Clinic, Inc., 230 N.C. 534 , 53 S.E.2d 531, 1949 N.C. LEXIS 368 (1949) (distinguishing) Flanner v. Saint Joseph Home for Blind Sisters, 227 N.C. 342 , 42 S.E.2d 225, 1947 N.C. LEXIS 421 (1947) (where the matter sought to be discovered was not necessary as a basis for filing the complaint) .

In an action by a stockholder of a corporation to set aside as fraudulent an assignment by the corporation of a contract, the plaintiff was entitled to inspect the records and books of the corporation in order to obtain information upon which to frame his complaint. Holt v. Southern Finishing & Whse. Co., 116 N.C. 480 , 21 S.E. 919, 1895 N.C. LEXIS 232 (1895).

Where no answer was filed, defendant was not entitled to an order to inspect a check in possession of the plaintiff. Sheek v. Sain, 127 N.C. 266 , 37 S.E. 334, 1900 N.C. LEXIS 65 (1900).

Discretion of Court. —

Whether the trial court would grant an order for the inspection of writings upon a sufficient affidavit rested in its sound discretion. Dunlap v. London Guar. & Accident Co., 202 N.C. 651 , 163 S.E. 750, 1932 N.C. LEXIS 178 (1932); Tillis v. Calvine Cotton Mills, 244 N.C. 587 , 94 S.E.2d 600, 1956 N.C. LEXIS 477 (1956).

It was within the sound discretion of the trial court to order a party to give to the adverse party an inspection and copy of any books, papers and documents in his possession or under his control which contained evidence relating to the merits of the action or the defense thereto. Abbitt v. Gregory, 196 N.C. 9 , 144 S.E. 297, 1928 N.C. LEXIS 257 (1928).

Res Judicata Held Inapplicable. —

An order of the judge reversing an order of the clerk with reference to the production of papers was a discretionary matter, and being an administrative order in the cause and not affecting the merits, was not res judicata; hence, the motion could be renewed and a new order obtained. Mills v. Biscoe Lumber Co., 139 N.C. 524 , 52 S.E. 200, 1905 N.C. LEXIS 160 (1905).

Compelling Production After Earlier Refusal. —

Where the judge refuses an inspection which is of the character authorized, it still rests within his discretion to compel the production of the writing later or upon trial, when its competency and pertinency as evidence bearing on the issue may be better determined. Evans v. Seaboard Air Line Ry., 167 N.C. 415 , 83 S.E. 617, 1914 N.C. LEXIS 138 (1914).

Order of Court Upheld. —

Trial court’s refusal to grant plaintiff ’s motion for an order that defendant produce certain written statements signed by witnesses, employees of defendant, which statements these employees testified they used to refresh their recollection before becoming witnesses, was not error, the granting of such motion being in the discretion of the court, where the record failed to show that the requirements of former G.S. 8-89 and 8-90 were met by plaintiff, or that the written statements were in court. Star Mfg. Co. v. Atlantic Coast Line R.R., 222 N.C. 330 , 23 S.E.2d 32, 1942 N.C. LEXIS 94 (1942).

Where plaintiff ’s motion was for inspection of writings in the possession of the corporate defendant, and the order allowed inspection of writings in the possession of both the corporate and individual defendant, but both defendants were represented by the same counsel and it appeared that the individual defendant was the president of the corporate defendant and that the writings referred to in the order all related to business of the corporate defendant, abuse of discretion in granting the order was not shown. Tillis v. Calvine Cotton Mills, 244 N.C. 587 , 94 S.E.2d 600, 1956 N.C. LEXIS 477 (1956).

Former G.S. 8-89 did not authorize issuance of an order that respondent deposit papers in the clerk’s office. Mills v. Biscoe Lumber Co., 139 N.C. 524 , 52 S.E. 200, 1905 N.C. LEXIS 160 (1905).

Papers produced by the method prescribed are competent evidence for all legitimate purposes. Austin v. Secrest, 91 N.C. 214 , 1884 N.C. LEXIS 49 (1884).

Proof by Parol. —

The contents of a paper writing cannot be proved by parol unless notice has been given to the adverse party who has it in his possession to produce it on trial. Murchison v. McLeod, 47 N.C. 239 , 1855 N.C. LEXIS 32 (1855).

Motion to nonsuit a plaintiff for not producing books or papers could not be made unless a previous order of the court had been obtained for the production of such books or papers. Graham v. Hamilton, 25 N.C. 381 , 1843 N.C. LEXIS 27 (1843).

Where plaintiff ’s affidavit stated that he had not seen letter ordered produced since he sent it, that he had not knowingly destroyed it, and that he had made diligent search for it and could not find it, sufficient cause was shown for a discharge of the rule for its production. Fuller v. McMillian, 44 N.C. 206 , 1853 N.C. LEXIS 129 (1853).

An appeal lies from an order requiring a person to allow an inspection of paper writings. Sheek v. Sain, 127 N.C. 266 , 37 S.E. 334, 1900 N.C. LEXIS 65 (1900).

Necessity of Stating Facts. —

The Supreme Court will not pass upon the propriety of discharging a rule for the production of papers unless the facts are stated upon which the application is based. Maxwell v. McDowell, 50 N.C. 391 , 1858 N.C. LEXIS 62 (1858).

Rule 35. Physical and mental examination of persons.

  1. Order for examination. —  When the mental or physical condition (including the blood group) of a party, or of an agent or a person in the custody or under the legal control of a party, is in controversy, a judge of the court in which the action is pending as defined by Rule 30(h) may order the party to submit to a physical or mental examination by a physician or to produce for examination his agent or the person in his custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.
  2. Report of examining physician. —
    1. If requested by the party against whom an order is made under Rule 35(a) or the person examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings, including results of all tests made, diagnoses and conclusions, together with like reports of all earlier examinations of the same condition. After such request and delivery the party causing the examination shall be entitled upon request to receive from the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condition, unless, in the case of a report of examination of a person not a party, the party shows that he is unable to obtain it. The court on motion may make an order against a party requiring delivery of a report on such terms as are just, and if a physician fails or refuses to make a report the court may exclude his testimony if offered at the trial.
    2. By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical condition.
    3. This subsection applies to examinations made by agreement of the parties, unless the agreement expressly provides otherwise. This subsection does not preclude discovery of a report of an examining physician or the taking of a deposition of the physician in accordance with the provisions of any other rule.

History. 1967, c. 954, s. 1; 1975, c. 762, s. 2.

Comment

Section (a). — This section differs from federal Rule 35(a) only in the inclusion of certain changes proposed by the Advisory Committee in its 1955 report. Such inclusions make clear the right to require a blood test in an action in which blood relationships are in controversy. The provision for the examination of a person in the custody or under the legal control of a party will permit the examination of a minor or incompetent.

This procedure is new to North Carolina practice. However, the right to require the plaintiff in a civil action to recover personal injuries to submit to a physical examination was recognized in Flythe v. Eastern Carolina Coach Co., 195 N.C. 777 , 143 S.E. 865 (1928). Section 8-50.1 authorizes the court in actions in which the question of paternity arises to order a blood test.

Section (b). — This section permits the party examined to obtain the report of the physician making the examination. Since the party causing the examination could not obtain a copy of such a report made at the instance of the examined party because he might claim the report was privileged, this rule expressly provides that after the examined party requests a copy of the report of the examination made at the instance of the party causing the examination, the latter is entitled upon request to receive a report from the party examined of any examination previously or thereafter made concerning the same mental or physical examination.

The court is given the discretionary power to order that a copy of the report be furnished to any other party to the action.

OFFICIAL COMMENT

Comment to the 1975 Amendment.

North Carolina adopted this provision in this form in advance of its adoption as a part of the federal rules. The provisions bringing an agent of a party within the scope of the rule is the only present change aside from the addition of subsection (b)(3).

Subsection (b)(3). — This new subsection removes any possible doubt that reports of examination may be obtained although no order for examination has been made under Rule 35(a). Examinations are very frequently made by agreement and sometimes before the party examined has an attorney. The federal courts have uniformly ordered that reports be supplied and it appears best to fill the technical gap in the present rule.

The subsection also makes clear that reports of examining physicians are discoverable not only under Rule 35(b) but under other rules as well. To be sure, if the report is privileged, then discovery is not permissible under any rule other than Rule 35(b) and it is permissible under Rule 35(b) only if the party requests a copy of the report of examination made by the other party’s doctor. But if the report is unprivileged and is subject to discovery under the provisions of rules other than Rule 35(b) — such as Rules 34 or 26(b)(3) or (4) — discovery should not depend upon whether the person examined demands a copy of the report.

Legal Periodicals.

For comment surveying North Carolina law of relational privilege, see 50 N.C.L. Rev. 630 (1972).

For article, “The 1980 Amendments to the Federal Rules of Civil Procedure and Proposals for North Carolina Practice,” see 16 Wake Forest L. Rev. 915 (1980).

CASE NOTES

Mental Examination of Child in Termination Proceeding Held Not Required. —

Trial court did not err in denying a father’s motion requesting a mental examination of his 13-year old child in a termination of parental rights proceeding where the child was competent and of suitable age to testify about his feelings towards his father and there was no indication that the child’s desires and opinions about the termination of his father’s rights were influenced by anyone associated with the Department of Social Services or would have been different had an independent medical evaluation been conducted. In re Williams, 149 N.C. App. 951, 563 S.E.2d 202, 2002 N.C. App. LEXIS 364 (2002).

Mental Examination of Parent in Custody Proceedings. —

In child custody proceedings, a trial court did not abuse its discretion in ordering a father to submit to a mental health evaluation because the father threatened the mother, was physically and verbally abusive towards the mother, and verbally abusive towards the parties’ children. Maxwell v. Maxwell, 212 N.C. App. 614, 713 S.E.2d 489, 2011 N.C. App. LEXIS 1225 (2011).

Rule 36. Requests for admission; effect of admission.

  1. Request for admission. —  A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Rule 26(b) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party. If the request is served with service of the summons and complaint, the summons shall so state.

    Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney, but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 60 days after service of the summons and complaint upon him. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify his answer or deny only a part of the matter of which an admission is requested, he shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; he may, subject to the provisions of Rule 37(c), deny the matter or set forth reasons why he cannot admit or deny it.

    There shall be sufficient space following each request in which the respondent may state the response. The respondent shall:

    1. State the response in the space provided, using additional pages if necessary; or
    2. Restate the request to be followed by the response. An objection to a request shall be made by stating the objection and the reason therefor either in the space following the request or following the restated request.

      The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served. The court may, in lieu of these orders, determine that final disposition of the request be made at a pretrial conference or at a designated time prior to trial. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.

  2. Effect of admission. —  Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to the provisions of Rule 16 governing amendment of a pretrial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits. Any admission made by a party under this rule is for the purpose of pending action only and is not an admission by him for any other purpose nor may it be used against him in any other proceeding.

History. 1967, c. 954, s. 1; 1975, c. 762, s. 2; 1981, c. 384, ss. 1, 2; 1987, c. 613, s. 3.

Comment

Pretrial admissions of genuineness of documents were governed by former § 8-91. The provisions of this statute regarding taxation of costs are carried forward in Rule 37(c).

The last sentence of section (a) is designed to preclude a party from offering lack of knowledge as a ground for refusing to admit when, in fact, he has the means to such knowledge reasonably within his power. To allow such a technical ground for refusal on any other basis would render the effect of the admission provision practically useless.

Section (b) does not appear in the federal rule. This section places the burden on the party serving the request to answer to interrogatories or detail reasons why he cannot.

OFFICIAL COMMENT

Comment to the 1975 Amendment.

Rule 36 serves two vital purposes, both of which are designed to reduce trial time. Admissions are sought, first to facilitate proof with respect to issues that cannot be eliminated from the case, and secondly, to narrow the issues by eliminating those that can be. The changes made in the rules are designed to serve these purposes more effectively. Certain disagreements in the courts about the proper scope of the rule are resolved. In addition, the procedural operation of the rule is brought into line with other discovery procedures, and the binding effect of an admission is clarified.

Section (a). — As revised, the section provides that a request may be made to admit any matters within the scope of Rule 26(b) that relate to statements or opinions of fact or of the application of law to fact. It thereby eliminates the requirement that the matters be “of fact.” This change resolves conflicts in the federal court decisions as to whether a request to admit matters of “opinion” and matters involving “mixed law and fact” is proper under the rule.

Not only is it difficult as a practical matter to separate “fact” from “opinion,” but an admission on a matter of opinion may facilitate proof or narrow the issues or both. An admission of a matter involving the application of law to fact may, in a given case, even more clearly narrow the issues. For example, an admission that an employee acted in the scope of his employment may remove a major issue from the trial. The amended provision does not authorize requests for admissions of law unrelated to the facts of the case.

Requests for admission involving the application of law to fact may create disputes between the parties which are best resolved in the presence of the judge after much or all of the other discovery has been completed. Power is therefore expressly conferred upon the court to defer decision until a pretrial conference is held or until a designated time prior to trial. On the other hand, the court should not automatically defer decision; in many instances, the importance of the admission lies in enabling the requesting party to avoid the burdensome accumulation of proof prior to the pretrial conference.

Courts have also divided on whether an answering party may properly object to requests for admission as to matters which that party regards as “in dispute.” The proper response in such cases is an answer. The very purpose of the request is to ascertain whether the answering party is prepared to admit or regards the matter as presenting a genuine issue for trial. In his answer, the party may deny, or he may give as his reason for inability to admit or deny the existence of a genuine issue. The party runs no risk of sanctions if the matter is genuinely in issue, since Rule 37(c) provides a sanction of costs only when there are no good reasons for a failure to admit.

On the other hand, requests to admit may be so voluminous and so framed that the answering party finds the task of identifying what is in dispute and what is not unduly burdensome. If so, the responding party may obtain a protective order under Rule 26(c). Some of the decisions sustaining objections on “disputability” grounds could have been justified by the burdensome character of the requests.

Another sharp split of authority exists on the question whether a party may base his answer on lack of information or knowledge without seeking out additional information. One line of cases has held that a party may answer on the basis of such knowledge as he has at the time he answers. A larger group of cases, supported by commentators, has taken the view that if the responding party lacks knowledge, he must inform himself in reasonable fashion.

The rule as revised adopts the majority view, as in keeping with a basic principle of the discovery rules that a reasonable burden may be imposed on the parties when its discharge will facilitate preparation for trial and ease the trial process. It has been argued against this view that one side should not have the burden of “proving” the other side’s case. The revised rule requires only that the answering party make reasonable inquiry and secure such knowledge and information as are readily obtainable by him. In most instances, the investigation will be necessary either to his own case or to preparation for rebuttal. Even when it is not, the information may be close enough at hand to be “readily obtainable.” Rule 36 requires only that the party state that he has taken these steps. The sanction for failure of a party to inform himself before he answers lies in the award of costs after trial, as provided in Rule 37(c).

The requirement that the answer to a request for admission be sworn is deleted in favor of a provision that the answer be signed by the party or by his attorney. The provisions of Rule 36 make it clear that admissions function very much as pleadings do. Thus, when a party admits in part and denies in part, his admission is for purposes of the pending action only and may not be used against him in any other proceeding. The broadening of the rule to encompass mixed questions of law and fact reinforces this feature. Rule 36 does not lack a sanction for false answers; Rule 37(c) furnishes an appropriate deterrent.

The existing language describing the available grounds for objection to a request for admission is eliminated as neither necessary nor helpful. The statement that objection may be made to any request which is “improper” adds nothing to the provisions that the party serve an answer or objection addressed to each matter and that he state his reasons for any objection. None of the other discovery rules sets forth grounds for objection, except so far as all are subject to the general provisions of Rule 26.

Changes are made in the sequence of procedures in Rule 36 so that they conform to the new procedures in Rules 33 and 34. The major changes are as follows:

  1. The normal time for response to a request for admissions is lengthened from 20 to 30 days, conforming more closely to prevailing practice. A defendant need not respond, however, in less than 45 days after service of the summons and complaint upon him. The court may lengthen or shorten the time when special situations require it.
  2. The present requirement that the plaintiff wait 10 days to serve requests without leave of court is eliminated. The revised provision accords with those in Rules 33 and 34.
  3. The requirement that the objecting party move automatically for a hearing on his objection is eliminated, and the burden is on the requesting party to move for an order. The change in the burden of going forward does not modify present law on burden of persuasion. The award of expenses incurred in relation to the motion is made subject to the comprehensive provisions of Rule 37(a)(4).
  4. A problem peculiar to Rule 36 arises if the responding party serves answers that are not in conformity with the requirements of the rule — for example, a denial is not “specific,” or the explanation of inability to admit or deny is not “in detail.” Rule 36 now makes no provision for court scrutiny of such answers before trial, and it seems to contemplate that defective answers bring about admissions just as effectively as if no answer had been served. Some cases have so held.

Giving a defective answer the automatic effect of an admission may cause unfair surprise. A responding party who purported to deny or to be unable to admit or deny will for the first time at trial confront the contention that he has made a binding admission. Since it is not always easy to know whether a denial is “specific” or an explanation is “in detail,” neither party can know how the court will rule at trial and whether proof must be prepared. Some courts, therefore, have entertained motions to rule on defective answers. They have at times ordered that amended answers be served, when the defects were technical, and at other times have declared that the matter was admitted. The rule as revised conforms to the latter practice.

Section (b). — The rule does not now indicate the extent to which a party is bound by his admission. Some courts view admissions as the equivalent of sworn testimony. At least in some jurisdictions a party may rebut his own testimony, and by analogy an admission made pursuant to Rule 36 may likewise be thought rebuttable.

The new provisions give an admission a conclusively binding effect, for purposes only of the pending action, unless the admission is withdrawn or amended. In form and substance a Rule 36 admission is comparable to an admission in pleadings or a stipulation drafted by counsel for use at trial, rather than to an evidentiary admission of a party. Unless the party securing an admission can depend on its binding effect, he cannot safely avoid the expense of preparing to prove the very matters on which he has secured the admission, and the purpose of the rule is defeated.

Provision is made for withdrawal or amendment of an admission. This provision emphasizes the importance of having the action resolved on the merits, while at the same time assuring each party that justified reliance on an admission in preparation for trial will not operate to his prejudice.

Legal Periodicals.

For survey of 1980 law on civil procedure, see 59 N.C.L. Rev. 1067 (1981).

For article analyzing the 1983 amendments to Rules 6, 7, 11, 16, 26, 52, 53 and 67, FRCP, comparing these rules with North Carolina practice, and suggesting changes in certain state and federal rules, see 20 Wake Forest L. Rev. 819 (1984).

CASE NOTES

It is no longer necessary to make a sworn statement in response to the request for admissions under the present rule. The rule now only requires that the response be signed by the party or counsel. Rutherford v. Bass Air Conditioning Co., 38 N.C. App. 630, 248 S.E.2d 887, 1978 N.C. App. LEXIS 2300 (1978), cert. denied, 296 N.C. 586 , 254 S.E.2d 34, 1979 N.C. LEXIS 1220 (1979); Southland Assocs. Realtors v. Miner, 65 N.C. App. 126, 308 S.E.2d 773, 1983 N.C. App. LEXIS 3418 (1983).

Where a party deliberately destroys, alters or creates a false document to subvert an adverse party’s investigation of his right to seek a legal remedy, and injuries are pleaded and proven, a claim for the resulting increased costs of the investigation will lie. Henry v. Deen, 310 N.C. 75 , 310 S.E.2d 326, 1984 N.C. LEXIS 1560 (1984).

A trial judge may allow withdrawal of an admission. Whitley v. Coltrane, 65 N.C. App. 679, 309 S.E.2d 712, 1983 N.C. App. LEXIS 3558 (1983).

Discretion with Trial Court to Allow or Disallow Withdrawal of Admissions. —

Trial court was correct in not requiring plaintiff to present evidence that withdrawal or amendment would prejudice it in maintaining its action; the language of the rule gives the trial court the discretion to allow or not allow a party to withdraw admissions, and that in the exercise of that discretion, trial court was not required to consider whether the withdrawal of the admissions would prejudice plaintiff in maintaining its action. Interstate Hwy. Express, Inc. v. S & S Enters., Inc., 93 N.C. App. 765, 379 S.E.2d 85, 1989 N.C. App. LEXIS 383 (1989).

Trial court did not abuse its discretion in permitting a party to withdraw his admission that a signature on a contract was valid, as the trial court found that the party never intended to admit the validity of the signature, that the responses were submitted shortly after they were due, and that in the interest of justice the party who responded should not have been deprived of his right to have a jury determine the issue of the validity of the signature. Taylor v. Abernethy, 149 N.C. App. 263, 560 S.E.2d 233, 2002 N.C. App. LEXIS 182 (2002).

Trial court did not abuse its discretion in denying corporations’ motions to withdraw their deemed admissions, after the corporations failed to timely answer a service provider’s requests for admissions. Excel Staffing Serv. v. HP Reidsville, Inc., 172 N.C. App. 281, 616 S.E.2d 349, 2005 N.C. App. LEXIS 1582 (2005).

Procedure for Having Requests Deemed Admitted for Insufficiency. —

To be entitled to have requests for admissions deemed admitted for insufficiency under this rule, a party must first move the trial court to determine the sufficiency of the responses, and then obtain a ruling from the court to this effect. Southern Nat'l Bank v. B & E Constr. Co., 46 N.C. App. 736, 266 S.E.2d 1, 1980 N.C. App. LEXIS 2942 (1980).

A plaintiff does not waive his right to deemed admissions by waiting until after a defendant has untimely answered the request for admissions. Southland Amusements & Vending, Inc. v. Rourk, 143 N.C. App. 88, 545 S.E.2d 254, 2001 N.C. App. LEXIS 231 (2001).

Facts admitted under this rule are sufficient to support a grant of summary judgment. Goins v. Puleo, 350 N.C. 277 , 512 S.E.2d 748, 1999 N.C. LEXIS 233 (1999).

In an action for damages, by failing to answer requests for admissions, the requests became conclusively established facts by operation of G.S. 1A-1 , N.C. R. Civ. P. 36, and, therefore, summary judgment against a rapper was proper on four police officers claims of defamation per se, appropriation, and unfair or deceptive practices under G.S. 75-1.1 . Nguyen v. Taylor, 219 N.C. App. 1, 723 S.E.2d 551, 2012 N.C. App. LEXIS 289 (2012).

Unverified Responses to Request For Admissions Do Not Constitute Affidavit Sufficient to Defeat Motion for Summary Judgment. —

Where defendant’s responses to plaintiffs’ request for admissions were not verified, they could not be deemed to be an affidavit; and as they were not in the category of “depositions, answers to interrogatories, and admissions on file” specified in G.S. 1A-1 , Rule 56 as material that could be considered, they were insufficient to defeat plaintiffs’ motion for summary judgment. Dixon v. Hill, 174 N.C. App. 252, 620 S.E.2d 715, 2005 N.C. App. LEXIS 2393 (2005), cert. denied, 548 U.S. 906, 126 S. Ct. 2972, 165 L. Ed. 2d 954, 2006 U.S. LEXIS 4950 (2006).

Facts admitted by one defendant are not binding on a codefendant. Barclays Am. Fin., Inc. v. Haywood, 65 N.C. App. 387, 308 S.E.2d 921, 1983 N.C. App. LEXIS 3495 (1983).

Plaintiff Not Bound by Facts Admitted by Codefendants as Between Themselves. —

This rule was clearly not intended to permit codefendants who admit facts as between themselves to bind the plaintiff, the adverse party, to those facts as admitted. Mace v. Bryant Constr. Corp., 48 N.C. App. 297, 269 S.E.2d 191, 1980 N.C. App. LEXIS 3245 (1980).

Failure to Respond to Plaintiff ’s Request. —

By failing to respond to plaintiff’s request for admissions, defendants allowed the facts in question to be judicially established. Town of Chapel Hill v. Burchette, 100 N.C. App. 157, 394 S.E.2d 698, 1990 N.C. App. LEXIS 898 (1990).

Patient’s failure to respond to health care providers’ request for admission that the applicable standard of care was not breached entitled providers to summary judgment in patient’s malpractice action. Goins v. Puleo, 350 N.C. 277 , 512 S.E.2d 748, 1999 N.C. LEXIS 233 (1999).

Entry of default under G.S. 1A-1-55(a) did not preclude a seller from responding to the buyers’ requests for admissions under G.S. 1A-1-36(b) because the seller was free to contest the sufficiency of the complaint to state a claim for recovery; by not responding to the requests, the seller admitted the matters requested, establishing a claim for breach of contract. Kniep v. Templeton, 185 N.C. App. 622, 649 S.E.2d 425, 2007 N.C. App. LEXIS 1943 (2007).

General Appearances. —

Neither the limited liability company and the general partnership nor the owners made general appearances in the action on or prior to the date on which the plaintiff served the defendants’ former counsel with the requests for admissions; therefore, the requests for admissions were ineffective as to them, and the court did not deem their failure to respond to the requests for admissions to constitute an admission in the action pursuant to G.S. 1A-1 , N.C. R. Civ. P. 36(a). Southwood v. Credit Card Solution, 2012 U.S. Dist. LEXIS 152146 (E.D.N.C. Oct. 23, 2012), dismissed in part, 976 F. Supp. 2d 721, 2013 U.S. Dist. LEXIS 140908 (E.D.N.C. 2013).

Under 1990 version of statute summary judgment was properly granted in favor of an insurer in a breach of contract action because two insureds admitted there was no breach of an insurance contract by failing to make a timely response to requests for admissions; moreover, the fact that the insureds’ attorney failed to provide the discovery documents to the insureds did not provide a basis for relief from the judgment. Brown v. Foremost Affiliated Ins. Servs., 158 N.C. App. 727, 582 S.E.2d 335, 2003 N.C. App. LEXIS 1222 (2003).

Trial court did not err in granting judgment to a services provider against corporations, jointly and severally, on a breach of contract claim, as the corporations admitted to the breach, and the deemed admissions showed that the subsidiary corporations were mere instrumentalities of the parent corporation. Excel Staffing Serv. v. HP Reidsville, Inc., 172 N.C. App. 281, 616 S.E.2d 349, 2005 N.C. App. LEXIS 1582 (2005).

Correction of Admission. —

Under circumstances in which it was clear that an owner’s admission that his house had been condemned prior to a fire that destroyed the house was incorrect, and the owner attempted to supplement his response, the trial judge’s allowance of the testimony was not error; moreover, a guaranty association was not prejudiced by the allowance given its concession that it received the correction a mere 15 minutes after the admission was made. Papdopoulos v. State Capital Ins. Co., 183 N.C. App. 258, 644 S.E.2d 256, 2007 N.C. App. LEXIS 1036 (2007).

Requests for Admissions Granted. —

Trial court properly granted a will propounder’s motion for time extension of time to request for admissions or allowing withdrawal of the admissions and denied the caveators’ request for a jury instruction on revocation. In re Estate of Lowe, 156 N.C. App. 616, 577 S.E.2d 315, 2003 N.C. App. LEXIS 189 (2003).

Statement Was Not Judicial Admission. —

Owner’s response to a request for admission that she did not contend that her damages regarding a fireplace were caused by any act or omission by the subcontractor was not a judicial admission on the contractor’s third party claim against the subcontractor since the contractor raised a fact issue as to whether all issues regarding the fireplace alleged by the owner were due to improper installation of the subcontractor’s products, a defective product from the subcontractor, or improper adjustments/repairs by the subcontractor; the owner’s discovery responses could not conclusively establish whether the subcontractor breached its agreement with the contractor. Bost Constr. Co. v. Blondy, 229 N.C. App. 491, 750 S.E.2d 917, 2013 N.C. App. LEXIS 928 (2013).

Award of Attorney Fees and Costs Based on Denial of Request for Admissions Improper. —

Driver met her burden of proof in showing that at the time for request of admission, reasonable grounds existed to believe that she might prevail on some matters denied, and good reasons, her lack of knowledge, existed for the failure to admit other issues at that time; accordingly, the trial court erred in awarding plaintiffs’ attorney fees and costs based on the driver’s denial. Oakes v. Wooten, 173 N.C. App. 506, 620 S.E.2d 39, 2005 N.C. App. LEXIS 2100 (2005).

Extension of Time to Respond. —

Construction company’s responses to requests for admission were timely where filed within the extension period granted by the trial court. Moore v. F. Douglas Biddy Constr., Inc., 161 N.C. App. 87, 587 S.E.2d 479, 2003 N.C. App. LEXIS 2004 (2003).

Sanctions for Violation of Court Orders. —

Trial court order precluding plaintiff from presenting any testimony or exhibits that implied or inferred that her back injury was caused by a pedestrian walkway failure that was the basis for the suit was proper as within the discretion of the trial court pursuant to G.S. 1A-1 , Rule 37, where plaintiff committed discovery violations by failing to consult with her experts before answering various requests for admissions, failing to disclose certain experts before the cut-off date set by the trial court, and failing to produce documents to substantiate her injuries. In re Pedestrian Walkway Failure, 173 N.C. App. 254, 618 S.E.2d 796, 2005 N.C. App. LEXIS 2022 (2005).

Rule 37. Failure to make discovery; sanctions.

  1. Motion for order compelling discovery. —  A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:
    1. Appropriate Court. —  An application for an order to a party or a deponent who is not a party may be made to a judge of the court in which the action is pending, or, on matters relating to a deposition where the deposition is being taken in this State, to a judge of the court in the county where the deposition is being taken, as defined by Rule 30(h).
    2. Motion. —  If a deponent fails to answer a question propounded or submitted under Rules 30 or 31, or a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a), or a party fails to answer an interrogatory submitted under Rule 33, or if a party, in response to a request for inspection submitted under Rule 34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action. When taking a deposition on oral examination, the proponent of the question shall complete the examination on all other matters before the examination is adjourned, in order to apply for an order. If the motion is based upon an objection to production of electronically stored information from sources the objecting party identified as not reasonably accessible because of undue burden or cost, the objecting party has the burden of showing that the basis for the objection exists.

      If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to Rule 26(c).

    3. Evasive or Incomplete Answer. —  For purposes of this subdivision an evasive or incomplete answer is to be treated as a failure to answer.
    4. Award of Expenses of Motion. —  If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.

      If the motion is denied, the court shall, after opportunity for hearing, require the moving party to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.

      If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.

  2. Failure to comply with order. —
    1. Sanctions by Court in County Where Deposition Is Taken. —  If a deponent fails to be sworn or to answer a question after being directed to do so by a judge of the court in the county in which the deposition is being taken, the failure may be considered a contempt of that court.
    2. Sanctions by Court in Which Action Is Pending. —  If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under section (a) of this rule or Rule 35, or if a party fails to obey an order entered under Rule 26(f) a judge of the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
      1. An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
      2. An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the party from introducing designated matters in evidence;
      3. An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;
      4. In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination;
      5. Where a party has failed to comply with an order under Rule 35(a) requiring the party to produce another for examination, such orders as are listed in subdivisions a, b, and c of this subsection, unless the party failing to comply shows that the party is unable to produce such person for examination.

        In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

        (b1) Failure to provide electronically stored information. — Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of routine, good-faith operation of an electronic information system.

  3. Expenses on failure to admit. —  If a party fails to admit the genuineness of any document or the truth of any matter as requested under Rule 36, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may apply to the court for an order requiring the other party to pay to him or her the reasonable expenses incurred in making that proof, including reasonable attorney’s fees. The court shall make the order unless it finds that (i) the request was held objectionable pursuant to Rule 36(a), or (ii) the admission sought was of no substantial importance, or (iii) the party failing to admit had reasonable ground to believe that he or she might prevail on the matter, or (iv) there was other good reason for the failure to admit.
  4. Failure of party to attend at own deposition or serve answers to interrogatories or respond to request for inspection. —  If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails (i) to appear before the person who is to take the deposition, after being served with a proper notice, or (ii) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or (iii) to serve a written response to a request for inspection submitted under Rule 34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under subdivisions a, b, and c of subsection (b)(2) of this rule. In lieu of any order or in addition thereto, the court shall require the party failing to act to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

    The failure to act described in this section may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by Rule 26(c).

  5. , (f) Reserved for future codification purposes.

    (g) Failure to participate in the framing of a discovery plan. — If a party or the party’s attorney fails to participate in good faith in the framing of a discovery plan by agreement as is required by Rule 26(f), the court may, after opportunity for hearing, require such party or the party’s attorney to pay to any other party the reasonable expenses, including attorney’s fees, caused by the failure.

History. 1967, c. 954, s. 1; 1973, c. 827, s. 1; 1975, c. 762, s. 2; 1985, c. 603, ss. 5-7; 2001-379, s. 5; 2011-199, s. 5.

Comment

Under § 8-78 and former §§ 1-568.18 and 1-568.19, sanctions against either a deponent or adverse party for failure to answer or to appear are provided for. Under § 8-78 a deponent may be committed to jail upon warrant of the commissioner before whom the deposition is taken. Under former §§ 1-568.18 and 1-568.19 sanctions could be applied only upon order of court issued either by the clerk of superior court in which the action was pending or the judge having jurisdiction.

Under this rule sanctions can be applied only for failure to comply with a court order. Hence, if discovery procedure requires a court order as under Rules 34 or 35, failure to obey the order can be punished immediately under section (b)(2). But where the discovery procedure is set in motion by the parties themselves, the party seeking discovery must first obtain a court order under section (a) requiring the recalcitrant party or witness to make discovery. The only exception to this is found in section (d), which permits an immediate sanction against parties, their officers, or managing agents for a willful failure to appear.

OFFICIAL COMMENT

Comment to the 1975 Amendment.

Rule 37 provides generally for sanctions against parties or persons unjustifiably resisting discovery. Experience in the federal courts brought to light a number of the defects in the language of the rule as well as instances in which it was not serving the purposes for which it was designed. In addition, changes being made in other discovery rules require conforming amendments to Rule 37.

Rule 37 sometimes refers to a “failure” to afford discovery and at other times to a “refusal” to do so. Taking note of this dual terminology, federal courts imported into “refusal” a requirement of “willfullness.” In Societe Internationale v. Rogers, 357 U.S. 197, 78 S. Ct. 1087, 2 L. Ed. 2d 1255 (1958), the United States Supreme Court concluded that the rather random use of these two terms in Rule 37 showed no design to use them with consistently distinctive meanings, that “refused” in Rule 37(b)(2) meant simply a failure to comply, and that willfulness was relevant only to the selection of sanctions, if any, to be imposed. Substitution of “failure” for “refusal” throughout Rule 37 should eliminate confusion.

Section (a). — Rule 37(a) provides relief to a party seeking discovery against one who, with or without stated objections, fails to afford the discovery sought. It has always fully served this function in relation to depositions, but the amendments being made to Rules 33 and 34 give Rule 37(a) added scope and importance. Under existing Rule 33, a party objecting to interrogatories must make a motion for court hearing on his objections. The changes now made in Rules 33 and 37(a) make it clear that the interrogating party must move to compel answers, and the motion is provided for in Rule 37(a). Existing Rule 34, since it requires a court order prior to production of documents or things or permission to enter on land, has no relation to Rule 37(a). Amendments of Rules 34 and 37(a) create a procedure similar to that provided for Rule 33.

Subsection (a)(1). — This is a new provision making clear to which court a party may apply for an order compelling discovery. In relation to Rule 33 interrogatories and Rule 34 requests for inspection, the court where the action is pending is the appropriate enforcing tribunal. The new provision spells out the respective roles of the court where the action is pending and the court where the deposition is taken. In some instances, two courts are available to a party seeking to compel answers from a party deponent. The party seeking discovery may choose the court to which he will apply, but the court has power to remit the party to the other court as a more appropriate forum.

Subsection (a)(2). — This subsection contains the substance of existing provisions of Rule 37(a) authorizing motions to compel answers to questions put at depositions and to interrogatories. New provisions authorize motions for orders compelling designation under Rules 30(b)(6) and 31(a) and compelling inspection in accordance with a request made under Rule 34. If the court denies a motion, in whole or in part, it may accompany the denial with issuance of a protective order. Compare the converse provision in Rule 26(c).

Subsection (a)(3). — This new provision makes clear that an evasive or incomplete answer is to be considered, for purposes of subsection (a), a failure to answer. The federal courts have consistently held that they have the power to compel adequate answers. This power of the court is recognized and incorporated into the rule.

Subsection (a)(4). — This subsection adds provisions for award of expenses, including reasonable attorney’s fees, to the prevailing party or person when a motion is made for an order compelling discovery. The prior North Carolina rule had no such provision. The provision requires that expenses be awarded unless the conduct of the losing party or person is found to have been “substantially justified.” This language is intended to encourage judges to be more alert to abuses occurring in the discovery process.

On many occasions, to be sure, the dispute over discovery between the parties is genuine, though ultimately resolved one way or the other by the court. In such cases, the losing party is substantially justified in carrying the matter to court. But the rules should deter the abuse implicit in carrying or forcing a discovery dispute to court when no genuine dispute exists. And the potential or actual imposition of expenses is virtually the sole formal sanction in the rules to deter a party from pressing to a court hearing frivolous requests for or objections to discovery.

The proposed provision provides in effect that expenses should ordinarily be awarded unless a court finds that the losing party acted justifiably in carrying his point to court. At the same time, a necessary flexibility is maintained, since the court retains the power to find that other circumstances make an award of expenses unjust — as where the prevailing party also acted unjustifiably. The amendment does not significantly limit the discretion of the court, but rather presses the court to address itself to abusive practices.

Section (b). — This section deals with sanctions for failure to comply with a court order.

The scope of Rule 37(b)(2) is broadened by extending it to include any order “to provide or permit discovery,” including orders issued under Rules 37(a) and 35. Various rules authorize orders for discovery — e.g., Rule 35(b)(1), Rule 26(c) as revised, Rule 37(d). Rule 37(b)(2) should provide comprehensively for enforcement of all these orders. On the other hand, the reference to Rule 34 is deleted to conform to the changed procedure in that rule.

Paragraph e provides that sanctions which have been available against a party for failure to comply with an order under Rule 35(a) to submit to examination will now be available against him for his failure to comply with a Rule 35(a) order to produce a third person for examination, unless he shows that he is unable to produce the person. In this context, “unable” means in effect “unable in good faith.”

Subsection (b)(2) is amplified to provide for payment of reasonable expenses caused by the failure to obey the order. Although Rules 37(b)(2) and 37(d) have been silent as to award of expenses, federal courts have nevertheless ordered them on occasion. The provision places the burden on the disobedient party to avoid expenses by showing that his failure is justified or that special circumstances make an award of expenses unjust. Allocating the burden in this way conforms to the provisions as to expenses in Rule 37(a), and is particularly appropriate when a court order is disobeyed.

An added reference to directors of a party is similar to a change made in section (d) and is explained in the note to that section. The added reference to persons designated by a party under Rules 30(b)(6) or 31(a) to testify on behalf of the party carries out the new procedure in those rules for taking a deposition of a corporation or other organization.

Section (c). — Rule 37(c) provides a sanction for the enforcement of Rule 36 dealing with requests for admission. Rule 36 provides the mechanism whereby a party may obtain from another party in appropriate instances either (1) an admission, or (2) a sworn and specific denial, or (3) a sworn statement “setting forth in detail the reasons why he cannot truthfully admit or deny.” If the party obtains the second or third of these responses, in proper form, Rule 36 does not provide for a pretrial hearing on whether the response is warranted by the evidence thus far accumulated. Instead, Rule 37(c) is intended to provide post-trial relief in the form of a requirement that the party improperly refusing the admission pay the expenses of the other side in making the necessary proof at trial.

Rule 37(c), as now written, addresses itself in terms only to the sworn denial and is silent with respect to the statement of reasons for an inability to admit or deny. There is no apparent basis for this distinction, since the sanction provided in Rule 37(c) should deter all unjustified failures to admit. This omission in the rule has caused confused and diverse treatment in the federal courts. The amendment eliminates this defect in Rule 37(c) by bringing within its scope all failures to admit.

Additional provisions in Rule 37(c) protect a party from having to pay expenses if the request for admission was held objectionable under Rule 36(a) or if the party failing to admit had reasonable ground to believe that he might prevail on the matter. The latter provision emphasizes that the true test under Rule 37(c) is not whether a party prevailed at trial but whether he acted reasonably in believing that he might prevail.

Section (d). — The scope of section (d) is broadened to include responses to requests for inspection under Rule 34, thereby conforming to the new procedures of Rule 34.

The permissible sanctions are broadened to include such orders “as are just.” Although former federal Rule 37(d) in terms provided for only three sanctions, all rather severe, the federal courts had interpreted it as permitting softer sanctions than those which it set forth. The rule is changed to provide the greater flexibility as to sanctions which the cases show is needed.

The resulting flexibility as to sanctions eliminates any need to retain the requirement that the failure to appear or respond be “willful.” The concept of “willful failure” is at best subtle and difficult, and the cases do not supply a bright line. Many courts have imposed sanctions without referring to willfulness. In addition, in view of the possibility of light sanctions, even a negligent failure should come within Rule 37(d). If default is caused by counsel’s ignorance of federal practice, or by his preoccupation with another aspect of the case, dismissal of the action and default judgment are not justified, but the imposition of expenses and fees may well be. “Willfulness” continues to play a role, along with various other factors, in the choice of sanctions. Thus, the scheme conforms to Rule 37(b) as construed by the Supreme Court in Societe Internationale v. Rogers, 357 U.S. 197, 208, 78 S. Ct. 1087, 2 L. Ed. 2d 1255 (1958).

A provision is added to make clear that a party may not properly remain completely silent even when he regards a notice to take his deposition or a set of interrogatories or requests to inspect as improper and objectionable. If he desires not to appear or not to respond, he must apply for a protective order. Prior to the adoption of this rule, federal cases were divided on whether a protective order must be sought. The party from whom discovery is sought is afforded, through Rule 26(c), a fair and effective procedure whereby he can challenge the request made. At the same time, the total noncompliance with which Rule 37(d) is concerned may impose severe inconvenience or hardship on the discovering party and substantially delay the discovery process.

The failure of an officer or managing agent of a party to make discovery as required by present Rule 37(d) is treated as the failure of the party. The rule as revised provides similar treatment for a director of a party. There is slight warrant for the present distinction between officers and managing agents on the one hand and directors on the other. Although the legal power over a director to compel his making discovery may not be as great as over officers or managing agents, the practical differences are negligible. That a director’s interests are normally aligned with those of his corporation is shown by the provisions of old Rule 26(d)(2), transferred to 32(a)(2) (deposition of director of party may be used at trial by an adverse party for any purpose) and of Rule 43(b) (director of party may be treated at trial as a hostile witness on direct examination by any adverse party). Moreover, in those rare instances when a corporation is unable through good-faith efforts to compel a director to make discovery, it is unlikely that the court will impose sanctions.

OFFICIAL COMMENT

Comment to the 2011 Amendment.

Subsection (a) . Subdivision (a)(2) relates to Rule 34(b) and provides that when a motion to compel is sought after the respondent has objected to the production of electronically stored information on the basis that the information sought is from a source not reasonably accessible because of undue burden or cost, the party objecting to production has the burden of showing that information from the source identified is not reasonably accessible.

Subsection (b) . Amendments to subsection (b) are not intended to change substance.

Subsection (b1) . Subsection (b1) is an effort to recognize a necessary balance between normal computer system operations and the needs of litigation. It focuses on a distinctive feature of computer operations - the routine alteration and deletion of information that attends ordinary use. Many steps essential to computer operation may alter or destroy information for reasons that have nothing to do with how that information might relate to litigation. As a result, the ordinary operation of computer systems creates a risk that a party may lose potentially discoverable information without culpable conduct on its part. Under subsection (b1), absent exceptional circumstances, sanctions cannot be imposed for loss of electronically stored information resulting from the routine, good-faith operation of an electronic information system.

Subsection (b1) applies only to information lost due to the “routine operation of an electronic information system”, i.e., the ways in which such systems generally are designed, programmed, and implemented to meet the party’s technical and business needs. The “routine operation” of computer systems includes the alteration and overwriting of information, often without the operator’s specific direction or awareness - a feature with no direct counterpart in hard-copy documents. Such features are essential to the operation of electronic information systems.

Subsection (b1) applies to information lost due to the routine operation of an information system only if the operation was in good faith. Good faith in the routine operation of an information system may involve a party’s intervention to modify or suspend certain features of that routine operation to prevent the loss of information, if that information is subject to a preservation obligation. A preservation obligation may arise from many sources, including common law, statutes, regulations, or a court order in the case. The good faith requirement of subsection (b1) means that a party is not permitted to exploit the routine operation of an information system to thwart discovery obligations by allowing that operation to continue so that specific stored information that it is required to preserve will be destroyed. When a party is under a duty to preserve information because of pending or reasonably anticipated litigation, intervention in the routine operation of an information system is one aspect of what is often called a “litigation hold.” Among the factors that bear on a party’s good faith in the routine operation of an information system are the steps the party took to comply with a court order or party agreement requiring preservation of specific electronically stored information.

Whether good faith would call for steps to prevent the loss of information on sources that the party believes are not reasonably accessible under Rule 26(b) depends on the circumstances of each case. One factor is whether the party reasonably believes that the information on such sources is likely to be discoverable and not available from reasonably accessible sources.

The protection provided by subsection (b1) applies only to sanctions “under these rules.” It does not affect authority under rules of professional responsibility or other sources to impose sanctions.

This rule restricts the imposition of “sanctions.” It does not prevent a court from making the kinds of adjustments frequently used in managing discovery if a party is unable to provide relevant responsive information. For example, a court could order the responding party to produce an additional witness for deposition, respond to additional interrogatories, or make similar attempts to provide substitutes or alternatives for some or all of the lost information.

Subsections (c), (d), and (g) . No substantive changes have been made.

Editor’s Note.

Session Laws 2011-199, s. 5, effective October 1, 2011, and applicable to actions filed on or after that date, had redesignated subsections (c) and (d) as subsections (d) and (e), and added a new subsection (c). The new subsection was redesignated as subsection (b1), subsection (c) and (d) left unchanged, and subsection (e) left as “Reserved”, at the direction of the Revisor of Statutes.

Session Laws 2011-199, s. 7, provides: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all explanatory comments of the drafters of this act, the North Carolina Bar Association Litigation Section E-Discovery Committee, as the Revisor may deem appropriate.”

Effect of Amendments.

Session Laws 2011-199, s. 5, effective October 1, 2011, and applicable to actions filed on or after that date, added the last sentence in subdivision (a)(2); added subsection (b1); and made gender neutralization and other stylistic changes throughout.

Legal Periodicals.

For article on pretrial and discovery, see 5 Wake Forest Intra. L. Rev. 95 (1969).

For article, “The 1980 Amendment to the Federal Rules of Civil Procedure and Proposals for North Carolina Practice,” see 16 Wake Forest L. Rev. 915 (1980).

For note on default not constituting an admission of facts for purposes of summary judgment, see 17 Wake Forest L. Rev. 49 (1981).

For article analyzing the 1983 amendments to Rules 6, 7, 11, 16, 26, 52, 53 and 67, FRCP, comparing these rules with North Carolina practice, and suggesting changes in certain state and federal rules, see 20 Wake Forest L. Rev. 819 (1984).

For article, “The Substantial Right Doctrine and Interlocutory Appeals,” see 17 Campbell L. Rev. 71 (1995).

CASE NOTES

Analysis

I.In General

The discovery rules should be construed liberally so as to substantially accomplish their purposes. AT & T Co. v. Griffin, 39 N.C. App. 721, 251 S.E.2d 885, 1979 N.C. App. LEXIS 2562 , cert. denied, 297 N.C. 304 , 254 S.E.2d 921, 1979 N.C. LEXIS 1327 (1979); Carpenter v. Cooke, 58 N.C. App. 381, 293 S.E.2d 630, 1982 N.C. App. LEXIS 2769 , cert. denied, 306 N.C. 740 , 295 S.E.2d 758, 1982 N.C. LEXIS 1733 (1982).

Administration of the discovery rules lies necessarily within the province of the trial courts. AT & T Co. v. Griffin, 39 N.C. App. 721, 251 S.E.2d 885, 1979 N.C. App. LEXIS 2562 , cert. denied, 297 N.C. 304 , 254 S.E.2d 921, 1979 N.C. LEXIS 1327 (1979); Carpenter v. Cooke, 58 N.C. App. 381, 293 S.E.2d 630, 1982 N.C. App. LEXIS 2769 , cert. denied, 306 N.C. 740 , 295 S.E.2d 758, 1982 N.C. LEXIS 1733 (1982).

Responding Party May Not Unilaterally Interpret Relevant Scope. —

The responding party may not unilaterally “interpret” the relevant scope of its response and only provide that information it considers discoverable. Roan-Baker v. Southeastern Hosp. Supply Corp., 99 N.C. App. 30, 392 S.E.2d 663, 1990 N.C. App. LEXIS 461 (1990).

The trial court retains inherent authority to impose sanctions for discovery abuses beyond those enumerated by this rule. Cloer v. Smith, 132 N.C. App. 569, 512 S.E.2d 779, 1999 N.C. App. LEXIS 229 (1999).

Defendant’s supplemental response to interrogatories was not rendered “seasonable” within the meaning and intent of G.S. 1A-1 , Rule 26(e)(1) by the mere fact that there was no occasion for imposition of sanctions for failing to respond to discovery request with due diligence and good faith. Green ex rel. Green v. Maness, 69 N.C. App. 292, 316 S.E.2d 917, 1984 N.C. App. LEXIS 3483 (1984).

Remedy for Errors in Discovery Orders Is Not Open Defiance. —

When a party willfully disobeys an order entered with personal and subject matter jurisdiction, a judgment of contempt (a permissible sanction under this rule) is appropriate even if the order was erroneously issued. Such an order is not void and is entitled to respect. The proper remedy for any error therein is not by open defiance, but by appeal. Midgett v. Crystal Dawn Corp., 58 N.C. App. 734, 294 S.E.2d 386, 1982 N.C. App. LEXIS 2820 (1982).

Applicability to Tort Action Before North Carolina Industrial Commission. —

North Carolina Industrial Commission acted within its authority in issuing its order compelling state facilities and their employees to comply with discovery requests in a personal injury action brought under the North Carolina Tort Claims Act, G.S. 143-291 et seq., and the requested juvenile records, social services records, and law enforcement records sought in discovery were subject to disclosure. Moreover, the North Carolina Rules of Civil Procedure applied in tort claims before the Commission, to the extent that such rules were not inconsistent with the Tort Claims Act, and the Commission had the authority under G.S. 1A-1 , N.C. R. Civ. P. 37 to enter an order compelling discovery and to impose sanctions on the party refusing to comply with the order. Jane Doe 1 v. Swannanoa Valley Youth Dev. Ctr., 163 N.C. App. 136, 592 S.E.2d 715, 2004 N.C. App. LEXIS 299 (2004).

Applicability to Workers’ Compensation Claim. —

G.S. 97-80(a) gave the North Carolina Industrial Commission (commission) the power to make rules consistent with the Workers’ Compensation Act for carrying out its provisions, Workers’ Comp. R. N.C. Indus. Comm’n 605(1); 2002 Ann. R. N.C. 765 provided that the commission was allowed to order discovery and impose discovery sanctions; and Workers’ Comp. R. N.C. Indus. Comm’n 802 provided that “failure to comply” with the Workers’ Compensation Rules may have subjected the violator to any of the sanctions outlined in G.S. 1A-1 , Rule 37; a discovery sanction which struck the employer’s defenses was proper and was affirmed where the sanction was imposed three and a half months after the employer had been ordered to respond to the interrogatories and was warned that his refusal to answer may have resulted in sanctions. Joyner v. Mabrey Smith Motor Co., 161 N.C. App. 125, 587 S.E.2d 451, 2003 N.C. App. LEXIS 1994 (2003).

II.Compelling Discovery

Courts cannot compel disclosure of information which would tend to incriminate the person from whom it is sought and cannot impose sanctions on one who refuses to disclose privileged information. Stone v. Martin, 56 N.C. App. 473, 289 S.E.2d 898, 1982 N.C. App. LEXIS 2478 (1982).

Where an employee physically appeared at a deposition and invoked his Fifth Amendment privilege, the imposition of sanctions for failure to appear was not appropriate. Bd. of Drainage Comm'rs Drainage Dist. No. 3 v. Dixon, 158 N.C. App. 509, 581 S.E.2d 469, 2003 N.C. App. LEXIS 1181 (2003), aff'd, 358 N.C. 214 , 593 S.E.2d 763, 2004 N.C. LEXIS 208 (2004).

But Privilege Against Self-Incrimination Not to Be Used as Sword to Defeat Civil Actions. —

A defendant has the right to refuse to answer interrogatories and requests for admission on the ground that to answer may tend to incriminate him. Invocation of this constitutional privilege may legitimately serve as a shield, with potential to protect defendant from criminal responsibility which may ensue from the acts and omissions alleged. It is not an abuse of discretion, however, to refuse to allow that privilege to serve also as a sword, with potential to defeat civil actions which may likewise ensue from those acts and omissions. Stone v. Martin, 53 N.C. App. 600, 281 S.E.2d 402, 1981 N.C. App. LEXIS 2699 (1981), op. withdrawn, 56 N.C. App. 473, 289 S.E.2d 898, 1982 N.C. App. LEXIS 2478 (1982).

Where, in a suit by shareholders against corporation and individual defendants, none of the requested discovery to which the court ordered response would compel defendant to admit the calculation and intent requisite to establish fraudulent conduct, and such responses would therefore not necessarily tend to subject defendant to a punitive damages award, there was no impropriety in the court’s order. Stone v. Martin, 56 N.C. App. 473, 289 S.E.2d 898, 1982 N.C. App. LEXIS 2478 (1982).

Trial court did not abuse its discretion in determining that a defendant’s affirmative defenses in a civil action were to be stricken pursuant to G.S. 1A-1-37(b)(2) as a sanction for the defendant failing to comply with discovery because the defendant, who faced criminal charges relating to the auto accident in which the decedent was killed, chose to assert defendant’s Fifth Amendment rights in a deposition that was conducted by the administrator of the decedent’s estate. Lovendahl v. Wicker, 208 N.C. App. 193, 702 S.E.2d 529, 2010 N.C. App. LEXIS 2375 (2010).

Information Irrelevant for Discovery Purposes. —

Whether or not plaintiff’s replacement had a relationship with a high school student during his previous employment, the complete student records at high school and school personnel records were irrelevant to whether defendants intentionally inflicted emotional distress on plaintiff, constructively and wrongfully discharged her, or maliciously interfered with her contract; therefore, the trial court did not abuse its discretion in denying motion to compel discovery. Wagoner v. Elkin City Schs. Bd. of Educ., 113 N.C. App. 579, 440 S.E.2d 119, 1994 N.C. App. LEXIS 151 (1994).

Party Not Precluded from Presenting Witnesses and Exhibits at Trial. —

Where plaintiff, in a deposition, specifically requested from the defendant the names of his trial witnesses and a list of his trial exhibits, but made no showing that he had a special need for defendant’s list of witnesses and exhibits ten months prior to trial, the information sought was not discoverable and defendant’s failure to provide such information could not preclude him from presenting witnesses and exhibits at the trial. King v. Koucouliotes, 108 N.C. App. 751, 425 S.E.2d 462, 1993 N.C. App. LEXIS 140 (1993).

In order to compel the deposition testimony of a nonparty, a subpoena must be issued from the county in which the deposition is to be taken, and a proper subpoena should have been issued from the Clerk of Superior Court of Wake County directing a nonparty in a divorce case to appear in Wake County; therefore, nonparty and her attorney were substantially justified in opposing the discovery sought pursuant to the subpoena issued from Mecklenburg County and the trial court’s imposition of attorneys’ fees under subsection (a)(4) of this rule was error. Cochran v. Cochran, 93 N.C. App. 574, 378 S.E.2d 580, 1989 N.C. App. LEXIS 243 (1989).

Appealability of Order to Compel. —

In a patient’s negligence action against medical defendants, arising from injuries she sustained when a fire occurred during her surgical procedure, the appellate court had jurisdiction to review defendants’ contentions on appeal that were based on the trial court’s grant of the patient’s motion to compel discovery, as defendants had asserted that the medical review privilege and the work product doctrine applied. Hammond v. Saini, 229 N.C. App. 359, 748 S.E.2d 585, 2013 N.C. App. LEXIS 934 (2013), aff'd in part, modified, 367 N.C. 607 , 766 S.E.2d 590, 2014 N.C. LEXIS 956 (2014).

County could not appeal an interlocutory order requiring a former manager to appear for a deposition because the county was not deprived of a substantial right nor did the county suffer injury warranting immediate review, as the order did not bar good-faith objections to the disclosure of privileged information at the deposition. Royal Oak Concerned Citizens Ass'n v. Brunswick County, 233 N.C. App. 145, 756 S.E.2d 833, 2014 N.C. App. LEXIS 318 (2014).

III.Sanctions
A.In General

The trial judge has broad discretion in imposing sanctions to compel discovery under this rule. F.E. Davis Plumbing Co. v. Ingleside W. Assocs., 37 N.C. App. 149, 245 S.E.2d 555, 1978 N.C. App. LEXIS 2672 , cert. denied, 295 N.C. 648 , 248 S.E.2d 250, 1978 N.C. LEXIS 1094 (1978).

This rule is flexible, and a broad discretion must be given to the trial judge with regard to sanction. AT & T Co. v. Griffin, 39 N.C. App. 721, 251 S.E.2d 885, 1979 N.C. App. LEXIS 2562 , cert. denied, 297 N.C. 304 , 254 S.E.2d 921, 1979 N.C. LEXIS 1327 (1979); Laing v. Liberty Loan Co., 46 N.C. App. 67, 264 S.E.2d 381, 1980 N.C. App. LEXIS 2748 (1980); Carpenter v. Cooke, 58 N.C. App. 381, 293 S.E.2d 630, 1982 N.C. App. LEXIS 2769 , cert. denied, 306 N.C. 740 , 295 S.E.2d 758, 1982 N.C. LEXIS 1733 (1982).

The imposition of sanctions under section (d) of this rule is in the sound discretion of the trial judge. American Imports, Inc. v. G.E. Employees W. Region Fed. Credit Union, 37 N.C. App. 121, 245 S.E.2d 798, 1978 N.C. App. LEXIS 2667 (1978).

The imposition of sanctions under this rule for failure to comply with G.S. 1A-1 , Rule 26(e) is within the sound discretion of the trial judge. Willoughby v. Wilkins, 65 N.C. App. 626, 310 S.E.2d 90, 1983 N.C. App. LEXIS 3567 (1983).

In addition to its inherent authority to regulate trial proceedings, the trial court has express authority under this rule to impose sanctions on a party who balks at discovery requests. Green ex rel. Green v. Maness, 69 N.C. App. 292, 316 S.E.2d 917, 1984 N.C. App. LEXIS 3483 (1984).

The choice of sanctions under Rule 37 is within the trial court’s discretion and will not be overturned on appeal absent a showing of abuse of that discretion. Brooks v. Giesey, 106 N.C. App. 586, 418 S.E.2d 236, 1992 N.C. App. LEXIS 561 (1992), aff'd, 334 N.C. 303 , 432 S.E.2d 339, 1993 N.C. LEXIS 343 (1993).

Sanctions such as striking answers and/or counterclaims and awarding attorney fees are well within the court’s discretion in cases involving a refusal to respond to discovery requests and a refusal to obey an order to compel discovery. Kewaunee Scientific Corp. v. Eastern Scientific Prods., Inc., 122 N.C. App. 734, 471 S.E.2d 451, 1996 N.C. App. LEXIS 555 (1996).

Trial court did not abuse its discretion in denying an insurer’s motion for sanctions against an insured for the insured’s failure to complete a deposition that was being taken, based on the insured’s counterclaims against the insurer, arising from an underlying dog bite case that the insurer had provided legal representation and some coverage on, as a question regarding the scope of the attorney-client privilege between the appointed attorney from the insurer for the benefit of the insured, the insured, and the insurer, was a question of first impression, and the insured was “substantially justified” in relying on the attorney-client privilege when he terminated the deposition. Nationwide Mut. Fire Ins. Co. v. Bourlon, 172 N.C. App. 595, 617 S.E.2d 40, 2005 N.C. App. LEXIS 1789 (2005), aff'd, 360 N.C. 356 , 625 S.E.2d 779, 2006 N.C. LEXIS 13 (2006).

Sanction Discretionary. —

In a workers’ compensation case, the North Carolina Industrial Commission did not err by not holding the employer in contempt for its failure to comply with a previous order and by not making specific findings on the issue of civil contempt because civil contempt is a completely discretionary sanction, thus, even if the Commission made explicit findings that all of the conditions outlined in G.S. 5A-21(a) were satisfied, it still would not have been required to sanction the employer. Bolick v. ABF Freight Sys., 188 N.C. App. 294, 654 S.E.2d 793, 2008 N.C. App. LEXIS 81 (2008).

Failure of some answering defendants to answer interrogatories did not entitle plaintiffs to judgment based on their own conclusions and contentions. Baxter v. Jones, 14 N.C. App. 296, 188 S.E.2d 622, 1972 N.C. App. LEXIS 2123 , cert. denied, 281 N.C. 621 , 190 S.E.2d 465, 1972 N.C. LEXIS 1119 (1972).

Failure to Consider Lesser Sanctions Before Striking Defenses. —

Where a trial court did not consider any lesser sanctions before striking defenses on the issue of liability and proceeding to trial on damages as a sanction for the failure of one of the defendants, a guardian of the person, to appear for deposition, the court was compelled to set aside the trial court’s order striking the defenses and remand the case. Clawser v. Campbell, 184 N.C. App. 526, 646 S.E.2d 779, 2007 N.C. App. LEXIS 1467 (2007).

Order Striking Defenses. —

In an action to recover on a construction contract, where defendants failed to comply with a discovery order requiring specific information with respect to their allegations of misrepresentation by plaintiff, negligence and carelessness by plaintiff and overpayment to plaintiff, the trial court did not abuse its discretion in entering an order striking those defenses since the evidence disclosed that defendants were either alleging defenses which they could not support with evidence or were willfully refusing to disclose information to which plaintiff was entitled, and the sanction imposed by the court was within the limits prescribed by this rule. F.E. Davis Plumbing Co. v. Ingleside W. Assocs., 37 N.C. App. 149, 245 S.E.2d 555, 1978 N.C. App. LEXIS 2672 , cert. denied, 295 N.C. 648 , 248 S.E.2d 250, 1978 N.C. LEXIS 1094 (1978).

Because a driver’s attempts to cure his failure to attend his deposition; his affidavit explaining the misunderstanding, which was presented to the trial court at hearing; and the severity of the sanctions imposed, an order striking his defenses was manifestly unsupported by reason, and hence, an abuse of discretion. But, he remained liable for the costs and fees incurred due to his absence from the deposition. Moore v. Mills, 190 N.C. App. 178, 660 S.E.2d 589, 2008 N.C. App. LEXIS 876 (2008).

Trial court abused its discretion by striking a real estate company’s answer and entering default against it because the company was not in violation of a consent order calling for the production of documents when the company was not a party to the order, and buyers did not seek discovery from it.; there was no record evidence that the company acted improperly or that the company violated any discovery orders. Baker v. Rosner, 197 N.C. App. 604, 677 S.E.2d 887, 2009 N.C. App. LEXIS 735 (2009).

Findings of Fact Required. —

Where the Industrial Commission made none of the four required findings before denying sanctions, it abused its discretion. Williams v. North Carolina Dep't of Correction, 120 N.C. App. 356, 462 S.E.2d 545, 1995 N.C. App. LEXIS 836 (1995).

Abuse of Discretion for Failing to Impose Sanctions. —

The Industrial Commission abused its discretion by failing to impose sanctions because representation for both parties was publicly funded and plaintiff did not personally incur any additional expense due to the omissions of which he complained. Williams v. North Carolina Dep't of Correction, 120 N.C. App. 356, 462 S.E.2d 545, 1995 N.C. App. LEXIS 836 (1995).

Trial court’s order enforcing arbitration award, which implicitly imposed sanctions of striking defendants’ request for trial de novo or of entering judgment against defendants, was within the purview of G.S. 1A-1 , Rule 37(b)(2)c, did not constitute an abuse of the court’s discretion, and did not violate N.C. Arb., Rule 5(a). Mohamad v. Simmons, 139 N.C. App. 610, 534 S.E.2d 616, 2000 N.C. App. LEXIS 993 (2000).

Ultimate Compliance with Discovery Request Did Not Preclude Sanctions. —

Where defendants were properly served with plaintiff’s interrogatories about expert testimony, a crucial aspect of medical malpractice case, the fact that plaintiff’s interrogatories were ultimately answered did not prevent the court from imposing sanctions under section (d) of this rule on plaintiff’s motion. Segrest v. Gillette, 96 N.C. App. 435, 386 S.E.2d 88, 1989 N.C. App. LEXIS 1031 (1989), rev'd, 331 N.C. 97 , 414 S.E.2d 334, 1992 N.C. LEXIS 151 (1992).

Motion for Sanctions to Preced Late Discovery Responses. —

The untimely service of discovery responses cannot support sanctions if the discovery responses are served prior to the making or service of a motion requesting sanctions. Thus, untimely discovery responses served after the service of a motion seeking sanctions on this basis can support sanctions. Cheek v. Poole, 121 N.C. App. 370, 465 S.E.2d 561, 1996 N.C. App. LEXIS 23 , cert. denied, 343 N.C. 305 , 471 S.E.2d 68, 1996 N.C. LEXIS 287 (1996).

Where the plaintiff’s untimely responses to discovery requests were served on the same day that the defendants served or made their motion for sanctions, the trial court had authority to enter sanctions for the untimely discovery responses. Cheek v. Poole, 121 N.C. App. 370, 465 S.E.2d 561, 1996 N.C. App. LEXIS 23 , cert. denied, 343 N.C. 305 , 471 S.E.2d 68, 1996 N.C. LEXIS 287 (1996).

Finding of Negligence as Sanction Upheld. —

Trial court properly sanctioned an employer and its employee for the employee’s failure to respond to discovery in a personal injury suit by finding that they were negligent in the motor vehicle accident so that the only issues remaining at trial were the issues of the contributory negligence of the driver of the pickup that collided with the forklift the employee was driving for the employer and the amount of the damages suffered by the pickup driver and his passenger. Edwards v. Cerro, 150 N.C. App. 551, 564 S.E.2d 277, 2002 N.C. App. LEXIS 581 (2002).

In addition to its inherent authority to regulate trial proceedings, the trial court has express authority under this rule to impose sanctions on a party who balks at discovery requests. Green ex rel. Green v. Maness, 69 N.C. App. 292, 316 S.E.2d 917, 1984 N.C. App. LEXIS 3483 (1984).

Burden of Party Seeking to Avoid Sanctions. —

A party wishing to avoid court-imposed sanctions for failure to comply with an order compelling discovery bears the burden of showing justification for his noncompliance. McCraw v. Hamrick, 88 N.C. App. 391, 363 S.E.2d 201, 1988 N.C. App. LEXIS 30 (1988).

Sufficient Notice of Sanctions. —

Defendant corporation had sufficient notice that any or all of the sanctions available under section (d) of this rule could be imposed against it where, although plaintiff did not specify the section of this rule it wished to proceed under, it did state in the motion that plaintiff had served “Plaintiff’s First Interrogatories and Requests for Production of Documents” on defendant and that “Defendant has failed to timely respond to the aforesaid discovery requests and has refused, and continues to refuse, to provide responses to said requests.” J.D. Dawson Co. v. Robertson Mktg., Inc., 93 N.C. App. 62, 376 S.E.2d 254, 1989 N.C. App. LEXIS 82 (1989).

Trial court abused its discretion when it decided to remit a portion of the verdict rather than granting the defendants’ motion for a new trial based on the plaintiff’s failure to comply with discovery requests. Gardner v. Harriss, 122 N.C. App. 697, 471 S.E.2d 447, 1996 N.C. App. LEXIS 547 (1996).

Not every abuse of discovery merits imposition of punitive sanctions, etc. Rose v. Isenhour Brick & Tile Co., 120 N.C. App. 235, 461 S.E.2d 782, 1995 N.C. App. LEXIS 741 (1995), aff'd, 344 N.C. 153 , 472 S.E.2d 774, 1996 N.C. LEXIS 418 (1996).

When it was revealed in the course of a personal injury trial that the injured party incorrectly responded to the defending motorist’s request for production, under G.S. 1A-1 , Rule 34, seeking medical reports from any medical practitioner who had ever treated the injured party for any back or neck difficulties, because the injured party did not reveal an emergency room visit for an unrelated automobile accident in which the injured party complained of neck pain, the trial court did not abuse its discretion in declining to impose sanctions because the injured party’s counsel obtained and delivered the documents in question, the motorist was given an opportunity to cross-examine the injured party about the documents, the injured party admitted her untruthful response during cross-examination, explaining that she had forgotten about the emergency room visit following the accident in which she was not seriously hurt, and she had not sought other medical treatment following the emergency room visit. Messina v. Bell, 158 N.C. App. 111, 581 S.E.2d 80, 2003 N.C. App. LEXIS 978 (2003).

B.Grounds

The proximity of the discovery abuse to the date of trial is one factor the trial court may consider when determining whether or not to award sanctions. Roan-Baker v. Southeastern Hosp. Supply Corp., 99 N.C. App. 30, 392 S.E.2d 663, 1990 N.C. App. LEXIS 461 (1990).

Movant Need Not Show Prejudice to Obtain Sanctions. —

This rule does not require the movant to show that it was prejudiced by the nonmovant’s actions in order to obtain sanctions for abuse of discovery. Roan-Baker v. Southeastern Hosp. Supply Corp., 99 N.C. App. 30, 392 S.E.2d 663, 1990 N.C. App. LEXIS 461 (1990).

If a party’s failure to produce documents is shown to be due to inability fostered neither by its own conduct nor by circumstances within its control, it is exempt from the sanctions of this rule. Laing v. Liberty Loan Co., 46 N.C. App. 67, 264 S.E.2d 381, 1980 N.C. App. LEXIS 2748 (1980).

Subsection (a)(3) of this rule specifically provides that an evasive or incomplete answer is to be treated as a failure to answer; however, if a party is unable to answer discovery requests because of circumstances beyond its control, it cannot be compelled to answer. A good faith effort at compliance with the court order is required of the deponent. Benfield v. Benfield, 89 N.C. App. 415, 366 S.E.2d 500, 1988 N.C. App. LEXIS 191 (1988).

Burden to Show Justification for Failure to Answer Interrogatories. —

This rule sets out possible consequences of a party’s failure “without good cause” to comply with the court’s order to answer interrogatories. If a noncomplying party wishes to avoid court-imposed sanctions for his failure, the burden is upon him to show that there is justification for his noncompliance. Silverthorne v. Coastal Land Co., 42 N.C. App. 134, 256 S.E.2d 397, 1979 N.C. App. LEXIS 2800 , cert. denied, 298 N.C. 300 , 259 S.E.2d 302, 1979 N.C. LEXIS 1601 (1979).

If a noncomplying party wishes to avoid court-imposed sanctions for his failure to answer interrogatories, the burden is upon him to show that there is justification for his noncompliance. Hayes v. Browne, 76 N.C. App. 98, 331 S.E.2d 763, 1985 N.C. App. LEXIS 3722 (1985).

Subsection (a)(3) of this rule specifically provides that an evasive or incomplete answer is to be treated as a failure to answer; however, if a party is unable to answer discovery requests because of circumstances beyond its control, it cannot be compelled to answer. A good faith effort at compliance with the court order is required of the deponent. Benfield v. Benfield, 89 N.C. App. 415, 366 S.E.2d 500, 1988 N.C. App. LEXIS 191 (1988).

Willful Misconduct. —

In finding that sanctions were warranted as a result of plaintiff’s misconduct, the court found that defendant showed it had been prejudiced — indeed, effectively prevented from determining the facts — by plaintiff’s failure to disclose its alternative funding plan until the very end of (reopened) discovery; moreover, the pattern of failures on the part of plaintiff strongly suggested willfulness and bad faith. Miriam Equities, LLC v. LB-UBS 2007-C2 Millstream Rd., 2021 NCBC 71, 2021 NCBC LEXIS 97 (N.C. Super. Ct. Nov. 1, 2021).

Imposition of Section (d) Sanctions Dependent on Circumstances. —

Whether such extreme sanctions as are authorized by section (d) of this rule should be imposed must be determined from the circumstances of each case. Cutter v. Brooks, 36 N.C. App. 265, 243 S.E.2d 423, 1978 N.C. App. LEXIS 2465 (1978).

Section (d) Inapplicable When Answers, Responses or Objections are Filed. —

If a party files answers or objections to interrogatories, or serves a written response to a request for inspection, no sanctions under section (d) of this rule may be obtained, and the proper procedure for the party seeking discovery is to obtain an order compelling discovery under section (a) of this rule. Willis v. Duke Power Co., 291 N.C. 19 , 229 S.E.2d 191, 1976 N.C. LEXIS 932 (1976).

Rule Inapplicable to Requests for Protective Order. —

This rule was inapplicable to plaintiff’s request for sanctions because plaintiff did not compel discovery, but instead sought to prevent discovery by asking for a protective order. Wachovia Bank v. Bob Dunn Jaguar, Inc., 117 N.C. App. 165, 450 S.E.2d 527, 1994 N.C. App. LEXIS 1199 (1994).

Sanctions Inappropriate for Alleged Violation of Protective Order No Longer In Place. —

Because there was no binding protective order in effect under N.C. R. Civ. P. 26(f1) since the parties never stipulated to having such an order carrying over from a previous voluntarily dismissed medical malpractice action brought by a plaintiff, and the plaintiff did not violate Rule 26(e) with regard to supplementing its answers to interrogatories, no basis existed for a trial court’s exclusion of an expert witness’ testimony as a sanction imposed upon the plaintiff. Barham v. Hawk, 165 N.C. App. 708, 600 S.E.2d 1, 2004 N.C. App. LEXIS 1504 (2004), aff'd, 360 N.C. 358 , 625 S.E.2d 778, 2006 N.C. LEXIS 18 (2006).

Section (d) of this rule requires no finding that the refusal to attend a deposition was willful before the court imposes sanctions. American Imports, Inc. v. G.E. Employees W. Region Fed. Credit Union, 37 N.C. App. 121, 245 S.E.2d 798, 1978 N.C. App. LEXIS 2667 (1978).

Trial judge did not abuse his discretion by ordering default judgment without finding that defendant had willfully failed to appear at his deposition, as the 1975 amendment to section (d) of this rule omitted the requirement that sanctions be leveled against a party who failed to respond to pretrial discovery “without good cause.” Cutter v. Brooks, 36 N.C. App. 265, 243 S.E.2d 423, 1978 N.C. App. LEXIS 2465 (1978).

The language of section (d) of this rule requires no finding of willfulness. The 1975 amendment to section (d) deletes the specific reference to “willful” from the rule. Hayes v. Browne, 76 N.C. App. 98, 331 S.E.2d 763, 1985 N.C. App. LEXIS 3722 (1985).

A showing of willfulness was not required to impose discovery sanctions where a party did not appear at depositions due to the failure of its attorney to notify it of the depositions. Henderson v. Wachovia Bank of N.C. N.A., 145 N.C. App. 621, 551 S.E.2d 464, 2001 N.C. App. LEXIS 735 (2001).

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 to participate in arbitration hearing in good faith and meaningful manner; the failure or refusal to participate in an arbitration proceeding in a good faith and meaningful manner was subject to sanctions by the court on motion of a party, or report of the arbitrator. Bledsole v. Johnson, 150 N.C. App. 619, 564 S.E.2d 902, 2002 N.C. App. LEXIS 652 (2002), rev'd, 357 N.C. 133 , 579 S.E.2d 379, 2003 N.C. LEXIS 418 (2003).

Sanctions in Response to Motion in Limine Improper. —

A sanction under subdivision (b)(2)(b) of this rule may only be imposed for failure of a party to comply with a court order compelling discovery. Thus, where the trial court ordered imposition of subdivision (b)(2)(b) sanctions in response to a motion in limine, and the movant did not obtain an order compelling discovery, the court improperly granted the motion in limine. Stilley v. Automobile Enters. of High Point, Inc., 55 N.C. App. 33, 284 S.E.2d 684, 1981 N.C. App. LEXIS 2976 (1981); Stone v. Martin, 56 N.C. App. 473, 289 S.E.2d 898, 1982 N.C. App. LEXIS 2478 (1982).

Sufficient explanation of decision to sanction. —

Given the specificity of a finding of fact in listing the specific expenses to be included in the sanction, there was no abuse of discretion as the finding of fact contained an entirely sufficient explanation of the trial court’s decision to sanction the attorney. Robertson v. Steris Corp., 234 N.C. App. 525, 760 S.E.2d 313, 2014 N.C. App. LEXIS 669 (2014).

Sanctions order was not an abuse of discretion because (1) the order was supported by findings of a manufacturer’s serial disobedience of a discovery order, (2) an audit of electronic systems attempted pursuant to the discovery order did not exceed the scope of the discovery order, and (3) lesser sanctions were considered. Feeassco, LLC v. The Steel Network, Inc., 264 N.C. App. 327, 826 S.E.2d 202, 2019 N.C. App. LEXIS 221 (2019).

Sanction Overturned Only for Abuse of Discretion. —

The choice of sanctions to be imposed in the case of a failure to comply with an order to answer interrogatories having been left by the rule to the court’s discretion, the decision will not be overturned unless an abuse of that discretion is shown. Silverthorne v. Coastal Land Co., 42 N.C. App. 134, 256 S.E.2d 397, 1979 N.C. App. LEXIS 2800 , cert. denied, 298 N.C. 300 , 259 S.E.2d 302, 1979 N.C. LEXIS 1601 (1979).

The choice of sanctions under this rule lies within the court’s discretion and will not be overturned on appeal absent a showing of abuse of that discretion. Routh v. Weaver, 67 N.C. App. 426, 313 S.E.2d 793, 1984 N.C. App. LEXIS 3096 (1984); Vick v. Davis, 77 N.C. App. 359, 335 S.E.2d 197, 1985 N.C. App. LEXIS 4092 (1985), aff'd, 317 N.C. 328 , 345 S.E.2d 217, 1986 N.C. LEXIS 2793 (1986).

The choice of sanctions under this rule cannot be overturned absent a showing of abuse of that discretion. Mount Olive Home Health Care Agency, Inc. v. N.C. Dep't of Human Resources, 78 N.C. App. 224, 336 S.E.2d 625, 1985 N.C. App. LEXIS 4257 (1985).

Although the sanctions imposed were severe, they are among those expressly authorized by statute; absent specific evidence of injustice, the court of appeals could not hold they constitute an abuse of discretion. Roan-Baker v. Southeastern Hosp. Supply Corp., 99 N.C. App. 30, 392 S.E.2d 663, 1990 N.C. App. LEXIS 461 (1990).

Sanctions under this rule are within the sound discretion of the trial court and will not be overturned on appeal absent a showing of abuse of that discretion. Hursey v. Homes By Design, Inc., 121 N.C. App. 175, 464 S.E.2d 504, 1995 N.C. App. LEXIS 1043 (1995).

A trial court may be reversed for abuse of discretion only upon a showing that its ruling was so arbitrary that it could not have been the result of a reasoned decision. Hursey v. Homes By Design, Inc., 121 N.C. App. 175, 464 S.E.2d 504, 1995 N.C. App. LEXIS 1043 (1995).

The abuse of discretion standard is applied to the imposition and selection of sanctions under this rule. Crutchfield v. Crutchfield, 132 N.C. App. 193, 511 S.E.2d 31, 1999 N.C. App. LEXIS 96 (1999).

The choice of sanctions imposed that are authorized under G.S. 1A-1 , Rule 37 are within the sound discretion of the trial court and may not be overturned on appeal absent a showing of abuse of that discretion or that the sanctions are manifestly unsupported by reason. Also, the rule does not require a movant to show that it was prejudiced by the nonmovant’s actions in order to obtain sanctions for abuse of discovery. Thus, a trial court order entering a default judgment against the defendants for failure to comply with discovery requests was affirmed on appeal. Clark v. Penland, 146 N.C. App. 288, 552 S.E.2d 243, 2001 N.C. App. LEXIS 863 (2001).

Where an injured party could not avoid Rule 37 sanctions by dismissing a claim pursuant to G.S. 1A-1 , Rule 41 when the sanctions motion was before the trial court, the proper standard of review in imposing sanctions was abuse of discretion, not de novo. Ayers v. Patz, 2002 N.C. App. LEXIS 2093 (N.C. Ct. App. Aug. 20, 2002).

Trial court’s order, under G.S. 1A-1 , N.C. R. Civ. P. 37(b)(2), dismissing an internet company’s counterclaims for the company’s failure to comply with discovery was supported by reason and was therefore not an abuse of discretion. Fayetteville Publ. Co. v. Advanced Internet Techs., Inc., 192 N.C. App. 419, 665 S.E.2d 518, 2008 N.C. App. LEXIS 1610 (2008).

Sanctions Where Defendant Attested to Answers Not His Own. —

Section (d) of this rule does not come into operation if the responding party meets the requirements of G.S. 1A-1 , Rule 33. However, by attesting to answers that were not his, defendant did not meet the requirements of Rule 33. Therefore, the imposition of the sanctions of default against defendant was proper under section (d). Hunter v. Spaulding, 97 N.C. App. 372, 388 S.E.2d 630, 1990 N.C. App. LEXIS 139 (1990).

The imposition of sanctions under this rule for failure to comply with G.S. 1A-1 , Rule 26(e) is within the sound discretion of the trial judge. Willoughby v. Wilkins, 65 N.C. App. 626, 310 S.E.2d 90, 1983 N.C. App. LEXIS 3567 (1983).

Sanctions would be upheld for failure to produce documents, where the trial court considered all available sanctions before entering its order; the defendant’s answer was stricken, it had to pay attorney’s fees in the amount of $1,970, and a default judgment was entered in favor of plaintiff as to the issues of breach of contract and quantum meruit. Chateau Merisier, Inc. v. GEKA, 142 N.C. App. 684, 544 S.E.2d 815, 2001 N.C. App. LEXIS 173 (2001), decided prior to 2001 amendment to subsection (c).

C.Entry of Default Judgment

Default Judgment. —

Under this rule, where an answer to the complaint has been filed, and a party fails to answer requested discovery, the opposing party may move the court to order the answer stricken, and if granted, for entry of default judgment against the disobedient party. O'Neal v. Murray, 105 N.C. App. 102, 411 S.E.2d 628, 1992 N.C. App. LEXIS 15 (1992).

Default Judgment as Sanction. —

Sanctions in the form of striking defendants’ answer as well as entering a default judgment against defendants were warranted where defendants’ discovery conduct, which included concealing information, deleting emails, and then lying about it, was at best dilatory and at worst dishonest. Essex Group, Inc. v. Express Wire Servs., 157 N.C. App. 360, 578 S.E.2d 705, 2003 N.C. App. LEXIS 534 (2003).

Sanctions order striking a manufacturer’s answer and entering a default judgment in favor of sellers did not violate due process because (1) the record did not demonstrate that the manufacturer had made a good faith effort to comply with discovery, and (2) the court’s proper application of G.S. 1A-1 , N.C. R. Civ. P. 37(b)(2), as a matter of law, supported a presumption that the refusal to produce evidence material to the administration of due process was but an admission of the want of merit in an asserted defense. Feeassco, LLC v. The Steel Network, Inc., 264 N.C. App. 327, 826 S.E.2d 202, 2019 N.C. App. LEXIS 221 (2019).

Default Judgment not Applicable to Annulment Proceeding. —

Default judgment was incorrectly entered pursuant to G.S. 1A-1 , N.C. R. Civ. P. 37, due to a purported wife’s failure to comply with the trial court’s discovery orders in an annulment proceeding because a judgment for annulment could not be entered by default under G.S. 50-10(a) . Hawkins v. Hawkins, 192 N.C. App. 248, 664 S.E.2d 616, 2008 N.C. App. LEXIS 1520 (2008).

Court Order Not Prerequisite to Default Judgment. —

While issuance of a court order compelling discovery is the more common procedure employed by courts, the clear wording of section (d) of this rule contradicts the position that this is a prerequisite to entry of a default judgment. First Citizens Bank & Trust Co. v. Powell, 58 N.C. App. 229, 292 S.E.2d 731, 1982 N.C. App. LEXIS 2748 (1982), aff'd, 307 N.C. 467 , 298 S.E.2d 386, 1983 N.C. LEXIS 1089 (1983).

Default as Sanction for Failure to Attend Deposition. —

Section (d) of this rule allows a judge to default a claim as a sanction for failure to appear for a deposition after having been given proper notice. American Imports, Inc. v. G.E. Employees W. Region Fed. Credit Union, 37 N.C. App. 121, 245 S.E.2d 798, 1978 N.C. App. LEXIS 2667 (1978); Adair v. Adair, 62 N.C. App. 493, 303 S.E.2d 190, 1983 N.C. App. LEXIS 2938 (1983).

For case upholding default judgment after failure to respond to request for admissions or to answer interrogatories, see Bowes v. Bowes, 43 N.C. App. 586, 259 S.E.2d 389, 1979 N.C. App. LEXIS 3096 (1979), cert. denied, 299 N.C. 120 , 262 S.E.2d 5, 1980 N.C. LEXIS 954 (1980); Vick v. Davis, 77 N.C. App. 359, 335 S.E.2d 197, 1985 N.C. App. LEXIS 4092 (1985), aff'd, 317 N.C. 328 , 345 S.E.2d 217, 1986 N.C. LEXIS 2793 (1986).

Issuance of Court Order Not Prerequisite to Entry of Default Judgment. —

While issuance of a court order is the more common procedure employed by courts, the clear wording of section (d) of this rule contradicts position that this is a prerequisite to entry of a default judgment. First Citizens Bank & Trust Co. v. Powell, 58 N.C. App. 229, 292 S.E.2d 731, 1982 N.C. App. LEXIS 2748 (1982), aff'd, 307 N.C. 467 , 298 S.E.2d 386, 1983 N.C. LEXIS 1089 (1983).

Hearing on Punitive Damages After Default. —

Due process concerns demand that a party who is defaulted for failure to answer interrogatories be afforded an opportunity to be heard on the question of punitive damages. Hunter v. Spaulding, 97 N.C. App. 372, 388 S.E.2d 630, 1990 N.C. App. LEXIS 139 (1990).

D.Dismissal of claim(s)

A trial court must consider less severe sanctions before dismissing a plaintiff’s complaint under subsection (d) of this rule. Goss v. Battle, 111 N.C. App. 173, 432 S.E.2d 156, 1993 N.C. App. LEXIS 719 (1993).

In determining if dismissal of a workers’ compensation proceeding was an abuse of discretion, factors to be considered include the exclusivity provision of G.S. 97-10.1 , the appropriateness of alternative sanctions under this rule, the proportionality of dismissal to the actions meriting sanction, and whether other statutory powers, such as holding a person in contempt under G.S. 97-80 , can bring the result desired by imposition of a sanction. Matthews v. Charlotte-Mecklenburg Hosp. Auth., 132 N.C. App. 11, 510 S.E.2d 388, 1999 N.C. App. LEXIS 2 (1999).

Order Deemed Conditional and Void. —

Where a court order conditioned the dismissal of plaintiff’s action upon plaintiff’s failure to produce discovery materials previously ordered, the second order was not self-executing, and was therefore conditional and void. Cassidy v. Cheek, 308 N.C. 670 , 303 S.E.2d 792, 1983 N.C. LEXIS 1296 (1983).

Dismissal of Plaintiff’s Action for Failure to Answer Interrogatories. —

Where plaintiff was properly served with interrogatories but refused to answer them without good cause and did not serve on defendant objections to any of the interrogatories or ask for an extension of time to answer, the trial court properly dismissed plaintiff’s action. Hammer v. Allison, 20 N.C. App. 623, 202 S.E.2d 307, 1974 N.C. App. LEXIS 2506 , cert. denied, 285 N.C. 233 , 204 S.E.2d 23, 1974 N.C. LEXIS 946 (1974).

Where plaintiff served answers to interrogatories after defendant had filed motion to dismiss and plaintiff’s failure to comply with G.S. 1A-1 , Rule 33 clearly prejudiced the defendant’s ability to prepare for trial, the court had authority to dismiss the action. Hayes v. Browne, 76 N.C. App. 98, 331 S.E.2d 763, 1985 N.C. App. LEXIS 3722 (1985).

Dismissal of Counterclaim for Failure to Timely Answer Interrogatories. —

Trial court’s dismissal of defendant’s counterclaim for his failure to comply with discovery order was not error where plaintiff served defendant with some 45 interrogatories and for no apparent reason defendant failed to respond, where trial court filed an order ordering defendant to submit his answers on or before 5:00 P.M. that same day and defendant still failed to comply, and where plaintiff later received defendant’s answers, which were handwritten, unresponsive, and incomplete. Lincoln v. Grinstead, 94 N.C. App. 122, 379 S.E.2d 671, 1989 N.C. App. LEXIS 428 (1989).

Dismissal as Sanction. —

The rule adopted in the federal courts, that dismissal with prejudice is a sanction of last resort, is applicable only in extreme circumstances, and is generally proper where less drastic sanctions are unavailable, has not been adopted by our courts. Indeed, the Court of Appeals’ precedent all but expressly rejects the notion of progressive sanctions. Fulton v. East Carolina Trucks, Inc., 88 N.C. App. 274, 362 S.E.2d 868, 1987 N.C. App. LEXIS 3459 (1987).

Dismissal of plaintiff’s suit was affirmed as it could be inferred that the trial court considered lesser sanctions given that it stated that lesser sanctions were urged by plaintiff and that, given the severity of disobedience by plaintiff’s counsel, lesser sanctions were inappropriate; plaintiff’s misconduct was serious as plaintiff did not answer or object to any of an insurer’s discovery requests, seek a protective order, or proffer any justification for the inaction. Badillo v. Cunningham, 177 N.C. App. 732, 629 S.E.2d 909, 2006 N.C. App. LEXIS 1226 , aff'd, 361 N.C. 112 , 637 S.E.2d 538, 2006 N.C. LEXIS 1293 (2006).

Trial court is not required to list and specifically reject each possible lesser sanction prior to determining that dismissal is appropriate for a failure to respond to discovery requests. Badillo v. Cunningham, 177 N.C. App. 732, 629 S.E.2d 909, 2006 N.C. App. LEXIS 1226 , aff'd, 361 N.C. 112 , 637 S.E.2d 538, 2006 N.C. LEXIS 1293 (2006).

Former wife’s complaint alleging that her former husband breached a separation agreement was properly dismissed as a sanction pursuant to G.S. 1A-1 , N.C. R. Civ. P. 37(d), for her failure to file timely responses to his discovery requests because (1) the fact that the wife provided the discovery at the last minute did not establish that the dismissal was an abuse of discretion; (2) prejudice to the husband was not required for imposition of this sanction; and (3) as required, the district court properly considered the imposition of lesser sanctions. Batlle v. Sabates, 198 N.C. App. 407, 681 S.E.2d 788, 2009 N.C. App. LEXIS 1355 (2009).

Dismissal Conditioned on Noncompliance Held Void. —

Order stating that action would be dismissed if plaintiff failed to comply with discovery order by a certain date was a conditional order and therefore void. Cassidy v. Cheek, 308 N.C. 670 , 303 S.E.2d 792, 1983 N.C. LEXIS 1296 (1983).

Although this rule gives the trial court authority to issue orders to compel discovery and to sanction failure to comply with such orders, where the court below conditioned the sanction, dismissal of plaintiff’s case, upon plaintiff’s failure to comply with the order to produce certain x-ray film within 30 days, because such order contained a condition to the dismissal of plaintiff’s action, the order was not self-executing and was void as a conditional order. McCraw v. Hamrick, 88 N.C. App. 391, 363 S.E.2d 201, 1988 N.C. App. LEXIS 30 (1988).

Motion to Compel Discovery Not Prerequisite to Dismissal. —

Motion for an order compelling discovery pursuant to subsection (a)(2) of this rule is not required before a motion to dismiss is granted. Fulton v. East Carolina Trucks, Inc., 88 N.C. App. 274, 362 S.E.2d 868, 1987 N.C. App. LEXIS 3459 (1987).

Dismissal Upheld. —

Dismissal of case with prejudice as the first sanction for failure of plaintiffs to answer defendants’ interrogatories would be upheld. Fulton v. East Carolina Trucks, Inc., 88 N.C. App. 274, 362 S.E.2d 868, 1987 N.C. App. LEXIS 3459 (1987).

Where the plaintiff never objected to discovery requests, obtained one extension of time to comply but failed to respond within the extended time, and failed to request an additional extension and, it was determined that plaintiff had established a pattern of disregarding due dates for responding to discovery, the decision of the trial court to dismiss the complaint was not manifestly unsupported by reason. Cheek v. Poole, 121 N.C. App. 370, 465 S.E.2d 561, 1996 N.C. App. LEXIS 23 , cert. denied, 343 N.C. 305 , 471 S.E.2d 68, 1996 N.C. LEXIS 287 (1996).

Trial judge did not abuse his discretion by dismissing plaintiff’s personal injury suit for discovery violations because the plaintiff failed to produce a 2001 tax return critical to his assertion of damages involving lost profits and lost earning capacity, and made false representations regarding his profits from the sale of a house, which was central to the issue of damages. By failing to comply with the trial court’s order to compel and then asserting his Fifth Amendment right against self-incrimination in a court-ordered deposition, the plaintiff opened himself up to dismissal of his civil case since, despite less severe sanctions being available, the defendants were deprived of necessary discovery. In re Pedestrian Walkway Failure, 173 N.C. App. 237, 618 S.E.2d 819, 2005 N.C. App. LEXIS 2032 (2005).

Trial court did not abuse its discretion when it dismissed with prejudice a guest’s personal injury claims against a motor speedway and a concrete manufacturer as a discovery sanction under G.S. 1A-1-37(b)(2) when the guest gave conflicting information about a pre-existing back injury, failed to mention a prior worker’s compensation claim or prior injuries as requested by the manufacturer and the trial court considered less severe sanctions before dismissing the guest’s claims. Baker v. Charlotte Motor Speedway, Inc., 180 N.C. App. 296, 636 S.E.2d 829, 2006 N.C. App. LEXIS 2306 (2006).

E.Exclusion of Witnesses or Evidence

Hearing officer’s order excluding petitioner’s expert witnesses for failure to identify them, in violation of court order, until four days before the hearing date, showed no abuse of discretion. Mount Olive Home Health Care Agency, Inc. v. N.C. Dep't of Human Resources, 78 N.C. App. 224, 336 S.E.2d 625, 1985 N.C. App. LEXIS 4257 (1985).

Prohibiting Introduction of Evidence as Sanction. —

The sanction provision of this rule permits the court to make such orders as are “just” upon a party’s failure to obey an order to provide or permit discovery, including refusing to permit the disobedient party to introduce the matters in question into evidence. Bumgarner v. Reneau, 332 N.C. 624 , 422 S.E.2d 686, 1992 N.C. LEXIS 579 (1992).

Investors’ expert was properly excluded under G.S. 1A-1 , N.C. R. Civ. P. 26(e)(2) and G.S. 37(b)(2)(b) since the investors purported to disclose the expert and his opinions on 2 October 2009 and stated that the expert would review the appraisers’ appraisals and other evidence in the case and opine that the appraisers violated the applicable standard of care for real-estate appraisals and made fraudulent appraisals, but admitted on 14 January 2010 that the expert had not yet reviewed the appraisals of any of the lots. Williams v. United Cmty. Bank, 218 N.C. App. 361, 724 S.E.2d 543, 2012 N.C. App. LEXIS 209 (2012).

It was not an abuse of discretion to sanction a church’s alleged successor for discovery violations or to enter a protective order barring the introduction of evidence not produced in response to discovery requests because (1) the successor did not fully respond to discovery despite a consent order and waived objections, and (2) the protective order merely effectuated the court’s sanctions order. Burns v. Kingdom Impact Global Ministries, Inc., 251 N.C. App. 724, 797 S.E.2d 21, 2017 N.C. App. LEXIS 38 (2017).

F.Attorneys’ Fees, Costs & Discovery Expenses

Discretion as to Time for Payment of Expenses Under Subsection (a)(4). —

It is within the trial court’s discretion to require that expenses assessed pursuant to subsection (a)(4) of this rule be paid at any time after entry of an order pursuant to the rule. Accordingly, the better practice would be for all such orders to include a provision as to when payment of such expenses shall be made. Hall v. Carter, 90 N.C. App. 668, 369 S.E.2d 623, 1988 N.C. App. LEXIS 581 (1988).

Purpose of Mandatory Allowance of Expenses. —

Provision in section (d) of this rule for a mandatory allowance of expenses against a party which fails to respond to a discovery request, unless other sanctions are imposed under this rule or unless the failure “was substantially justified or . . . other circumstances make an award of expenses unjust,” is designed to discourage dilatory practices and frivolous refusals to comply with discovery procedures. Willis v. Duke Power Co., 291 N.C. 19 , 229 S.E.2d 191, 1976 N.C. LEXIS 932 (1976).

Where a party deliberately destroys, alters or creates a false document to subvert an adverse party’s investigation of his right to seek a legal remedy, and injuries are pleaded and proven, a claim for the resulting increased costs of the investigation will lie. Henry v. Deen, 310 N.C. 75 , 310 S.E.2d 326, 1984 N.C. LEXIS 1560 (1984).

Order requiring defendant to pay plaintiff’s attorneys’ fees was authorized by subsection (a)(4) of this rule, and was interlocutory, as it did not finally determine the action nor affect a substantial right which might be lost, prejudiced or be less than adequately protected by exception to entry of the interlocutory order. Benfield v. Benfield, 89 N.C. App. 415, 366 S.E.2d 500, 1988 N.C. App. LEXIS 191 (1988).

But Not Without Findings of Fact. —

Where the trial court simply awarded attorneys’ fees in the amount of $250.00, and the court’s order contained no findings of fact to support any conclusion that the fees were reasonable, the award would be vacated, since subsection (a)(4) of this rule requires the award of expenses to be reasonable, and the record must contain findings of fact to support the award of any expenses, including attorneys’ fees. Such findings should be consistent with the purpose of the subsection, which is not to punish the noncomplying party, but to reimburse the successful movant for his expenses. Benfield v. Benfield, 89 N.C. App. 415, 366 S.E.2d 500, 1988 N.C. App. LEXIS 191 (1988).

Where plaintiff did not produce medical records, defendants were entitled to attorney’s fees unless plaintiff proved such an award was unjust under the circumstances. Graham v. Rogers, 121 N.C. App. 460, 466 S.E.2d 290, 1996 N.C. App. LEXIS 72 (1996).

For case holding denial of attorneys’ fees for compelling discovery error, see Kent v. Humphries, 50 N.C. App. 580, 275 S.E.2d 176, 1981 N.C. App. LEXIS 2159 , aff'd in part, modified, 303 N.C. 675 , 281 S.E.2d 43, 1981 N.C. LEXIS 1203 (1981).

Dismissal Not Proper Remedy for Failure to Pay Expenses Where Time Certain Not Specified. —

Where the order entered by the judge did not set a time certain for the payment of the expenses assessed pursuant to subsection (a)(4) of this rule, the drastic remedy of dismissal granted by the judge was improper and would be reversed. Hall v. Carter, 90 N.C. App. 668, 369 S.E.2d 623, 1988 N.C. App. LEXIS 581 (1988).

Award of expenses in malpractice case against defendant was justified under G.S. 1A-1 , Rule 26(c) because defendant’s motion to quash was denied and under subsection (a)(4) of this rule because plaintiffs’ motion to compel was granted. Green ex rel. Green v. Maness, 69 N.C. App. 403, 316 S.E.2d 911, 1984 N.C. App. LEXIS 3484 (1984).

Section (c) of this rule does not require the trial court to make negative findings of fact with respect to the four exceptions therein, and where neither party made such a request of the trial judge, under G.S. 1A-1 , Rule 52 it would be presumed that the court on proper evidence found facts to support its judgment. Watkins v. Hellings, 321 N.C. 78 , 361 S.E.2d 568, 1987 N.C. LEXIS 2491 (1987).

Findings on Motion for Expenses. —

With regard to the imposition of discovery sanctions pursuant to section (c) of this rule, it is left to the discretion of the trial judge as to whether to make a finding of fact if a party does not choose to compel a finding through the simple mechanism of so requesting. Watkins v. Hellings, 321 N.C. 78 , 361 S.E.2d 568, 1987 N.C. LEXIS 2491 (1987).

Trial court did not abuse its discretion by granting a motion for sanctions because the court’s findings of fact supported the court’s conclusion that the non-moving party willfully withheld responsive documents despite having the ability to comply with a discovery order to produce the documents such that it would cause surprise and delay. Porters Neck Ltd., LLC v. Porters Neck Country Club, Inc., 276 N.C. App. 95, 855 S.E.2d 819, 2021- NCCOA-41, 2021 N.C. App. LEXIS 56 (2021).

Taxing of Costs Not Abuse of Discretion. —

Trial court did not abuse its discretion in taxing a party with costs pursuant to G.S. 1A-1-37(c) based upon requests for admissions in discovery that were improperly denied by the party. Cail v. Cerwin, 185 N.C. App. 176, 648 S.E.2d 510, 2007 N.C. App. LEXIS 1684 (2007).

After a real estate buyer was held in contempt for failing to appear for a deposition, It was no error to require the buyer to pay a co-buyer’s related attorney’s fees and costs to purge the buyer of contempt because G.S. 1A-1 , N.C. R. Civ. P. 37(d) permitted such relief. Li v. Zhou, 252 N.C. App. 22, 797 S.E.2d 520, 2017 N.C. App. LEXIS 93 (2017).

Erroneous Imposition of Sanctions on Non-Party. —

When a non-party was properly held in contempt for failing to comply with a subpoena directing the non-party to attend a deposition, it was error to impose sanctions, under G.S. 1A-1-37(d), on the non-party in the form of attorney fees and costs because: (1) the legislature did not intend to allow the imposition of sanctions on non-parties; and (2) sanctions were not sought or imposed under G.S. 1A-1-37(a)(4). First Mt. Vernon Indus. Loan Ass'n v. ProDev XXII, LLC, 209 N.C. App. 126, 703 S.E.2d 836, 2011 N.C. App. LEXIS 97 (2011).

Where plaintiff made a request for costs and asserted that appeal was in violation of G.S. 1A-1 , Rule 11, but did not make the request in a motion, pursuant to this rule, the court declined to consider the request. Enzor v. North Carolina Farm Bureau Mut. Ins. Co., 123 N.C. App. 544, 473 S.E.2d 638, 1996 N.C. App. LEXIS 698 (1996).

Amount of Award of Attorney’s Fees. —

Trial court erred in determining the amount of attorney’s fees to be awarded for a discovery violation because the movant submitted insufficient evidence by affidavit of a comparable fee rate to the court to show the customary fee for like work by others in the legal market to support a finding on that point. The court thereby erred by making a finding with respect to the customary fee for like work absent evidence to support such a finding. Porters Neck Ltd., LLC v. Porters Neck Country Club, Inc., 276 N.C. App. 95, 855 S.E.2d 819, 2021- NCCOA-41, 2021 N.C. App. LEXIS 56 (2021).

G.Review of Sanctions Order

Review of Sanctions Directed to Outcome of Case. —

Impositions of sanctions that are directed to the outcome of the case, such as dismissals, default judgments, or preclusion orders, are reviewed on appeal from final judgment, and while the standard of review is often stated to be abuse of discretion, the most drastic penalties, dismissal or default, are examined in the light of the general purpose of the rules to encourage trial on the merits. American Imports, Inc. v. G.E. Employees W. Region Fed. Credit Union, 37 N.C. App. 121, 245 S.E.2d 798, 1978 N.C. App. LEXIS 2667 (1978).

Appealability of Orders Denying Discovery. —

Orders denying discovery need no sanctions under this rule for enforcement. They are appealable if they affect a substantial right of the party requesting discovery. Walker v. Liberty Mut. Ins. Co., 84 N.C. App. 552, 353 S.E.2d 425, 1987 N.C. App. LEXIS 2527 (1987).

Appealability of Sanctions Order. —

An order compelling discovery is not a final judgment, nor does it affect a substantial right, and consequently, it is not appealable. However, when the order is enforced by sanctions pursuant to section (b) of this rule, the order is appealable as a final judgment. Walker v. Liberty Mut. Ins. Co., 84 N.C. App. 552, 353 S.E.2d 425, 1987 N.C. App. LEXIS 2527 (1987).

Where a party is adjudged to be in contempt for noncompliance with a discovery order or has been assessed with certain other sanctions, the order is immediately appealable since it affects a substantial right under G.S. 1-277 and 7A-27(d)(1). Benfield v. Benfield, 89 N.C. App. 415, 366 S.E.2d 500, 1988 N.C. App. LEXIS 191 (1988).

Order holding defendant in contempt of court for his failure to comply with discovery order was appealable and tested the validity both of the original discovery order and the contempt order. Benfield v. Benfield, 89 N.C. App. 415, 366 S.E.2d 500, 1988 N.C. App. LEXIS 191 (1988).

When a party asserts a statutory privilege which directly relates to the matter to be disclosed under an interlocutory discovery order, and the assertion of such privilege is not otherwise frivolous or insubstantial, the challenged order affects a substantial right. Mims v. Wright, 157 N.C. App. 339, 578 S.E.2d 606, 2003 N.C. App. LEXIS 646 (2003).

Orders regarding discovery matters are reviewed for an abuse of discretion. Mims v. Wright, 157 N.C. App. 339, 578 S.E.2d 606, 2003 N.C. App. LEXIS 646 (2003).

Order imposing sanctions for discovery violations and ordering the production of documents was an interlocutory order that was appealable because of the portion of the order that imposed sanctions pursuant to G.S. 1A-1 , N.C. R. Civ. P. 37(b). Such an appeal tests the validity of both the discovery order and the sanctions imposed. In re Pedestrian Walkway Failure, 173 N.C. App. 254, 618 S.E.2d 796, 2005 N.C. App. LEXIS 2022 (2005).

Sanctions entered as part of a receivership order that was interlocutory and in a separate order were immediately appealable, even though they did not state the statutory basis for the award of attorney fees as a sanction, as they were orders establishing a penalty that was analogous to an order under G.S. 1A-1 , N.C. R. Civ. P. 37(b). Batesville Casket Co. v. Wings Aviation, Inc., 214 N.C. App. 447, 716 S.E.2d 13, 2011 N.C. App. LEXIS 1738 (2011).

Discovery order as enforced by a sanctions order was immediately appealable as to the validity of both orders because the orders affected a substantial right. Feeassco, LLC v. The Steel Network, Inc., 264 N.C. App. 327, 826 S.E.2d 202, 2019 N.C. App. LEXIS 221 (2019).

Denial of a manufacturer’s motion to compel discovery and for sanctions was not immediately appealable because (1) the manufacturer admitted possessing the requested information, and (2) the manufacturer was not barred from asserting a defense, so the information desired was not highly material to a determination of the critical question to be resolved in the case, and, thus, no substantial right was affected. Feeassco, LLC v. The Steel Network, Inc., 264 N.C. App. 327, 826 S.E.2d 202, 2019 N.C. App. LEXIS 221 (2019).

Appealability of an Order Setting Aside Or Rescinding a Sanctions Order. —

An order setting aside or rescinding an order of dismissal issued pursuant to this section was interlocutory and not immediately appealable. Yang v. Three Springs Inc., 142 N.C. App. 328, 542 S.E.2d 666, 2001 N.C. App. LEXIS 82 (2001).

Attempted Appeal from Order Containing No Sanctions as Nullity. —

As the order from which defendant first appealed contained no enforcement sanctions, but only ordered defendant to answer questions by a certain date, it was not properly appealable, and the attempted appeal therefrom was a nullity, notwithstanding the fact that the judge signed the appeal entries. Accordingly, such appeal did not divest the trial court of jurisdiction to subsequently enter sanctions against defendant. Benfield v. Benfield, 89 N.C. App. 415, 366 S.E.2d 500, 1988 N.C. App. LEXIS 191 (1988).

Although interlocutory, a party may appeal from order imposing sanctions, by striking his defense and entering judgment as to liability. Vick v. Davis, 77 N.C. App. 359, 335 S.E.2d 197, 1985 N.C. App. LEXIS 4092 (1985), aff'd, 317 N.C. 328 , 345 S.E.2d 217, 1986 N.C. LEXIS 2793 (1986).

As a general rule, discovery orders are interlocutory and therefore not immediately appealable because they do not dispose of the case but instead leave it for further action by the trial court in order to settle and determine the entire controversy; such orders are, however, immediately appealable if delaying the appeal will irreparably impair a substantial right of the party, and a substantial right is affected if the order deprives the appealing party of a substantial right which will be lost if the order is not reviewed before a final judgment is entered. Mims v. Wright, 157 N.C. App. 339, 578 S.E.2d 606, 2003 N.C. App. LEXIS 646 (2003).

H.Illustrative Cases

Sanctions Contrary to Due Process. —

It was error to sanction a manufacturer for discovery misconduct because the manufacturer had no notice that sanctions might be imposed, or of the basis for imposing sanctions, in violation of the manufacturer’s right to due process, as (1) no motion seeking sanctions was filed, (2) a pending motion to amend a complaint did not state the motion’s allegations were intended to be a basis for imposing sanctions, and (3) the manufacturer’s attempt to defend against sanctions did not show the manufacturer had notice. OSI Rest. Partners, LLC v. Oscoda Plastics, Inc., 266 N.C. App. 310, 831 S.E.2d 386, 2019 N.C. App. LEXIS 599 (2019).

Sanction for Failure to Disclose. —

Since G.S. 1A-1 , N.C. R. Civ. P. 26(b)(4)(a)(1) does not set a particular time or method for disclosure, the trial court must make this discretionary determination based upon the particular circumstances, and since G.S. 1A-1 , N.C. R. Civ. P. 37 does not address sanctions for failure to disclose, the trial court has inherent authority to grant a remedy for the failure to disclose, which may include exclusion of the testimony or other remedies or sanctions as appropriate to the circumstances. Myers v. Myers, 269 N.C. App. 237, 837 S.E.2d 443, 2020 N.C. App. LEXIS 18 (2020).

Award of attorneys’ fees as a sanction was appropriate because the disclosures which a party provided were inconsistent with the party’s expert disclosure obligations under the case management order, the rules of civil procedure, and the party’s representations in interrogatory responses. However, the business court declined to award certain of the requested fees because the time incurred did not relate to the discovery dispute or the motion for sanctions but instead appeared to relate to the litigation more broadly. Vitaform, Inc. v. Aeroflow, Inc., 2021 NCBC 79, 2021 NCBC LEXIS 112 (N.C. Super. Ct. Dec. 15, 2021).

Sanctions Imposed on Attorney. —

Trial court was justified in imposing sanctions on attorney where notice of plaintiff’s deposition was actually sent to her office, and court of appeals could only assume that plaintiff was unaware that she needed to bring any documents with her because her counsel never informed her of such. Pugh v. Pugh, 113 N.C. App. 375, 438 S.E.2d 214, 1994 N.C. App. LEXIS 28 (1994).

It was error to award attorneys’ fees against an attorney as a discovery sanction because the attorney was not a “party” for purposes of such a sanction, nor an officer, director, or managing agent of a party, or designee to testify on behalf of a party. Ge Betz, Inc. v. Conrad, 231 N.C. App. 214, 752 S.E.2d 634, 2013 N.C. App. LEXIS 1294 (2013).

Sanctions Upheld for Violation of Court Orders. —

Sanctions imposed by trial court for violation of discovery order, of the Rules of Civil Procedure and of consent order, without justification, which sanctions included the striking of defenses, the payment of attorneys’ fees, and the supplying of further answers to the interrogatories would be upheld in view of the facts. Martin v. Solon Automated Servs., Inc., 84 N.C. App. 197, 352 S.E.2d 278, 1987 N.C. App. LEXIS 2482 (1987).

When defendant, who allegedly received embezzled funds, failed to demonstrate a good faith effort at compliance with court’s request, and continued to provide evasive and incomplete answers, despite orders compelling discovery and continuances granted to enable her to comply, the trial court properly struck defendant’s answer and entered a default judgment against her for $250,000. Atlantic Veneer Corp. v. Robbins, 133 N.C. App. 594, 516 S.E.2d 169, 1999 N.C. App. LEXIS 609 (1999).

Trial court did not abuse its discretion by sanctioning in a divorce proceeding a husband who wilfully disregarded two trial court directives requiring completion of the wife’s interrogatories to the husband, where the husband’s stated reason for refusing to answer the wife’s interrogatories, in violation of the trial court’s order, was that he would not sign the interrogatories unless they contained reference to a prenuptial agreement, which he alleged denied support to the wife. Leder v. Leder, 166 N.C. App. 498, 601 S.E.2d 882, 2004 N.C. App. LEXIS 1747 (2004).

Trial court did not abuse its discretion in striking the answers of a husband, wife, and real estate agent and entering default against them because there was ample evidence that they acted improperly and violated a consent order directing the production of financial documents; the wife failed to produce real property tax information and information regarding a possible trust in her possession, the husband did not produce any financial statements, and the agent did not produce any documents until after buyers filed a motion for sanctions. Baker v. Rosner, 197 N.C. App. 604, 677 S.E.2d 887, 2009 N.C. App. LEXIS 735 (2009).

In a will contest action, because a decedent’s son exhibited continued recalcitrance and repeated disobedience of a trial court’s orders to produce answers to a daughter’s requests for discovery, trial court could impose sanctions, inter alia, of accepting matters alleged in a verified caveat as true under G.S. 1A-1-37(b)(2). In re Estate of Johnson, 205 N.C. App. 641, 697 S.E.2d 365, 2010 N.C. App. LEXIS 1313 (2010).

In divorce proceedings, a trial court did not abuse its discretion in imposing discovery sanctions, pursuant to G.S. 1A-1 , N.C. R. Civ. P. 37, against a husband, which included striking his claims for equitable distribution and barring the husband from presenting evidence in support of his claims, because the husband flatly refused to answer the wife’s request for production of documents related to the classification and valuation of certain real property; prior to imposing sanctions, the trial court properly considered the entire course of the litigation and the years of futile efforts to secure the husband’s compliance. Ross v. Ross, 215 N.C. App. 546, 715 S.E.2d 859, 2011 N.C. App. LEXIS 2050 (2011).

Discovery sanctions order against a wife in a divorce did not err because (1) a discovery order did not require the wife to do the impossible, and (2) a delay in entering a written sanctions order did not cause the wife to be unaware of the wife’s obligations. Khaja v. Husna, 243 N.C. App. 330, 777 S.E.2d 781, 2015 N.C. App. LEXIS 813 (2015).

Trial court acted well within its discretion in determining reasonable attorneys’ fees to be awarded against the medical practice and in favor of the doctors after finding that the fees awarded were attributable to the doctors’ efforts related to the medical practice’s deficient discovery and not for other aspects of the defense of the action. E. Brooks Wilkins Family Med., P.A. v. WakeMed, 244 N.C. App. 567, 784 S.E.2d 178, 2016 N.C. App. LEXIS 53 (2016).

It could be inferred from the record that the trial court considered imposing lesser sanctions on appellants’ for failing to comply with a discovery order and that the sanctions imposed were appropriate. Gea, Inc. v. Luxury Auctions Mktg., 259 N.C. App. 443, 817 S.E.2d 422, 2018 N.C. App. LEXIS 489 (2018).

Because appellants failed to comply with a trial court’s discovery order, the trial court did not abuse its discretion when it struck appellants’ defenses to appellees’ counterclaims, entered default against appellants, and denied appellants’ request for reconsideration. Gea, Inc. v. Luxury Auctions Mktg., 259 N.C. App. 443, 817 S.E.2d 422, 2018 N.C. App. LEXIS 489 (2018).

Trial court did not abuse its discretion when it ordered that appellants be sanctioned for not providing a server’s login credentials. Gea, Inc. v. Luxury Auctions Mktg., 259 N.C. App. 443, 817 S.E.2d 422, 2018 N.C. App. LEXIS 489 (2018).

Trial court did not abuse its discretion when it ordered that appellants (a marketing company and its director of operations) be sanctioned unless the director of operations produced his personal laptop for inspection. Gea, Inc. v. Luxury Auctions Mktg., 259 N.C. App. 443, 817 S.E.2d 422, 2018 N.C. App. LEXIS 489 (2018).

Sanctions Improper Where Burden of Proof Met. —

Driver met her burden of proof in showing that at the time for request of admission, reasonable grounds existed to believe that she might prevail on some matters denied, and good reasons, her lack of knowledge, existed for the failure to admit other issues at that time; accordingly, the trial court erred in awarding plaintiffs’ attorney fees and costs based on the driver’s denial. Oakes v. Wooten, 173 N.C. App. 506, 620 S.E.2d 39, 2005 N.C. App. LEXIS 2100 (2005).

Trial court order precluding plaintiff from presenting any testimony or exhibits that implied or inferred that her back injury was caused by a pedestrian walkway failure that was the basis for the suit was proper as within the discretion of the trial court pursuant to G.S. 1A-1 , Rule 37, where plaintiff committed discovery violations by failing to consult with her experts before answering various requests for admissions, failing to disclose certain experts before the cut-off date set by the trial court, and failing to produce documents to substantiate her injuries. In re Pedestrian Walkway Failure, 173 N.C. App. 254, 618 S.E.2d 796, 2005 N.C. App. LEXIS 2022 (2005).

Sanctions Properly Denied. —

The trial court did not err in denying the defendants’ motions to prohibit the testimony of an expert witness for the plaintiffs and for sanctions where (1) the defendants learned of the expert witness four months prior to trial and were aware of the plaintiffs’ intention that the expert render certain opinions two months before trial, (2) notwithstanding the deficiency in the plaintiffs’ supplemental response, the defendants declined to depose the expert and elected to wait until the week of trial to file their pre-trial motions, and (3) before the jury was selected, the trial court afforded the defendants an opportunity to “depose” the expert. Hill v. Williams, 144 N.C. App. 45, 547 S.E.2d 472, 2001 N.C. App. LEXIS 331 (2001).

Where the injured parties served the neighbor with an amended notice of deposition and a request to produce documents under G.S. 1A-1 , N.C. R. Civ. P. 34, where the neighbor responded by filing an objection to discovery and a motion for a protective order, and where the trial court overruled the neighbor’s request and ordered the neighbor to produce three letters requested by the injured parties, an order with which the neighbor complied, the injured parties were not entitled to sanctions under G.S. 1A-1 , N.C. R. Civ. P. 37(b); there was no evidence that the neighbor did not comply with the trial court’s order compelling production of the three letters. Becker v. Pierce, 168 N.C. App. 671, 608 S.E.2d 825, 2005 N.C. App. LEXIS 452 (2005).

Measure of Damages for Discovery Violation. —

When a trial court awarded damages for a discovery violation against an employer’s competitor, it was not error to use the competitor’s gross sales to certain customers instead of the competitor’s net profits, under G.S. 1A-1 , N.C. R. Civ. P. 37(b)(2)(b), because, based on the competitor’s admitted, obstinate refusal to provide evidence on the competitor’s net profits, any lesser sanction would not have been sufficient to insure that the competitor did not profit from the competitor’s misconduct. Ge Betz, Inc. v. Conrad, 231 N.C. App. 214, 752 S.E.2d 634, 2013 N.C. App. LEXIS 1294 (2013).

Article 6. Trials.

Rule 38. Jury trial of right.

  1. Right preserved. —  The right of trial by jury as declared by the Constitution or statutes of North Carolina shall be preserved to the parties inviolate.
  2. Demand. —  Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after commencement of the action and not later than 10 days after the service of the last pleading directed to such issue. Such demand may be made in the pleading of the party or endorsed on the pleading.
  3. Demand — Specification of issues. —  In his demand a party may specify the issues which he wishes so tried; otherwise, he shall be deemed to have demanded trial by jury for all the issues so triable. If a party has demanded trial by jury for only some of the issues, any other party within 10 days after service of the last pleading directed to such issues or within 10 days after service of the demand, whichever is later, or such lesser time as the court may order, may serve a demand for trial by jury of any other or all of the issues in the action.
  4. Waiver. —  Except in actions wherein jury trial cannot be waived, the failure of a party to serve a demand as required by this rule and file it as required by Rule 5(d) constitutes a waiver by him of trial by jury. A demand for trial by jury as herein provided may not be withdrawn without the consent of the parties who have pleaded or otherwise appear in the action.
  5. Right granted. —  The right of trial by jury as to the issue of just compensation shall be granted to the parties involved in any condemnation proceeding brought by bodies politic, corporations or persons which possess the power of eminent domain.

History. 1967, c. 954, s. 1; 1973, c. 149.

Comment

This rule and Rule 39 provide for the preservation of the right to jury trial and methods for claim and waiver of that right. The principal change effected is that waiver of right to jury trial is accomplished by a failure seasonably to demand jury trial.

North Carolina Const., Art. IV, § 12, specifically provides that jury trial can be waived, and former § 1-184 set up three methods by which there could be such waiver. They were: (1) By failing to appear at the trial; (2) By written consent filed with the clerk; and (3) By oral consent entered in the minutes. All three methods are retained. See Rule 39(a). But a fourth is added which has as its object the early ascertainment of those cases in which there will be no jury. This knowledge is useful in calendaring a case and in counsel’s preparation for trial.

The requirement of positive action by a party to preserve the right to jury trial is not at all new in certain areas — references and mandamus for example. In respect to references, see Simmons v. Lee, 230 N.C. 216 , 53 S.E. 79 (1949). See also Rule 53 and the accompanying note. In respect to mandamus, see former § 1-513. This statute has been repealed and jury trial in respect to mandamus is now governed by this rule and Rule 39.

The procedure for demanding jury trial is simple. The demand may be within a pleading or endorsed thereon or by separate document. No particular form of words is prescribed. As to the time when the demand must be made, generally it will be “not later than 10 days after the service of the last pleading” directed to the issue in question. But it will be observed that section (c) makes it possible for a party to demand jury trial only for some of the issues. To adjust to the situation where, for example, a plaintiff in a negligence suit might have failed to demand jury trial on any issue and the defendant, at the last moment (on the 10th day after filing his answer), demands jury trial on only the damage issue, the rule allows the plaintiff 10 days after the service of the defendant’s demand in which to demand jury trial on other issues.

The reference in section (d) to actions wherein jury trial cannot be waived would include actions for divorce not based on one year’s separation. See § 50-10.

In keeping with present law [see J.L. Roper Lumber Co. v. Elizabeth City Lumber Co., 137 N.C. 431 , 49 S.E. 946 (1905)], Rule 39(b) authorizes a judge to disregard a waiver of jury trial.

Legal Periodicals.

For article on the general scope and philosophy of the new Rules of Civil Procedure, see 5 Wake Forest Intra. L. Rev. 1 (1969).

For article on trial under the new Rules of Civil Procedure, see 5 Wake Forest Intra. L. Rev. 138 (1969).

For survey of 1980 law on civil procedure, see 59 N.C.L. Rev. 1047 (1981).

For an article discussing “reverse bad faith,” the concept of allowing an insurer to assert a counterclaim for affirmative relief against an insured who brings a frivolous, bad faith action, see 19 Campbell L. Rev. 43 (1996).

For article, “The Trial Lottery,” see 56 Wake Forest L. Rev. 1 (2021).

CASE NOTES

Constitutional Right to Demand Jury Trial. —

N. C. Const., Art. I, § 25 guarantees to every person the “sacred and inviolable” right to demand a jury trial of issues of fact arising in all controversies at law respecting property. Sykes v. Belk, 278 N.C. 106 , 179 S.E.2d 439, 1971 N.C. LEXIS 953 (1971); Frissell v. Frissell, 47 N.C. App. 149, 266 S.E.2d 866, 1980 N.C. App. LEXIS 2999 (1980).

No Constitutional Right to Jury Trial in Proceeding for Termination of Parental Rights. —

The North Carolina constitutional requirement of trial by jury is not applicable to a proceeding for termination of parental rights. In re Ferguson, 50 N.C. App. 681, 274 S.E.2d 879, 1981 N.C. App. LEXIS 2173 (1981).

Construction With Other Laws. —

While either party may appeal for a trial de novo, the session law names the petitioner as the party to designate whether a trial by jury is desired, which is controlling over the more generally applicable right of any party to demand a jury trial under the civil procedure rule; in this case, only the city, as petitioner, had the right to request a jury trial, and the trial court erred in failing to dismiss the request of the officer, as respondent, for a jury trial.

Court of appeals erred in reversing an order denying a city’s motion to strike a police officer’s request for a jury trial because pursuant to the Asheville, North Carolina, Civil Service Law, a respondent, just as much as a petitioner, could demand a jury trial in a superior court appeal of an Asheville Civil Service Board decision; any issue related to a Board decision was an issue triable of right by a jury in an appeal to superior court. City of Asheville v. Frost, 370 N.C. 590 , 811 S.E.2d 560, 2018 N.C. LEXIS 217 (2018).

A party may waive his right to jury trial by (1) failing to appear at the trial, (2) written consent filed with the clerk, (3) oral consent entered in the minutes of the court, or (4) failing to demand a jury trial pursuant to section (b) of this rule. Sykes v. Belk, 278 N.C. 106 , 179 S.E.2d 439, 1971 N.C. LEXIS 953 (1971); Frissell v. Frissell, 47 N.C. App. 149, 266 S.E.2d 866, 1980 N.C. App. LEXIS 2999 (1980).

In addition to the waiver of right to jury trial as established by section (d) of this rule and G.S. 1A-1 , Rule 39(a), a party may waive his right to jury trial by failing to appear at trial. Frissell v. Frissell, 47 N.C. App. 149, 266 S.E.2d 866 (1980) (overruling) Heidler v. Heidler, 42 N.C. App. 481, 256 S.E.2d 833 (1979) insofar as it is inconsistent with that opinion Morris v. Asby, 48 N.C. App. 694, 269 S.E.2d 729, 1980 N.C. App. LEXIS 3311 (1980).

Failure of a party to serve demand for trial by jury as required by the Rules of Civil Procedure constitutes a waiver. North Carolina State Bar v. DuMont, 52 N.C. App. 1, 277 S.E.2d 827, 1981 N.C. App. LEXIS 2309 (1981), modified, 304 N.C. 627 , 286 S.E.2d 89, 1982 N.C. LEXIS 1236 (1982).

Where defendant first requested a jury trial almost eleven months after he served his answer, the last pleading filed in the case, defendant’s failure to timely demand a jury trial constituted a waiver by him of jury trial of right. Whitfield v. Todd, 116 N.C. App. 335, 447 S.E.2d 796, 1994 N.C. App. LEXIS 899 (1994).

With regard to a third civil action filed in Mecklenburg County, North Carolina, by a property association for unpaid maintenance fees against two property owners, the trial court properly heard the case on the merits sitting without a jury as the owners failed to serve a demand for a trial by jury in writing at any time after commencement of the action and, secondly, the owners failed to appear on the date set for trial. Carolina Forest Ass'n v. White, 198 N.C. App. 1, 678 S.E.2d 725, 2009 N.C. App. LEXIS 1066 (2009).

Issue of Fact to Be Tried by Jury Unless Right Is Waived. —

The credibility of testimony is for the jury, not the court, and a genuine issue of fact must be tried by a jury unless this right is waived. Cutts v. Casey, 278 N.C. 390 , 180 S.E.2d 297, 1971 N.C. LEXIS 986 (1971).

It was error to find a boundary line without a jury trial because (1) this was a fact issue for a jury, (2) both parties properly demanded a jury trial, and (3) a consent to the appointment of a surveyor did not waive a jury. Ayscue v. Griffin, 263 N.C. App. 1, 823 S.E.2d 134, 2018 N.C. App. LEXIS 1235 (2018).

When Denial of Jury Trial Is Not Error. —

Where a demand for jury trial is not made in compliance with this rule and there is no controversy as to any of the facts and therefore no issue of fact to be determined by a jury, the denial of a jury trial is not error. Glover v. Spinks, 12 N.C. App. 380, 183 S.E.2d 262, 1971 N.C. App. LEXIS 1365 (1971).

Arbitration judgment was not void as a violation of an injured party’s right to jury trial under this rule P. 38 and G.S. 1A-1 , Rule 39, N.C. Const. art. I, § 25 or U.S. Const. amend. VII, because her right to a jury trial was protected by N.C. R. Arb. 5(a), which allowed any party to have a trial de novo upon written demand filed within 30 days of the arbitrator’s award. Clendening v. Sears, Roebuck & Co., 2002 N.C. App. LEXIS 2114 (N.C. Ct. App. Aug. 20, 2002).

Trial court has discretion to grant a jury trial under G.S. 1A-1 , Rule 39(b) even though jury trial has been waived pursuant to section (b) of this rule. Bullard v. North Carolina Nat'l Bank, 31 N.C. App. 312, 229 S.E.2d 245, 1976 N.C. App. LEXIS 1973 (1976).

Even though a party has failed to demand a jury trial as prescribed by section (b) of this rule, it is within the discretion of the trial judge to grant a subsequent motion for a jury trial under G.S. 1A-1 , Rule 39(b). Wycoff v. Pritchard Paint & Glass Co., 31 N.C. App. 246, 229 S.E.2d 47, 1976 N.C. App. LEXIS 1964 (1976).

The denial of a belated demand for a jury trial is within the discretion of the judge. Arney v. Arney, 71 N.C. App. 218, 321 S.E.2d 472, 1984 N.C. App. LEXIS 3784 (1984).

Oral Request for Jury Trial. —

Where the parties did not demand a jury trial in the manner provided by this rule, but all parties orally requested trial by jury, and the clerk noted the request in her order transferring the cause to the civil issue docket of the superior court, the purpose of this rule was accomplished. Shankle v. Shankle, 289 N.C. 473 , 223 S.E.2d 380, 1976 N.C. LEXIS 1324 (1976).

Unilateral Withdrawal of Jury Request Not Permitted. —

Plaintiff in a personal injury case could not unilaterally withdraw her jury request once defendant filed his motion to set aside default judgment, nor could she file an amendment pursuant to G.S. 1A-1 , Rule 15 to withdraw her request and, thereby, contravene the strictures of this rule. Cabe v. Worley, 140 N.C. App. 250, 536 S.E.2d 328, 2000 N.C. App. LEXIS 1111 (2000).

Jury Trial Demanded. —

Each party to the suit demanded a jury trial and their right was not withdrawn at any point in the action; therefore, the action should have been designated upon the docket as a jury action on the triable issues. Woody v. Vickrey, 276 N.C. App. 427, 857 S.E.2d 734, 2021- NCCOA-105, 2021 N.C. App. LEXIS 118 (2021).

Ten days from the date of the last pleading both parties are precluded from demanding a jury trial. Schoolfield v. Collins, 281 N.C. 604 , 189 S.E.2d 208, 1972 N.C. LEXIS 1117 (1972).

Defendant was denied constitutional right to a jury trial where action was transferred without notice from the superior court division to the district court division, so that defendant made no demand for jury trial in the district court within the 10-day time period formerly allowed by G.S. 7A-196 and the district court subsequently denied his demand for a jury trial. Thermo-Industries of Charlotte, Inc. v. Talton Constr. Co., 9 N.C. App. 55, 175 S.E.2d 370, 1970 N.C. App. LEXIS 1279 (1970).

Plaintiff waived right to a jury in a hearing on permanent alimony by failure to appear at the hearing either personally or by counsel. Frissell v. Frissell, 47 N.C. App. 149, 266 S.E.2d 866, 1980 N.C. App. LEXIS 2999 (1980).

Action for Alienation of Affection Where Location of Defendant’s Acts is at Issue. —

In a tort claim alleging alienation of affection, where there was a question as to whether the defendant’s acts of alienation took place in North Carolina or in three other jurisdictions which do not recognize that tort, the issue of where the tort took place should have been submitted to a jury. Darnell v. Rupplin, 91 N.C. App. 349, 371 S.E.2d 743, 1988 N.C. App. LEXIS 887 (1988).

Where, prior to effective date of the rules, the pleadings in an action were closed, and juries had been empaneled to try the case on two previous occasions since that date, the trial court erred in determining that defendant had waived the right to a jury trial under this rule by failing to file a written request therefor. Fishel v. Grifton United Methodist Church, 13 N.C. App. 238, 185 S.E.2d 322, 1971 N.C. App. LEXIS 1211 (1971).

In special proceedings for condemnation of land for an airport, the trial judge did not err in denying motion for a jury trial on the issue of ownership of the property, as the issue of ownership was not triable by a jury of right, and moreover, appellant did not demand a trial by jury in writing within the prescribed time. Raleigh-Durham Airport Auth. v. Howard, 88 N.C. App. 207, 363 S.E.2d 184, 1987 N.C. App. LEXIS 3462 (1987).

Denial of a co-owner’s motion for a jury trial in his appeal from a clerk’s order allowing a foreclosure was proper because, inter alia, G.S. 45-21.16 did not guarantee a right to a jury determination of the type of issues to be resolved by a hearing pursuant to G.S. 45-21.16 . In re Foreclosure of Elkins, 193 N.C. App. 226, 667 S.E.2d 259, 2008 N.C. App. LEXIS 1756 (2008).

Rule 39. Trial by jury or by the court.

  1. By jury. —  When trial by jury has been demanded and has not been withdrawn as provided in Rule 38, the action shall be designated upon the docket as a jury action. The trial of all issues so demanded shall be by jury, unless
    1. The parties who have pleaded or otherwise appeared in the action or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the minutes, consent to trial by the court sitting without a jury, or
    2. The court upon motion or of its own initiative finds that a right of trial by jury of some or all of those issues does not exist under the Constitution or statutes.
  2. By the court. —  Issues not demanded for trial by jury as provided in Rule 38 shall be tried by the court; but, notwithstanding the failure of a party to demand a trial by jury in an action in which such a demand might have been made of right, the court in its discretion upon motion or of its own initiative may order a trial by jury of any or all issues.
  3. Advisory jury and trial by consent. —  In all actions not triable of right by a jury the court upon motion or of its own initiative may try any issue or question of fact with an advisory jury or the court, with the consent of the parties, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right. In either event the jury shall be selected in the manner provided by Rule 47(a).

History. 1967, c. 954, s. 1.

Comment

As indicated in the note to Rule 38, this rule carries forward the essence of former § 1-184 in respect to methods of waiver and the present power of the judge to require trial by jury, even though there has been a waiver. Moreover, provision is made for trial by jury when there is no right to such trial if the judge decides such a course is desirable or if the parties consent.

Editor’s Note.

Rule 47, referred to in section (c) of this rule, does not contain a section (a).

Legal Periodicals.

For survey of 1980 law on civil procedure, see 59 N.C.L. Rev. 1047 (1981).

For an article discussing “reverse bad faith,” the concept of allowing an insurer to assert a counterclaim for affirmative relief against an insured who brings a frivolous, bad faith action, see 19 Campbell L. Rev. 43 (1996).

CASE NOTES

Denial of respondent’s belated demand for a jury trial is within the discretion of the judge. Schoolfield v. Collins, 281 N.C. 604 , 189 S.E.2d 208, 1972 N.C. LEXIS 1117 (1972).

Jury Trial Demanded. —

Each party to the suit demanded a jury trial and their right was not withdrawn at any point in the action; therefore, the action should have been designated upon the docket as a jury action on the triable issues. Woody v. Vickrey, 276 N.C. App. 427, 857 S.E.2d 734, 2021- NCCOA-105, 2021 N.C. App. LEXIS 118 (2021).

Waiver of Right to Jury Trial by Failure to Appear. —

In addition to the waiver of right to jury trial as established by G.S. 1A-1 , Rule 38(d) and section (a) of this rule, a party may waive his right to jury trial by failing to appear at trial. Frissell v. Frissell, 47 N.C. App. 149, 266 S.E.2d 866 (1980) (overruling) Heidler v. Heidler, 42 N.C. App. 481, 256 S.E.2d 833 (1979) insofar as it is inconsistent with that opinion Morris v. Asby, 48 N.C. App. 694, 269 S.E.2d 729, 1980 N.C. App. LEXIS 3311 (1980).

Arbitration judgment was not void as a violation of an injured party’s right to jury trial under G.S. 1A-1 , Rule 38 and this rule, N.C. Const. art. I, § 25 or U.S. Const. amend. VII, because her right to a jury trial was protected by N.C. R. Arb. 5(a), which allowed any party to have a trial de novo upon written demand filed within 30 days of the arbitrator’s award. Clendening v. Sears, Roebuck & Co., 2002 N.C. App. LEXIS 2114 (N.C. Ct. App. Aug. 20, 2002).

With regard to a third civil action filed in Mecklenburg County, North Carolina, by a property association for unpaid maintenance fees against two property owners, the trial court properly heard the case on the merits sitting without a jury as the owners failed to serve a demand for a trial by jury in writing at any time after commencement of the action and, secondly, the owners failed to appear on the date set for trial. Carolina Forest Ass'n v. White, 198 N.C. App. 1, 678 S.E.2d 725, 2009 N.C. App. LEXIS 1066 (2009).

Plaintiff waived right to jury trial in a hearing on permanent alimony by failure to appear at the hearing either personally or by counsel. Frissell v. Frissell, 47 N.C. App. 149, 266 S.E.2d 866, 1980 N.C. App. LEXIS 2999 (1980).

Improper Determination of Boundary Line Without Jury. —

It was error to find a boundary line without a jury trial because (1) this was a fact issue for a jury, (2) both parties properly demanded a jury trial, and (3) a consent to the appointment of a surveyor did not waive a jury. Ayscue v. Griffin, 263 N.C. App. 1, 823 S.E.2d 134, 2018 N.C. App. LEXIS 1235 (2018).

Rule 40. Assignment of cases for trial; continuances.

  1. The senior resident superior court judge of any superior court district or set of districts as defined in G.S. 7A-41.1 may provide by rule for the calendaring of actions for trial in the superior court division of the various counties within that senior resident’s district or set of districts. Calendaring of actions for trial in the district court shall be in accordance with G.S. 7A-146 . Precedence shall be given to actions entitled thereto by any statute of this State.
  2. No continuance shall be granted except upon application to the court. A continuance may be granted only for good cause shown and upon such terms and conditions as justice may require. Good cause for granting a continuance shall include those instances when a party to the proceeding, a witness, or counsel of record has an obligation of service to the State of North Carolina. A continuance requested to fulfill an obligation of service by carrying out any duties as a member of the General Assembly, or service on the Rules Review Commission or any other board, commission, or authority as an appointee of the Governor, the Lieutenant Governor, or the General Assembly, must be granted.

History. 1967, c. 954, s. 1; 1969, c. 895, s. 9; 1985, c. 603, s. 8; 1987 (Reg. Sess., 1988), c. 1037, s. 43; 1997-34, s. 10; 2019-243, s. 30(a); 2020-72, s. 2(a); 2021-180, s. 16.9(a).

Comment

This rule, as does the present Rule of Practice in the Superior Court, provides ultimately for judicial control of the calendar. The reference to the judge “senior in point of continuous service” is merely to designate the responsible judge in those districts having more than one judge.

OFFICIAL COMMENT

Comment to the 1969 amendment.

The 1969 amendment added the provision concerning continuances. The previous code contained some detailed provisions on continuances. This brief provision was deemed appropriate out of an abundance of caution.

Editor’s Note.

This section was amended by Session Laws 2019-243, s. 30(a), effective December 1, 2019, and Session Laws 2020-72, s. 2(a), effective December 1, 2020, in the coded bill drafting format provided by G.S. 120-20.1 . The amendments did not account for one another and, although the amendments were similar, they were not identical. Session Laws 2021-180, s. 16.9(a), effective November 18, 2021, repealed Session Laws 2020-72, s. 2(a)

Effect of Amendments.

Session Laws 2019-243, s. 30(a), effective December 1, 2019, substituted “that senior resident’s district” for “his district” in the first sentence of subsection (a); and rewrote the former last sentence of subsection (b), which read: “Good cause for granting a continuance shall include those instances when a party to the proceeding, a witness, or counsel of record has an obligation of service to the State of North Carolina, including service as a member of the General Assembly or the Rules Review Commission,” as the present last two sentences.

Session Laws 2020-72, s. 2(a), effective December 1, 2020, substituted “any service in carrying out any duties as a member of the General Assembly, or service on the Rules Review Commission or any other board, commission, or authority as an appointee of the Governor, the Lieutenant Governor, or the General Assembly” for “service as a member of the General Assembly or the Rules Review Commission” in subdivision (b)(4).

Legal Periodicals.

For article on legislative changes to the new Rules of Civil Procedure, see 6 Wake Forest Intra. L. Rev. 267 (1970).

For survey of 1976 case law on civil procedure, see 55 N.C.L. Rev. 914 (1977).

For survey of 1979 law on criminal procedure, see 58 N.C.L. Rev. 1404 (1980).

For article on plea bargaining statutes and practices in North Carolina, see 59 N.C.L. Rev. 477 (1981).

For article analyzing the 1983 amendments to Rules 6, 7, 11, 16, 26, 52, 53 and 67, FRCP, comparing these rules with North Carolina practice, and suggesting changes in certain state and federal rules, see 20 Wake Forest L. Rev. 819 (1984).

CASE NOTES

Analysis

I.In General

Failure to Prosecute. —

Administrator’s action was improperly dismissed pursuant to G.S. 1A-1 , N.C. R. Civ. P. 41(b) for failure to prosecute, as there was no evidence that lesser sanctions were considered, that the administrator intended to thwart the progress of the action by engaging in a delaying tactic, or that the health care providers were prejudiced by the administrator’s failure to appear at a hearing, since the providers failed to appear at the hearing as well. Spencer v. Albemarle Hosp., 156 N.C. App. 675, 577 S.E.2d 151, 2003 N.C. App. LEXIS 201 (2003).

II.Calendaring of Actions

Local rules adopted pursuant to this rule are rules of court which are adopted to promote the effective administration of justice by ensuring that efficient calendaring procedures are employed. Wide discretion should be afforded in their application, so long as a proper regard is given to their purpose. Forman & Zuckerman v. Schupak, 38 N.C. App. 17, 247 S.E.2d 266, 1978 N.C. App. LEXIS 2074 (1978).

The senior Superior Court judge “may provide by rule for the calendaring of actions for trial in the superior court division . . . .” Lomax v. Shaw, 101 N.C. App. 560, 400 S.E.2d 97, 1991 N.C. App. LEXIS 87 (1991).

III.Continuances

A motion for continuance is addressed to the sound discretion of the trial judge. State v. Courson, 27 N.C. App. 268, 218 S.E.2d 416, 1975 N.C. App. LEXIS 1815 (1975); Fungaroli v. Fungaroli, 40 N.C. App. 397, 252 S.E.2d 849, 1979 N.C. App. LEXIS 2274 (1979), cert. denied, 446 U.S. 930, 100 S. Ct. 2144, 64 L. Ed. 2d 783, 1980 U.S. LEXIS 1525 (1980); State v. Williams, 51 N.C. App. 613, 277 S.E.2d 546, 1981 N.C. App. LEXIS 2285 (1981); Spence v. Jones, 83 N.C. App. 8, 348 S.E.2d 819, 1986 N.C. App. LEXIS 2639 (1986), disapproved, Armstrong v. Armstrong, 322 N.C. 396 , 368 S.E.2d 595, 1988 N.C. LEXIS 372 (1988).

A motion to continue is addressed to the sound discretion of the trial judge, who should determine it as the rights of the parties require under the circumstances. Shankle v. Shankle, 289 N.C. 473 , 223 S.E.2d 380, 1976 N.C. LEXIS 1324 (1976); Daniel Boone Complex, Inc. v. Furst, 57 N.C. App. 282, 291 S.E.2d 296, 1982 N.C. App. LEXIS 2655 (1982); Reece v. Reece, 58 N.C. App. 404, 293 S.E.2d 662, 1982 N.C. App. LEXIS 2779 (1982).

Granting a motion for a continuance is within the discretion of the trial court. State v. Edwards, 27 N.C. App. 369, 219 S.E.2d 249, 1975 N.C. App. LEXIS 1853 (1975).

But continuances are not favored. Shankle v. Shankle, 289 N.C. 473 , 223 S.E.2d 380, 1976 N.C. LEXIS 1324 (1976); Fungaroli v. Fungaroli, 40 N.C. App. 397, 252 S.E.2d 849, 1979 N.C. App. LEXIS 2274 (1979), cert. denied, 446 U.S. 930, 100 S. Ct. 2144, 64 L. Ed. 2d 783, 1980 U.S. LEXIS 1525 (1980); Reece v. Reece, 58 N.C. App. 404, 293 S.E.2d 662, 1982 N.C. App. LEXIS 2779 (1982); Spence v. Jones, 83 N.C. App. 8, 348 S.E.2d 819, 1986 N.C. App. LEXIS 2639 (1986), disapproved, Armstrong v. Armstrong, 322 N.C. 396 , 368 S.E.2d 595, 1988 N.C. LEXIS 372 (1988).

Continuances are not favored and the party seeking a continuance has the burden of showing sufficient grounds for it. The chief consideration is whether granting or denying a continuance will further substantial justice. Doby v. Lowder, 72 N.C. App. 22, 324 S.E.2d 26, 1984 N.C. App. LEXIS 3984 (1984).

And May Be Granted Only for Good Cause. —

Continuances are addressed to the sound discretion of trial judges and may be granted only for good cause shown and as justice may require. Austin v. Austin, 12 N.C. App. 286, 183 S.E.2d 420, 1971 N.C. App. LEXIS 1348 (1971); Wood v. Brown, 25 N.C. App. 241, 212 S.E.2d 690, 1975 N.C. App. LEXIS 2230 , cert. denied, 287 N.C. 469 , 215 S.E.2d 626, 1975 N.C. LEXIS 1156 (1975).

Trial court did not abuse its discretion in denying a county’s motion for a continuance, the basis for which was its counsel’s attendance of a mandatory training session in order to file documents in other court cases. Brown v. County of Avery, 164 N.C. App. 704, 596 S.E.2d 334, 2004 N.C. App. LEXIS 975 (2004).

Wife’s claim that the denial of her fourth request for a continuance under G.S. 1A-1-40 was a legal error was rejected as the wife had no right to counsel in an equitable distribution proceeding, and the issue was reviewed for abuse of discretion; it was not an abuse of discretion to deny the wife’s fourth request in light of the numerous and lengthy delays and of the notice to the wife to hire an attorney and be ready to move forward, and the wife did not show good cause for, nor did justice require, another continuance. McIntosh v. McIntosh, 184 N.C. App. 697, 646 S.E.2d 820, 2007 N.C. App. LEXIS 1596 (2007).

Judge to Determine Whether Good Cause Is Shown. —

This rule makes no attempt to enumerate the myriad circumstances which might be urged as grounds for a continuance, but leaves it to the judge to determine, in each case, whether “good cause” for a continuance has been shown. Shankle v. Shankle, 289 N.C. 473 , 223 S.E.2d 380, 1976 N.C. LEXIS 1324 (1976).

Discretion of the trial judge in ruling on a motion for a continuance is not unlimited, and must not be exercised absolutely, arbitrarily or capriciously, but only in accordance with fixed legal principles. Shankle v. Shankle, 289 N.C. 473 , 223 S.E.2d 380, 1976 N.C. LEXIS 1324 (1976).

But court’s ruling on a continuance is not reviewable absent manifest abuse of discretion. Wood v. Brown, 25 N.C. App. 241, 212 S.E.2d 690, 1975 N.C. App. LEXIS 2230 , cert. denied, 287 N.C. 469 , 215 S.E.2d 626, 1975 N.C. LEXIS 1156 (1975); State v. Courson, 27 N.C. App. 268, 218 S.E.2d 416, 1975 N.C. App. LEXIS 1815 (1975); State v. Mitchell, 27 N.C. App. 313, 219 S.E.2d 295, 1975 N.C. App. LEXIS 1831 (1975), cert. denied, 289 N.C. 301 , 222 S.E.2d 701, 1976 N.C. LEXIS 1281 (1976); State v. Edwards, 27 N.C. App. 369, 219 S.E.2d 249, 1975 N.C. App. LEXIS 1853 (1975); State v. Williams, 51 N.C. App. 613, 277 S.E.2d 546, 1981 N.C. App. LEXIS 2285 (1981); Spence v. Jones, 83 N.C. App. 8, 348 S.E.2d 819, 1986 N.C. App. LEXIS 2639 (1986), disapproved, Armstrong v. Armstrong, 322 N.C. 396 , 368 S.E.2d 595, 1988 N.C. LEXIS 372 (1988).

Trial court did not abuse its discretion by denying the defendants’ request for a continuance as their phone call to the court on the day of trial did not constitute a proper request for a continuance, and their assertion that they had an important business meeting with people from out-of-state that could not be rescheduled did not show “good cause” that the trial court should have granted any motion for a continuance that the defendants may have made. Carolina Forest Ass'n v. White, 198 N.C. App. 1, 678 S.E.2d 725, 2009 N.C. App. LEXIS 1066 (2009).

Denial of motion for continuance is not an abuse of discretion where the evidence introduced is conflicting or insufficient. Shankle v. Shankle, 289 N.C. 473 , 223 S.E.2d 380, 1976 N.C. LEXIS 1324 (1976).

Where a motion for a continuance raises a constitutional issue, the trial court’s decision thereon involves a question of law, not fact, which may be reviewed by an examination of the circumstances of each case. State v. Williams, 51 N.C. App. 613, 277 S.E.2d 546, 1981 N.C. App. LEXIS 2285 (1981).

Substantial Justice as Chief Consideration. —

The chief consideration to be weighed in passing upon the application for a continuance is whether the grant or denial of a continuance will be in furtherance of substantial justice. Shankle v. Shankle, 289 N.C. 473 , 223 S.E.2d 380, 1976 N.C. LEXIS 1324 (1976); Fungaroli v. Fungaroli, 40 N.C. App. 397, 252 S.E.2d 849, 1979 N.C. App. LEXIS 2274 (1979), cert. denied, 446 U.S. 930, 100 S. Ct. 2144, 64 L. Ed. 2d 783, 1980 U.S. LEXIS 1525 (1980).

Before ruling on a motion to continue the judge should hear the evidence pro and con, consider it judicially and then rule with a view to promoting substantial justice. Shankle v. Shankle, 289 N.C. 473 , 223 S.E.2d 380, 1976 N.C. LEXIS 1324 (1976).

Diligence and Good Faith of Movant Should Be Considered. —

In considering a motion for continuance, the trial court must pass on the grounds urged in support of it, and also on the question of whether the moving party has acted with diligence and in good faith. Shankle v. Shankle, 289 N.C. 473 , 223 S.E.2d 380, 1976 N.C. LEXIS 1324 (1976).

Father’s phone calls to the courthouse, made three days before a scheduled hearing regarding custody of his children, absent extenuating circumstances, did not qualify as an application to the court for a continuance. Trivette v. Trivette, 162 N.C. App. 55, 590 S.E.2d 298, 2004 N.C. App. LEXIS 40 (2004).

Party seeking a continuance has the burden of showing sufficient grounds for it. Shankle v. Shankle, 289 N.C. 473 , 223 S.E.2d 380, 1976 N.C. LEXIS 1324 (1976); Fungaroli v. Fungaroli, 40 N.C. App. 397, 252 S.E.2d 849, 1979 N.C. App. LEXIS 2274 (1979), cert. denied, 446 U.S. 930, 100 S. Ct. 2144, 64 L. Ed. 2d 783, 1980 U.S. LEXIS 1525 (1980); Daniel Boone Complex, Inc. v. Furst, 57 N.C. App. 282, 291 S.E.2d 296, 1982 N.C. App. LEXIS 2655 (1982); Reece v. Reece, 58 N.C. App. 404, 293 S.E.2d 662, 1982 N.C. App. LEXIS 2779 (1982).

Failure of plaintiff to Demonstrate Diligence and Good Faith. —

The trial court’s finding that plaintiff failed to establish grounds for an additional continuance was proper where plaintiff demonstrated neither diligence nor a good faith effort to meet the schedule set by the trial court more than a month earlier. May v. City of Durham, 136 N.C. App. 578, 525 S.E.2d 223, 2000 N.C. App. LEXIS 109 (2000).

Due to personal representative’s undue delay and bad faith in a wrongful death action, court did not abuse its discretion in denying representative’s motion for a continuance of a hearing; the representative had ample time prior to the hearing to ask for an amendment of the complaint, the hearing was on the representative’s motions, and there had never been any prior indication that the representative planned to allege anything except vicarious liability theories against the plaintiff. Draughon v. Harnett County Bd. of Educ., 166 N.C. App. 464, 602 S.E.2d 721, 2004 N.C. App. LEXIS 1785 (2004).

Motion for a continuance should be granted where nothing in the record controverts a sufficient showing made by the moving party. Shankle v. Shankle, 289 N.C. 473 , 223 S.E.2d 380, 1976 N.C. LEXIS 1324 (1976).

Trial court’s denial of plaintiff ’s motion to continue a summary judgment hearing was an abuse of discretion and subject to reversal where the record showed no reason whatever for refusing the continuance and a compelling reason for granting it. Freeman v. Monroe, 92 N.C. App. 99, 373 S.E.2d 443, 1988 N.C. App. LEXIS 985 (1988).

Trial court erred in failing to grant defendant a continuance after allowing withdrawal of defendant’s counsel, since nothing in the record indicated that defendant sought to delay or evade trial, since defendant did not know that trial was scheduled, and since defendant’s ability to produce witnesses and prove his case was prejudiced thereby. Benton v. Mintz, 97 N.C. App. 583, 389 S.E.2d 410, 1990 N.C. App. LEXIS 209 (1990).

Withdrawal of Attorney Shortly Before Trial. —

The decision whether to grant a continuance because the moving party’s attorney has withdrawn from the case on the day of trial rests in the trial judge’s discretion, to be exercised after he has determined from the facts and circumstances of the particular case whether immediate trial or continuance will best serve the ends of justice. Shankle v. Shankle, 289 N.C. 473 , 223 S.E.2d 380, 1976 N.C. LEXIS 1324 (1976).

Respondents were prima facie entitled to a continuance where respondents’ affidavit and statements in open court that their attorney had withdrawn from the case on the day of the trial without warning were uncontroverted by the record. Shankle v. Shankle, 289 N.C. 473 , 223 S.E.2d 380, 1976 N.C. LEXIS 1324 (1976).

Where counsel made efforts on defendant’s behalf to secure other counsel, but defendant never signed the necessary documents or even responded to the firm’s inquiries, the trial court’s denial of a continuance based on removal of counsel the day before trial was a proper exercise of its discretion. Brown v. Rowe Chevrolet-Buick, Inc., 86 N.C. App. 222, 357 S.E.2d 181, 1987 N.C. App. LEXIS 2682 (1987).

There was no abuse of discretion in trial court’s refusal to grant plaintiff a continuance where plaintiff’s attorney’s withdrawal on the day before trial had been at plaintiff’s request. Pickard Roofing Co. v. Barbour, 94 N.C. App. 688, 381 S.E.2d 341, 1989 N.C. App. LEXIS 632 (1989).

Trial court’s denial of defendant’s motion to continue was an abuse of discretion; because defendant did not know her motion to continue had been denied until the day before trial because her attorney failed to inform her, defendant had neither “reasonable notice” of withdrawal nor an adequate opportunity to secure other counsel. Skelly v. Skelly, 215 N.C. App. 580, 715 S.E.2d 618, 2011 N.C. App. LEXIS 2046 (2011).

Presence of Attorney Required Elsewhere. —

Attorneys, under the guise of having business requiring their presence elsewhere, ought not to be allowed to delay, defeat or prevent a litigant from having his case tried or being heard on a motion at some reasonably suitable and convenient time. Austin v. Austin, 12 N.C. App. 286, 183 S.E.2d 420, 1971 N.C. App. LEXIS 1348 (1971).

The superior court judge was well within the bounds of the court’s inherent authority to manage the case docket when he struck defendant’s answer as a sanction for willful failure to execute agreed settlement because defendants offered no plausible excuse as to why they did not execute the two paragraph consent judgment, saying only that they did not understand it and in addition judge gave notice that failure to file the consent order would result in the imposition of sanctions. Lomax v. Shaw, 101 N.C. App. 560, 400 S.E.2d 97, 1991 N.C. App. LEXIS 87 (1991).

Rule 41. Dismissal of actions.

  1. Voluntary dismissal; effect thereof. —
    1. By Plaintiff; by Stipulation. —  Subject to the provisions of Rule 23(c) and of any statute of this State, an action or any claim therein may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before the plaintiff rests his case, or; (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of this or any other state or of the United States, an action based on or including the same claim. If an action commenced within the time prescribed therefor, or any claim therein, is dismissed without prejudice under this subsection, a new action based on the same claim may be commenced within one year after such dismissal unless a stipulation filed under (ii) of this subsection shall specify a shorter time.
    2. By Order of Judge. —  Except as provided in subsection (1) of this section, an action or any claim therein shall not be dismissed at the plaintiff’s instance save upon order of the judge and upon such terms and conditions as justice requires. Unless otherwise specified in the order, a dismissal under this subsection is without prejudice. If an action commenced within the time prescribed therefor, or any claim therein, is dismissed without prejudice under this subsection, a new action based on the same claim may be commenced within one year after such dismissal unless the judge shall specify in his order a shorter time.
  2. Involuntary dismissal; effect thereof. —  For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim therein against him. After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this section and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a necessary party, operates as an adjudication upon the merits. If the court specifies that the dismissal of an action commenced within the time prescribed therefor, or any claim therein, is without prejudice, it may also specify in its order that a new action based on the same claim may be commenced within one year or less after such dismissal.
  3. Dismissal of counterclaim; crossclaim, or third-party claim. —  The provisions of this rule apply to the dismissal of any counterclaim, crossclaim, or third-party claim.
  4. Costs. —  A plaintiff who dismisses an action or claim under section (a) of this rule shall be taxed with the costs of the action unless the action was brought in forma pauperis. If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant before the payment of the costs of the action previously dismissed, unless such previous action was brought in forma pauperis, the court, upon motion of the defendant, shall make an order for the payment of such costs by the plaintiff within 30 days and shall stay the proceedings in the action until the plaintiff has complied with the order. If the plaintiff does not comply with the order, the court shall dismiss the action.

History. 1967, c. 954, s. 1; 1969, c. 895, s. 10; 1977, c. 290.

Comment

Section (a). — The absolute right of a plaintiff to take a voluntary nonsuit for any or no reason at all at any time before verdict is beyond question under present law. Southeastern Fire Ins. Co. v. Walton, 256 N.C. 345 , 123 S.E.2d 780 (1962). The vice of such an arrangement appears clearly in the following excerpt from an opinion of a federal judge:

“Before the effective date of [Rule 41] it not infrequently happened . . . that in a case . . . which had come to issue, perhaps after disposition of preliminary motions, which had gone to trial, in the trial of which plaintiff had introduced all his testimony, for the trial of which defendant had called witnesses from great distances and incurred great expense, the plaintiff would dismiss just at the moment the court was about to direct a verdict for defendant. The next day he might bring the same suit again. And the process might be repeated time after time. It was an outrageous imposition not only on the defendant but also on the court. Rule 41 has done much to put an end to that evil.

“The evil aimed at by the rule most largely is manifested in the extreme situation described. To a lesser extent it is present in any instance in which a defendant is damaged by being dragged into court and put to expense with no chance whatever . . . of having the suit determined in his favor.” McCann v. Bentley Stores Corp., 34 F. Supp. 234 (W.D. Mo. 1940).

Under the rule, the plaintiff ’s absolute right of dismissal is confined to the period before answer or a motion for summary judgment — the period before which there has been a heavy expenditure of time and effort by the court and other parties. Thereafter, the plaintiff can dismiss only with the consent of the other parties or with the permission of the judge. This latter provision allowing dismissal with the permission of the judge should be ample to take care of the hardship case where, for quite legitimate reasons, the plaintiff is unable to press his claim. It should be noted, however, that the judge is authorized to condition the dismissal on terms. For the federal practice in respect to terms, see 5 Moore’s Federal Practice, § 41.06.

It should also be observed that the first voluntary dismissal will have the same effect as is now accorded a voluntary nonsuit, i.e., it is not a judgment on the merits. But a second dismissal, no matter where the first action was brought, will be a judgment on the merits.

Section (b). — Under this section, whether the action be a nonjury action or a jury action, there may be a motion for a dismissal because of failure of a plaintiff to prosecute or for a failure “to comply with these rules or any order of court.” The power of the court to dismiss for failure to prosecute is well established [see Wynne v. Conrad, 220 N.C. 355 , 17 S.E.2d 514 (1941)] and the rule merely gives statutory recognition of this power.

In respect to a motion for dismissal because of noncompliance with these rules or an order of court, the propriety of a dismissal will, of course, depend on the rule or order which has not been complied with. The rule does not undertake to say in what circumstances a dismissal will be proper any more than it attempts arbitrarily to declare what is a failure to prosecute.

In an action tried by the court without a jury, the rule provides for a motion similar to the familiar motion for compulsory nonsuit under former § 1-183. It is contemplated that where there is a jury trial, Rule 50 will come into play with its motion for a directed verdict. For a discussion of the interrelation of this rule and Rule 50, see the comment to Rule 50. The practice under section (b) will be much like that under former § 1-183. But there are some changes. The court is empowered to determine that its adjudication shall be on the merits and to find the facts in appropriate cases at the close of the plaintiff ’s evidence.

Section (c). — This section makes clear that the rule is applicable to all situations in which a claim is capable of being pressed under these rules.

Section (d). — This section makes certain that one, other than a plaintiff suing in forma pauperis, will have paid the costs in the first action before he can maintain a second action on the same claim.

OFFICIAL COMMENT

Comment to the 1969 amendment.

The most significant change produced by the 1969 amendments to Rule 41 is that a claimant’s unfettered right to a voluntary, nonprejudicial dismissal endures up to the moment he rests his case. But the amended Rule specifies, as did the earlier version, that a second dismissal shall operate as an adjudication upon the merits.

There has been an attempt to make clear that the right to bring a new action within one year, after either a voluntary or an involuntary dismissal, is dependent on the original action having been commenced before the relevant statute of limitations has run. To that end, the last sentences of subsections 41(a)(1) and 41(a)(2) and section 41(b) now speak of “an action commenced within the time prescribed therefor.”

Subsection 41(a)(1) has been rewritten to provide that the right to bring a new action within one year applies in the case of a dismissal by stipulation if the parties do not “specify a shorter time.” Basically, the rights of the parties have not been affected because a stipulation requires unanimity among the parties. If any party objects to the extension of the statute of limitations, he may refuse to sign the stipulation and thereby compel the claimant to seek the court’s permission under subsection 41(a)(2).

Section 41(b) has been rewritten, in conformity with the present federal rule, to make it clear that a motion for involuntary dismissal under Rule 41 is available at the close of the claimant’s case only in an action tried by the court without a jury. When there is a jury and a defendant wishes to challenge the sufficiency of the evidence, he must resort to Rule 50.

A second objective in the rewriting of section 41(b) was to make clear that the court’s power to dismiss on terms, that is, to condition the dismissal (“Unless the court in its order for dismissal otherwise specifies, . . .”) extends to all dismissals other than voluntary dismissals under section 41(a). Thus, if there were a motion to dismiss under Rule 37(b)(2)(iii) for failure to comply with a discovery order, the court, under the amended version of Rule 41(b), could in granting the motion specify that the dismissal was without prejudice.

Editor’s Note.

Item (iii) of Rule 37(b)(2), referred to in the Comment to the 1969 amendment set out above, no longer exists. For general information regarding the official comments to the North Carolina Rules of Civil Procedure, see the Editor’s Note under the heading for this Chapter.

Legal Periodicals.

For article on the legislative changes to the new Rules of Civil Procedure, see 6 Wake Forest Intra. L. Rev. 267 (1970).

For survey of decisions under the North Carolina Rules of Civil Procedure, see 50 N.C.L. Rev. 729 (1972).

For survey of 1973 case law on involuntary dismissals under sections (b) and (c) of this rule, see 52 N.C.L. Rev. 822 (1974).

For survey of 1976 case law on civil procedure, see 55 N.C.L. Rev. 914 (1977).

For survey of 1978 law on civil procedure, see 57 N.C.L. Rev. 891 (1979).

For article, “North Carolina’s New Products Liability Act: A Critical Analysis,” see 16 Wake Forest L. Rev. 171 (1980).

For survey of 1980 law on civil procedure, see 59 N.C.L. Rev. 1053 (1981).

For note on default not constituting an admission of facts for purposes of summary judgment, see 17 Wake Forest L. Rev. 49 (1981).

For survey of 1982 law on civil procedure, see 61 N.C.L. Rev. 991 (1983).

For survey of 1983 law on civil procedure, see 62 N.C.L. Rev. 1107 (1984).

For a note on lesser sanctions under section (b) of this rule, see 65 N.C.L. Rev. 1125 (1987).

For a discussion of the interaction between Civ. Procedure Rules 9(j) and 41(a)(1) in medical malpractice actions, see 79 N.C.L. Rev. 855 (2001).

For article, “Functus Officio: Authority of the Trial Court after Notice of Appeal,” see 81 N.C.L. Rev. 2331 (2003).

CASE NOTES

Analysis

I.In General

Legislative Intent. —

The intent of subdivision (a)(1) is to protect a defendant from the harassment of repetitive lawsuits. Richardson v. McCracken Enters., 126 N.C. App. 506, 485 S.E.2d 844, 1997 N.C. App. LEXIS 526 (1997), aff'd, 347 N.C. 660 , 496 S.E.2d 380, 1998 N.C. LEXIS 103 (1998).

In enacting the two dismissal provision of subdivision (a)(1), the legislature intended that a second dismissal of an action asserting claims based upon the same transaction or occurrence as a previously dismissed action would operate as an adjudication on the merits and bar a third action based upon the same set of facts. Richardson v. McCracken Enters., 126 N.C. App. 506, 485 S.E.2d 844, 1997 N.C. App. LEXIS 526 (1997), aff'd, 347 N.C. 660 , 496 S.E.2d 380, 1998 N.C. LEXIS 103 (1998).

Motion for Nonsuit Replaced by Motion for Dismissal. —

In nonjury trials the motion for nonsuit has been replaced by the motion for a dismissal. Cutts v. Casey, 278 N.C. 390 , 180 S.E.2d 297, 1971 N.C. LEXIS 986 (1971); Creasman v. First Fed. Sav. & Loan Ass'n, 279 N.C. 361 , 183 S.E.2d 115, 1971 N.C. LEXIS 803 (1971), cert. denied, 405 U.S. 977, 92 S. Ct. 1204, 31 L. Ed. 2d 252, 1972 U.S. LEXIS 3431 (1972); Schafran v. A & H Cleaners, Inc., 19 N.C. App. 365, 198 S.E.2d 734, 1973 N.C. App. LEXIS 1652 , cert. denied, 284 N.C. 255 , 200 S.E.2d 655, 1973 N.C. LEXIS 844 (1973); Phillips v. Woxman, 43 N.C. App. 739, 260 S.E.2d 97, 1979 N.C. App. LEXIS 3170 (1979), cert. denied, 449 U.S. 835, 101 S. Ct. 108, 66 L. Ed. 2d 41, 1980 U.S. LEXIS 2802 (1980).

In civil actions tried without a jury, the former motion for nonsuit has been replaced by the motion for dismissal. Whitaker v. Earnhardt, 289 N.C. 260 , 221 S.E.2d 316, 1976 N.C. LEXIS 1249 (1976).

A motion for involuntary dismissal under section (b) of this rule has replaced the motion for nonsuit in civil actions tried without a jury. Joyner v. Thomas, 40 N.C. App. 63, 251 S.E.2d 906, 1979 N.C. App. LEXIS 2573 (1979).

A motion for nonsuit is no longer proper in a civil action. In an action tried by the court without a jury, a defendant may move for a dismissal on the ground that upon the facts and the law plaintiff has shown no right to relief. Roberts v. William N. & Kate B. Reynolds Mem. Park, 281 N.C. 48 , 187 S.E.2d 721, 1972 N.C. LEXIS 1004 (1972).

Since January 1, 1970, the former motion for involuntary nonsuit in nonjury trials has been replaced by the motion for dismissal authorized by sections (b) and (c) of this rule. International Harvester Credit Corp. v. Ricks, 16 N.C. App. 491, 192 S.E.2d 707, 1972 N.C. App. LEXIS 1746 (1972).

Authority to Determine Whether Plaintiff May Commence New Action. —

The authority to determine in which cases it is appropriate to allow the plaintiff to commence a new action has been vested, by this rule, in the trial or hearing judge and is no longer strictly controlled by statute. Gower v. Aetna Ins. Co., 13 N.C. App. 368, 185 S.E.2d 722, 1972 N.C. App. LEXIS 2244 , aff'd, 281 N.C. 577 , 189 S.E.2d 165, 1972 N.C. LEXIS 1112 (1972).

The authority to determine whether the nonmoving party in any action should be permitted to commence a new action has been vested in the trial judge under section (b) of this rule. The exercise of such power lies within the trial court’s sound discretion and will not be disturbed on appeal in the absence of a showing of abuse of discretion. Whedon v. Whedon, 313 N.C. 200 , 328 S.E.2d 437, 1985 N.C. LEXIS 1525 (1985).

Court exercised its discretion under G.S. 1A-41(b) and specified that a new action based on the same claim maybe commenced within one year or less after the dismissal of the instant action because G.S. 1A-41(a) was a tolling provision legislatively adopted that fell into a category of substantive matters of state law to be followed by federal courts absent substantial countervailing federal interests. Southstar Funding, L.L.C. v. Warren, Perry & Anthony, P.L.L.C., 445 F. Supp. 2d 583, 2006 U.S. Dist. LEXIS 61500 (E.D.N.C. 2006).

Action Not Based on Same Claim Where New Statute Eliminated Absolute Defense. —

An alimony claim made pursuant to G.S. 50-16.3 A(a) and filed within one year of plaintiff’s dismissal of her first claim (under repealed G.S. 50-16.6(a)) failed to qualify as “a new action based on the same claim” under this section, because a G.S. 50-16.3 A(a) claim for alimony was distinct from that set out by the repealed section in that it deferred to the court’s discretion the decision of whether to award alimony where both the supporting and dependent spouse “each participated in an act of illicit sexual behavior,” whereas the old section foreclosed a dependent adulterous spouse from recovering; to allow her to maintain this new action would have deprived the defendant husband of a statutory absolute defense he had had under the old law. Brannock v. Brannock, 135 N.C. App. 635, 523 S.E.2d 110, 1999 N.C. App. LEXIS 1240 (1999).

Function of the trial judge as trier of the facts is to evaluate the evidence without any limitation as to inferences favorable to plaintiff. Lumbee River Elec. Membership Corp. v. City of Fayetteville, 309 N.C. 726 , 309 S.E.2d 209, 1983 N.C. LEXIS 1460 (1983).

Rule Does Not Contain Old Restrictions. —

This rule does not contain the old restrictions that a new action may be brought only when the plaintiff ’s original action has been nonsuited, or a judgment therein reversed on appeal, or arrested. Gower v. Aetna Ins. Co., 13 N.C. App. 368, 185 S.E.2d 722, 1972 N.C. App. LEXIS 2244 , aff'd, 281 N.C. 577 , 189 S.E.2d 165, 1972 N.C. LEXIS 1112 (1972).

This motion should be used sparingly. Dubose Steel, Inc. v. Faircloth, 59 N.C. App. 722, 298 S.E.2d 60, 1982 N.C. App. LEXIS 3200 (1982).

Review of Judgment Dismissing Action Without Prejudice. —

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 N.C. LEXIS 1112 (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. Miller v. Ferree, 84 N.C. App. 135, 351 S.E.2d 845, 1987 N.C. App. LEXIS 2455 (1987).

Dismissal Order Binding on Defendant. —

Because defendant did not appeal the trial court’s dismissal order which allowed plaintiff an additional year in which to refile, he was bound by that order and he could not attack the trial court’s dismissal order collaterally by appealing the final judgment entered after plaintiff refiled. Jones v. Summers, 117 N.C. App. 415, 450 S.E.2d 920, 1994 N.C. App. LEXIS 1251 (1994).

Dismissal under subsection (a) of this rule strips the trial court of authority to enter further orders in the case, except as provided by subsection (d) of this rule, which authorizes the court to enter specific orders apportioning and taxing costs. Walker Frames v. Shively, 123 N.C. App. 643, 473 S.E.2d 776, 1996 N.C. App. LEXIS 801 (1996).

Adversary Proceedings Terminated. —

Where plaintiff’s attorney validly took a voluntary dismissal in open court before defendants asserted any counterclaim, plaintiff terminated all adversary proceedings. Walker Frames v. Shively, 123 N.C. App. 643, 473 S.E.2d 776, 1996 N.C. App. LEXIS 801 (1996).

Reluctance to Allow Withdrawal Extends to Counterclaims. —

The judicial reluctance to allow a plaintiff to withdraw at the last stages of litigation should extend as well to a defendant who wishes to withdraw its counterclaims. Whitaker's Inc. v. Nicol Arms, 93 N.C. App. 487, 378 S.E.2d 201, 1989 N.C. App. LEXIS 201 (1989).

Requirement of Detailed Findings. —

The requirement of appropriately detailed findings is designed to dispose of the issues raised by the pleadings and to allow the appellate courts to perform their proper function in the judicial system. Mashburn v. First Investors Corp., 102 N.C. App. 560, 402 S.E.2d 860, 1991 N.C. App. LEXIS 449 (1991).

Denial of a creditor’s motion to dismiss a note collection case based on the N.C. R. Civ. P. 41(a)(1) two-dismissal rule was interlocutory, and since the creditor failed to show that the denial deprived him of a substantial right, the appeal was dismissed; N.C. R. Civ. P. 41(a)(1) does not create a conditional immunity from suit. Allen v. Stone, 161 N.C. App. 519, 588 S.E.2d 495, 2003 N.C. App. LEXIS 2198 (2003).

Substantial Right Held Not Affected, Precluding Immediate Appeal. —

Trial court’s order granting a motion to set aside a prior voluntary dismissal of a tort lawsuit, and its order denying defendants’ motion to dismiss, (1) were interlocutory, (2) were not based on “minimum contacts,” and (3) did not involve possible inconsistent jury verdicts; thus, there was no right of immediate appeal because defendants did not demonstrate any substantial right that qualified them for immediate appeal. Robinson v. Gardner, 167 N.C. App. 763, 606 S.E.2d 449, 2005 N.C. App. LEXIS 20 (2005).

Substantial evidence in the record supported an administrative law judge’s findings and its dismissal of a day care’s petition for a contested case hearing where the day care filed nothing in nearly six months following the filing of the petition, despite receiving several orders from the administrative law judge to file and serve prehearing statements and other responses to motions. Lincoln v. N.C. HHS, Nutrition Branch, 172 N.C. App. 567, 616 S.E.2d 622, 2005 N.C. App. LEXIS 1804 (2005).

II.Voluntary Dismissal

Construction With Other Law. —

180-day mandate in G.S. 126-34.02 does not conflict with a petitioner’s ability to voluntarily dismiss a case and refile it within one year as permitted by G.S. 1A-1 , N.C. R. Civ. P. 41(a)(1). Cole v. N.C. Dep't of Pub. Safety, 253 N.C. App. 270, 800 S.E.2d 708, 2017 N.C. App. LEXIS 319 (2017).

Under either Tennessee or North Carolina law, a Tenn. R. Civ. P. 41.01 or G.S. 1A-1 , N.C. R. Civ. P. 41 voluntary dismissal without prejudice leaves the plaintiff exactly where he or she was before the action was commenced. Barefoot v. Rule, 265 N.C. App. 401, 828 S.E.2d 685, 2019 N.C. App. LEXIS 450 (2019).

Subsection (a)(1) of this rule, as first enacted, was patterned closely upon the cognate federal rule. McCarley v. McCarley, 24 N.C. App. 373, 210 S.E.2d 531, 1975 N.C. App. LEXIS 2492 (1975), rev'd in part, 289 N.C. 109 , 221 S.E.2d 490, 1976 N.C. LEXIS 1223 (1976).

Federal Courts Applying State Substantive Law. —

When a federal court is applying state substantive law, the North Carolina statute of limitations and attendant tolling provisions apply, regardless of whether the case was in federal court on diversity or federal question jurisdiction. Altman v. City of High Point, 2002 U.S. Dist. LEXIS 26412 (M.D.N.C. Jan. 17, 2002), rev'd, 330 F.3d 194, 2003 U.S. App. LEXIS 9654 (4th Cir. 2003).

Timing for Refiling Claims.—

Court refuses to hold that when alimony and equitable distribution claims based on a first marriage are voluntarily dismissed after a divorce judgment, those claims are indefinitely tolled by a second marriage of the parties so that they may be tucked away and used as a sword in a hypothetical, future action. Farquhar v. Farquhar, 254 N.C. App. 243, 802 S.E.2d 585, 2017 N.C. App. LEXIS 494 (2017).

Rule Applies In Contested Cases Before Office of Administrative Hearings. —

Employer’s motion to dismiss an employee’s second contested case petition was properly denied because the employee was allowed to recommence his case within one year after his voluntary dismissal; before any decision was reached, the employee dismissed his claim without prejudice, and the original contested case petition had been terminated, leaving nothing in dispute and nothing for the Office of Administrative Hearings to rule on within 180 days. Cole v. N.C. Dep't of Pub. Safety, 253 N.C. App. 270, 800 S.E.2d 708, 2017 N.C. App. LEXIS 319 (2017).

Timing for Refiling Claims.—

Wife’s alimony and equitable distribution claims based on the first marriage were pending when the parties’ divorce judgment was entered, and the parties’ joint dismissal caused the wife’s claims arising to be dismissed; she had one year within which to refile those claims, which she did not do, and the claims were barred by the rule. Farquhar v. Farquhar, 254 N.C. App. 243, 802 S.E.2d 585, 2017 N.C. App. LEXIS 494 (2017).

Rule Applies In Contested Cases Before Office of Administrative Hearings. —

Rule applies to contested cases before Office of Administrative Hearings. Cole v. N.C. Dep't of Pub. Safety, 253 N.C. App. 270, 800 S.E.2d 708, 2017 N.C. App. LEXIS 319 (2017).

How Filing Requirements of Subdivision (a)(1)(i) May Be Met. —

No means other than oral notice in open court have been allowed to substitute for the filing requirements of subdivision (a)(1)(i) of this rule. Johnson v. Hutchens, 103 N.C. App. 384, 405 S.E.2d 597, 1991 N.C. App. LEXIS 764 (1991).

Contact with defendant’s attorney by telephone or mail concerning voluntary dismissal does not satisfy the filing requirements of subdivision (a)(1)(i) of this rule. Johnson v. Hutchens, 103 N.C. App. 384, 405 S.E.2d 597, 1991 N.C. App. LEXIS 764 (1991).

A plaintiff is free to abandon an alleged or potential claim against another party at any time. Carter v. Clowers, 102 N.C. App. 247, 401 S.E.2d 662, 1991 N.C. App. LEXIS 291 (1991).

Under subdivision (a)(1) of this rule, plaintiff may voluntarily dismiss his suit, without order of the court, by filing a notice of dismissal at any time before resting his case. Carter v. Clowers, 102 N.C. App. 247, 401 S.E.2d 662, 1991 N.C. App. LEXIS 291 (1991).

Under the plain language of subdivision (a)(1), a plaintiff is vested with the authority to dismiss any of its claims prior to close of its case-in-chief. Roberts v. Young, 120 N.C. App. 720, 464 S.E.2d 78, 1995 N.C. App. LEXIS 938 (1995).

Validity of Underlying Complaint. —

In order to obtain a one-year extension by way of a voluntary dismissal without prejudice, the underlying complaint must conform in all respects to the rules of pleading. Robinson v. Entwistle, 132 N.C. App. 519, 512 S.E.2d 438, 1999 N.C. App. LEXIS 199 (1999).

There are two elements to the two dismissal rule: (1) plaintiff must have filed the notices to dismiss under subdivision (a)(1)(i) of this rule, since the two dismissal rule does not apply where plaintiff’s dismissal is by stipulation or by order of court; and (2) the second suit must have been based on or including the same claim as the first suit. City of Raleigh v. College Campus Apts., Inc., 94 N.C. App. 280, 380 S.E.2d 163, 1989 N.C. App. LEXIS 472 (1989), aff'd, 326 N.C. 360 , 388 S.E.2d 768, 1990 N.C. LEXIS 112 (1990).

The “same defendant” limitation is absent in the two dismissal rule of subsection (a) (1) of this rule. There is no basis for judicially adding a requirement that the General Assembly intended to leave out, as the statute is clear and unambiguous. City of Raleigh v. College Campus Apts., Inc., 94 N.C. App. 280, 380 S.E.2d 163, 1989 N.C. App. LEXIS 472 (1989), aff'd, 326 N.C. 360 , 388 S.E.2d 768, 1990 N.C. LEXIS 112 (1990).

The two-dismissal rule applies only when the plaintiff has twice dismissed an action based on or including the same claim, and, as plaintiffs dismissed their first action only once, the two-dismissal rule did not apply; plaintiffs’ voluntary dismissal of their own claim against one defendant did not constitute an adjudication on the merits pursuant to subdivision (a)(1) and plaintiffs were not barred from bringing action for crop damage. Hopkins v. Ciba-Geigy Corp., 111 N.C. App. 179, 432 S.E.2d 142, 1993 N.C. App. LEXIS 711 (1993).

Two dismissal rule applies when there is an identity of claims, the determination of which depends upon a comparison of the operative facts constituting the underlying transaction or occurrence; if the same operative facts serve as the basis for maintaining the same defaults in two successive foreclosure actions, and the relief sought in each is based on the same evidence, the voluntary dismissal of those actions bars the filing of a third such action. In re Foreclosure by Rogers Townsend & Thomas, PC, 241 N.C. App. 247, 773 S.E.2d 101, 2015 N.C. App. LEXIS 450 (2015), vacated, 369 N.C. 221 , 794 S.E.2d 484, 2016 N.C. LEXIS 1162 (2016).

Two Dismissal Rule Applicable. —

Two-dismissal rule applied because all three of the actions in this case alleged damages based on the negligent conduct of numerous employees of a state agency stemming from an incident in which a decedent was admitted to the hospital, grabbed a deputy’s gun, and shot a hospital employee and himself. The North Carolina Industrial Commission was a court for the purpose of considering tort claims against state agencies. Gentry v. N.C. Dep't of Health & Human Servs./Cherry Hopsital, 242 N.C. App. 424, 775 S.E.2d 878, 2015 N.C. App. LEXIS 675 (2015).

Two Dismissal Rule Not Applicable. —

Trial court properly ruled that a bank’s action to recover the balance due on an auto lease was not barred by the two dismissal rule, G.S. 1A-1 , Rule 41(a)(1); the instant action was based on a different default of the lease agreement by lessors than earlier actions which were voluntarily dismissed by the bank. Centura Bank v. Winters, 159 N.C. App. 456, 583 S.E.2d 723, 2003 N.C. App. LEXIS 1541 (2003).

Two dismissal rule under G.S. 1A-1 , N.C. R. Civ. P. 41 was not applicable because both dismissals of the complaint were involuntary, as the first dismissal was ordered by the court for failure to join a necessary party and the second dismissal was ordered by the court for failure to verify the pleading. Estate of Livesay v. Livesay, 219 N.C. App. 183, 723 S.E.2d 772, 2012 N.C. App. LEXIS 282 (2012).

Trial court erred in finding that a bank’s claim for judicial foreclosure was barred under the “two dismissal rule” because a judicial foreclosure was not a type of special proceeding limited in scope and jurisdiction; the bank could not have brought a claim for judicial foreclosure in the same action as its claims for foreclosure by power of sale because a judicial foreclosure could be pursued by a creditor after a foreclosure by power of sale failed. Lifestore Bank v. Mingo Tribal Preservation Trust Dated January 4, 1993, 235 N.C. App. 573, 763 S.E.2d 6, 2014 N.C. App. LEXIS 900 (2014).

Trial court lacked jurisdiction to enter orders since mortgagees filed a voluntary dismissal prior to the hearing on a second foreclosure action; because the mortgagees filed successive foreclosure by power of sale actions based upon different claims of default, the two dismissal rule did not bar them from filing a third such action. In re Foreclosure by Rogers Townsend & Thomas, PC, 241 N.C. App. 247, 773 S.E.2d 101, 2015 N.C. App. LEXIS 450 (2015), vacated, 369 N.C. 221 , 794 S.E.2d 484, 2016 N.C. LEXIS 1162 (2016).

Substitute trustee was not barred from bringing a third action for foreclosure by power of sale, following the voluntary dismissal of two previous actions for foreclosure by sale, because the dismissal of the second foreclosure petition did not operate as an adjudication on the merits in that the claims of default and particular facts at issue in each action differed. In re Herndon, 245 N.C. App. 83, 781 S.E.2d 524, 2016 N.C. App. LEXIS 97 (2016).

Two-Dismissal Rule Applied When Defendant Not Served in Prior Two Cases. —

There was no error in dismissing plaintiff’s third suit under N.C. R. Civ. P. 41(a)(1) after the defendant had not been served in the first two suits plaintiff filed against her. Even when a trial court lacked personal jurisdiction over a defendant, the rule barred a third successive action involving the same claim. Dunton v. Ayscue, 203 N.C. App. 356, 690 S.E.2d 752, 2010 N.C. App. LEXIS 543 (2010).

As to the effect of 1969 amendment of subsection (a)(1) of this rule, see McCarley v. McCarley, 24 N.C. App. 373, 210 S.E.2d 531, 1975 N.C. App. LEXIS 2492 (1975), rev'd in part, 289 N.C. 109 , 221 S.E.2d 490, 1976 N.C. LEXIS 1223 (1976).

A voluntary dismissal is effective whether or not a court has jurisdiction. Carter v. Clowers, 102 N.C. App. 247, 401 S.E.2d 662, 1991 N.C. App. LEXIS 291 (1991).

No Court Action Required. —

Subsection (a)(1) of this rule clearly does not require court action, other than ministerial record-keeping functions, to effect a dismissal. Ward v. Taylor, 68 N.C. App. 74, 314 S.E.2d 814, 1984 N.C. App. LEXIS 3189 (1984).

A notice of dismissal pursuant to subdivision (a)(1) of this section is an action taken by the plaintiff ending the suit, and no action of the court is necessary to give the notice its full effect. Carter v. Clowers, 102 N.C. App. 247, 401 S.E.2d 662, 1991 N.C. App. LEXIS 291 (1991).

Amendment Pursuant to G.S. 1A-1 , Rule 60(b). —

A voluntary dismissal under subsection (a)(1) of this rule can be amended pursuant to G.S. 1A-1 , Rule 60(b). Newberry Metal Masters Fabricators, Inc. v. Mitek Indus., Inc., 333 N.C. 250 , 424 S.E.2d 383, 1993 N.C. LEXIS 17 (1993).

Applicability of Section (a) to Defendant’s Counterclaim. —

Although the language of section (a) of this rule refers to plaintiffs, the rule applies with equal force to a defendant’s counterclaim. Banner v. Banner, 86 N.C. App. 397, 358 S.E.2d 110, 1987 N.C. App. LEXIS 2720 (1987).

Voluntary Dismissal Lies Only Prior to Final Judgment. —

A voluntary dismissal under this rule will lie only prior to entry of final judgment. After final judgment, any correction, modification, amendment, or setting aside can only be done by the court. Wood v. Wood, 37 N.C. App. 570, 246 S.E.2d 549, 1978 N.C. App. LEXIS 2804 (1978), rev'd, 297 N.C. 1 , 252 S.E.2d 799, 1979 N.C. LEXIS 1126 (1979); Banner v. Banner, 86 N.C. App. 397, 358 S.E.2d 110, 1987 N.C. App. LEXIS 2720 (1987).

Dismissal After Entry of Final Order Ineffective. —

Purported voluntary dismissal of petition for attorney’s fees was of no legal efficacy where it came after the clerk entered a final order on the petition. In re Estate of Tucci, 104 N.C. App. 142, 408 S.E.2d 859, 1991 N.C. App. LEXIS 1003 (1991).

Under subsection (a) and existing case law, parties may not voluntarily dismiss a final custody and child support order. Massey v. Massey, 121 N.C. App. 263, 465 S.E.2d 313, 1996 N.C. App. LEXIS 12 (1996).

Appellate court had jurisdiction over an appeal of the denial of a charity’s motion to intervene in an interpleader action as the approval of the named parties’ settlement was a final judgment and the named parties’ subsequent stipulation of voluntary dismissal under G.S. 1-A-1, N.C. R. Civ. P. 41(a)(1)(ii) had no bearing on a charity’s right to appeal; the charity’s appeal was timely under N.C. R. App. P. 3(c)(1) as the announcement of the judgment in open court merely constituted a rendering of the judgment, not the entry of the judgment under G.S. 1A-1 , N.C. R. Civ. P. 58. Charles Schwab & Co. v. McEntee, 225 N.C. App. 666, 739 S.E.2d 863, 2013 N.C. App. LEXIS 223 (2013).

Order May Not Be Vacated by Stipulation. —

Where an order of the trial court awarding plaintiff permanent custody and obligating defendant to pay permanent child support was rendered, nothing in this rule granted authority to the parties to vacate by stipulation the order previously entered in the action. Massey v. Massey, 121 N.C. App. 263, 465 S.E.2d 313, 1996 N.C. App. LEXIS 12 (1996).

Plaintiff May Not Dismiss If Defendant Has Asserted Grounds for Relief. —

A plaintiff may not dismiss his action by filing a notice of dismissal if to do so would defeat the rights of a defendant who has theretofore asserted some ground for affirmative relief, even though the plaintiff acts before resting his case. McCarley v. McCarley, 24 N.C. App. 373, 210 S.E.2d 531, 1975 N.C. App. LEXIS 2492 (1975), rev'd in part, 289 N.C. 109 , 221 S.E.2d 490, 1976 N.C. LEXIS 1223 (1976).

Upon defendant’s demand for affirmative relief, defendant’s right to have his claim adjudicated in the case “has supervened,” and plaintiff thereby loses the right to withdraw, without defendant’s consent, allegations upon which defendant’s claim is based. McCarley v. McCarley, 289 N.C. 109 , 221 S.E.2d 490, 1976 N.C. LEXIS 1223 (1976).

Where defendant sets up a claim for affirmative relief against plaintiffs arising out of the same transactions alleged by plaintiffs, plaintiffs cannot take a voluntary dismissal under this rule without the consent of defendant. Maurice v. Hatterasman Motel Corp., 38 N.C. App. 588, 248 S.E.2d 430, 1978 N.C. App. LEXIS 2247 (1978).

As Where Defendant Asserts Counterclaim Arising Out of Same Transaction. —

Defendant’s assertion of a counterclaim arising out of the same transaction alleged in plaintiff ’s complaint could effectively deprive plaintiff not only of his ability to escape defendant’s claim against him, but also of his right under this rule to dismiss his own claim. Layell v. Baker, 46 N.C. App. 1, 264 S.E.2d 406, 1980 N.C. App. LEXIS 2755 (1980).

Where a counterclaim is filed which arises out of the same transaction alleged in the complaint, plaintiff thereby loses the right to withdraw allegations upon which defendant’s claim is based by taking a voluntary nonsuit without defendant’s consent. Swygert v. Swygert, 46 N.C. App. 173, 264 S.E.2d 902, 1980 N.C. App. LEXIS 2831 (1980).

Having filed a counterclaim arising out of the same transaction alleged in plaintiff-husband’s complaint, defendant thereby deprived plaintiff of his statutory right under this rule to take a voluntary dismissal without her consent. Gardner v. Gardner, 48 N.C. App. 38, 269 S.E.2d 630, 1980 N.C. App. LEXIS 3200 (1980).

Refiling by Third-Party Plaintiff After Voluntary Dismissal. —

A third-party plaintiff who originally files a third-party complaint within the time limits set out in G.S. 1A-1 , Rule 14 and subsequently enters a voluntary dismissal may, within one year, refile the complaint or an amended complaint without leave of court. Clark v. Visiting Health Prof'ls, Inc., 136 N.C. App. 505, 524 S.E.2d 605, 2000 N.C. App. LEXIS 63 (2000).

When Plaintiff May Voluntarily Dismiss Where Defendant Has Asserted Counterclaim. —

Plaintiff may voluntarily dismiss his complaint when defendant asserts a counterclaim arising out of the same transaction alleged in the complaint and defendant’s attorney simultaneously voluntarily dismisses the counterclaim. Gillikin v. Pierce, 98 N.C. App. 484, 391 S.E.2d 198, 1990 N.C. App. LEXIS 424 (1990).

Where plaintiff took a voluntary dismissal of its remaining 26 claims after plaintiff had been granted summary judgment on defendants’ counterclaims and after their initial appeal had been dismissed as interlocutory, since plaintiff’s claims were still pending at the time the trial court entered judgment on defendants’ counterclaims and their appeal was dismissed as interlocutory, defendants’ counterclaims were completely adjudicated at the time plaintiff took its voluntary dismissal; plaintiff was entitled to take a voluntary dismissal of their claims and refile them within one year of the voluntary dismissal without defendant’s consent. Berkeley Fed. Sav. Bank v. Terra Del Sol, Inc., 119 N.C. App. 249, 457 S.E.2d 736, 1995 N.C. App. LEXIS 390 (1995).

Voluntary Dismissal by Plaintiff After Denial of Summary Judgment by Defendant. —

The trial court’s denial of summary judgment became moot and was not appealable by the defendant doctor, where the medical malpractice plaintiffs voluntarily dismissed their fraud claim without prejudice after the trial court denied the defendant surgeon’s motion for summary judgment. Teague v. Randolph Surgical Assocs., 129 N.C. App. 766, 501 S.E.2d 382, 1998 N.C. App. LEXIS 769 (1998).

Voluntary Dismissal by Plaintiff After Grant of Partial Summary Judgment by Defendant. —

Because defendants were granted partial summary judgment as to plaintiffs’ personal injury claims, dismissal of plaintiffs’ appeal was not warranted, as the appeal from the entry of partial summary judgment was no longer interlocutory following plaintiffs’ voluntary dismissal of their remaining claims. Curl v. Am. Multimedia, Inc., 187 N.C. App. 649, 654 S.E.2d 76, 2007 N.C. App. LEXIS 2558 (2007).

Voluntary Dismissal by Plaintiff After Motion to Dismiss. —

Defendants’ motion to dismiss plaintiff’s negligence claim was not a request for affirmative relief that canceled plaintiff’s ability to voluntarily dismiss plaintiff’s case without prejudice; thus, the trial court properly granted plaintiff’s motion for dismissal without prejudice under G.S. 1A-1 , N.C. R. Civ. P. 41(a). Williams v. Poland, 154 N.C. App. 709, 573 S.E.2d 230, 2002 N.C. App. LEXIS 1538 (2002).

Since the note and deed of trust at issue came into existence in 2007, and mortgagees petitioners could refile their action at any time until the expiration of the applicable statute of limitations, the mortgagees’ foreclosure actions were timely filed; the effect of the second voluntary dismissal was such that any subsequent orders entered by the clerk of court or by the superior court were without legal effect. In re Foreclosure by Rogers Townsend & Thomas, PC, 241 N.C. App. 247, 773 S.E.2d 101, 2015 N.C. App. LEXIS 450 (2015), vacated, 369 N.C. 221 , 794 S.E.2d 484, 2016 N.C. LEXIS 1162 (2016).

Presumption That Attorney Acts for Client. —

While subdivision (a)(1)(ii) of this rule requires the consent of the parties to the litigation, there is a presumption that an attorney has authority to act for his client and one challenging the attorney’s actions as being unauthorized has the burden of rebutting the presumption. Gillikin v. Pierce, 98 N.C. App. 484, 391 S.E.2d 198, 1990 N.C. App. LEXIS 424 (1990).

Counterclaim in Divorce Suit as Claim for Affirmative Relief. —

Where complaint in a suit for absolute divorce alleged facts entitling either or both of the parties to an absolute divorce, defendant’s answer admitting these allegations, together with his prayer for an absolute divorce on the same grounds, was, in effect, a counterclaim seeking affirmative relief and arising out of the same transactions alleged in the complaint. McCarley v. McCarley, 289 N.C. 109 , 221 S.E.2d 490, 1976 N.C. LEXIS 1223 (1976).

Cross-Claim Seeking Contingent Indemnification Not Claim for Affirmative Relief. —

Trial court properly allowed voluntary dismissal without prejudice by plaintiff where defendant’s cross-claim was an action for indemnification contingent upon the plaintiff ’s recovery and thus was in no way affirmative relief. Travelers Ins. Co. v. Ryder Truck Rental, Inc., 34 N.C. App. 379, 238 S.E.2d 193, 1977 N.C. App. LEXIS 1702 (1977).

Defendant’s failure, prior to discharge of jury, to bring to court’s attention pendency of counterclaim did not amount to implied consent to the voluntary dismissal by the plaintiff of his complaint. Layell v. Baker, 46 N.C. App. 1, 264 S.E.2d 406, 1980 N.C. App. LEXIS 2755 (1980).

Effect on Counterclaim of Consent to Voluntary Dismissal. —

Defendant’s written “consent” to the voluntary dismissal of plaintiff ’s claim, which was expressly given “without prejudice to defendant’s prosecution of her claim,” at most removed the barrier which defendant’s counterclaim otherwise presented to plaintiff ’s right under this rule to dismiss his own claim, but did not effect a dismissal of defendant’s counterclaim, nor did it permit plaintiff simply to walk away from the litigation which he had himself begun. Layell v. Baker, 46 N.C. App. 1, 264 S.E.2d 406, 1980 N.C. App. LEXIS 2755 (1980).

Filing of Voluntary Dismissal Did Not Strip Appellate Court of Jurisdiction. —

Filing of a voluntary dismissal under G.S. 1A-1 , Rule 41(a)(1) did not strip the appellate court of its authority to docket an appeal that had already been filed by defendants in the matter, or to consider the merits thereof. Reid v. Town of Madison, 145 N.C. App. 146, 550 S.E.2d 826, 2001 N.C. App. LEXIS 554 (2001).

Voluntary Dismissal Substantially Same as Former Nonsuit. —

A voluntary dismissal under the current Rules of Civil Procedure is substantially the same as a voluntary nonsuit under the former procedure. Collins v. Collins, 18 N.C. App. 45, 196 S.E.2d 282, 1973 N.C. App. LEXIS 1775 (1973); Banner v. Banner, 86 N.C. App. 397, 358 S.E.2d 110, 1987 N.C. App. LEXIS 2720 (1987).

Voluntary Dismissal of Termination of Parental Rights Proceeding. —

Fact that county department of social services had dismissed a prior petition for termination of mother’s parental rights did not preclude a subsequent petition since the best interests of the children was always the primary focus, with no procedural rule barring the court’s continuing jurisdiction over such a matter. In re L.O.K., 174 N.C. App. 426, 621 S.E.2d 236, 2005 N.C. App. LEXIS 2476 (2005).

Filing of Voluntary Dismissal Was Not Done to Manipulate the Rules. —

Because the procedural posture of the case, which included a voluntary dismissal as to a motel, did not cause the appellate court to believe that counsel was manipulating the Rules of Civil Procedure in an attempt to appeal an order that should not be appealable, the appellate court did not dismiss the appeal as interlocutory, where the trial court granted summary judgment based upon contributory negligence. Duval v. OM Hospitality, LLC, 186 N.C. App. 390, 651 S.E.2d 261, 2007 N.C. App. LEXIS 2190 (2007).

Common-Law Rule as to Time for Voluntary Dismissal Changed. —

This State continued up until the present time to follow the common-law rule which permitted the plaintiff to take a nonsuit at any time before the verdict. But this rule of practice has been changed by the adoption of this rule, which provides that an action or any claim therein may be dismissed by the plaintiff without an order of court “by filing a notice of dismissal at any time before the plaintiff rests his case.” Clemmons v. Life Ins. Co., 6 N.C. App. 708, 171 S.E.2d 87, 1969 N.C. App. LEXIS 1263 (1969).

This rule had the effect of changing former practice only to the extent that the plaintiff desiring to take a voluntary nonsuit (now a voluntary dismissal) must now act before he rests his case, whereas under former practice he could do so at any time before the verdict. McCarley v. McCarley, 289 N.C. 109 , 221 S.E.2d 490, 1976 N.C. LEXIS 1223 (1976).

Subsection (a)(1) of this rule had the effect of changing this State’s former practice with respect to voluntary nonsuits only to the extent that the plaintiff desiring to take a voluntary dismissal must now act before he rests his case. In other respects former practice was not expressly changed by the rule. Danielson v. Cummings, 43 N.C. App. 546, 259 S.E.2d 332, 1979 N.C. App. LEXIS 3122 (1979), aff'd, 300 N.C. 175 , 265 S.E.2d 161, 1980 N.C. LEXIS 1035 (1980).

Major thrust of subsection (a)(1) of this rule is to limit the time within which plaintiff has an absolute right to dismiss his action without prejudice, which period is now any time before he rests his case. Whitehurst v. Virginia Dare Transp. Co., 19 N.C. App. 352, 198 S.E.2d 741, 1973 N.C. App. LEXIS 1649 (1973).

Rule permits one voluntary dismissal, but the right must be exercised before plaintiff rests his case. Cutts v. Casey, 278 N.C. 390 , 180 S.E.2d 297, 1971 N.C. LEXIS 986 (1971).

Trial court did not err in entering an order granting defendants’ summary judgment motion where plaintiff was afforded the opportunity to argue the issues of summary judgment and did so, it explicitly stated that it had no further comments, the trial court foreclosed any further evidence, and thus, plaintiff had rested its case and forfeited the absolute right to take a dismissal under G.S. 1A-1 , N.C. R. Civ. P. 41(a)(1)(i). Allied Spectrum, LLC v. German Auto Ctr., Inc., 250 N.C. App. 308, 793 S.E.2d 271, 2016 N.C. App. LEXIS 1169 (2016), aff'd, 370 N.C. 454 , 809 S.E.2d 565, 2018 N.C. LEXIS 54 (2018).

Voluntary Dismissal Without Prejudice After Resting Case No Longer a Matter of Right. —

Under the new Rules of Civil Procedure a plaintiff can no longer take a voluntary nonsuit as a matter of right or secure a voluntary dismissal without prejudice after he has rested his case. Cutts v. Casey, 278 N.C. 390 , 180 S.E.2d 297, 1971 N.C. LEXIS 986 (1971).

The clear meaning of section (a) of this rule is that a plaintiff may not bring an action which twice has been dismissed voluntarily; however, where the dismissal of plaintiff’s first action was involuntary, section (a) does not apply. Jarman v. Washington, 93 N.C. App. 76, 376 S.E.2d 252, 1989 N.C. App. LEXIS 78 (1989).

When Plaintiff ’s Case Rested on Summary Judgment Hearing. —

Where a party appears at a summary judgment hearing and produces evidence or is given an opportunity to produce evidence and fails to do so, and the question is submitted to the court for decision, he has “rested his case” within the meaning of subdivision (a)(1)(i) of this rule. He cannot thereafter take a voluntary dismissal under subdivision (a)(1)(i). Maurice v. Hatterasman Motel Corp., 38 N.C. App. 588, 248 S.E.2d 430, 1978 N.C. App. LEXIS 2247 (1978).

For summary judgment motions, the record must show that plaintiff has been given the opportunity to introduce any evidence relating to the motion and to argue his position, and having done so and submitted the matter to the trial court for determination, plaintiff will then be deemed to have rested his case for the purpose of summary judgment and will be precluded from dismissing his case pursuant to this rule during the pendency of the summary judgment motion. Alston v. Duke Univ., 133 N.C. App. 57, 514 S.E.2d 298, 1999 N.C. App. LEXIS 335 (1999).

Voluntary Dismissal Appropriate When Case Not Rested. —

Plaintiff was entitled to take a voluntary dismissal of her medical malpractice action, where her counsel made every effort to have the trial court rule on her motion to amend the discovery scheduling order before hearing the defendant’s motion for summary judgment, and immediately moved for dismissal without resting her case once the court denied her motion. Alston v. Duke Univ., 133 N.C. App. 57, 514 S.E.2d 298, 1999 N.C. App. LEXIS 335 (1999).

Plaintiff cannot be made to choose which remedy he will pursue before he takes a voluntary dismissal. Caroon v. Eubank, 30 N.C. App. 244, 226 S.E.2d 691, 1976 N.C. App. LEXIS 2193 (1976).

Plaintiff ’s voluntary dismissal of a prior action is a final termination of that action, and no valid order can be made thereafter in that cause. Collins v. Collins, 18 N.C. App. 45, 196 S.E.2d 282, 1973 N.C. App. LEXIS 1775 (1973).

A voluntary dismissal under subsection (a)(1) of this rule terminates the action, and no suit is pending thereafter in which the court can make a valid order. Sutton v. Sutton, 18 N.C. App. 480, 197 S.E.2d 9, 1973 N.C. App. LEXIS 1910 (1973); Caroon v. Eubank, 30 N.C. App. 244, 226 S.E.2d 691, 1976 N.C. App. LEXIS 2193 (1976).

Where plaintiff takes a voluntary dismissal pursuant to subsection (a)(1) of this rule, no suit is pending thereafter on which the court can make a final order. Ward v. Taylor, 68 N.C. App. 74, 314 S.E.2d 814, 1984 N.C. App. LEXIS 3189 (1984).

Defendant does have the right to take a voluntary dismissal of its claim for determination of just compensation, and this result is consistent with the practice under G.S. 1A-1 , N.C. R. Civ. P. 41(a), and in compliance with G.S. 136-105 and G.S. 136-107. City of Charlotte v. Univ. Fin. Props., LLC, 260 N.C. App. 135, 818 S.E.2d 116, 2018 N.C. App. LEXIS 634 (2018), aff'd, 373 N.C. 325 , 837 S.E.2d 870, 2020 N.C. LEXIS 92 (2020).

City’s motion to decrease the deposit was not allowed because the action was no longer “pending” after the landowner’s filing of a voluntary dismissal. City of Charlotte v. Univ. Fin. Props., LLC, 260 N.C. App. 135, 818 S.E.2d 116, 2018 N.C. App. LEXIS 634 (2018), aff'd, 373 N.C. 325 , 837 S.E.2d 870, 2020 N.C. LEXIS 92 (2020).

Trial court had no authority to rule on a city’s motion to amend its complaint after a landowner filed its voluntary dismissal because the dismissal ended the only pending claim, just compensation; the dismissal put the landowner in the same position as if it had never filed an answer and instead accepted the deposit as just compensation for the taking, and once the just compensation determination ended with the dismissal, the trial court had to enter final judgment in the amount deposited. City of Charlotte v. Univ. Fin. Props., LLC, 260 N.C. App. 135, 818 S.E.2d 116, 2018 N.C. App. LEXIS 634 (2018), aff'd, 373 N.C. 325 , 837 S.E.2d 870, 2020 N.C. LEXIS 92 (2020).

Voluntary Dismissal of Equitable Distribution Claim. —

After wife dismissed her equitable distribution counterclaim, the only remaining claim in the parties’ first case, that claim could be reasserted only by commencing a new action or asserting the claim in the parties’ pending and separate absolute divorce action. Bradford v. Bradford, 2021-NCCOA-448, 279 N.C. App. 109, 864 S.E.2d 783, 2021- NCCOA-448, 2021 N.C. App. LEXIS 491 (2021).

Because wife’s dismissal of her equitable distribution counterclaim terminated the first case, there was no suit pending thereafter on which the trial court could enter a valid order, and dismissal of wife’s later-filed equitable distribution motion in the first case was proper. Bradford v. Bradford, 2021-NCCOA-448, 279 N.C. App. 109, 864 S.E.2d 783, 2021- NCCOA-448, 2021 N.C. App. LEXIS 491 (2021).

This rule provides that dismissal is without prejudice, unless otherwise stated, allowing plaintiff to commence a new action based on the same claim within one year. Carter v. Clowers, 102 N.C. App. 247, 401 S.E.2d 662, 1991 N.C. App. LEXIS 291 (1991).

Order Dismissing Case with Prejudice After Voluntary Dismissal Held Invalid. —

Plaintiffs’ dismissal was effective upon its announcement, and an order dismissing the case with prejudice, entered after plaintiffs’ voluntary dismissal, was invalid and had no effect upon plaintiffs’ rights. Lowe v. Bryant, 55 N.C. App. 608, 286 S.E.2d 652, 1982 N.C. App. LEXIS 2234 (1982).

Voluntarily Dismissed Suit Based on Defective Complaint Does Not Toll the Statute of Limitations. —

Although a voluntary dismissal without prejudice will toll the statute of limitations if the dismissed complaint is reinstituted within one year, this rule cannot revive an action on a properly directed summons if the complaint was defective, no amendment of the complaint was ever requested, and the defect was never cured. Sweet v. Boggs, 134 N.C. App. 173, 516 S.E.2d 888, 1999 N.C. App. LEXIS 675 (1999).

Savings Provision Not Applicable to Claim Under Federal Employers’ Liability Act. —

Trial court erred in tolling the statute of limitations in an employee’s Federal Employers’ Liability Act (FELA), 45 U.S.C.S. §§ 51-60, claim for up to a year after the trial court’s dismissal of the claim because there was no basis for this order other than savings provision of G.S. 1A-1 , N.C. R. Civ. P. 41, which was inapplicable to a FELA claim. Carlisle v. CSX Transp., Inc., 193 N.C. App. 509, 668 S.E.2d 98, 2008 N.C. App. LEXIS 1977 (2008), cert. denied, 675 S.E.2d 39, 2009 N.C. LEXIS 667 (N.C. 2009).

Where plaintiff’s first voluntarily dismissed suit was based on defective process, his second action, filed after the statute of limitations applicable to the action had expired, was barred by the statute of limitations and the trial court properly entered summary judgment for defendant. Johnson v. City of Raleigh, 98 N.C. App. 147, 389 S.E.2d 849, 1990 N.C. App. LEXIS 300 (1990).

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. Latham v. Cherry, 111 N.C. App. 871, 433 S.E.2d 478, 1993 N.C. App. LEXIS 922 (1993).

First Voluntary Dismissal Not Adjudication on Merits. —

In an action instituted for temporary and permanent alimony, child custody and support and attorneys’ fees, defendant was in no position to complain that the issues raised had been determined in a previous action in which plaintiff had taken a voluntary dismissal, since the first such dismissal was not an adjudication upon the merits. Collins v. Collins, 18 N.C. App. 45, 196 S.E.2d 282, 1973 N.C. App. LEXIS 1775 (1973).

In personal injury plaintiffs’ action against an intoxicated driver who caused a traffic accident by driving a van across a highway median, and against a company that owned the van and against the occupants of a house who allegedly negligently entrusted the van to the driver, the company and the occupants were dismissed with prejudice following summary judgment in their favor; plaintiffs then entered a consent order dismissing, without prejudice, their remaining claims against the driver, thereby resolving all claims against all remaining defendants. The summary judgment order was not a final appealable order and the consent order against the driver did not render the dismissal order resulting from that summary judgment a final judgment as contemplated by G.S. 1A-1 , N.C. R. Civ. P. 54.(2005); the court dismissed plaintiffs appeal of that dismissal order on the reasoning that G.S. 1A-1 , N.C. R. Civ. P. 41(a)(1) (2005), allowed plaintiffs to take one voluntary dismissal against the driver without finally resolving the claims against the driver, so there was no final judgment that would allow an appeal of the summary judgment in favor of the company and the occupants. Hill v. West, 177 N.C. App. 132, 627 S.E.2d 662, 2006 N.C. App. LEXIS 692 (2006).

Second Voluntary Dismissal Barred Derivative Action. —

Plaintiff’s second voluntary dismissal against manager of restaurant operated to bar her derivative claims against restaurant itself. Graham v. Hardee's Food Sys., 121 N.C. App. 382, 465 S.E.2d 558, 1996 N.C. App. LEXIS 27 (1996).

Voluntary Dismissal with Prejudice Barred Derivative Action. —

Plaintiff could not proceed against an alleged employer on the theory of respondeat superior after having voluntarily dismissed with prejudice and without payment a negligence claim against the alleged employee; even if dismissal was not with prejudice, it was the second dismissal of plaintiff’s claims against the employee, an adjudication on the merits and, therefore, a bar to the action against the employer. Wrenn v. Maria Parham Hosp., Inc., 135 N.C. App. 672, 522 S.E.2d 789, 1999 N.C. App. LEXIS 1233 (1999), cert. denied, 351 N.C. 372 , 543 S.E.2d 149, 2000 N.C. LEXIS 140 (2000).

Where the victims of an automobile accident were unable to take a voluntary dismissal under G.S. 1A-1 , Rule 41(a)(1)(i), they took a voluntary dismissal with prejudice at the original civil negligence trial; thus, they were barred from refiling a negligence suit against defendant driver. Pardue v. Darnell, 148 N.C. App. 152, 557 S.E.2d 172, 2001 N.C. App. LEXIS 1264 (2001).

Unless Otherwise Specified Voluntary Dismissal Without Prejudice, with One Exception. —

Unless otherwise specified, a voluntary dismissal, whether by plaintiff ’s notice, by stipulation, or by order of the judge, is without prejudice, with one express exception, applicable only to a dismissal effected by plaintiff ’s notice: namely, that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed an action based on or including the same claim. Parrish v. Uzzell, 41 N.C. App. 479, 255 S.E.2d 219, 1979 N.C. App. LEXIS 2682 (1979).

Where plaintiff obtained a voluntary dismissal of first action by electing to dismiss without prejudice and so informing the court, which then ordered the case dismissed without prejudice, and obtained a voluntary dismissal of a second action by making an oral motion to the court to be allowed to take a voluntary dismissal without prejudice, which motion was allowed by an order entered “in the Court’s discretion and in the interest of justice,” while each dismissal was obtained at plaintiff ’s instance, neither was effected by the plaintiff filing a notice of dismissal as authorized by subdivision (a)(1)(i) of this rule, to which alone the “second dismissal” rule applies, and therefore she was not barred from maintaining a further action based on the same claim. Parrish v. Uzzell, 41 N.C. App. 479, 255 S.E.2d 219, 1979 N.C. App. LEXIS 2682 (1979).

“Second dismissal” rule does not make voluntary dismissals by stipulation or order of court “on the merits,” even though preceded by a prior voluntary dismissal, although, of course, the stipulation itself or the order of the judge can provide that the dismissal is with prejudice, whether or not there has been a prior dismissal effected by the filing of a notice. Parrish v. Uzzell, 41 N.C. App. 479, 255 S.E.2d 219, 1979 N.C. App. LEXIS 2682 (1979).

The “second dismissal” rule does not apply to make voluntary dismissals by stipulation or by order of court “on the merits,” even when they follow a previously filed notice of voluntary dismissal. North Carolina R.R. v. Ferguson Bldrs. Supply, 103 N.C. App. 768, 407 S.E.2d 296, 1991 N.C. App. LEXIS 926 (1991).

Institution of New Claim Allowed Within One Year After Voluntary Dismissal Without Prejudice. —

Under this rule, a voluntary dismissal without prejudice allows a new action on the same claim to be instituted within one year. Webb v. Nolan, 361 F. Supp. 418, 1972 U.S. Dist. LEXIS 12171 (M.D.N.C. 1972), aff'd, 484 F.2d 1049, 1973 U.S. App. LEXIS 7853 (4th Cir. 1973).

When a party properly takes a first voluntary dismissal of an action filed within the statute of limitations, that party then has one year to refile the same action, even though the refiling may be beyond the general statute of limitations. Georgia-Pacific Corp. v. Bondurant, 81 N.C. App. 362, 344 S.E.2d 302, 1986 N.C. App. LEXIS 2316 (1986).

The plaintiffs’ voluntary dismissal pursuant to this section effectively extended the statute of limitations by allowing plaintiffs to refile their good faith 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 N.C. LEXIS 354 (2000).

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 within one year, 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 N.C. App. LEXIS 1657 (2008).

The one-year limitation period within which plaintiff might have renewed her claim under subdivision (a)(1) commenced on the date plaintiff’s counsel stated in open court that he intended to file notice of voluntary dismissal and not five days later when voluntary dismissal was filed. Baker v. Becan, 123 N.C. App. 551, 473 S.E.2d 413, 1996 N.C. App. LEXIS 716 , cert. denied, 344 N.C. 629 , 477 S.E.2d 37, 1996 N.C. LEXIS 546 (1996).

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 N.C. App. LEXIS 571 (2015).

Second Complaint Not Barred by Statute of Limitations. —

Where there was no evidence of record that plaintiff’s sole intent in filing the first complaint was to dismiss it in order to gain another year in which to file a “sufficient” complaint, plaintiff waited over two months to dismiss his original complaint and there was no judicial admission that plaintiff filed and dismissed his first complaint in bad faith, the “savings” provision of subdivision (a)(1) properly applied to plaintiff’s complaint so that his second complaint was not barred by the statute of limitations. Hawkins v. State, 117 N.C. App. 615, 453 S.E.2d 233, 1995 N.C. App. LEXIS 62 (1995).

In a medical malpractice case, the trial court erred in granting the doctor and hospital’s motions for judgment on the pleadings and denying the injured party’s motion to set aside the dismissal where the injured party filed the case on the last day of a 120-day extension filed an amended complaint containing the expert testimony certification, voluntarily dismissed the action and later refiled the complaint; the statute of limitations for malpractice actions under G.S. 1-15(1c) 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 N.C. App. LEXIS 1044 (2003), rev'd, 358 N.C. 144 , 592 S.E.2d 687, 2004 N.C. LEXIS 172 (2004).

Trial court erred in granting the seller’s motion to dismiss in a case where the buyer sued the seller under multiple theories arising out of the sale of a log home package, after the parties had settled their dispute during trial, after the trial court had instructed them to file a stipulation of voluntary dismissal by a particular date, after they filed a stipulation on that date, and the buyer filed a complaint for breach of the settlement agreement and a second complaint stating his original causes of action; the one-year statute of limitations for refiling did not bar the buyer’s second complaint because he filed it within one year of the date that the trial court directed the written stipulation of voluntary dismissal be filed, and, thus, the one-year refiling period began to run from that date and not the earlier date on which the buyer announced in open court that he intended to file an involuntary dismissal. Keyzer v. Amerlink, Ltd., 164 N.C. App. 761, 596 S.E.2d 878, 2004 N.C. App. LEXIS 1138 (2004).

Although homeowners brought an action against their lender and then dismissed it, and refiled an action against the lender more than one year later, their claims were not barred by the one-year period of G.S. 1A-1 , Rule 41(a). Rule 41(a) did not operate to shorten the applicable three-year statutes of limitations for fraud and negligent misrepresentation, which had not yet expired. Guyton v. FM Lending Servs., 199 N.C. App. 30, 681 S.E.2d 465, 2009 N.C. App. LEXIS 1388 (2009).

Trial court erred by dismissing a client’s claim for compensation for “emotional” damages stemming from an attorney’s alleged legal malpractice as the client’s allegation that he sustained “emotional” injury was nothing more than a description of the damage that he claimed to have suffered as a result of the attorney’s negligence and did not constitute the addition of an enforceable claim or cause of action that the statute of limitations had run against. Thus, the client’s claim for emotional injury related back, pursuant to G.S. 1A-1 , N.C. R. Civ. P. 41(a)(1), to the original filing of his complaint, which he had previously voluntarily dismissed. Royster v. McNamara, 218 N.C. App. 520, 723 S.E.2d 122, 2012 N.C. App. LEXIS 218 (2012).

Professional malpractice claim against defendant two in a second complaint was substantively the same as a negligence claim asserted against defendant two in a first complaint, and the claim related back to the filing of the first complaint under G.S. 1A-1 , N.C. R. Civ. P. 41(a)(1) as both complaints alleged that defendant two’s act of having had the closing check altered was the means by which plaintiff’s real estate agent was able to receive the real estate closing funds, rather than plaintiff. Williams v. Lynch, 225 N.C. App. 522, 741 S.E.2d 373, 2013 N.C. App. LEXIS 120 (2013).

Trial court erred in dismissing the plaintiff’s action with prejudice on the grounds that the plaintiff violated the statute of repose because the plaintiff’s action was subject to the three-year statute of limitations, not the statute of repose, as the plaintiff’s claims against the defendant sounded in ordinary negligence; and because, although the plaintiff voluntarily dismissed the plaintiff’s complaint, the plaintiff timely refiled the complaint within one year. Goodman v. Living Centers-Southeast, Inc., 234 N.C. App. 330, 759 S.E.2d 676, 2014 N.C. App. LEXIS 608 (2014).

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 N.C. App. LEXIS 299 (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 the rule, 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 N.C. App. LEXIS 299 (2016).

Because a shareholder brought a derivative breach of fiduciary duty claim against a corporate officer in his prior complaint, the relation-back provision applied to the second derivative claim against the officer, interposing a filing date of when the shareholder filed his first amended complaint; the allegations of the complaint did not definitively establish that the claim was barred by the statute of limitations but raised a factual question as to when the claim accrued. Spoor v. Barth, 257 N.C. App. 721, 811 S.E.2d 609, 2018 N.C. App. LEXIS 93 (2018).

Re-filed Suit Barred By Statute of Limitations. —

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 N.C. App. LEXIS 2753 (2005).

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 N.C. App. LEXIS 691 (2007).

Invasion of privacy claim was barred by the three-year statute of limitations under G.S. 1-52(5) as an employee first filed a complaint against an employer in 2003 or 2004, but the complaint was voluntarily dismissed and the invasion of privacy claim was not made until the complaint was re-filed in 2005, and the objectionable statements were made in December 2001 and early to mid-January 2002; the G.S. 1A-1-41(a) tolling of the applicable statute of limitations applied only to the claims in the original complaint and not to other causes of action that might arise out of the same set of operative facts. Losing v. Food Lion, L.L.C., 185 N.C. App. 278, 648 S.E.2d 261, 2007 N.C. App. LEXIS 1704 (2007), cert. denied, 362 N.C. 236 , 659 S.E.2d 735, 2008 N.C. LEXIS 207 (2008).

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 N.C. App. LEXIS 1325 (2008).

Dismissal of plaintiff’s conversion claim against defendant one and the breach of contract and conversion claims against defendant two in a second complaint after a first complaint had been voluntarily dismissed under G.S. 1A-1 , N.C. R. Civ. P. 41 was proper as the conversion and breach of contract claims were not included in the first complaint and the claims did not relate back under Rule 41(a)(1); Stanford v. Owens, 332 S.E.2d 730 (1985) was not limited to claims with different pleading requirements. Williams v. Lynch, 225 N.C. App. 522, 741 S.E.2d 373, 2013 N.C. App. LEXIS 120 (2013).

Trial court properly dismissed a shareholder’s derivative claims against corporate officers because they were barred by the statute of limitations; because the only derivative claim the shareholder advanced in his prior complaint was for breach of fiduciary duty against one of the officers, the relation-back did not apply to the first or second derivative claims against the officers. Spoor v. Barth, 257 N.C. App. 721, 811 S.E.2d 609, 2018 N.C. App. LEXIS 93 (2018).

Indian cultural center’s tortious interference with contract claim against a former state official was time-barred because the enactment of a session law constituted the underlying injury allegedly caused by the official’s actions, but the center’s complaint was not filed until over three years after the alleged injury occurred. Furthermore, because the official was never served with the center’s prior complaint, the center’s voluntary dismissal of that complaint and filing of a new complaint thereafter did not toll the statute of limitations. N.C. Indian Cultural Ctr., Inc. v. Sanders, 266 N.C. App. 62, 830 S.E.2d 675, 2019 N.C. App. LEXIS 543 (2019).

Ophthalmological medical practice’s breach of fiduciary duty claim against a former director was not subject to N.C. Gen. Stat. § 1A-1, N.C. R. Civ. P. 41(a)’s, savings provision where the claim pled new operative facts concerning the practice’s alleged insolvency and the director’s alleged mismanagement and overcompensation. Accordingly, the claim was dismissed as time-barred. Cent. Carolina Surgical Eye Assocs., P.A. v. Matthews, 2022 NCBC 14, 2022 NCBC LEXIS 22 (N.C. Super. Ct. Mar. 16, 2022).

Director’s limitations challenge to a constructive fraud claim failed where the allegations in the voluntarily dismissed complaint notified the director that the ophthalmological medical practice sought to recover because he obtained a personal financial benefit by receiving fees from the practice’s former patients. Cent. Carolina Surgical Eye Assocs., P.A. v. Matthews, 2022 NCBC 14, 2022 NCBC LEXIS 22 (N.C. Super. Ct. Mar. 16, 2022).

N.C. Gen. Stat. § 1A-1, N.C. R. Civ. P. 41(a)’s savings provision did not apply to the ophthalmological medical practice’s N.C. Gen. Stat. § 75-1.1 claim against a former director as that claim involved different elements and significantly different defenses and remedies than either its breach of fiduciary duty or constructive fraud claims in the voluntarily dismissed complaint. Cent. Carolina Surgical Eye Assocs., P.A. v. Matthews, 2022 NCBC 14, 2022 NCBC LEXIS 22 (N.C. Super. Ct. Mar. 16, 2022).

N.C. Gen. Stat. § 1A-1, N.C. R. Civ. P. 41(a)’s savings provision applied to the ophthalmological medical practice’s restitution and disgorgement requests against a former director as those were requests for remedies, not causes of action. Cent. Carolina Surgical Eye Assocs., P.A. v. Matthews, 2022 NCBC 14, 2022 NCBC LEXIS 22 (N.C. Super. Ct. Mar. 16, 2022).

Refiling by Successor Company Barred. —

Nevada limited liability company could not amend its suit to allege a tort claim of a North Carolina limited liability company after the Nevada company succeeded to the rights of the North Carolina company following a merger under G.S. 55-11-06(a)(4) as it did not assert its right to file the tort claim before the claim became time-barred under G.S. 1-15(c) ; the Nevada company’s suit clearly alleged violations of patent rights that had been assigned to it, and did not give notice that the suit was intended to be a re-filing of a malpractice case by the North Carolina company that had been dismissed under G.S. 1A-1 , N.C. R. Civ. P. 41. Even if the amendment were allowed, it would not relate back under G.S. 1A-1 , N.C. R. Civ. P. 15(c). Revolutionary Concepts, Inc. v. Clements Walker PLLC, 2012 NCBC 14, 2012 NCBC LEXIS 14 (N.C. Super. Ct. Mar. 8, 2012), aff'd in part, 227 N.C. App. 102, 744 S.E.2d 130, 2013 N.C. App. LEXIS 482 (2013).

Medical Malpractice Complaint Had to Comply with G.S. 1A-1 , N.C. R. Civ. P. 9(j). —

Estate’s claim that at the time its original complaint was filed, it was not required to comply with 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 N.C. App. LEXIS 2753 (2005).

Plaintiff conceded that summary judgment was proper on plaintiff’s Fair Credit Reporting Act (FCRA), 15 U.S.C.S. § 1681 et seq., claim; as for plaintiff’s FCRA claim under 15 U.S.C.S. §§ 1681n and 1681o, plaintiff conceded that the two-year statute of limitations under 15 U.S.C.S. § 1681p barred her claim. Plaintiff also conceded that the savings provision of N.C. R.Civ. P. 41, G.S. 1A-1 did not extend the statute of limitations for her FCRA claim. Ross v. Wash. Mut. Bank, 566 F. Supp. 2d 468, 2008 U.S. Dist. LEXIS 51060 (E.D.N.C. 2008), aff'd, 625 F.3d 808, 2010 U.S. App. LEXIS 22454 (4th Cir. 2010).

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 N.C. App. LEXIS 39 (2016).

Failure to Refer to Rule Inconsequential. —

A voluntary dismissal taken by plaintiff in an earlier action without prejudice need not refer to this rule in order to gain the rule’s benefit of a one year extension within which to file the same lawsuit. As this rule is the only procedural rule which addresses voluntary dismissals, no confusion as to the effect of the dismissal could possibly result from this omission. Bradley Freight Lines v. Pope, Flynn & Co., 42 N.C. App. 285, 256 S.E.2d 522, 1979 N.C. App. LEXIS 2831 , cert. denied, 298 N.C. 295 , 259 S.E.2d 299, 1979 N.C. LEXIS 1578 (1979).

Tolling Provisions of Former G.S. 1-25 Incorporated into Section (a). —

The tolling provisions of former G.S. 1-25 , under which plaintiff had the right to bring an unlimited series of actions based on the same claim provided that he brought each new action within one year of dismissal of the immediately preceding action, was incorporated into section (a) of this rule. Parrish v. Uzzell, 41 N.C. App. 479, 255 S.E.2d 219, 1979 N.C. App. LEXIS 2682 (1979).

One-Year Provision Extends Rather Than Restricts Statute of Limitation. —

When the General Assembly adopted the provisions of former G.S. 1-25 into subsection (a)(1) of this rule, it adopted also that body of case law interpreting the former section, the effect being that the provision of subsection (a)(1) is an extension of time beyond the general statute of limitation rather than a restriction upon the general statute of limitation. Whitehurst v. Virginia Dare Transp. Co., 19 N.C. App. 352, 198 S.E.2d 741, 1973 N.C. App. LEXIS 1649 (1973).

While a party always has the time limit prescribed by the general statute of limitation, and in addition thereto the one year provided in this rule, this rule may not be used to limit the time to one year if the general statute of limitation has not expired. Whitehurst v. Virginia Dare Transp. Co., 19 N.C. App. 352, 198 S.E.2d 741, 1973 N.C. App. LEXIS 1649 (1973); Cieszko v. Clark, 92 N.C. App. 290, 374 S.E.2d 456, 1988 N.C. App. LEXIS 1047 (1988).

But Party May Not Use Rule to Avoid Statute of Limitations. —

This rule does not authorize a party to take a dismissal without prejudice of a previous action barred by the statute of limitations and then to refile the action in order to avoid the statute of limitations. Carl Rose & Sons Ready Mix Concrete, Inc. v. Thorp Sales Corp., 36 N.C. App. 778, 245 S.E.2d 234, 1978 N.C. App. LEXIS 2626 (1978).

Voluntary Dismissal as Final Adjudication. —

Once the one-year period for refiling an action has elapsed and the action can no longer be resurrected, the voluntary dismissal acts as a final adjudication for purposes of G.S. 1A-1 , Rule 60(b). Robinson v. General Mills Restaurants, Inc., 110 N.C. App. 633, 430 S.E.2d 696, 1993 N.C. App. LEXIS 560 (1993).

Complaint Filed Solely to Toll Statute May Not Be Voluntarily Dismissed Without Prejudice. —

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 subsection (a)(1) of this rule. Estrada v. Burnham, 316 N.C. 318 , 341 S.E.2d 538, 1986 N.C. LEXIS 2103 (1986).

Nor May Pleading in Violation of G.S. 1A-1 , Rule 11(a). —

Subsection (a)(1) of this rule and G.S. 1A-1 , 11(a) 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 voluntary dismissal without prejudice, the complaint must conform in all respects to the rules of pleading, including G.S. 1A-1 , Rule 11(a). A pleading filed in violation of G.S. 1A-1, Rule 11(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 subsection (a)(1) of this rule. Estrada v. Burnham, 316 N.C. 318 , 341 S.E.2d 538, 1986 N.C. LEXIS 2103 (1986).

Where an action was discontinued by operation of law under G.S. 1A-1 , Rule 4(e), 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 N.C. App. LEXIS 2197 (1986).

Limitations Bar Not Avoided by Filing Federal Complaint. —

A civil action is commenced in such a manner as to avoid a statute of limitations bar pursuant to this rule if, within the period of limitations prescribed, a plaintiff files “a complaint with the court”; hence, plaintiff’s filing of a complaint in federal district court would be unavailing to prevent a statute of limitations bar in action brought in State court. Evans v. Chipps, 56 N.C. App. 232, 287 S.E.2d 426, 1982 N.C. App. LEXIS 2351 (1982).

When One-Year Period Begins to Run. —

When a case has proceeded to trial and both parties are present in court, the one-year period in which a plaintiff is allowed to reinstitute a suit from subsection (a)(1) of this rule begins to run from the time of oral notice of voluntary dismissal given in open court. Danielson v. Cummings, 300 N.C. 175 , 265 S.E.2d 161, 1980 N.C. LEXIS 1035 (1980). But see Thompson v. Newman, 331 N.C. 709 , 417 S.E.2d 224, 1992 N.C. LEXIS 418 (1992).

The one-year period for commencing another action after the taking of a voluntary dismissal began to run when plaintiff ’s counsel announced in open court the submission of a voluntary dismissal, the proceedings thereupon being stopped, and not when the written notice of dismissal was thereafter filed. Danielson v. Cummings, 43 N.C. App. 546, 259 S.E.2d 332, 1979 N.C. App. LEXIS 3122 (1979), aff'd, 300 N.C. 175 , 265 S.E.2d 161, 1980 N.C. LEXIS 1035 (1980). But see Thompson v. Newman, 331 N.C. 709 , 417 S.E.2d 224, 1992 N.C. LEXIS 418 (1992).

When a trial court instructs, or expressly permits, a plaintiff who has given oral notice of voluntary dismissal pursuant to subsection (a)(1) of this rule to file written notice to the same effect at a later date during the session of court at which oral notice was given, and plaintiff files written notice accordingly, the one-year period for refiling provided by the rule begins to run when written notice is filed. Thompson v. Newman, 331 N.C. 709 , 417 S.E.2d 224, 1992 N.C. LEXIS 418 (1992).

Effect of Appeal by Defendant on One-Year Period. —

Where plaintiff takes a voluntary dismissal under subsection (a)(2) of this rule and defendant appeals from that dismissal, plaintiff ’s one-year period to reinstitute his claim does not run from the taking of the dismissal in the trial court, but instead runs from the date of final appellate action. West v. G.D. Reddick, Inc., 302 N.C. 201 , 274 S.E.2d 221, 1981 N.C. LEXIS 1046 (1981).

Fraud Claim Not Exempt from Limitation of G.S. 1-52 . —

Though a claim of fraud rested upon somewhat the same allegations that were made in support of a negligent misrepresentation claim when action was first filed, where the plaintiffs did not in effect or otherwise also allege that the defendants had defrauded them, this rule did not exempt the fraud claim from the fatal effects of the limitations period under G.S. 1-52 . Stanford v. Owens, 76 N.C. App. 284, 332 S.E.2d 730, 1985 N.C. App. LEXIS 3869 (1985).

Adequacy of Oral Notice of Dismissal. —

Clearly, when parties confront each other face-to-face in a properly convened session of court where a written record is kept of all proceedings, there is no necessity to file a paper writing in order to take notice of a voluntary dismissal. In such a case, oral notice of dismissal is clearly adequate, and fully satisfies the “filing” requirements of subdivision (a)(1)(i) of this rule. Danielson v. Cummings, 300 N.C. 175 , 265 S.E.2d 161, 1980 N.C. LEXIS 1035 (1980).

While section (a) of this rule requires “filing a notice of dismissal,” such notice may also be given orally in open court. Banner v. Banner, 86 N.C. App. 397, 358 S.E.2d 110, 1987 N.C. App. LEXIS 2720 (1987).

Oral notice of a voluntary dismissal is effective and satisfies the requirements of this Rule. Gilliam v. First Union Nat'l Bank, 125 N.C. App. 416, 481 S.E.2d 334, 1997 N.C. App. LEXIS 94 (1997).

Attempt at Voluntary Dismissal Ineffectual Where Summons Never Served. —

Where plaintiff’s prior wrongful death action against defendants was discontinued when the original summons was never served on defendants and no alias or pluries summons was issued or endorsement made within the time specified in G.S. 1A-1 , Rule 4(d), plaintiff’s attempt to dismiss her prior action voluntarily pursuant to subsection (a)(1) of this rule was ineffectual to bring the provisions of this rule into play. Wheeler v. Roberts, 45 N.C. App. 311, 262 S.E.2d 829, 1980 N.C. App. LEXIS 2632 (1980).

Attempt at Voluntary Dismissal Ineffectual Where Second Summons Did Not Relate Back to Original Summons Directed to Other Defendant. —

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 N.C. App. LEXIS 1255 , cert. denied, 360 N.C. 66 , 621 S.E.2d 877, 2005 N.C. LEXIS 1403 (2005).

Notice of Voluntary Dismissal Not Required. —

Because an owner was not a party to the lawsuit a limited liability company (LLC) brought against an individual, the LLC was not required to serve its notice of voluntary dismissal upon the owner; the trial court consolidated the LLC’s action against the individual and the owner’s action against the individual for trial, and although the actions were to be tried together for the sake of convenience and judicial economy, they did not become one action but remained separate suits. Tog Props., LLC v. Pugh (Apr. 6, 2021).

The purpose of subsection (a)(2) of this rule is to permit a superior court judge in the exercise of his discretion to dismiss an action without prejudice if in his opinion an adverse judgment with prejudice would defeat justice. King v. Lee, 279 N.C. 100 , 181 S.E.2d 400, 1971 N.C. LEXIS 754 (1971).

Under subsection (a)(2) of this rule, at the instance of the plaintiff, the court may permit a voluntary dismissal upon such terms and conditions as justice requires. King v. Lee, 279 N.C. 100 , 181 S.E.2d 400, 1971 N.C. LEXIS 754 (1971).

Discretion of Trial Court Under Subsection (a)(2). —

Whether an order granting voluntary dismissal under subsection (a)(2) of this rule should be entered is a matter of trial court discretion. West v. G.D. Reddick, Inc., 38 N.C. App. 370, 248 S.E.2d 112, 1978 N.C. App. LEXIS 2186 (1978).

A dismissal under subsection (a)(2) of this rule is granted or denied solely within the discretion of the trial judge, and may be conditionally granted or granted upon such terms as justice requires. Lewis v. Piggott, 16 N.C. App. 395, 192 S.E.2d 128, 1972 N.C. App. LEXIS 1715 (1972).

A dismissal without prejudice is permissible under subsection (a)(2) of this rule only when so ordered by the court, in the exercise of its judicial discretion, upon finding that justice so requires. King v. Lee, 279 N.C. 100 , 181 S.E.2d 400, 1971 N.C. LEXIS 754 (1971).

Dismissals entered pursuant to subsection (a)(2) of this rule are within the discretion of the trial court, which may, in the further exercise of its discretion, dismiss with or without prejudice. Smith v. Williams, 82 N.C. App. 672, 347 S.E.2d 842, 1986 N.C. App. LEXIS 2604 (1986).

Consent of Counterclaiming Defendant Not Required Under Subsection (a)(2). —

Contrary to the practice under subsection (a)(1) of this rule, and contrary to the language and practice under Federal Rule 41(a)(2), the consent of a counterclaiming defendant is not required for dismissals entered pursuant to subsection (a)(2) of this rule to be without prejudice. Smith v. Williams, 82 N.C. App. 672, 347 S.E.2d 842, 1986 N.C. App. LEXIS 2604 (1986).

No Time Limit on Motion Under Subsection (a)(2). —

This rule places no time limit on the right of a plaintiff to move for a voluntary dismissal under subsection (a)(2) of this rule. West v. G.D. Reddick, Inc., 38 N.C. App. 370, 248 S.E.2d 112, 1978 N.C. App. LEXIS 2186 (1978).

Voluntary Dismissal After Defendant Moves for Directed Verdict. —

Prior to granting the motion of the answering defendants for a directed verdict against plaintiffs and the entry of a judgment adverse to plaintiffs, plaintiffs are entitled to move, if so advised, that an order be entered providing for a voluntary dismissal upon such terms and conditions as justice requires. Whether such order should be entered will be addressed to the discretion of the superior court judge. King v. Lee, 279 N.C. 100 , 181 S.E.2d 400, 1971 N.C. LEXIS 754 (1971).

When a defendant’s motion for a directed verdict under G.S. 1A-1 , Rule 50(a) is granted, the defendant is entitled to judgment unless the court permits a voluntary dismissal of the action under subsection (a)(2) of this rule. Kelly v. International Harvester Co., 278 N.C. 153 , 179 S.E.2d 396, 1971 N.C. LEXIS 955 (1971); Cutts v. Casey, 278 N.C. 390 , 180 S.E.2d 297, 1971 N.C. LEXIS 986 (1971).

Court Lacked Jurisdiction After Plaintiff Files Timely Voluntary Dismissal. —

Where plaintiff had a motion to amend his complaint pending before the trial court and, consequent to the defendants’ motion to dismiss, filed a timely voluntary dismissal under subdivision (a)(1)(i) of this rule, and the trial court had before it matters outside the pleadings, the trial court did not have jurisdiction to dismiss plaintiff’s complaint with prejudice pursuant to Rule 12(b)(6). Schnitzlein v. Hardee's Food Sys., Inc., 134 N.C. App. 153, 516 S.E.2d 891, 1999 N.C. App. LEXIS 679 (1999).

Trial court correctly concluded that a limited liability company’s (LLC) notice of voluntary dismissal deprived the trial court of jurisdiction to enter further orders, including an order on the LLC’s motion to strike, because the filed closed on the date the LLC filed its voluntary dismissal; thereafter, no suit was pending upon which the trial court could enter an order. Tog Props., LLC v. Pugh (Apr. 6, 2021).

Motion Under G.S. 1A-1 , Rule 12(f) Not Proper to Challenge Notice of Dismissal Without Prejudice. —

A motion to strike “any insufficient defense or any redundant, irrelevant, immaterial, impertinent or scandalous matter” under G.S. 1A-1 , Rule 12(f) is not the proper motion by which to challenge a notice of dismissal without prejudice. Travelers Ins. Co. v. Ryder Truck Rental, Inc., 34 N.C. App. 379, 238 S.E.2d 193, 1977 N.C. App. LEXIS 1702 (1977).

Federal Rule Does Not Supplant State Rule. —

Federal Rule 41 does not purport to control the application of a state statute of limitations, and does not supplant state rule that is an integral part of the state’s one-year savings statute. Thus, in a diversity action, plaintiff ’s complaint was properly dismissed where it was filed approximately one year and four months after leave was sought in open court to dismiss his original complaint, since one-year savings period starts to run when the plaintiff, prior to resting his case, announces in open court that he will seek a voluntary dismissal. Shuford v. K.K. Kawamura Cycle Co., 649 F.2d 261, 1981 U.S. App. LEXIS 13123 (4th Cir. 1981).

As to adoption of one-year tolling provision in federal diversity action, see Haislip v. Riggs, 534 F. Supp. 95, 1981 U.S. Dist. LEXIS 10103 (W.D.N.C. 1981).

Application of Standards Governing Dismissals Under Subsection (a)(2) to Mistrials. —

The standards governing the granting of dismissals under subsection (a)(2) of this rule should also be applied in ascertaining whether a judge was warranted in declaring a mistrial “to further the ends of justice.” Thompson v. Town & Country Constr. Co., 39 N.C. App. 240, 249 S.E.2d 810, 1978 N.C. App. LEXIS 2367 (1978).

Plaintiff Held Entitled to Dismissal as No Longer a Real Party in Interest. —

Where plaintiff sued a class of defendants pursuant to G.S. 1A-1 , Rule 23, but thereafter lost her status as a real party in interest by conveying the property that was the subject of the suit and filed a notice of voluntary dismissal under section (a) of this rule, upon which the new owners were joined as plaintiffs, the trial judge should have dismissed the original plaintiff as no longer a real party in interest on that ground alone. Crowell v. Chapman, 306 N.C. 540 , 293 S.E.2d 767, 1982 N.C. LEXIS 1484 (1982).

Plaintiff Deemed Not to Have Rested in Summary Judgment Hearing. —

Although the record reflected that plaintiffs submitted affidavits prior to the hearing as evidence in opposition to a summary judgment motion, where the trial court heard argument of counsel for the defendants and plaintiffs’ attorney orally took a voluntary dismissal, without receiving an opportunity to present additional evidence or argue his clients’ position, plaintiffs had not rested their case and the timing of plaintiffs’ motion for a voluntary dismissal was proper under this rule. Wesley v. Bland, 92 N.C. App. 513, 374 S.E.2d 475, 1988 N.C. App. LEXIS 1062 (1988).

Effect on Appeal. —

As plaintiff voluntarily dismissed its claim pursuant to N.C. R. Civ. P. 41(a), defendant did not have the right to seek appellate review of the trial court’s denial of its motion to dismiss. Hous. Auth. v. Sparks Eng'g, PLLC, 212 N.C. App. 184, 711 S.E.2d 180, 2011 N.C. App. LEXIS 950 (2011).

Appeal De Novo from Magistrate’s Judgment. —

Subsection (a)(1) of this rule is available in actions in the district court on appeal de novo from a magistrate’s judgment. First Union Nat'l Bank v. Richards, 90 N.C. App. 650, 369 S.E.2d 620, 1988 N.C. App. LEXIS 588 (1988).

Subsection (a)(1) Not Subject to Provisions of G.S. 7A-228 . —

The requirements of G.S. 7A-228 are not inconsistent with those of subsection (a)(1) of this rule. G.S. 7A-228 sets forth the right to appeal for trial de novo in district court and the procedures to perfect the appeal. Subsection (a)(1) of this rule sets forth the right to a voluntary dismissal and the procedures to effect the dismissal. G.S. 7A-228 does not address the same phase of the action as subsection (a)(1) of this rule; the rule is therefore not “subject to” the provisions of the statute. First Union Nat'l Bank v. Richards, 90 N.C. App. 650, 369 S.E.2d 620, 1988 N.C. App. LEXIS 588 (1988).

G.S. 7A-225 and G.S. 7A-226 Do Not Address Effect of Voluntary Dismissal. —

G.S. 7A-225 and G.S. 7A-226 merely establish priority of liens; the statutes do not address the effect of a voluntary dismissal in the district court. Subsection (a)(1) of this rule allows plaintiff to voluntarily dismiss the action without prejudice and G.S. 7A-225 and G.S. 7A-226 do not alter this right. First Union Nat'l Bank v. Richards, 90 N.C. App. 650, 369 S.E.2d 620, 1988 N.C. App. LEXIS 588 (1988).

Res Judicata Inapplicable to Voluntary Dismissal of Appeal from Magistrate’s Judgment. —

Magistrate’s judgment did not become a final judgment where, after the magistrate’s judgment was entered, plaintiff exercised its right to appeal for trial de novo in the district court pursuant to G.S. 7A-228(a) , and then took a voluntary dismissal of the action pursuant to section (a) of this rule. Therefore the doctrine of res judicata did not apply. First Union Nat'l Bank v. Richards, 90 N.C. App. 650, 369 S.E.2d 620, 1988 N.C. App. LEXIS 588 (1988).

Voluntary Dismissal With Prejudice is Subject to Usual Rules of Res Judicata. —

Where campground owners paid a county in full for landfill fees when faced with a suit for collection of those fees, the county’s voluntary dismissal of the suit upon payment was res judicata to the owners’ later challenge to the constitutionality of the landfill fees. Stafford v. County of Bladen, 163 N.C. App. 149, 592 S.E.2d 711, 2004 N.C. App. LEXIS 305 (2004).

A stipulation of dismissal does not trigger the two dismissal rule; only a unilateral dismissal by plaintiff has this effect. Thus where defendant could have declined to enter into stipulation, thereby requiring plaintiff to conclude the matter in the first State action or take another voluntary dismissal, which, with regard to 42 U.S.C. § 1983 claim, would indisputably have been the second, but consented to the dismissal of some of these claims without prejudice, it would be inequitable to interpret the two dismissal rule in a fashion that would bar their refiling. Kuhn v. Williamson, 122 F.R.D. 192, 1988 U.S. Dist. LEXIS 11998 (E.D.N.C. 1988).

Application of Two Dismissal Rule in Federal Actions. —

North Carolina courts would likely treat causes of action based on 42 U.S.C. § 1983 and negligence as separate claims, arising as they do under different bodies of law and calling for different elements of proof, and would not apply this rule to bar plaintiff from proceeding with his action. Kuhn v. Williamson, 122 F.R.D. 192, 1988 U.S. Dist. LEXIS 11998 (E.D.N.C. 1988).

Where federal pro se action was dismissed on the same day that an agent for defendants was served with complaint, it was likely that the case ended before defendant knew of its existence, and in reality, defendant had faced only two lawsuits, the first State action and this one; since the two dismissal rule is in derogation of previously existing right, and thus is to be strictly construed, dismissal of the action would be inappropriate. Kuhn v. Williamson, 122 F.R.D. 192, 1988 U.S. Dist. LEXIS 11998 (E.D.N.C. 1988).

Applicability of Tolling Provision to Voluntary Dismissal in Federal Court. —

Unlike former G.S. 1-25 , section (a)(1) of this rule specifically holds that the savings provision applies when voluntary dismissal was granted “under this subsection.” Thus a statute of limitations will be tolled when voluntary dismissal is granted pursuant to this rule, regardless of whether or not the dismissal is granted in a State court. Bockweg v. Anderson, 96 N.C. App. 660, 387 S.E.2d 59, 1990 N.C. App. LEXIS 1 (1990), aff'd, 328 N.C. 436 , 402 S.E.2d 627, 1991 N.C. LEXIS 247 (1991).

As the Fourth Circuit has stated that voluntary dismissal of a federal diversity action arising out of North Carolina will be granted pursuant to this rule because the one-year tolling provision confers a “substantive right” where there is “no countervailing federal interest,” dismissal by federal district court would be deemed to have been granted under section (a) of this rule so as to trigger the one-year savings provision of section (a) for the purposes of refiling in State court. Bockweg v. Anderson, 96 N.C. App. 660, 387 S.E.2d 59, 1990 N.C. App. LEXIS 1 (1990), aff'd, 328 N.C. 436 , 402 S.E.2d 627, 1991 N.C. LEXIS 247 (1991).

Where former employee filed a non-diversity action for age discrimination against his former employer in federal court and then voluntarily dismissed the action, the trial court properly granted summary judgment to employer on the employee’s later claim for wrongful discharge filed in state court, since the state action was filed outside the three-year statute of limitations and the one-year savings provision following a voluntary dismissal was not applicable to the state action. Renegar v. R.J. Reynolds Tobacco Co., 145 N.C. App. 78, 549 S.E.2d 227, 2001 N.C. App. LEXIS 550 (2001).

Refiling in Federal Court as Tolling of Limitations Period. —

Plaintiff’s claims for medical malpractice were not barred by the three-year statute of limitations of G.S. 1-15(c) , since the refiling of the original State court action in a federal district court invoked the “savings” provision of subsection (a)(1) of this rule, and thereby tolled the limitations period. Porter v. Groat, 713 F. Supp. 893, 1989 U.S. Dist. LEXIS 6340 (M.D.N.C.), sub. op., 713 F. Supp. 893, 1989 U.S. Dist. LEXIS 6366 (M.D.N.C. 1989).

Effect of Voluntary Dismissal of Torrens Proceeding. —

Effect of plaintiffs’ voluntary dismissal of Torrens proceeding was to toll the limitations period on defendants’ adverse claim to the disputed property for the subsequent 12 months; when plaintiffs failed to bring a new action within that period, however, the limitations period continued to run from the point at which it had been tolled. Willis v. Mann, 96 N.C. App. 450, 386 S.E.2d 68, 1989 N.C. App. LEXIS 1020 (1989).

Later Action to Be Considered Without Reference to Disposition of Prior Action. —

Where plaintiff was granted a voluntary dismissal without prejudice to his original action, and then refiled his claim within the one-year time limit established by the statute, such refiling began his case anew for all purposes and was properly considered on its merits without reference to the disposition of the prior action; therefore, judge’s ruling in the prior action did not foreclose judge in second proceeding from considering defendant’s summary judgment motion in new action. Tompkins v. Log Sys., 96 N.C. App. 333, 385 S.E.2d 545, 1989 N.C. App. LEXIS 1007 (1989).

Administrative Adjustment of Claims. —

Once the conditions of G.S. 136-29(a) (administrative adjustment of claims) were satisfied by the claimant filing its claim within six months of an adverse ruling by the state highway administrator, the trial court was vested with jurisdiction and the claimant was allowed, as a matter of right under subsection (a)(1) of this rule, to take a voluntary dismissal and refile its claim within one year. C.W. Matthews Contracting Co. v. State, 75 N.C. App. 317, 330 S.E.2d 630, 1985 N.C. App. LEXIS 3617 (1985).

Defendant Not Granted Voluntary Dismissal Absent Counterclaim. —

There is no rule, statute, or case which grants a defendant the right to take a voluntary dismissal, whether with or without prejudice, unless the party defendant taking the dismissal has a pleading which contains a counterclaim, crossclaim, or third-party claim. DOT v. Combs, 71 N.C. App. 372, 322 S.E.2d 602, 1984 N.C. App. LEXIS 3845 (1984).

Lien May Not Be Cancelled. —

In light of the requirement of G.S. 44A-16(4) that a judgment must be filed to discharge a lien, a lien may not be cancelled by taking a voluntary dismissal without prejudice. Newberry Metal Masters Fabricators, Inc. v. Mitek Indus., Inc., 333 N.C. 250 , 424 S.E.2d 383, 1993 N.C. LEXIS 17 (1993).

A party may refile an action to perfect a lien after taking a voluntary dismissal without prejudice pursuant to subsection (a)(1) of this rule. Newberry Metal Masters Fabricators, Inc. v. Mitek Indus., Inc., 333 N.C. 250 , 424 S.E.2d 383, 1993 N.C. LEXIS 17 (1993).

Equitable Distribution Claim. —

Where defendant sets up a claim for affirmative relief against a plaintiff arising out of the same transactions alleged by the plaintiff, plaintiff cannot take a voluntary dismissal without the consent of the defendant; however, plaintiff’s original claim may be barred by law if the court finds that separation agreements fully disposed of the parties’ rights arising out of the marriage, and thus bar an equitable distribution claim. Rabon v. Rabon, 102 N.C. App. 452, 402 S.E.2d 461, 1991 N.C. App. LEXIS 429 (1991).

Trial court did not have authority to reaffirm divorce decree and reserve for future resolution the issue of equitable distribution; since the trial court did not set aside the divorce but rather attempted to nullify the consequences of defendant’s failure to assert her claim for equitable distribution prior to the entry of judgment of divorce, the order failed; even if the court effectively set aside, briefly, the divorce decree itself and then immediately reinstated the divorce decree with a reservation of an equitable distribution claim, the reservation of the equitable distribution claim would be a legal nullity because plaintiff voluntarily dismissed his equitable distribution claim and defendant did not, during the time the divorce was arguably set aside, file an answer, counterclaim or separate action requesting equitable distribution. Carter v. Carter, 102 N.C. App. 440, 402 S.E.2d 469, 1991 N.C. App. LEXIS 440 (1991).

Where at the time the plaintiff filed his voluntary dismissal of his claim for equitable distribution, the defendant had filed no pleadings, plaintiff was free to enter his voluntary dismissal of his equitable distribution claim without any notice to the defendant or the defendant’s consent. Carter v. Carter, 102 N.C. App. 440, 402 S.E.2d 469, 1991 N.C. App. LEXIS 440 (1991).

Attorneys’ Fees. —

Where the plaintiffs filed a voluntary dismissal with prejudice pursuant to this rule, the trial court was not deprived of jurisdiction to determine the appropriateness of attorney fees under G.S. 1A-1 , Rule 11 or G.S. 6-21.5 . Bryson v. Sullivan, 102 N.C. App. 1, 401 S.E.2d 645, 1991 N.C. App. LEXIS 205 (1991), aff'd in part and rev'd in part, 330 N.C. 644 , 412 S.E.2d 327, 1992 N.C. LEXIS 58 (1992).

Collateral Issues. —

Attorneys’ fee requests under G.S. 1A-1 , Rule 11 raise collateral issues which often require consideration by the trial court after the action has been terminated, and a voluntary dismissal under this rule does not deprive the trial court of jurisdiction to determine these collateral issues. Higgins v. Patton, 102 N.C. App. 301, 401 S.E.2d 854, 1991 N.C. App. LEXIS 298 (1991).

Attorneys’ fee requests under G.S. 1A-1 , Rule 11 and G.S. 6-21.5 raise collateral issues which often require consideration by the trial court after the action has been terminated, and a voluntary dismissal under this rule does not deprive the trial court of jurisdiction to determine these collateral issues. To hold otherwise would allow a litigant or attorney to “purge his violation of G.S. 1A-1 , Rule 11 or G.S. 6-211.5 merely by taking a dismissal, and thereby lose all incentive to stop, think and investigate more carefully before serving and filing papers.” Bryson v. Sullivan, 102 N.C. App. 1, 401 S.E.2d 645, 1991 N.C. App. LEXIS 205 (1991), aff'd in part and rev'd in part, 330 N.C. 644 , 412 S.E.2d 327, 1992 N.C. LEXIS 58 (1992).

A voluntary dismissal pursuant to subsection (a) does not deprive the court of jurisdiction to consider collateral issues such as sanctions that require consideration after the action has been terminated. Renner v. Hawk, 125 N.C. App. 483, 481 S.E.2d 370, 1997 N.C. App. LEXIS 127 (1997).

Rescission Offer. —

Judgment that simply made the bare conclusion that an investment firm tendered a “valid” rescission offer and that, therefore, the investor was barred from bringing suit under the provisions of subdivision (g)(1) of G.S. 78A-56 did not rise to the level of separate findings of fact and conclusions of law; the judgment, therefore, did not comport with the requirements of this rule and G.S. 1A-1 , Rule 52(a). Mashburn v. First Investors Corp., 102 N.C. App. 560, 402 S.E.2d 860, 1991 N.C. App. LEXIS 449 (1991).

Court Costs. —

Where plaintiff takes a voluntary dismissal pursuant to this rule, no suit is pending thereafter on which the court could make a final order. However, the trial court retains authority to apportion and tax court costs. Bryson v. Sullivan, 102 N.C. App. 1, 401 S.E.2d 645, 1991 N.C. App. LEXIS 205 (1991), aff'd in part and rev'd in part, 330 N.C. 644 , 412 S.E.2d 327, 1992 N.C. LEXIS 58 (1992).

Sanctions Following Dismissal. —

Absent a rule to the contrary, sanctions motions may appropriately be filed after a voluntary dismissal. Renner v. Hawk, 125 N.C. App. 483, 481 S.E.2d 370, 1997 N.C. App. LEXIS 127 (1997).

Review of Sanctions Following Dismissal. —

Fact that plaintiffs voluntarily dismissed their claims against city did not preclude the appellate court from reviewing the grant of defendants’ motion for sanctions against plaintiffs’ counsel under G.S. 1A-1 , Rule 11. Johnson v. Harris, 149 N.C. App. 928, 563 S.E.2d 224, 2002 N.C. App. LEXIS 383 (2002).

Savings Provision. —

The one-year savings provision of subdivision (a)(1) of this rule applies when plaintiffs and defendants stipulate to a voluntary dismissal without prejudice of an action in a federal district court sitting in North Carolina and plaintiffs file the same action within the one-year period in a North Carolina state court. Bockweg v. Anderson, 328 N.C. 436 , 402 S.E.2d 627, 1991 N.C. LEXIS 247 (1991).

Savings Provision Preserves Derivative Claims. —

Plaintiff’s additional claim for punitive damages could be made for the first time pursuant to the savings provision of this rule more than a year after the statute of limitations expired because it was derivative of the original claims, violation of civil rights and loss of consortium. Staley v. Lingerfelt, 134 N.C. App. 294, 517 S.E.2d 392, 1999 N.C. App. LEXIS 763 (1999).

Plaintiff’s additional claim for piercing the corporate veil could be made for the first time pursuant to the savings provision of G.S. 1A-1 , N.C. R. Civ. P. 41 more than a year after the statute of limitations expired because it was derivative of the original negligence claim; therefore, its filing date related back to the original filing date, and made the current claim timely. Strawbridge v. Sugar Mt. Resort, Inc., 243 F. Supp. 2d 472, 2003 U.S. Dist. LEXIS 1513 (W.D.N.C. 2003).

Savings Provision Cannot Preserve Non-Derivative Claims. —

Plaintiff’s additional claims of assault and battery, false arrest and imprisonment, malicious prosecution, intentional infliction of emotional distress, negligent infliction of emotional distress, trespass by a public officer and violations of the North Carolina constitution could not be made for the first time pursuant to the savings provision of this rule more than a year after the statute of limitations expired because they were not derivative of the original claims, namely, violation of civil rights and loss of consortium. Staley v. Lingerfelt, 134 N.C. App. 294, 517 S.E.2d 392, 1999 N.C. App. LEXIS 763 (1999).

Husband and wife’s additional claim for violation of the Uniform Fraudulent Claims Act, G.S. 39-23.1 could not be made for the first time pursuant to the savings provision of G.S. 1A-1 , N.C. R. Civ. P. 41 more than a year after the statute of limitations expired because they were not derivative of the original claims for negligence. Strawbridge v. Sugar Mt. Resort, Inc., 243 F. Supp. 2d 472, 2003 U.S. Dist. LEXIS 1513 (W.D.N.C. 2003).

After Voluntary Dismissal with Prejudice, Specific Performance of Settlement Agreement Could Not Be Ordered. —

Once the deputy voluntarily dismissed his claims with prejudice, he no longer had the option of seeking to specifically enforce the settlement agreement in the original action; therefore, the trial court erred in ordering specific performance of the settlement agreement based upon the deputy’s motion for sanctions. Estate of Barber v. Guilford County Sheriff's Dep't, 161 N.C. App. 658, 589 S.E.2d 433, 2003 N.C. App. LEXIS 2256 (2003).

Where plaintiff took a voluntary dismissal and re-filed his personal injury claim within the time permitted by subsection (a), his spouse had the right to join with it her derivative cause of action for loss of consortium. Sloan v. Miller Bldg. Corp., 128 N.C. App. 37, 493 S.E.2d 460, 1997 N.C. App. LEXIS 1203 (1997).

Action against insurer was not barred by the injured party’s voluntary dismissal of claims against the insurer where the claims in the first action were based in tort but the claims in the subsequent action were based in contract and unfair insurance practices arising from the failure to satisfy another state’s judgment. Sawyers v. Farm Bureau Ins. Co. of N.C. Inc., 170 N.C. App. 17, 612 S.E.2d 184, 2005 N.C. App. LEXIS 893 , rev'd, 360 N.C. 158 , 622 S.E.2d 490, 2005 N.C. LEXIS 1307 (2005).

Effect on Subsequent Prejudgment Interest Award. —

Superior court’s prejudgment interest award was erroneous and violated G.S. 24-5(b) because the court awarded interest beginning with the date that the suit was originally filed: (1) under G.S. 24-5(b) , plaintiff was entitled to prejudgment interest only for the period of time that his suit was pending prior to a judgment being entered in his favor; (2) plaintiff had voluntarily dismissed his original complaint a year after he filed it, and he had not refiled his suit until a year after that; and (3) the case was not pending, for purposes of awarding prejudgment interest under G.S. 24-5(b) before plaintiff refiled it as permitted by N.C. R. Civ. P. 41. Brookshire v. N.C. DOT, DMV, 180 N.C. App. 670, 637 S.E.2d 902, 2006 N.C. App. LEXIS 2513 (2006).

Voluntary dismissal rule does not apply to a petition for a writ of certiorari; therefore, property owners were not allowed to refile their petition that was seeking review of a decision from a board of adjustment within a year because this was not timely. Not all of the North Carolina Rules of Civil Procedure applied to certiorari proceedings. Henderson v. Cnty. of Onslow, 245 N.C. App. 151, 782 S.E.2d 57, 2016 N.C. App. LEXIS 137 (2016).

Dismissal Allowed. —

Where plaintiff/husband had filed no reply and there was no other pending matter before the court, wife/defendant was free to file her voluntary dismissal of permanent alimony counterclaim without permission of the court or notice to plaintiff. Riviere v. Riviere, 134 N.C. App. 302, 517 S.E.2d 673, 1999 N.C. App. LEXIS 764 (1999).

County department of social services had the legal authority to voluntarily dismiss a juvenile petition after it had filed the petition. In re E.H., 227 N.C. App. 525, 742 S.E.2d 844, 2013 N.C. App. LEXIS 612 (2013).

Dismissal Not Allowed. —

Where plaintiff attempted to dismiss her counterclaim, in action which sought enforcement of the parties’ separation agreement after defendant had replied and sought affirmative relief arising out of the same transaction, plaintiff’s counterclaim could not be dismissed because plaintiff had not moved to strike parts of defendants reply in 10 years. Lafferty v. Lafferty, 125 N.C. App. 611, 481 S.E.2d 401, 1997 N.C. App. LEXIS 128 (1997).

Employer’s voluntary dismissal of claims against an employee after the employee’s dispositive motion was granted but before that ruling was memorialized in a written judgment filed with the clerk was in bad faith because it was inappropriate to allow the proceeding to devolve into a footrace once the parties knew the trial court’s ruling, to see if a voluntary dismissal could be filed before the ruling was memorialized and filed. Mkt. Am., Inc. v. Lee, 257 N.C. App. 98, 809 S.E.2d 32, 2017 N.C. App. LEXIS 1078 (2017).

III.Involuntary Dismissal
A.In General

Section (b) of this section is identical to the federal rule. Joyner v. Thomas, 40 N.C. App. 63, 251 S.E.2d 906, 1979 N.C. App. LEXIS 2573 (1979); Daniels v. Montgomery Mut. Ins. Co., 81 N.C. App. 600, 344 S.E.2d 847, 1986 N.C. App. LEXIS 2335 (1986), aff'd in part and rev'd in part, 320 N.C. 669 , 360 S.E.2d 772, 1987 N.C. LEXIS 2405 (1987).

The Savings Provision. —

The section (b) language by which the judge may, in his discretion, grant plaintiff an additional one year or less to refile is often referred to as the “savings provision” of Rule 41(b). 84 Lumber Co. v. Barkley, 120 N.C. App. 271, 461 S.E.2d 780, 1995 N.C. App. LEXIS 743 (1995).

Generally, if a plaintiff wishes to take advantage of the savings provision under section (b) it is plaintiff’s responsibility to convince the court to include in the order or opinion a statement specifying that plaintiff had additional time to refile. 84 Lumber Co. v. Barkley, 120 N.C. App. 271, 461 S.E.2d 780, 1995 N.C. App. LEXIS 743 (1995).

G.S. 1A-1 , Rule 4(e) and section (b) 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, 1972 N.C. App. LEXIS 2244 , aff'd, 281 N.C. 577 , 189 S.E.2d 165, 1972 N.C. LEXIS 1112 (1972).

Discontinuance under G.S. 1A-1 , Rule 4(e) is not analagous to a dismissal under section (b) of this rule. Central Sys. v. General Heating & Air Conditioning Co., 48 N.C. App. 198, 268 S.E.2d 822, 1980 N.C. App. LEXIS 3214 (1980).

The fact that an action was discontinued under G.S. 1A-1 , Rule 4(e) for failure to serve defendant with summons within the time allowed after plaintiff had taken a voluntary dismissal under this rule 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, 1980 N.C. App. LEXIS 3214 (1980).

G.S. 1A-1 , Rule 50 has no application to trials before the judge without a jury. In actions tried before the judge without a jury a motion to dismiss is made pursuant to section (b) of this rule. Crump v. Coffey, 59 N.C. App. 553, 297 S.E.2d 131, 1982 N.C. App. LEXIS 3142 (1982).

In the landlord and tenant dispute where there was no jury trial, the trial court erroneously granted a directed verdict under G.S. 1A-1-50 in favor of the landlord; in such cases, involuntary dismissal under G.S. 1A-1-41(b) was the appropriate method for disposing of the case. Dean v. Hill, 171 N.C. App. 479, 615 S.E.2d 699, 2005 N.C. App. LEXIS 1275 (2005).

G.S. 1A-1 , Rule 50 has no application to trials before the judge without a jury. Motion for a directed verdict was not appropriate in an action tried by the trial court without a jury. Rather, the appropriate motion by which a defendant tested the sufficiency of a plaintiff’s evidence to show a right to relief in an action tried by the trial court without a jury was a motion for an involuntary dismissal. Carolina Mulching Co. v. Raleigh-Wilmington Investors II, LLC, 2021-NCSC-79, 378 N.C. 100 , 861 S.E.2d 496, 2021- NCSC-79, 2021 N.C. LEXIS 712 (2021).

Section (b) of this rule means that the court may not dismiss an action ex mero motu for failure to prosecute. Simmons v. Tuttle, 70 N.C. App. 101, 318 S.E.2d 847, 1984 N.C. App. LEXIS 3606 (1984), limited, Blackwelder Furniture Co. v. Harris, 75 N.C. App. 625, 331 S.E.2d 274, 1985 N.C. App. LEXIS 3679 (1985).

Involuntary Dismissal May Be Used to Sanction Disobedient Parties. —

The power to sanction disobedient parties, even to the point of dismissing their actions or striking their defenses, did not originate with this rule. It is longstanding and inherent. For courts to function properly, it could not be otherwise. Minor v. Minor, 62 N.C. App. 750, 303 S.E.2d 397, 1983 N.C. App. LEXIS 2996 (1983).

Under subsection (b) of this rule, a trial court may enter sanctions for failure to prosecute only where the plaintiff or his attorney “manifests and intention to thwart the progress of the action to its conclusion” or “fails to progress the action towards its conclusion” by engaging in some delaying tactic. Whether a plaintiff or his attorney has manifested an intent to thwart the progress of an action or has engaged in some delaying tactic may be inferred from the facts surrounding the delay in the prosecution of the case. The sanctions may be entered against either the represented party or the attorney, even when the attorney is solely responsible for the delay or violation. Foy v. Hunter, 106 N.C. App. 614, 418 S.E.2d 299, 1992 N.C. App. LEXIS 554 (1992).

As to use of power of dismissal as sanction for violation of provision of G.S. 1A-1 , Rule 8(a)(2) as to pleading of malpractice damages, see Schell v. Coleman, 65 N.C. App. 91, 308 S.E.2d 662, 1983 N.C. App. LEXIS 3400 (1983).

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. McLean v. Mechanic, 116 N.C. App. 271, 447 S.E.2d 459, 1994 N.C. App. LEXIS 917 (1994).

Function of Judge. —

Since the court will determine the facts anyway, the function of the judge on a motion to dismiss under subsection (b) of this rule is to evaluate the evidence without any limitations as to inferences in favor of the plaintiff. Holthusen v. Holthusen, 79 N.C. App. 618, 339 S.E.2d 823 (1986). In accord with first paragraph in the main volume. See C.F.R. Foods, Inc. v. Randolph Dev. Co., 107 N.C. App. 584, 421 S.E.2d 386, 1992 N.C. App. LEXIS 777 (1992).

When a motion to dismiss pursuant to section (b) of this rule is made, the judge becomes both judge and jury, and he must consider and weigh all competent evidence before him. Progressive Sales, Inc. v. Williams, Willeford, Boger, Grady & Davis, 86 N.C. App. 51, 356 S.E.2d 372 (1987). In accord with second paragraph in the main volume. See C.F.R. Foods, Inc. v. Randolph Dev. Co., 107 N.C. App. 584, 421 S.E.2d 386, 1992 N.C. App. LEXIS 777 (1992).

Discretion of Court. —

Dismissal under section (b) of this rule is left to the sound discretion of the trial court. Smith v. Quinn, 91 N.C. App. 112, 370 S.E.2d 438, 1988 N.C. App. LEXIS 707 (1988), rev'd, 324 N.C. 316 , 378 S.E.2d 28, 1989 N.C. LEXIS 162 (1989).

Section (b) of this rule provides the basis for concluding that dismissal under G.S. 1A-1 , Rule 12(b)(6) is an adjudication on the merits; therefore, dismissal under G.S. 1A-1 , Rule 12(b)(6) bars subsequent relitigation of the same claim. Cline v. Teich, 92 N.C. App. 257, 374 S.E.2d 462, 1988 N.C. App. LEXIS 1039 (1988).

There is no exception under section (b) of this rule for filing beyond the limitations period for a plaintiff whose prior action was dismissed by an order and judgment which did not specify that a subsequent action could be commenced within one year. Burgess v. Equilink Corp., 652 F. Supp. 1422, 1987 U.S. Dist. LEXIS 880 (W.D.N.C.), aff'd, 828 F.2d 17, 1987 U.S. App. LEXIS 10962 (4th Cir. 1987).

Where the first dismissal order did not specify additional time within which a second action could be commenced, the dismissal under section (b) of this rule did not extend any applicable statute of limitation. Jarman v. Washington, 93 N.C. App. 76, 376 S.E.2d 252, 1989 N.C. App. LEXIS 78 (1989).

The savings provision of subsection (b) did not apply to allow plaintiff an additional year to file in state court when the federal court order dismissing his action did not specify additional time within which to file. Clark v. Velsicol Chem. Corp., 110 N.C. App. 803, 431 S.E.2d 227, 1993 N.C. App. LEXIS 672 (1993), aff'd, 336 N.C. 599 , 444 S.E.2d 223, 1994 N.C. LEXIS 305 (1994).

Involuntary Dismissal Final Ajudication on the Merits. —

Condominium owner was estopped from relitigating whether the cost of exterior doors and windows had to be separately apportioned from the cost of common area improvements in a special assessment because the dismissal of a foreclosure proceeding operated as a final adjudication on the merits; whether the owner’s board of directors was required to separately apportion the cost was identical to the issue actually litigated and necessary to the judgment at issue in the foreclosure cases. Johnson v. Starboard Ass'n, 244 N.C. App. 619, 781 S.E.2d 813, 2016 N.C. App. LEXIS 52 (2016).

Dismissals Are Generally with Prejudice Absent Order of Trial Court. —

With certain exceptions, section (b) of this rule provides that all dismissals, including those under G.S. 1A-1 , Rule 12(b)(6), operate as an adjudication upon the merits unless the trial court specifies that the dismissal is without prejudice. Johnson v. Bollinger, 86 N.C. App. 1, 356 S.E.2d 378, 1987 N.C. App. LEXIS 2664 (1987).

Burden of Moving for Dismissal Without Prejudice. —

Since a dismissal order operates as an adjudication on the merits unless the order specifically states the contrary, the party whose claim is being dismissed has the burden to convince the court that he deserves a second chance; thus, that party should move the trial court that the dismissal be without prejudice. Johnson v. Bollinger, 86 N.C. App. 1, 356 S.E.2d 378, 1987 N.C. App. LEXIS 2664 (1987).

When Involuntary Dismissal Under Section (b) Is Without Prejudice. —

Ordinarily, an involuntary dismissal under section (b) of this rule operates as an adjudication upon the merits and ends the lawsuit. However, the rule sets forth specific exceptions to this proposition, and as to these grounds, an order of involuntary dismissal is not rendered on the merits and may not constitute a dismissal with prejudice. Whedon v. Whedon, 313 N.C. 200 , 328 S.E.2d 437, 1985 N.C. LEXIS 1525 (1985).

Power of Trial Judge to Order Dismissal Without Prejudice. —

The major exception to the general proposition that an involuntary dismissal under section (b) of this rule operates as a final adjudication is found in the power lodged by section (b) in the trial judge to specifically order that the dismissal is without prejudice and, therefore, not an adjudication on the merits. Whedon v. Whedon, 313 N.C. 200 , 328 S.E.2d 437, 1985 N.C. LEXIS 1525 (1985).

The authority to determine in which cases it is appropriate to allow the nonmovant to commence a new action has been vested by section (b) of this rule in the trial judge and is no longer strictly controlled by statute as it was under former rules of practice. Whedon v. Whedon, 313 N.C. 200 , 328 S.E.2d 437, 1985 N.C. LEXIS 1525 (1985).

Although this rule does not expressly provide an option for the court to examine the quality of the nonmoving party’s evidence and then decline to make a ruling on the merits although granting the moving party’s motion for involuntary dismissal, this authority is encompassed within the rule’s otherwise unqualified grant of authority to the trial court to dismiss an action on terms by specifying that its order of dismissal is “without prejudice.” Whedon v. Whedon, 313 N.C. 200 , 328 S.E.2d 437, 1985 N.C. LEXIS 1525 (1985).

Review of Order Authorizing Dismissal Without Prejudice. —

The trial court’s authority to order an involuntary dismissal without prejudice is exercised in the broad discretion of the trial court and the ruling will not be disturbed on appeal in the absence of a showing of abuse of discretion. Whedon v. Whedon, 313 N.C. 200 , 328 S.E.2d 437, 1985 N.C. LEXIS 1525 (1985).

Dismissal with prejudice under section (b) of this rule cannot be premised on party’s failure to comply with erroneous order. In re Will of Parker, 76 N.C. App. 594, 334 S.E.2d 97, 1985 N.C. App. LEXIS 3933 (1985), disapproved, Daniels v. Montgomery Mut. Ins. Co., 320 N.C. 669 , 360 S.E.2d 772, 1987 N.C. LEXIS 2405 (1987).

Motion to Dismiss Provides Procedure to Render Judgment Against Plaintiff. —

A motion for dismissal pursuant to this rule, made at the close of plaintiff’s evidence in a non-jury trial, not only tests the sufficiency of plaintiff’s proof to show a right to relief, but also provides a procedure whereby the judge may weigh the evidence, determine the facts, and render judgment on the merits against the plaintiff, even though the plaintiff may have made out a prima facie case. McKnight v. Cagle, 76 N.C. App. 59, 331 S.E.2d 707, 1985 N.C. App. LEXIS 3822 , cert. denied, 314 N.C. 541 , 335 S.E.2d 20, 1985 N.C. LEXIS 2045 (1985).

Dismissal as to One of Several Necessary Defendants Held Error. —

Where questions of law and fact were raised by the complaint which were common to all of the named defendants, and a justiciable controversy was asserted between the parties, and the complaint alleged that one of the defendants was a permissive and necessary party in the action, the trial judge committed error in allowing the motion of that defendant to dismiss the action as to her under section (b) of this rule. First-Citizens Bank & Trust Co. v. Carr, 10 N.C. App. 610, 179 S.E.2d 838, 1971 N.C. App. LEXIS 1683 , aff'd in part and rev'd in part, 279 N.C. 539 , 184 S.E.2d 268, 1971 N.C. LEXIS 886 (1971).

The words “with prejudice” are plain and should be given their plain meaning. Barnes v. McGee, 21 N.C. App. 287, 204 S.E.2d 203, 1974 N.C. App. LEXIS 1781 (1974).

A dismissal “with prejudice” is the converse of a dismissal “without prejudice” and indicates a disposition on the merits. Barnes v. McGee, 21 N.C. App. 287, 204 S.E.2d 203, 1974 N.C. App. LEXIS 1781 (1974).

Dismissal with Prejudice Is Subject to Usual Rules of Res Judicata. —

Dismissal with prejudice, unless the court has made some other provision, is subject to the usual rules of res judicata and is effective not only on the immediate parties but also on their privies. Barnes v. McGee, 21 N.C. App. 287, 204 S.E.2d 203, 1974 N.C. App. LEXIS 1781 (1974).

Dismissal with prejudice pursuant to a motion under section (b) of this rule is a judgment on the merits, subject to the usual rules of res judicata. Progressive Sales, Inc. v. Williams, Willeford, Boger, Grady & Davis, 86 N.C. App. 51, 356 S.E.2d 372, 1987 N.C. App. LEXIS 2669 (1987).

A dismissal with prejudice precludes subsequent litigation to the same extent as if the action had been prosecuted to a final adjudication adverse to the plaintiff. Barnes v. McGee, 21 N.C. App. 287, 204 S.E.2d 203, 1974 N.C. App. LEXIS 1781 (1974).

Dismissal of plaintiff ’s claim against defendant employee “with prejudice” barred further prosecution of that claim against the employee and, insofar as he was concerned, was equivalent to a judgment on the merits in his favor; the dismissal would have the same result for the employer whose liability, if any, was derived solely from that of the employee. Barnes v. McGee, 21 N.C. App. 287, 204 S.E.2d 203, 1974 N.C. App. LEXIS 1781 (1974).

Where order of the federal district court dismissed plaintiff’s action primarily for the failure of his federal question claims, and did not elaborate on his State law claims, and plaintiff, although he had ample opportunity to seek an amendment of the order to specify that the dismissal of the State law claims was without prejudice and that a new action based on those claims could be brought within one year pursuant to section (b) of this rule, did not properly seek amendment of the order to comply with the criterion of section (b) of this rule, his failure to do so took his claims out of the saving clause thereof, so that his State claims were time-barred by the applicable statutes of limitations. Burgess v. Equilink Corp., 652 F. Supp. 1422, 1987 U.S. Dist. LEXIS 880 (W.D.N.C.), aff'd, 828 F.2d 17, 1987 U.S. App. LEXIS 10962 (4th Cir. 1987).

Judge May Consider Motion at Conclusion of Plaintiff’s Evidence. —

The trial judge may weigh the evidence, find the facts and sustain defendant’s motion under section (b) of this rule at the conclusion of plaintiff’s evidence even though plaintiff has made out a prima facie case which would have precluded a directed verdict for defendant in a jury trial. Childers v. Hayes, 77 N.C. App. 792, 336 S.E.2d 146, 1985 N.C. App. LEXIS 4382 (1985).

Motion at Close of All Evidence. —

Where the court sits as finder of fact, if it allows a motion under section (b) of this rule it must find facts just as it would in entering judgment without allowing the motion. There is therefore little point in making such a motion at the close of all the evidence. Concrete Serv. Corp. v. Investors Group, Inc., 79 N.C. App. 678, 340 S.E.2d 755, 1986 N.C. App. LEXIS 2123 , cert. denied, 317 N.C. 333 , 346 S.E.2d 137, 1986 N.C. LEXIS 2331 (1986).

Motion to Dismiss Improper. —

In a jury trial the defendant’s motion to dismiss was improper, as was the court’s granting of the motion. Beam v. Kerlee, 120 N.C. App. 203, 461 S.E.2d 911, 1995 N.C. App. LEXIS 742 (1995), cert. denied, 342 N.C. 651 , 467 S.E.2d 703, 1996 N.C. LEXIS 95 (1996).

Dismissal at Close of Evidence. —

Section (b) of this rule does not specifically provide for involuntary dismissal at the close of all the evidence. However, where such a motion is made and ruled upon and the court has made findings as required by G.S. 1A-1 , Rule 52, the judgment entered will be treated as a judgment on the merits. African Methodist Episcopal Zion Church v. Union Chapel A.M.E. Zion Church, 64 N.C. App. 391, 308 S.E.2d 73, 1983 N.C. App. LEXIS 3299 (1983).

Findings of Fact and Conclusions of Law. —

As a fact-finder, the trial judge, in ruling on a motion for involuntary dismissal, must find the facts on all issues raised by the pleadings, and state his conclusions of law based thereon, in order that appellate court may determine from the record the basis of his decision. The findings of fact are conclusive on appeal if supported by competent evidence. McKnight v. Cagle, 76 N.C. App. 59, 331 S.E.2d 707, 1985 N.C. App. LEXIS 3822 , cert. denied, 314 N.C. 541 , 335 S.E.2d 20, 1985 N.C. LEXIS 2045 (1985).

When a motion under section (b) of this rule is made in a nonjury trial, the judge becomes both the judge and the jury and he must consider and weigh all competent evidence before him. Childers v. Hayes, 77 N.C. App. 792, 336 S.E.2d 146, 1985 N.C. App. LEXIS 4382 (1985).

Where the record did not reveal any request by former wife that the trial court make findings of fact and conclusions of law, the former wife’s assignment of error asserting that the trial court failed to make those findings and conclusions in dismissing her action was overruled. Elliott v. Estate of Elliott, 163 N.C. App. 577, 596 S.E.2d 819, 2004 N.C. App. LEXIS 512 , cert. denied, 358 N.C. 731 , 601 S.E.2d 530, 2004 N.C. LEXIS 1011 (2004).

Findings Required. —

The appellate court would treat a motion for a directed verdict made pursuant to Rule 50(a) as a Rule 41(b) motion, because the motion was made in a bench trial, and would reverse the trial court’s order dismissing the plaintiff’s claim for unfair and deceptive trade practices because the court failed to make the required findings. Hill v. Lassiter, 135 N.C. App. 515, 520 S.E.2d 797, 1999 N.C. App. LEXIS 1148 (1999).

Trial court’s involuntary dismissal of an animal rights organization’s lawsuit against a private agency was reversed and remanded for the trial court to make proper findings under G.S. 19A-1(2) of the North Carolina Protection of Animals Statutes, to determine whether the agency’s testing of cats and euthanization practices constituted unjustifiable pain, suffering, or death. Justice for Animals, Inc. v. Lenoir County SPCA, Inc., 168 N.C. App. 298, 607 S.E.2d 317, 2005 N.C. App. LEXIS 254 , aff'd in part, modified, 360 N.C. 48 , 619 S.E.2d 494, 2005 N.C. LEXIS 997 (2005).

Although the trial court’s findings indicated that it might have determined that plaintiff failed to timely and effectively prosecute the rescission claim under this rule, neither the transcript nor the order contained findings addressing whether plaintiff acted in a manner which deliberately or unreasonably delayed the matter; the amount of prejudice, if any, to defendant; and the reason, if one existed, that sanctions short of dismissal would not suffice, as required by this rule; thus, the trial court had to have dismissed the rescission claim under N.C. R. Civ. P. 12(b)(6), not this rule. Holton v. Holton, 258 N.C. App. 408, 813 S.E.2d 649, 2018 N.C. App. LEXIS 297 (2018).

Authority to Dismiss in Absence of Motion. —

The trial judge has the authority to dismiss a claim pursuant to section (b) of this rule in the absence of a motion by the defendant to do so. Blackwelder Furn. Co. v. Harris, 75 N.C. App. 625, 331 S.E.2d 274, 1985 N.C. App. LEXIS 3679 (1985).

Whether a judge may dismiss a claim pursuant to section (b) of this rule depends on the facts and circumstances surrounding the particular case. Blackwelder Furn. Co. v. Harris, 75 N.C. App. 625, 331 S.E.2d 274, 1985 N.C. App. LEXIS 3679 (1985).

Dismissal with Prejudice Upheld. —

The trial court did not abuse its discretion in dismissing plaintiff ’s action with prejudice where the court gave plaintiff an opportunity to amend his complaint or to offer evidence, and plaintiff declined. Mumford v. Hutton & Bourbonnais Co., 47 N.C. App. 440, 267 S.E.2d 511, 1980 N.C. App. LEXIS 3130 (1980).

Trial judge did not abuse his discretion in dismissing the borrowers’ declaratory judgment action against a lender with prejudice, rather than without prejudice under G.S. 1A-1-41(b), because the trial judge’s dismissal of the action with prejudice was not manifestly unsupported by reason. Trent v. River Place, LLC, 179 N.C. App. 72, 632 S.E.2d 529, 2006 N.C. App. LEXIS 1683 (2006).

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 N.C. App. LEXIS 2203 (2007).

Dismissal for Failure to Join Party Is Not on Merits. —

Dismissal for failure to join a necessary party or a proper party which the court, in its discretion, decides should be joined is not a dismissal on the merits and may not be with prejudice. Crosrol Carding Devs., Inc. v. Gunter & Cooke, Inc., 12 N.C. App. 448, 183 S.E.2d 834, 1971 N.C. App. LEXIS 1382 (1971).

Dismissal for Failure to File Within Statute of Limitations. —

While plaintiffs’ first wrongful death complaint was filed within two years of the decedent’s death, their first complaint did not allege any claims against a nurse, as she was not named as a defendant in that action. Therefore, plaintiffs’ wrongful death claim against the nurse filed outside the statute of limitations was properly dismissed. Robinson v. Halifax Reg'l Med. Ctr., 271 N.C. App. 61, 843 S.E.2d 265, 2020 N.C. App. LEXIS 302 (2020).

Petition for Certiorari. —

Commencing an action in federal court did not toll negligence statute of limitation and did not keep it tolled until the United States Supreme Court ruled on a petition for certiorari to review an involuntary dismissal of that federal action. Clark v. Velsicol Chem. Corp., 110 N.C. App. 803, 431 S.E.2d 227, 1993 N.C. App. LEXIS 672 (1993), aff'd, 336 N.C. 599 , 444 S.E.2d 223, 1994 N.C. LEXIS 305 (1994).

Sanction for Continued Violations of Rule 8. —

Plaintiffs were put on notice that defendants were seeking dismissal based on N.C. R. Civ. P. 8 violations through the only means available under the rule, and the trial court took into account the severity of plaintiffs’ disobedience and the effectiveness of alternative sanctions before deciding that dismissal was warranted, and the trial court did not abuse its discretion in dismissing the complaint. Plasman ex rel. Bolier & Co. v. Decca Furniture (USA), Inc., 257 N.C. App. 684, 811 S.E.2d 616, 2018 N.C. App. LEXIS 140 , cert. denied, 371 N.C. 446 , 817 S.E.2d 388, 2018 N.C. LEXIS 660 (2018).

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 N.C. App. LEXIS 140 , cert. denied, 371 N.C. 446 , 817 S.E.2d 388, 2018 N.C. LEXIS 660 (2018).

Error Where Less Drastic Sanctions Were Not Addressed. —

Where the trial court made no findings of fact or conclusions of law which addressed whether less drastic sanctions would be effective in ensuring compliance with the court’s order or would best serve the interests of justice, the trial court erred in dismissing plaintiff’s complaint. Rivenbark v. Southmark Corp., 93 N.C. App. 414, 378 S.E.2d 196, 1989 N.C. App. LEXIS 210 (1989).

Statute of Limitations Applicable. —

Order which stated dismissal was without prejudice and contained no specification whatsoever with regard to the time in which plaintiff could commence a new action based on the same claim was subject to the statutory statute of limitations. 84 Lumber Co. v. Barkley, 120 N.C. App. 271, 461 S.E.2d 780, 1995 N.C. App. LEXIS 743 (1995).

Only in an action tried without a jury may the defendant move for an involuntary dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. Beam v. Kerlee, 120 N.C. App. 203, 461 S.E.2d 911, 1995 N.C. App. LEXIS 742 (1995), cert. denied, 342 N.C. 651 , 467 S.E.2d 703, 1996 N.C. LEXIS 95 (1996).

Dismissal of State Claims by Federal Court Without Prejudice as Involuntary Dismissal. —

Plaintiffs were not entitled to the additional year to refile provided in section (a) of this rule where federal court’s order did not so specify and the court’s dismissal of the state claims without prejudice constituted an involuntary dismissal under section (b); whether plaintiffs who bring their case in federal court gain the additional year provided by section (a) of this rule is governed by how the federal court gained jurisdiction over the state issues, i.e. in a nondiversity case, a voluntary dismissal does not toll the statute of limitations or invoke a savings provision. Harter v. Vernon, 139 N.C. App. 85, 532 S.E.2d 836, 2000 N.C. App. LEXIS 815 (2000), cert. denied, 532 U.S. 1022, 121 S. Ct. 1962, 149 L. Ed. 2d 757, 2001 U.S. LEXIS 3631 (2001).

Dismissal of Annulment Complaint. —

Dismissal of husband’s annulment complaint was affirmed because appellate court was bound by trial court’s uncontested finding that the person who conducted the wife’s prior marriage ceremony was unauthorized to do so under former G.S. 51-1 ; from this, it followed that the husband failed to show that his marriage was bigamous. When the existence of a second marriage was established, it was presumed valid until the “attacking party” showed that it was invalid, and Ascertaining if the wife’s purported prior marriage was void or voidable was irrelevant to determining if the husband had met his burden of proof. Mussa v. Palmer-Mussa, 366 N.C. 185 , 731 S.E.2d 404, 2012 N.C. LEXIS 638 (2012).

Dismissal of Counterclaim Proper. —

Because the trial court’s October 11, 2010, order dismissing the member’s complaint without prejudice for failure to join necessary parties did not specify a period of time for the member to refile his complaint, he had a statutory period of one year from the date of that order to refile his complaint; however, when defendant failed to refile his complaint or appeal the trial court’s order, his counterclaim filed January 25, 2012, was properly dismissed. Fed. Point Yacht Club Ass'n v. Moore, 233 N.C. App. 298, 758 S.E.2d 1, 2014 N.C. App. LEXIS 307 (2014).

Dismissal Properly Granted. —

Involuntary dismissal of plaintiff’s claim for costs needed to finish a construction project was proper where the plaintiffs’ failed to demonstrate which costs were attributable to the defendant and where the evidence indicated that the plaintiffs’ breached the contract before the defendant-contractor stopped working on the project. Greensboro Masonic Temple Co. v. McMillan, 142 N.C. App. 379, 542 S.E.2d 676, 2001 N.C. App. LEXIS 95 (2001).

Trial court properly dismissed a county’s appeal from a small claims court judgment in favor an of employee where the county failed to appear for the scheduled trial de novo before the trial court; the fact that the county had obtained an arbitrator’s award was irrelevant. Brown v. County of Avery, 164 N.C. App. 704, 596 S.E.2d 334, 2004 N.C. App. LEXIS 975 (2004).

Dismissal of plaintiffs’ medical malpractice claim was permitted under G.S. 1A-1 , N.C. R. Civ. P. 41(b) primarily due to counsel’s direct violation of a court order that counsel appear with and identify co-counsel as required by a disciplinary order to have supervision on all matters related to counsel’s practice of law. Ray v. Greer, 212 N.C. App. 358, 713 S.E.2d 93, 2011 N.C. App. LEXIS 1052 , cert. denied, 365 N.C. 362 , 718 S.E.2d 634, 2011 N.C. LEXIS 944 (2011).

Dismissal Properly Denied. —

Evidence was sufficient in a claim for conversion brought by the children of the decedent’s first marriage to support the trial court’s conclusion that the decedent’s second wife converted the decedent’s and the wife’s jointly titled assets in the administration of the decedent’s estate; thus, the trial court did not err in denying the wife’s and the bond surety’s motions for dismissal. State ex rel. Pilard v. Berninger, 154 N.C. App. 45, 571 S.E.2d 836, 2002 N.C. App. LEXIS 1407 (2002).

Trial court’s findings supported the court’s conclusion that a seawall built by a contractor was constructed in an unworkmanlike manner, which allowed soil and sand to pass through the fabric in the seawall and allowed erosion of an owner’s land to occur. Therefore, the trial court did not err by denying the contractor’s motion to dismiss the owner’s breach of contract claim under N.C. R. Civ. P. 41(b). Matthews v. Davis, 191 N.C. App. 545, 664 S.E.2d 16, 2008 N.C. App. LEXIS 1475 (2008).

Dismissal Held Abuse of Discretion. —

The involuntary dismissal of employee’s workers’ compensation claim, entered by deputy commissioner upon employee’s failure to prosecute, which did not mention whether it was entered with or without prejudice, would be construed as having been entered with prejudice, and would be vacated based on the deputy commissioner’s abuse of discretion, as lesser sanctions were appropriate and available. Harvey v. Cedar Creek BP, 149 N.C. App. 873, 562 S.E.2d 80, 2002 N.C. App. LEXIS 299 (2002).

Administrative Law Judge’s (ALJ) decision to uphold permits for the use of coal combustion residual as structural fill at open pit mines was reversed because (1) the ALJ erred in sua sponte converting a motion for summary judgment into a motion for involuntary dismissal and granting the same, as the ALJ had no such authority, and (2) issues raised by environmental groups required distinctly different reviews of the evidence under the whole record standard and of issues of law under the de novo standard, but it was unclear what standards the trial court applied, as the court reweighed the evidence and rewrote the ALJ’s decision without explanation. EnvironmentaLEE v. N.C. Dep't of Env't & Natural Res., 258 N.C. App. 590, 813 S.E.2d 673, 2018 N.C. App. LEXIS 318 (2018).

B.Failure to Prosecute or to Comply with Rules or Orders

When Motion for Involuntary Dismissal May Be Properly Entertained Prior to Trial. —

A motion for involuntary dismissal pursuant to this rule and G.S. 1A-1 , Rule 60 prior to a trial of the cause is improperly entertained, unless made on the specific grounds that the plaintiff has failed to prosecute or comply with the Rules of Civil Procedure or any order of the court. Smith v. Smith, 17 N.C. App. 416, 194 S.E.2d 568, 1973 N.C. App. LEXIS 1372 (1973).

Dismissal for Failure to Prosecute Authorized. —

This rule, substantially the same as its federal counterpart, authorizes dismissal with prejudice of a plaintiff ’s claim for failure to prosecute. Green v. Eure, 18 N.C. App. 671, 197 S.E.2d 599, 1973 N.C. App. LEXIS 1976 (1973).

Section (b) of this rule, which is substantially the same as the court’s own rule, has been held not to abrogate the inherent power of the court to dismiss a case for want of prosecution, as where plaintiff refuses to proceed at trial. Swygert v. Swygert, 46 N.C. App. 173, 264 S.E.2d 902, 1980 N.C. App. LEXIS 2831 (1980).

When Dismissal for Failure to Prosecute Is Proper. —

Dismissal for failure to prosecute is proper only where the plaintiff manifests an intention to thwart the progress of the action to its conclusion, or by some delaying tactic plaintiff fails to progress the action toward its conclusion. Green v. Eure, 18 N.C. App. 671, 197 S.E.2d 599, 1973 N.C. App. LEXIS 1976 (1973); Jones v. Stone, 52 N.C. App. 502, 279 S.E.2d 13, 1981 N.C. App. LEXIS 2476 , cert. denied, 304 N.C. 195 , 285 S.E.2d 99, 1981 N.C. LEXIS 1439 (1981).

Where plaintiff ’s failure to proceed did not arise out of a deliberate attempt to delay, but out of misunderstanding, dismissal was improper. Green v. Eure, 18 N.C. App. 671, 197 S.E.2d 599, 1973 N.C. App. LEXIS 1976 (1973).

Dismissal of an employee’s occupational disease workers’ compensation claim with prejudice was warranted because the three-pronged test was satisfied upon showing that the employee had unreasonably delayed the resolution of the matter for over six years and a sanction other than dismissal would not suffice. Lentz v. Phil's Toy Store, 228 N.C. App. 416, 747 S.E.2d 127, 2013 N.C. App. LEXIS 839 (2013).

Trial court did not err in granting defendants’ motion to dismiss with prejudice for failure to prosecute, plaintiff engaged in unreasonable delay, which appeared deliberate, and the trial court was unable to find anything short of dismissal with prejudice that would serve the purpose of the rule. Greenshields, Inc. v. Travelers Prop. Cas. Co. of Am., 245 N.C. App. 25, 781 S.E.2d 840, 2016 N.C. App. LEXIS 104 (2016).

When Dismissal for Failure to Prosecute Not Proper. —

The trial court erred in dismissing plaintiff ’s action for failure to appear and prosecute his action, where plaintiff ’s attorney was present and appeared ready to go forward with his case. Terry v. Bob Dunn Ford, Inc., 77 N.C. App. 457, 335 S.E.2d 227, 1985 N.C. App. LEXIS 4102 (1985).

Decision not to dismiss for failure to prosecute was not an abuse of discretion where the supplier was engaged in settlement discussion and document gathering, and the delay, while substantial and unusual, was not deliberate or for an improper motive or purpose, and no material prejudice was caused to defendants. James River Equip., Inc v. Tharpe's Excavating, Inc., 179 N.C. App. 336, 634 S.E.2d 548, 2006 N.C. App. LEXIS 1897 (2006).

Trial court erred in dismissing a wife’s counterclaim for equitable distribution pursuant to N.C. R. Civ. P. 41(b) because although the trial court’s order included findings of fact and conclusions of law addressing the wife’s failure to prosecute her counterclaim, the order was completely devoid of any findings or conclusions indicating that the trial court considered lesser sanctions prior to dismissing the claim. McKoy v. McKoy, 214 N.C. App. 551, 714 S.E.2d 832, 2011 N.C. App. LEXIS 1760 (2011).

Father was not precluded from filing a motion for contempt where even though the first judge had dismissed a similar motion with prejudice pursuant to G.S. 1A-1 , N.C. R. Civ. P. 41(b), the second motion contained additional allegations concerning access to the child and the mother’s behavior, as well as a request for additional relief, including emergency custody. Hebenstreit v. Hebenstreit, 240 N.C. App. 27, 769 S.E.2d 649, 2015 N.C. App. LEXIS 173 (2015).

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 this rule, while imposing costs on the plaintiff where it found that the plaintiff had intentionally delayed prosecution in violation of Rule 11(a). Melton v. Stamm, 138 N.C. App. 314, 530 S.E.2d 622, 2000 N.C. App. LEXIS 602 (2000).

Trial Judge May Dismiss Claim Under Section (b) Without Motion by Defendant. —

The trial judge has authority to dismiss a claim pursuant to section (b) of this rule, even absent a motion by defendant to do so. However, whether a judge may dismiss a claim pursuant to section (b) depends on the facts and circumstances surrounding the particular case. Blackwelder Furn. Co. v. Harris, 75 N.C. App. 625, 331 S.E.2d 274, 1985 N.C. App. LEXIS 3679 (1985) (limiting) Simmons v. Tuttle, 70 N.C. App. 101, 318 S.E.2d 847, 1984 N.C. App. LEXIS 3606 (1984).

A trial judge may, depending upon the facts and circumstances surrounding the particular case, dismiss a claim under section (b) of this rule, for failure to prosecute, without a motion by defendant. Perkins v. Perkins, 88 N.C. App. 568, 364 S.E.2d 166, 1988 N.C. App. LEXIS 109 (1988).

A mere lapse of time does not justify dismissal if the plaintiff has not been lacking in diligence. Jones v. Stone, 52 N.C. App. 502, 279 S.E.2d 13, 1981 N.C. App. LEXIS 2476 , cert. denied, 304 N.C. 195 , 285 S.E.2d 99, 1981 N.C. LEXIS 1439 (1981).

Defendant may move for dismissal of an action for plaintiff ’s failure to comply with the Rules of Civil Procedure. The grant of power to make such a motion implies discretionary power to allow it. It equally implies appellate review limited to determination of whether abuse appears in the exercise of that discretion. Jones v. Boyce, 60 N.C. App. 585, 299 S.E.2d 298, 1983 N.C. App. LEXIS 2482 (1983).

Failure to Comply with Erroneous Order Not Grounds for Dismissal. —

A dismissal under section (b) of this rule may not be premised upon a party’s failure to comply with an erroneous order. Thornburg v. Lancaster, 303 N.C. 89 , 277 S.E.2d 423 (1981); overruled to extent that it may be read as establishing a rule that dismissal with prejudice may not be premised on a party’s refusal to comply with an erroneous order from which there has been no direct appeal by Daniels v. Montgomery Mut. Ins. Co., 320 N.C. 669 , 360 S.E.2d 772, 1987 N.C. LEXIS 2405 (1987).

Imposition of Lesser Sanctions for Noncompliance. —

The trial court has the authority, pursuant to section (b) of this rule, to impose lesser sanctions against a party or counsel for failure to comply with a court order. The lesser sanctions imposed may include costs plus attorneys’ fees. In considering what sanctions to impose, the trial court must make findings concerning the effectiveness of alternative sanctions and must make findings that the plaintiff is capable of performing the alternative. Daniels v. Montgomery Mut. Ins. Co., 81 N.C. App. 600, 344 S.E.2d 847, 1986 N.C. App. LEXIS 2335 (1986), aff'd in part and rev'd in part, 320 N.C. 669 , 360 S.E.2d 772, 1987 N.C. LEXIS 2405 (1987).

Use of Less Drastic Sanctions When Sufficient. —

A dismissal with prejudice, pursuant to section (b) of this rule, is an available sanction for a plaintiff’s violation of G.S. 1A-1 , Rule 8(a)(2). 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 N.C. App. LEXIS 2455 (1987).

Trial court abused its discretion in dismissing plaintiff’s claim for equitable distribution pursuant to G.S. 1A-1 , Rule 41(b) for failure to prosecute; the court did not consider whether lesser sanctions were appropriate or whether plaintiff deliberately delayed the matter, or the amount of prejudice to defendant. Wilder v. Wilder, 146 N.C. App. 574, 553 S.E.2d 425, 2001 N.C. App. LEXIS 971 (2001).

Dismissal of an amended complaint for a failure to comply with a court order for a more definite statement was vacated, as the trial court had not considered lesser sanctions; the trial court had to at least consider lesser sanctions before imposing dismissal as a sanction in a civil case pursuant to G.S. 1A-1 , N.C. R. Civ. P. 12(e) or 41(b). Page v. Mandel, 154 N.C. App. 94, 571 S.E.2d 635, 2002 N.C. App. LEXIS 1417 (2002).

Motion to Have Bankruptcy Trustee Made Party to Action. —

Since the plaintiff made a motion to have its trustee in bankruptcy a party to the action, which the court improperly denied, as the trustee appeared to be a necessary party, without making the required findings of fact, and since the trustee was present when the case was called, the court erred in dismissing the plaintiff ’s claim for failure to prosecute. Blackwelder Furn. Co. v. Harris, 75 N.C. App. 625, 331 S.E.2d 274, 1985 N.C. App. LEXIS 3679 (1985).

Dismissal for Failure to Prosecute Held Error. —

Where nothing in the record indicated that the plaintiffs failed to assist or cooperate with their attorneys or that they were not diligent in prosecuting their action, the entry of sanctions against either the plaintiffs or their attorney could not be upheld on the ground of the plaintiffs’ failure to prosecute. Foy v. Hunter, 106 N.C. App. 614, 418 S.E.2d 299, 1992 N.C. App. LEXIS 554 (1992).

When, in a workers’ compensation proceeding, an employer and insurer moved to dismiss a worker’s claim for failure to prosecute, the deputy commissioner considering that motion, as well as the North Carolina Industrial Commission, upon an appeal of the deputy commissioner’s order, had to consider the factors applicable to dismissing a case under G.S. 1A-1 , N.C. R. Civ. P. 41(b), for a failure to prosecute, which were (1) whether the worker acted in a manner which deliberately or unreasonably delayed the matter, (2) the amount of prejudice, if any, to the employer or insurer caused by the worker’s failure to prosecute, and (3) the reason, if one existed, that sanctions short of dismissal would not suffice, and their failure to consider these factors rendered their order dismissing the worker’s claim insufficient as a matter of law. Lee v. Roses, 162 N.C. App. 129, 590 S.E.2d 404, 2004 N.C. App. LEXIS 14 (2004).

The trial court did not abuse its discretion in ordering dismissal of plaintiff’s action pursuant to this rule, given plaintiff’s intentional noncompliance and the ineffectiveness of previously imposed sanctions. Daniels v. Montgomery Mut. Ins. Co., 320 N.C. 669 , 360 S.E.2d 772, 1987 N.C. LEXIS 2405 (1987).

Based on the parties’ failure to appear, the fact that no pleading had been filed in almost two years, and the fact that the case had been placed on two prior clean-up calendars, dismissal without prejudice was proper. Perkins v. Perkins, 88 N.C. App. 568, 364 S.E.2d 166, 1988 N.C. App. LEXIS 109 (1988).

Where trial court found that corporate officer’s failure to account made it impossible for receivers to defend against claims of that officer and his wife against the corporation in liquidation, trial court was authorized, pursuant to section (b) of this rule, to dismiss the claims of the officer and his wife on their receivership in the event that the corporate officer failed to provide an accounting within 30 days of the effective date of the court’s order. Lowder v. All Star Mills, Inc., 103 N.C. App. 479, 405 S.E.2d 794, 1991 N.C. App. LEXIS 806 (1991).

In plaintiff client’s legal malpractice action, the trial court did not abuse its discretion in dismissing the action with prejudice under G.S. 1A-1-41(b) after the client failed to appear at trial and failed to take any other steps to prosecute the action; trial court made sufficient findings to support its conclusions regarding the client’s unreasonable delay in prosecuting the action, and the prejudice suffered by defendants, an attorney and a law firm, and although the client was incarcerated in federal prison, he had a power of attorney who could have acted on his behalf. Cohen v. McLawhorn, 208 N.C. App. 492, 704 S.E.2d 519, 2010 N.C. App. LEXIS 2384 (2010).

Dismissal for Failure to Properly Serve Defendant. —

Where plaintiff did not deliver endorsed summons to some proper person for service as required by G.S. 1A-1 , Rule 4(a), where unconscionable delay was most critical to defendant, and where there was no contention that defendant was unavailable for service, the trial judge properly dismissed plaintiff’s action pursuant to section (b) of this rule 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 N.C. LEXIS 162 (1989).

Trial court did not err in granting attorneys’ motion to dismiss a former client’s legal malpractice claim for the client’s failure to prosecute because the client deliberately and unreasonably delayed service of process for over four years. The delay prejudiced the attorneys because one attorney had died, the attorneys’ legal assistant had moved to another state, the attorneys were not on notice to preserve evidence, and the client’s inordinate delays increased the attorneys’ costs and ability to preserve and present their defense. Meabon v. Elliott, 2021-NCCOA-270, 278 N.C. App. 77, 861 S.E.2d 362, 2021- NCCOA-270, 2021 N.C. App. LEXIS 276 (2021).

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 N.C. App. LEXIS 1685 (2007).

Taking of a voluntary dismissal in a first action did not bar a doctor from moving to impose sanctions in a refiled action under G.S. 1A-1-41(b) as: (1) a patient violated the North Carolina Rules of Civil Procedure for the purpose of delay and to gain an unfair advantage, and did not file an action with an intent to prosecute under Rule 41(b); (2) the doctor filed the doctor’s dismissal motion within a reasonable time; and (3) it was not an abuse of discretion to find that no sanction short of dismissal would suffice, and the finding was supported by sufficient evidence. Stocum v. Oakley, 185 N.C. App. 56, 648 S.E.2d 227, 2007 N.C. App. LEXIS 1685 (2007).

Dismissal for Discovery Violations. —

Trial judge did not abuse his discretion by dismissing plaintiff’s personal injury suit for discovery violations because the plaintiff failed to produce a 2001 tax return critical to his assertion of damages involving lost profits and lost earning capacity, and made false representations regarding his profits from the sale of a house, which was central to the issue of damages. By failing to comply with the trial court’s order to compel and then asserting his Fifth Amendment right against self-incrimination in a court-ordered deposition, the plaintiff opened himself up to dismissal of his civil case since, despite less severe sanctions being available, the defendants were deprived of necessary discovery. In re Pedestrian Walkway Failure, 173 N.C. App. 237, 618 S.E.2d 819, 2005 N.C. App. LEXIS 2032 (2005).

C.Failure to Show Right to Relief

Section (b) of this rule is applicable only in an action tried by the court without a jury. Pergerson v. Williams, 9 N.C. App. 512, 176 S.E.2d 885, 1970 N.C. App. LEXIS 1395 (1970); Kelly v. International Harvester Co., 278 N.C. 153 , 179 S.E.2d 396, 1971 N.C. LEXIS 955 (1971); Hamm v. Texaco, Inc., 17 N.C. App. 451, 194 S.E.2d 560, 1973 N.C. App. LEXIS 1381 (1973).

And Has No Application to Directed Verdicts in Jury Trials. —

Section (b) of this rule has no application when considering a motion for a directed verdict in a jury trial. Kelly v. International Harvester Co., 278 N.C. 153 , 179 S.E.2d 396, 1971 N.C. LEXIS 955 (1971).

A motion to dismiss under section (b) of this rule is properly made only in cases tried by a judge without a jury, the proper motion in jury cases being for a directed verdict under G.S. 1A-1 , Rule 50(a). Nytco Leasing, Inc. v. Southeastern Motels, Inc., 40 N.C. App. 120, 252 S.E.2d 826, 1979 N.C. App. LEXIS 2614 (1979).

Motion Treated as for Directed Verdict. —

It is permissible for motions made under section (b) of this rule at the close of plaintiff’s evidence in jury trials to be treated as motions for directed verdict under G.S. 1A-1 , Rule 50(a). Sample v. Morgan, 311 N.C. 717 , 319 S.E.2d 607, 1984 N.C. LEXIS 1757 (1984).

Motion for Involuntary Dismissal Appropriate Test for Sufficiency of Plaintiff’s Evidence in Nonjury Trial. —

When trial is by the court without a jury, the appropriate motion by which a defendant may test the sufficiency of plaintiff’s evidence to show a right to relief is a motion for involuntary dismissal as provided for in section (b) of this rule. Aiken v. Collins, 16 N.C. App. 504, 192 S.E.2d 617, 1972 N.C. App. LEXIS 1748 (1972); Ayers v. Tomrich Corp., 17 N.C. App. 263, 193 S.E.2d 764, 1973 N.C. App. LEXIS 1334 (1973); Town of Rolesville v. Perry, 21 N.C. App. 354, 204 S.E.2d 719, 1974 N.C. App. LEXIS 1804 (1974); Neasham v. Day, 34 N.C. App. 53, 237 S.E.2d 287, 1977 N.C. App. LEXIS 1577 (1977); Tanglewood Land Co. v. Wood, 40 N.C. App. 133, 252 S.E.2d 546, 1979 N.C. App. LEXIS 2609 (1979); Lumbee River Elec. Membership Corp. v. City of Fayetteville, 60 N.C. App. 534, 299 S.E.2d 305, 1983 N.C. App. LEXIS 2500 , rev'd, 309 N.C. 726 , 309 S.E.2d 209, 1983 N.C. LEXIS 1460 (1983).

A motion for directed verdict under G.S. 1A-1 , Rule 50(a) is appropriate only in a case tried before a jury. In nonjury trials, a motion for involuntary dismissal under section (b) of this section provides a procedure whereby, at the close of the plaintiff’s evidence, the judge can give judgment against the plaintiff, not only because his proof has failed to make out a case, but also on the basis of facts as the judge may determine them. Goodrich v. Rice, 75 N.C. App. 530, 331 S.E.2d 195, 1985 N.C. App. LEXIS 3715 (1985).

In a nonjury trial, when a motion to dismiss pursuant to section (b) of this rule is made, the judge becomes both judge and jury. He must consider and weigh all competent evidence before him, and must pass on the credibility of the witnesses and determine the weight to be accorded their testimony. In re Hughes, 74 N.C. App. 751, 330 S.E.2d 213, 1985 N.C. App. LEXIS 3602 (1985).

Motion for directed verdict pursuant to N.C. R. Civ. P. 50 is not the appropriate mechanism to challenge the sufficiency of plaintiffs’ evidence because the correct motion is one for involuntary dismissal pursuant to N.C. R. Civ. P. 41(b) that based upon the facts and the law the plaintiff has shown no right to relief. Chase Dev. Group v. Fisher, Clinard & Cornwell, PLLC, 211 N.C. App. 295, 710 S.E.2d 218, 2011 N.C. App. LEXIS 738 (2011).

As Compared with Motion for Directed Verdict in Jury Trial. —

A motion for a directed verdict under G.S. 1A-1 , Rule 50(a) is proper when a trial is being held before a jury. Where a case is tried by the judge without a jury, the appropriate motion in such case is for involuntary dismissal under section (b) of this rule. Bryant v. Kelly, 10 N.C. App. 208, 178 S.E.2d 113, 1970 N.C. App. LEXIS 1238 (1970), rev'd, 279 N.C. 123 , 181 S.E.2d 438, 1971 N.C. LEXIS 757 (1971).

Where a case is tried before a jury, the appropriate motion by which a defendant tests the sufficiency of plaintiff ’s evidence to permit a recovery is the motion for a directed verdict under G.S. 1A-1 , Rule 50(a). The motion for involuntary dismissal, made under section (b) of this rule, performs a similar function in an action tried by the court without a jury. Duke v. Meisky, 12 N.C. App. 329, 183 S.E.2d 292, 1971 N.C. App. LEXIS 1354 (1971).

A motion for a directed verdict is proper only in a jury trial; where the case is tried without a jury the proper motion is for involuntary dismissal under section (b) of this rule. Mills v. Koscot Interplanetary, Inc., 13 N.C. App. 681, 187 S.E.2d 372, 1972 N.C. App. LEXIS 2310 (1972).

A motion to dismiss under this rule is not properly available in cases being tried by jury. The proper motion would be a motion for directed verdict under G.S. 1A-1 , Rule 50(a). Hamm v. Texaco, Inc., 17 N.C. App. 451, 194 S.E.2d 560, 1973 N.C. App. LEXIS 1381 (1973).

A motion for a directed verdict under G.S. 1A-1 , Rule 50 and a motion for involuntary dismissal under section (b) of this rule are to be distinguished; the former is proper when the case is tried before a jury, and the latter is appropriate where the court sits as trier of fact. McNeely v. Southern Ry., 19 N.C. App. 502, 199 S.E.2d 164, 1973 N.C. App. LEXIS 1689 , cert. denied, 284 N.C. 425 , 200 S.E.2d 660, 1973 N.C. LEXIS 883 (1973).

Treatment of Motion Incorrectly Designated as Motion for Directed Verdict. —

Where defendant’s motion was incorrectly designated as a motion for a directed verdict, the Court of Appeals could treat it as a motion for involuntary dismissal under section (b) of this rule and pass on the merits of the questions appellant sought to raise. Higgins v. Builders & Fin., Inc., 20 N.C. App. 1, 200 S.E.2d 397, 1973 N.C. App. LEXIS 1457 (1973), cert. denied, 284 N.C. 616 , 201 S.E.2d 689, 1974 N.C. LEXIS 1296 (1974).

Treatment of Motion as One for Directed Verdict. —

It is permissible for motions made under section (b) of this rule at the close of plaintiff’s evidence in jury trials to be treated as motions for directed verdict under G.S. 1A-1 , Rule 50(a). Sample v. Morgan, 311 N.C. 717 , 319 S.E.2d 607, 1984 N.C. LEXIS 1757 (1984).

Involuntary Dismissal in Jury Trial Treated as Directed Verdict. —

Where judgment of involuntary dismissal in a trial before a jury was improperly entered under section (b) of this rule, which is applicable only in a trial by the court without a jury, it may properly be treated as a motion for directed verdict under G.S. 1A-1 , Rule 50(a). Pergerson v. Williams, 9 N.C. App. 512, 176 S.E.2d 885, 1970 N.C. App. LEXIS 1395 (1970).

Different Test Applied Under Motions for Directed Verdict and Involuntary Dismissal. —

The distinction between a motion for a directed verdict and a motion for an involuntary dismissal is more than one of mere nomenclature, as a different test is to be applied to determine the sufficiency of the evidence to withstand the motion when the case is tried before court and jury than when the court alone is finder of the facts. Neff v. Queen City Coach Co., 16 N.C. App. 466, 192 S.E.2d 587, 1972 N.C. App. LEXIS 1743 (1972).

Defendants’ motion to dismiss in an action tried before the judge without a jury was actually a motion to dismiss made under G.S. 1A-1-41(b), not G.S. 1A-1-50(a); the distinction was significant because, under G.S. 1A-1-41(b), the trial judge did not consider the evidence in the light most favorable to the plaintiff, as he would have when considering a G.S. 1A-1-50(a) motion for a directed verdict in a trial before a jury. Hammonds v. Lumbee River Elec. Mbrshp. Corp., 178 N.C. App. 1, 631 S.E.2d 1, 2006 N.C. App. LEXIS 1301 (2006).

Significance of motion to dismiss under section (b) of this rule is that it may be made at the close of plaintiff ’s case; there is little point in such a motion at the close of all the evidence, since at that stage the judge will determine the facts in any event. Helms v. Rea, 282 N.C. 610 , 194 S.E.2d 1, 1973 N.C. LEXIS 1133 (1973); Russell v. Taylor, 37 N.C. App. 520, 246 S.E.2d 569, 1978 N.C. App. LEXIS 2797 (1978); Newsome v. Newsome, 43 N.C. App. 580, 259 S.E.2d 577, 1979 N.C. App. LEXIS 3116 (1979).

In a bench trial, there is little point to a motion to dismiss at the close of all the evidence, since at that point in trial the judge will decide the facts in any event. When the judge decides the case, either on a motion for dismissal or at the close of all the evidence, he must make findings of fact and separate conclusions of law. In re Hughes, 74 N.C. App. 751, 330 S.E.2d 213, 1985 N.C. App. LEXIS 3602 (1985).

Court May Determine Facts and Render Judgment on Motion. —

If trial judge allows defendant’s motion to dismiss made at the close of plaintiff ’s evidence, on the grounds that upon the facts and the law plaintiff has shown no right to relief, the court, as the trier of the facts, should determine the facts and render judgment against plaintiff. Wells v. Sturdivant Life Ins. Co., 10 N.C. App. 584, 179 S.E.2d 806, 1971 N.C. App. LEXIS 1679 (1971).

In a nonjury case, section (b) of this rule provides a procedure whereby, at the close of plaintiff ’s evidence, the judge can give judgment against plaintiff not only because his proof has failed in some essential aspect to make out a case, but also on the basis of facts as he may then determine them to be from the evidence then before him. Helms v. Rea, 282 N.C. 610 , 194 S.E.2d 1, 1973 N.C. LEXIS 1133 (1973); Fearing v. Westcott, 18 N.C. App. 422, 197 S.E.2d 38, 1973 N.C. App. LEXIS 1890 (1973); O'Grady v. First Union Nat'l Bank, 296 N.C. 212 , 250 S.E.2d 587, 1978 N.C. LEXIS 935 (1978); Lumbee River Elec. Membership Corp. v. City of Fayetteville, 309 N.C. 726 , 309 S.E.2d 209, 1983 N.C. LEXIS 1460 (1983).

When the motion to dismiss is allowed, the trial judge must determine the facts and render judgment against the plaintiff. The trial judge’s findings are conclusive on appeal if supported by any competent evidence even though there may be evidence to support findings to the contrary. United Leasing Corp. v. Miller, 60 N.C. App. 40, 298 S.E.2d 409, 1982 N.C. App. LEXIS 3274 (1982).

Section (b) of this rule permits the trial judge to weigh the evidence, to find facts against the movant, and to sustain respondents’ motion at the conclusion of the movant’s evidence. In re Foreclosure of Deed of Trust, 63 N.C. App. 744, 306 S.E.2d 475, 1983 N.C. App. LEXIS 3176 (1983).

Despite Plaintiff ’s Prima Facie Case. —

As trier of the facts, the judge may weigh the evidence, find the facts against the plaintiff and sustain the defendant’s motion under section (b) of this rule at the conclusion of the plaintiff ’s evidence even though the plaintiff has made out a prima facie case which would have precluded a directed verdict for the defendant in a jury case. Helms v. Rea, 282 N.C. 610 , 194 S.E.2d 1, 1973 N.C. LEXIS 1133 (1973); Williams v. Liles, 31 N.C. App. 345, 229 S.E.2d 215, 1976 N.C. App. LEXIS 1999 (1976); Neasham v. Day, 34 N.C. App. 53, 237 S.E.2d 287, 1977 N.C. App. LEXIS 1577 (1977); Newsome v. Newsome, 43 N.C. App. 580, 259 S.E.2d 577, 1979 N.C. App. LEXIS 3116 (1979); United Leasing Corp. v. Miller, 60 N.C. App. 40, 298 S.E.2d 409, 1982 N.C. App. LEXIS 3274 (1982); Lumbee River Elec. Membership Corp. v. City of Fayetteville, 60 N.C. App. 534, 299 S.E.2d 305, 1983 N.C. App. LEXIS 2500 , rev'd, 309 N.C. 726 , 309 S.E.2d 209, 1983 N.C. LEXIS 1460 (1983); Thompson v. Wrenn, 61 N.C. App. 582, 301 S.E.2d 103, 1983 N.C. App. LEXIS 2725 (1983); Lumbee River Elec. Membership Corp. v. City of Fayetteville, 309 N.C. 726 , 309 S.E.2d 209, 1983 N.C. LEXIS 1460 (1983).

At the close of the movant’s evidence, the judge may grant judgment against the movant on the basis of facts as he determines them to be. This is true even where the movant has made out a prima facie case which would withstand a motion for directed verdict for the respondent in a jury trial. In re Foreclosure of Deed of Trust, 63 N.C. App. 744, 306 S.E.2d 475, 1983 N.C. App. LEXIS 3176 (1983).

Unlike Practice on Former Motion for Nonsuit. —

The questions presented by a motion under section (b) of this rule and a motion for nonsuit are not the same. The motion for nonsuit asks the court to determine whether the plaintiff ’s evidence, taken as true, would support a judgment for plaintiff. The motion to dismiss, on the other hand permits the trial judge to weigh the evidence, find facts against plaintiff and sustain defendant’s motion at the conclusion of plaintiff’s evidence, even though plaintiff may have made out a prima facie case which would have repelled the motion for nonsuit. Joyner v. Thomas, 40 N.C. App. 63, 251 S.E.2d 906, 1979 N.C. App. LEXIS 2573 (1979).

Motion to dismiss differs from the former motion for judgment as for nonsuit in that the lodging of a motion to dismiss under section (b) of this rule permits the trial judge to weigh the evidence, find facts against plaintiff and sustain defendant’s motion at the conclusion of plaintiff’s evidence, even though plaintiff may have made out a prima facie case which would have repelled the motion for nonsuit under the former practice. Whitaker v. Earnhardt, 289 N.C. 260 , 221 S.E.2d 316, 1976 N.C. LEXIS 1249 (1976).

Under former practice the motion for nonsuit presented the question of whether plaintiff’s evidence, taken as true, would support findings upon which the trier of facts could properly base a judgment for plaintiff. Helms v. Rea, 282 N.C. 610 , 194 S.E.2d 1, 1973 N.C. LEXIS 1133 (1973).

But Court Is Not Compelled to Pass on Motion. —

The judge is not compelled to make determinations of facts and pass upon a motion under section (b) of this rule for involuntary dismissal at the close of plaintiff ’s evidence. He may decline to render any judgment until the close of all the evidence and, except in the clearest cases, he should defer judgment until the close of all the evidence. Helms v. Rea, 282 N.C. 610 , 194 S.E.2d 1, 1973 N.C. LEXIS 1133 (1973); Russell v. Taylor, 37 N.C. App. 520, 246 S.E.2d 569, 1978 N.C. App. LEXIS 2797 (1978); Passmore v. Woodard, 37 N.C. App. 535, 246 S.E.2d 795, 1978 N.C. App. LEXIS 2799 (1978).

When a motion under this rule is made at the close of plaintiff ’s evidence, the judge may decline to render any judgment until the close of all of the evidence. Fearing v. Westcott, 18 N.C. App. 422, 197 S.E.2d 38, 1973 N.C. App. LEXIS 1890 (1973).

Under section (b) of this rule, the trial judge may decline to render judgment until all the evidence is in. Neasham v. Day, 34 N.C. App. 53, 237 S.E.2d 287, 1977 N.C. App. LEXIS 1577 (1977).

Under section (b) of this rule, the judge is not required to rule on the motion at the close of the plaintiff’s evidence and may decline to render any judgment until the close of all the evidence. African Methodist Episcopal Zion Church v. Union Chapel A.M.E. Zion Church, 64 N.C. App. 391, 308 S.E.2d 73, 1983 N.C. App. LEXIS 3299 (1983).

And except in the clearest of cases, the court should decline to rule on a motion to dismiss until the close of all the evidence. Henderson County v. Osteen, 297 N.C. 113 , 254 S.E.2d 160, 1979 N.C. LEXIS 1142 (1979).

The practice of withholding judgment until all the evidence has been presented is considered the better practice except in the clearest cases. Neasham v. Day, 34 N.C. App. 53, 237 S.E.2d 287, 1977 N.C. App. LEXIS 1577 (1977).

It is the better practice for the trial court to decline to render any judgment until the close of all the evidence. Joyner v. Thomas, 40 N.C. App. 63, 251 S.E.2d 906, 1979 N.C. App. LEXIS 2573 (1979).

Except in the clearest cases, it is the better practice in the case of a motion to dismiss for the trial judge to decline to render judgment until all the evidence is in. Whitaker v. Earnhardt, 289 N.C. 260 , 221 S.E.2d 316, 1976 N.C. LEXIS 1249 (1976); Joyner v. Thomas, 40 N.C. App. 63, 251 S.E.2d 906, 1979 N.C. App. LEXIS 2573 (1979).

The permissive language of section (b) of this rule makes it clear that the court may decline to render judgment until all of the evidence has been presented. In fact, a judge should decline to do so except in the clearest of cases. Esteel Co. v. Goodman, 82 N.C. App. 692, 348 S.E.2d 153, 1986 N.C. App. LEXIS 2617 (1986).

No Provision Made for Section (b) Motion at Close of All Evidence. —

Section (b) of this rule does not provide for a motion for involuntary dismissal made at the close of all the evidence. Castle v. B.H. Yates Co., 18 N.C. App. 632, 197 S.E.2d 611, 1973 N.C. App. LEXIS 1961 (1973).

Where the trial judge defers ruling on a motion under section (b) of this rule until the close of all the evidence, there is little point for counsel to renew the motion, for at that stage of a nonjury trial the judge must determine the facts in any event, pursuant to G.S. 1A-1 , Rule 52. O'Grady v. First Union Nat'l Bank, 296 N.C. 212 , 250 S.E.2d 587, 1978 N.C. LEXIS 935 (1978).

Section (b) of this rule provides for a motion for dismissal at the close of plaintiff’s evidence; it does not provide for such motion at the close of all the evidence. Menzel v. Metrolina Anesthesia Assocs., 66 N.C. App. 53, 310 S.E.2d 400, 1984 N.C. App. LEXIS 2820 (1984).

There is little point in a motion for dismissal at the close of all the evidence, since at that stage the judge will determine the facts in any event. Menzel v. Metrolina Anesthesia Assocs., 66 N.C. App. 53, 310 S.E.2d 400, 1984 N.C. App. LEXIS 2820 (1984).

Allowance of Motion at Close of All Evidence Held Not to Prejudice Plaintiff. —

The fact that defendant made a motion for involuntary dismissal at the close of all the evidence, which motion is not sanctioned under the rules, and that the trial judge inadvertently allowed it, in no way prejudiced plaintiff, where the trial judge thereafter entered a judgment on the merits pursuant to G.S. 1A-1 , Rule 52. Castle v. B.H. Yates Co., 18 N.C. App. 632, 197 S.E.2d 611, 1973 N.C. App. LEXIS 1961 (1973).

Section (b) of this rule does not provide for a motion for involuntary dismissal made at the close of all the evidence, but the fact that the parties made such motions at the close of all the evidence and that the trial judge ruled on those motions was of no consequence where thereafter the court rendered a judgment on the merits by making findings. Reid v. Midgett, 25 N.C. App. 456, 213 S.E.2d 379, 1975 N.C. App. LEXIS 2288 (1975); Tanglewood Land Co. v. Wood, 40 N.C. App. 133, 252 S.E.2d 546, 1979 N.C. App. LEXIS 2609 (1979).

Defendant’s Motion Challenges Sufficiency of Plaintiff ’s Evidence. —

Defendant’s motion for an involuntary dismissal in an action tried by the court without a jury challenges the sufficiency of the plaintiff ’s evidence to establish his right to relief. Wells v. Sturdivant Life Ins. Co., 10 N.C. App. 584, 179 S.E.2d 806, 1971 N.C. App. LEXIS 1679 (1971); Pegram-West, Inc. v. Hiatt Homes, Inc., 12 N.C. App. 519, 184 S.E.2d 65, 1971 N.C. App. LEXIS 1394 (1971).

A motion for involuntary dismissal under section (b) of this rule serves in part to test the legal sufficiency of all evidence admitted on behalf of the plaintiff in a nonjury case. Harrell v. W.B. Lloyd Constr. Co., 300 N.C. 353 , 266 S.E.2d 626, 1980 N.C. LEXIS 1072 (1980).

A defendant in an action being tried without a jury may test the sufficiency of the plaintiff’s evidence by moving at the close of plaintiff’s evidence for involuntary dismissal under subsection (b) of this rule on the ground that upon the facts and the law the plaintiff has shown no right to relief. United Carolina Bank v. First Union Nat'l Bank, 109 N.C. App. 201, 426 S.E.2d 462, 1993 N.C. App. LEXIS 239 (1993).

But Does Not Challenge Competence of Evidence to Prove Particular Point Nor Renew Objection to Its Admission. —

A motion for involuntary dismissal under section (b) of this rule does not challenge the competence of the evidence to prove a particular point, nor does it renew an objection to its admission in the first place. Harrell v. W.B. Lloyd Constr. Co., 300 N.C. 353 , 266 S.E.2d 626, 1980 N.C. LEXIS 1072 (1980).

Question Raised by Section (b). —

A motion under section (b) of this rule does not raise the question of whether the particular findings made by the court are supported by the evidence, but only the question of whether any findings could be made from the evidence which would support a recovery. Pegram-West, Inc. v. Hiatt Homes, Inc., 12 N.C. App. 519, 184 S.E.2d 65, 1971 N.C. App. LEXIS 1394 (1971); Gibbs v. Heavlin, 22 N.C. App. 482, 206 S.E.2d 814, 1974 N.C. App. LEXIS 2363 (1974); Barnhill v. Barnhill, 68 N.C. App. 697, 315 S.E.2d 548, 1984 N.C. App. LEXIS 3460 (1984).

A motion under section (b) of this rule raises the question of whether any findings of fact could be made from the evidence which would support a recovery. Browne v. Catawba County Dep't of Social Servs., 22 N.C. App. 476, 206 S.E.2d 792, 1974 N.C. App. LEXIS 2361 (1974); Sanders v. Walker, 39 N.C. App. 355, 250 S.E.2d 84, 1979 N.C. App. LEXIS 2490 (1979).

The question raised by defendants’ motion to dismiss made at the close of all the evidence is whether any findings of fact could be made from the evidence which would support a recovery for plaintiffs. If such findings can be made, the motion to dismiss must be denied. Neasham v. Day, 34 N.C. App. 53, 237 S.E.2d 287, 1977 N.C. App. LEXIS 1577 (1977).

The question raised by a motion to dismiss pursuant to section (b) of this rule, made at the close of all the evidence, is whether any findings of fact could be made from the evidence which would support a recovery for the party with the burden of proof. Ayden Tractors, Inc. v. Gaskins, 61 N.C. App. 654, 301 S.E.2d 523, 1983 N.C. App. LEXIS 2737 (1983).

Substantially the same question is presented by a motion for dismissal under this rule as was presented by the former motion for nonsuit. Schafran v. A & H Cleaners, Inc., 19 N.C. App. 365, 198 S.E.2d 734, 1973 N.C. App. LEXIS 1652 , cert. denied, 284 N.C. 255 , 200 S.E.2d 655, 1973 N.C. LEXIS 844 (1973).

In a nonjury case, after the plaintiff has rested his case, the defendant may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The question presented is whether the plaintiff’s evidence, taken as true, would support findings of fact upon which the trier of fact could properly base a judgment for the plaintiff. Woodlief v. Johnson, 75 N.C. App. 49, 330 S.E.2d 265, 1985 N.C. App. LEXIS 3584 (1985).

Court to Pass on Sufficiency, Weight and Credibility of Evidence. —

In ruling on a motion to dismiss under section (b) of this rule, the court must pass upon whether the evidence is sufficient as a matter of law to permit a recovery; and, if so, he must pass upon the weight and credibility of the evidence upon which the plaintiff must rely in order to recover. Airport Knitting, Inc. v. King Kotton Yarn Co., 11 N.C. App. 162, 180 S.E.2d 611, 1971 N.C. App. LEXIS 1473 (1971); Mills v. Koscot Interplanetary, Inc., 13 N.C. App. 681, 187 S.E.2d 372, 1972 N.C. App. LEXIS 2310 (1972); Ayers v. Tomrich Corp., 17 N.C. App. 263, 193 S.E.2d 764, 1973 N.C. App. LEXIS 1334 (1973); Schafran v. A & H Cleaners, Inc., 19 N.C. App. 365, 198 S.E.2d 734, 1973 N.C. App. LEXIS 1652 , cert. denied, 284 N.C. 255 , 200 S.E.2d 655, 1973 N.C. LEXIS 844 (1973); Town of Rolesville v. Perry, 21 N.C. App. 354, 204 S.E.2d 719, 1974 N.C. App. LEXIS 1804 (1974); Phillips v. Woxman, 43 N.C. App. 739, 260 S.E.2d 97, 1979 N.C. App. LEXIS 3170 (1979), cert. denied, 449 U.S. 835, 101 S. Ct. 108, 66 L. Ed. 2d 41, 1980 U.S. LEXIS 2802 (1980).

On a motion to dismiss defendant’s counterclaim under section (b) of this rule, where all the evidence is in, it is incumbent upon the judge to consider and weigh it all, and render judgment on the merits of the claim and counterclaim in the form directed by G.S. 1A-1 , Rule 52(a). Helms v. Rea, 282 N.C. 610 , 194 S.E.2d 1, 1973 N.C. LEXIS 1133 (1973).

Defendants’ motion for involuntary dismissal in a quiet title action was properly granted where the trial judge used the procedure under G.S. 1A-1 , Rule 41(b) and determined that plaintiff failed to prove by the greater weight of the evidence that she was the fee simple owner of the real property. Vernon v. Lowe, 148 N.C. App. 694, 559 S.E.2d 288, 2002 N.C. App. LEXIS 56 , rev'd, 356 N.C. 421 , 571 S.E.2d 584, 2002 N.C. LEXIS 1107 (2002).

Principles Applicable in Determining Sufficiency of Evidence. —

In determining the sufficiency of the evidence on a motion under this rule, the trial judge is subject to the same principles applicable under the former procedure with respect to the sufficiency of the evidence to withstand the motion for nonsuit. Presson v. Presson, 12 N.C. App. 109, 182 S.E.2d 614, 1971 N.C. App. LEXIS 1295 (1971).

Evidence to Be Evaluated Without Limitations as to Inferences to Be Indulged in Plaintiff ’s Favor. —

In a nonjury case, in which all issues of fact are in any event to be determined by the judge, the function of the judge on a motion to dismiss under section (b) of this rule is to evaluate the evidence without any limitations as to the inferences which the court must indulge in favor of the plaintiff ’s evidence on a similar motion for a directed verdict in a jury case. Bryant v. Kelly, 10 N.C. App. 208, 178 S.E.2d 113, 1970 N.C. App. LEXIS 1238 (1970), rev'd, 279 N.C. 123 , 181 S.E.2d 438, 1971 N.C. LEXIS 757 (1971); Rogers v. City of Asheville, 14 N.C. App. 514, 188 S.E.2d 656, 1972 N.C. App. LEXIS 2164 (1972); Lineberry v. Carolina Golf & Country Club, Inc., 16 N.C. App. 600, 192 S.E.2d 853, 1972 N.C. App. LEXIS 1771 (1972); McNeely v. Southern Ry., 19 N.C. App. 502, 199 S.E.2d 164, 1973 N.C. App. LEXIS 1689 , cert. denied, 284 N.C. 425 , 200 S.E.2d 660, 1973 N.C. LEXIS 883 (1973); Bank of N.C. v. Investors Title Ins. Co., 42 N.C. App. 616, 257 S.E.2d 453, 1979 N.C. App. LEXIS 3206 (1979); Dealers Specialties, Inc. v. Neighborhood Hous. Servs., Inc., 305 N.C. 633 , 291 S.E.2d 137, 1982 N.C. LEXIS 1341 (1982).

The judge’s evaluation of the evidence pursuant to a motion under this rule is to be conducted free of any limitations as to the inferences which a court must indulge in favor of plaintiff ’s evidence on a motion for a directed verdict in a jury case. Fearing v. Westcott, 18 N.C. App. 422, 197 S.E.2d 38, 1973 N.C. App. LEXIS 1890 (1973); Hobson Constr. Co. v. Hajoca Corp., 28 N.C. App. 684, 222 S.E.2d 709, 1976 N.C. App. LEXIS 2800 (1976).

Under section (b) of this rule, in a trial without a jury, the trial judge does not consider the evidence in the light most favorable to the plaintiff. Instead, he must consider and weigh all the competent evidence before him, passing upon the credibility of the witnesses, the weight to be given their testimony and the reasonable inferences to be drawn therefrom. Inland Bridge Co. v. North Carolina State Hwy. Comm'n, 30 N.C. App. 535, 227 S.E.2d 648, 1976 N.C. App. LEXIS 2301 (1976).

In ruling on a motion for involuntary dismissal at the close of plaintiff ’s evidence pursuant to section (b) of this rule, the trial judge need not view the evidence in the light most favorable to plaintiff. Dealers Specialties, Inc. v. Neighborhood Hous. Servs., Inc., 305 N.C. 633 , 291 S.E.2d 137, 1982 N.C. LEXIS 1341 (1982).

Previously two different standards had been applied to motions under section (b) of this rule; (1) that the judge is to evaluate the evidence without any limitations as to the inferences which the court must indulge in favor of the plaintiff ’s evidence on a similar motion for a directed verdict in a jury case, and (2) that the evidence must be viewed in the light most favorable to the plaintiff. The correct rule is that the judge is not obliged to consider plaintiff ’s evidence in a light most favorable to plaintiff. United Leasing Corp. v. Miller, 60 N.C. App. 40, 298 S.E.2d 409, 1982 N.C. App. LEXIS 3274 (1982).

Evidence to Be Accorded Full Probative Value. —

In ruling on a motion under section (b) of this rule, all relevant evidence admitted by the trial court must be accorded its full probative value, irrespective of whether it was erroneously received. Harrell v. W.B. Lloyd Constr. Co., 300 N.C. 353 , 266 S.E.2d 626, 1980 N.C. LEXIS 1072 (1980).

Exercise of Judicial Discretion. —

The determination of whether to dismiss for a violation of G.S. 1A-1 , Rule 8(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 N.C. App. LEXIS 2455 (1987).

Deference to Be Accorded to Court’s Judgment. —

In the context of an involuntary dismissal, the trial court’s findings of fact are conclusive on appeal if supported by competent evidence, even if there is evidence to the contrary. The trial court’s judgment must be granted the same deference as a jury verdict. Carter v. Foster, 103 N.C. App. 110, 404 S.E.2d 484, 1991 N.C. App. LEXIS 707 (1991).

When Involuntary Dismissal Should Be Granted. —

An involuntary dismissal under this rule is to be granted if the plaintiff has shown no right to relief or if she has shown a right to relief but the trial court as trier of fact determines that defendant is entitled to a judgment on the merits. Jones v. Nationwide Mut. Ins. Co., 42 N.C. App. 43, 255 S.E.2d 617 (1979); Ayden Tractors, Inc. v. Gaskins, 61 N.C. App. 654, 301 S.E.2d 523, cert. denied, 309 N.C. 319 , 307 S.E.2d 162 (1983). In accord with the main volume. See Carter v. Foster, 103 N.C. App. 110, 404 S.E.2d 484, 1991 N.C. App. LEXIS 707 (1991).

Previous Filing of Claim. —

Trial court properly dismissed the employee’s whistleblower claim because he could not refile his claim before the Office of Administrative Hearings inasmuch as he had previously filed the claim in a superior court and the claim was dismissed. Vincoli v. N.C. Dep't of Pub. Safety, 260 N.C. App. 447, 818 S.E.2d 301, 2018 N.C. App. LEXIS 715 (2018).

Dismissal Improper. —

Trial court erred in dismissing an ejectment action under G.S. 1A-1-41(b) as a landlord could not have terminated the lease based on just one of the five violations it cited, and the fact that the landlord continued to accept rent subsidy payments from the United States Department of Agriculture on the tenant’s behalf throughout 2008 did not trigger the common law waiver rule. Woodridge Homes L.P. v. Gregory, 205 N.C. App. 365, 697 S.E.2d 370, 2010 N.C. App. LEXIS 1314 (2010).

Condominium association’s suit to foreclose a lien imposed for improvements the association made to a certain building was improperly dismissed when the related costs were not imposed on all unit owners on a pro rata basis, as G.S. 47A-12 required, because improvements to a unit’s exterior windows and doors solely benefitted the owners of the units against which the lien was imposed, while other improvements benefitted common areas, and the trial court made no separate findings and conclusions distinguishing between the two. In re Proposed Foreclosure of Claim of Lien Filed Against Johnson, 212 N.C. App. 535, 714 S.E.2d 169, 2011 N.C. App. LEXIS 1176 (2011), aff'd, 366 N.C. 252 , 741 S.E.2d 308, 2012 N.C. LEXIS 831 (2012).

Dismissal Proper. —

Trial court’s order of dismissal was proper because the owners of a corporation failed to point to any unfair or deceptive act that harmed them because the owners had not shown that they were fraudulently induced to enter into the letter commitment that resulted in their granting the bank an additional deed of trust on the owners’ home because a deed of trust authorized foreclosure if the corporation defaulted on a loan other than the promissory note. Hedgepeth v. Lexington State Bank, 228 N.C. App. 49, 744 S.E.2d 138, 2013 N.C. App. LEXIS 676 (2013).

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 N.C. App. LEXIS 239 (2016).

Franchisee’s fiduciary breach claim against a partner failed because the parties, as members of a limited liability company, owed no fiduciary duty to each other. Musselwhite v. Cheshire, 266 N.C. App. 166, 831 S.E.2d 367, 2019 N.C. App. LEXIS 588 (2019).

Franchisee’s unjust enrichment claim against a partner failed because the parties had a contract. Musselwhite v. Cheshire, 266 N.C. App. 166, 831 S.E.2d 367, 2019 N.C. App. LEXIS 588 (2019).

Franchisee’s claim against a partner of a breach of the implied covenant of good faith and fair dealing failed because the franchisee received the benefits the franchisee bargained for. Musselwhite v. Cheshire, 266 N.C. App. 166, 831 S.E.2d 367, 2019 N.C. App. LEXIS 588 (2019).

Franchisee’s unconscionability claim against a partner failed because the franchisee negotiated a contract with the partner on equal terms. Musselwhite v. Cheshire, 266 N.C. App. 166, 831 S.E.2d 367, 2019 N.C. App. LEXIS 588 (2019).

Franchisee’s constructive trust claim against a partner failed because the franchisee did not succeed on any underlying claims. Musselwhite v. Cheshire, 266 N.C. App. 166, 831 S.E.2d 367, 2019 N.C. App. LEXIS 588 (2019).

Franchisee’s fraud claim against a partner failed because (1) two alleged misrepresentations were immaterial, and (2) no credible evidence showed a third alleged misrepresentation. Musselwhite v. Cheshire, 266 N.C. App. 166, 831 S.E.2d 367, 2019 N.C. App. LEXIS 588 (2019).

Franchisee’s unilateral and mutual mistake claims against a partner failed because (1) the franchisee showed no oppression, and (2) no evidence showed a mutual mistake as to a past or existing fact. Musselwhite v. Cheshire, 266 N.C. App. 166, 831 S.E.2d 367, 2019 N.C. App. LEXIS 588 (2019).

Dismissal Properly Denied. —

In an action for breach of express and implied warranties and damages arising out of plaintiff’s purchase of an automobile from defendant, it was undisputed that defendant informed plaintiffs of a warranty and that the car suffered from several defects. Plaintiffs attempted to have the car repaired within the warranty period, but to no avail. Based on these facts and other evidence, it would have been improper for the trial court to find that plaintiffs had shown “no right to relief” for their breach of warranty claims; therefore, the trial court properly denied defendant’s motion to dismiss. Riley v. Ken Wilson Ford, Inc., 109 N.C. App. 163, 426 S.E.2d 717, 1993 N.C. App. LEXIS 238 (1993).

Because the trial court carefully laid out in sequential order the facts regarding the father’s relationship with a married woman, resulting in him resigning from his job, and culminating in his separation from his wife who provided at least 50 percent of the minor child’s care, including helping the child with his homework, and then found that the child’s grades had suffered as a result, it provided a nexus between the substantial change in circumstances and the effect on the child’s welfare to overrule the father’s motion to dismiss the mother’s custody modification action; moreover, when balanced against the mother’s attainment of both a stable living environment and a vast improvement in health after suffering from a brain tumor, the trial court’s custody modification order in favor of the mother was proper. Karger v. Wood, 174 N.C. App. 703, 622 S.E.2d 197, 2005 N.C. App. LEXIS 2609 (2005).

Trial court did not err in denying a mother’s motion to dismiss a petition by the county department of social services, seeking to have her three-month-old son adjudicated as abused, dependent, and neglected, at the close of the department’s case as the motion under G.S. 1A-1-41(b) was moot as to the abuse allegation because the trial court dismissed it after the close of all evidence; further, pursuant to G.S. 1A-1-41(b), the trial court had discretion to deny such a motion until the close of all evidence. In re J.A.G., 172 N.C. App. 708, 617 S.E.2d 325, 2005 N.C. App. LEXIS 1785 (2005).

In clients’ action to recover damages for attorneys’ negligent representation of them, the trial court’s findings of fact supported its denial of the attorneys’ motion for involuntary dismissal under N.C. R. Civ. P. 41(b) because the rejection of a settlement during the course of bankruptcy supported the trial court’s findings that the clients were damages by the attorneys’ negligent representation. Chase Dev. Group v. Fisher, Clinard & Cornwell, PLLC, 211 N.C. App. 295, 710 S.E.2d 218, 2011 N.C. App. LEXIS 738 (2011).

In a case in which all visitation and contact of any sort with the father had previously been immediately and permanently suspended and terminated, the trial court did not abuse its discretion in modifying the custody order to allow a gradual resumption of visitation with the father and denying the mother’s motion to dismiss the motion because the father consistently passed drug tests, stopped consuming drugs and alcohol, and paid child support from his disability payment; he loved his child and desired to be involved in her life in a positive manner; the child would benefit from resumption of her relationship with him; and it was in the child’s best interests to resume visitation with the father. Walsh v. Jones, 263 N.C. App. 582, 824 S.E.2d 129, 2019 N.C. App. LEXIS 24 (2019).

Dismissal Improperly Denied by Trial Court. —

Trial court erred in ordering lifetime satellite-based monitoring in the absence of evidence from the State that this was a reasonable search of defendant. The proper outcome below would have been for the trial court to dismiss the satellite-based monitoring proceeding against defendant. State v. Greene, 255 N.C. App. 780, 806 S.E.2d 343, 2017 N.C. App. LEXIS 810 (2017).

Record on appeal insufficient to apply two dismissal rule. —

With regard to a third civil action filed by a property association for unpaid maintenance fees against two property owners, the appellate court could not conclude, given the absence of any indication that the owners made a dismissal motion predicated on the two dismissal rule in the trial court and in the absence of relevant material from the record before the appellate court, that the association’s complaint should have been dismissed under the two dismissal rule of G.S. 1A-1 , N.C. R. Civ. P. 41(a)(1). Carolina Forest Ass'n v. White, 198 N.C. App. 1, 678 S.E.2d 725, 2009 N.C. App. LEXIS 1066 (2009).

Findings and Conclusions to Be Stated in Granting Motion. —

Where the trial court chooses to grant defendant’s motion at the close of plaintiff ’s evidence, he must then find the facts and state his conclusions of law separately. Joyner v. Thomas, 40 N.C. App. 63, 251 S.E.2d 906, 1979 N.C. App. LEXIS 2573 (1979).

When the judge decides a case on a motion for dismissal under section (b) of this rule, he must make findings of fact and state separately his conclusions of law. Such findings are intended to aid the appellate court by affording it a clear understanding of the basis of the trial court’s decision and to make definite what was decided for purposes of res judicata and estoppel. Helms v. Rea, 282 N.C. 610 , 194 S.E.2d 1, 1973 N.C. LEXIS 1133 (1973).

If the court grants a motion under section (b) of this rule, the rule requires the judge to make findings of fact in accordance with G.S. 1A-1 , Rule 52(a). Such findings are intended to aid the appellate court by affording it a clear understanding of the basis of the trial court’s decision, and to make definite what was decided for purpose of res judicata and estoppel. Finally, the requirement of findings should evoke care on the part of the trial judge in ascertaining the facts. In re Lowery, 65 N.C. App. 320, 309 S.E.2d 469, 1983 N.C. App. LEXIS 3493 (1983).

Failure to Make Findings Is Reversible Error. —

The requirement under section (b) of this rule that findings of fact be made is mandatory, and the failure to do so is reversible error. W & H Graphics, Inc. v. Hamby, 48 N.C. App. 82, 268 S.E.2d 567, 1980 N.C. App. LEXIS 3188 (1980).

Where the order dismissing plaintiff ’s claim is not supported by findings of fact as required by section (b) of this rule, the judgment appealed from will be vacated and the cause remanded to the district court. Carteret County Gen. Hosp. Corp. v. Manning, 18 N.C. App. 298, 196 S.E.2d 538, 1973 N.C. App. LEXIS 1842 (1973).

In an action to recover the value of general hospital services, the trial court erred in granting defendant’s motion for an involuntary dismissal under this rule where the judgment contained no findings of fact but only conclusions of law; moreover, it would have been better for the trial court to delay ruling on defendant’s motion for involuntary dismissal until the close of all the evidence rather than at the close of plaintiff ’s evidence. Memorial Hosp. v. Brown, 50 N.C. App. 526, 274 S.E.2d 277, 1981 N.C. App. LEXIS 2133 (1981).

Trial court’s findings of fact were not sufficient to sustain its judgment that a widow was estopped from claiming that a deed she and her husband executed in 1998 was invalid because her husband was incompetent when he signed the deed; the appellate court reversed the trial court’s judgment and remanded the case for additional findings of fact. Beck v. Beck, 163 N.C. App. 311, 593 S.E.2d 445, 2004 N.C. App. LEXIS 367 (2004).

Dismissal for Insufficient Evidence as Adjudication on Merits. —

Section (b) of this rule provides that a dismissal for insufficient evidence operates as an adjudication upon the merits unless the trial court specifies otherwise. Phipps v. Paley, 90 N.C. App. 170, 368 S.E.2d 21, 1988 N.C. App. LEXIS 444 (1988).

Conclusive Effect on Appeal of Facts Found by Judge on Motion to Dismiss. —

Where, on a motion to dismiss, the trial court as the trier of the facts has found the facts specially, such findings are conclusive upon appeal if supported by competent evidence, even though there may be evidence which might sustain findings to the contrary. In such case the trial judge becomes both judge and juror, and it is his duty to consider and weigh all the competent evidence before him. He passes upon the credibility of the witnesses and the weight to be given their testimony and the reasonable inferences to be drawn therefrom. If different inferences may be drawn from the evidence, he determines which inferences shall be drawn and which shall be rejected. Bryant v. Kelly, 10 N.C. App. 208, 178 S.E.2d 113, 1970 N.C. App. LEXIS 1238 (1970), rev'd, 279 N.C. 123 , 181 S.E.2d 438, 1971 N.C. LEXIS 757 (1971).

In ruling on a motion for involuntary dismissal under section (b) of this rule, where the trial court, as the trier of fact, has found specific facts, such findings are conclusive upon appeal if supported by competent evidence, even though there may be evidence which would sustain findings to the contrary. Williams v. Liles, 31 N.C. App. 345, 229 S.E.2d 215, 1976 N.C. App. LEXIS 1999 (1976).

In the context of an involuntary dismissal, the trial court’s findings of fact are conclusive if supported by any competent evidence, even though there is evidence to the contrary. State ex rel. Ingram v. North Carolina Farm Bureau Ins. Agency, Inc., 50 N.C. App. 510, 274 S.E.2d 497, 1981 N.C. App. LEXIS 2150 , amended, 303 N.C. 287 , 278 S.E.2d 248, 1981 N.C. LEXIS 1099 (1981).

Where the trial judge’s findings are supported by the evidence and those findings in turn support his conclusions of law, they are binding on appeal. Lumbee River Elec. Membership Corp. v. City of Fayetteville, 309 N.C. 726 , 309 S.E.2d 209, 1983 N.C. LEXIS 1460 (1983).

The findings of fact made by the trial judge are conclusive on appeal if supported by competent evidence, even if, arguendo, there is evidence to the contrary. The trial court’s judgment therefore must be granted the same deference as a jury verdict. Lumbee River Elec. Membership Corp. v. City of Fayetteville, 309 N.C. 726 , 309 S.E.2d 209, 1983 N.C. LEXIS 1460 (1983).

Remedy Held Unavailable. —

In a case not tried by a jury, though the judge’s determination that plaintiff was contributorily negligent as a matter of law was error, it was not reversible error. The transcript indicated that the judge made a factual finding from the evidence that plaintiff was contributorily negligent, a finding clearly supported by competent evidence. If the case had been tried to a jury and dismissed before the jury considered it, a new trial would have had to be ordered, but ordering a new trial before a fact-finder who has permissibly found that plaintiff was contributorily negligent and could not prevail in her action would avail her nothing. Church v. Greene, 100 N.C. App. 675, 397 S.E.2d 649, 1990 N.C. App. LEXIS 1126 (1990).

Remand for New Trial. —

Where a court on appeal reverses a trial court’s determination that plaintiff’s evidence is legally sufficient, nothing in the Rules of Civil Procedure precludes it from determining in a proper case that plaintiff is nevertheless entitled to a new trial, since, had it not been for the erroneous admission of the incompetent evidence in the first place, plaintiff might well have introduced other, competent evidence of the same import which would have properly withstood defendant’s motion for involuntary dismissal or directed verdict; therefore, where the Court of Appeals found plaintiff ’s evidence at trial legally insufficient to support his quantum meruit claim against defendant, its failure to overrule trial court’s denial of defendant’s motion for involuntary dismissal and remand of the cause for a new trial was not error. Harrell v. W.B. Lloyd Constr. Co., 300 N.C. 353 , 266 S.E.2d 626, 1980 N.C. LEXIS 1072 (1980).

IV.Costs

Purpose of section (d) of this rule, aside from securing the payment of costs, is to prevent vexatious suits made possible by the ease with which a plaintiff may dismiss. Alsup v. Pitman, 98 N.C. App. 389, 390 S.E.2d 750, 1990 N.C. App. LEXIS 392 (1990).

The object of this statutory rule is clearly to provide superior and district courts with authority for the efficient collection of costs in cases in which voluntary dismissals are taken; therefore, the filing of notice of dismissal, while it may terminate adversary proceedings in the case, does not terminate the court’s authority to enter orders apportioning and taxing costs. Ward v. Taylor, 68 N.C. App. 74, 314 S.E.2d 814, 1984 N.C. App. LEXIS 3189 (1984).

G.S. 6-21(6) to Be Considered in Pari Materia with Section (d). —

G.S. 6-21(6) must be considered in pari materia with at least two other statutes, G.S. 1-7 and section (d) of this rule. Thigpen v. Piver, 37 N.C. App. 382, 246 S.E.2d 67, 1978 N.C. App. LEXIS 2751 , cert. denied, 295 N.C. 653 , 248 S.E.2d 257, 1978 N.C. LEXIS 1120 (1978).

Section (d) of this rule is substantially the same as the federal rule. Alsup v. Pitman, 98 N.C. App. 389, 390 S.E.2d 750, 1990 N.C. App. LEXIS 392 (1990).

Procedure. —

Under section (d) of this rule, the trial court or the clerk of the court in the first action shall tax the costs of the action to the plaintiff taking a voluntary dismissal under section (d) of this rule. Then, if the plaintiff commences an action against the same defendant based upon or including the same claim before the costs of the previous action have been paid, the trial court in the second action shall, upon motion of the defendant, order the plaintiff to pay the costs of the first action within 30 days. If the plaintiff does not comply with this order, the court shall dismiss the action. Fields v. Irvin H. Whitehouse & Sons, 98 N.C. App. 395, 390 S.E.2d 725, 1990 N.C. App. LEXIS 404 (1990).

Federal Rule 41(d) speaks to the same evil but provides far different remedial measures than this rule. Kahn v. Sturgil, 66 F.R.D. 487, 1975 U.S. Dist. LEXIS 13471 (M.D.N.C. 1975).

And Is in Direct Conflict with Section (d). —

The remedial measures provided in federal Rule 41 for failure of a plaintiff to pay the costs of a previously dismissed action are in direct conflict with what is set forth in section (d) of this rule. Kahn v. Sturgil, 66 F.R.D. 487, 1975 U.S. Dist. LEXIS 13471 (M.D.N.C. 1975).

The provision for dismissal upon failure to pay costs has no counterpart in the federal rules, and is couched in unambiguous mandatory language. Cheshire v. Bensen Aircraft Corp., 17 N.C. App. 74, 193 S.E.2d 362, 1972 N.C. App. LEXIS 1567 (1972).

Although the federal rule might well authorize eventual dismissal of a recalcitrant plaintiff via federal Rule 41(b), perfunctory dismissal as prescribed by section (d) of this rule is clearly not contemplated or authorized. Kahn v. Sturgil, 66 F.R.D. 487, 1975 U.S. Dist. LEXIS 13471 (M.D.N.C. 1975).

The language of section (d) of this rule constitutes a mandatory directive to the trial court. Sims v. Oakwood Trailer Sales Corp., 18 N.C. App. 726, 198 S.E.2d 73, 1973 N.C. App. LEXIS 1992 , cert. denied, 283 N.C. 754 , 198 S.E.2d 723, 1973 N.C. LEXIS 1075 (1973); Sanford v. Starlite Disco, Inc., 66 N.C. App. 470, 311 S.E.2d 67, 1984 N.C. App. LEXIS 2852 (1984).

Payment of costs taxed in the first action is a mandatory condition precedent to the bringing of a second action on the same claim. Plaintiffs are in no position to claim surprise or prejudice for failing to comply with a requirement that conditions their right to reinstate their previous action. Sims v. Oakwood Trailer Sales Corp., 18 N.C. App. 726, 198 S.E.2d 73, 1973 N.C. App. LEXIS 1992 , cert. denied, 283 N.C. 754 , 198 S.E.2d 723, 1973 N.C. LEXIS 1075 (1973).

Section (d) of this rule is explicit and mandatory in its direction to the court to dismiss an action brought by a plaintiff who has not paid the costs of a previous similar action dismissed pursuant to section (a) of this rule. Kahn v. Sturgil, 66 F.R.D. 487, 1975 U.S. Dist. LEXIS 13471 (M.D.N.C. 1975).

Costs from Earlier Action. —

A trial court, in one action, can tax costs incurred in an earlier action that was voluntarily dismissed. Sealey v. Grine, 115 N.C. App. 343, 444 S.E.2d 632, 1994 N.C. App. LEXIS 606 (1994), limited, Muse v. Eckberg, 139 N.C. App. 446, 533 S.E.2d 268, 2000 N.C. App. LEXIS 911 (2000).

The 30-day provision in section (d) of this rule should not be read in conjunction with G.S. 1A-1 , Rule 6(b), which provides for an enlargement of the time within which to take a given action, and the court did not err in not considering plaintiff’s alleged excusable neglect as an explanation for his late payment of the costs. Sanford v. Starlite Disco, Inc., 66 N.C. App. 470, 311 S.E.2d 67, 1984 N.C. App. LEXIS 2852 (1984).

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 N.C. App. LEXIS 1504 (2009).

Defendant did not waive its rights under section (d) of this rule by failing to assert them in a responsive pleading. Sims v. Oakwood Trailer Sales Corp., 18 N.C. App. 726, 198 S.E.2d 73, 1973 N.C. App. LEXIS 1992 , cert. denied, 283 N.C. 754 , 198 S.E.2d 723, 1973 N.C. LEXIS 1075 (1973).

Costs on Filing of “Conditional” Voluntary Dismissal. —

Where despite the “conditional” label plaintiffs attempted to place upon their notice of dismissal, plaintiffs actually filed a notice of voluntary dismissal, and expressly stated in that document that the dismissal was entered pursuant to the provisions of section (a) of this rule, the voluntary dismissal entered by plaintiffs was sufficient to dismiss the case without prejudice pursuant to section (a), and the trial court did not err in taxing costs to plaintiffs, because the provisions of section (d) required the court to do so. Cullen v. Carolina Healthcare Sys., 136 N.C. App. 480, 524 S.E.2d 596, 2000 N.C. App. LEXIS 56 (2000).

Analyzing Whether Costs are Properly Assessed. —

In analyzing whether costs are properly assessed under N.C. R. Civ. P. 41(d), an appellate court must undertake a three-step analysis: First, if the costs are items provided as costs under G.S. 7A-305 , then a trial court is required to assess these items as costs; Second, for items not costs under G.S. 7A-305 , it must be determined if they are “common law costs.” Third, as to “common law costs,” an appellate court must determine if a trial court abused its discretion in awarding or denying these costs under G.S. 6-20 . Lord v. Customized Consulting Specialty, Inc., 164 N.C. App. 730, 596 S.E.2d 891, 2004 N.C. App. LEXIS 1144 (2004).

Dismissal of New Action Upheld Where Costs in Original Action Not Paid. —

Where a plaintiff took a voluntary nonsuit in original action against defendant, and when new action was instituted, the costs in the original action had not been paid, then nothing else appearing, upon motion of defendant, dismissal was proper on the grounds that this new action was instituted before the costs in the original action had been paid. Galligan v. Smith, 14 N.C. App. 220, 188 S.E.2d 31, 1972 N.C. App. LEXIS 2089 , cert. denied, 281 N.C. 514 , 189 S.E.2d 36, 1972 N.C. LEXIS 1093 (1972).

Trial court in first action had no authority to order costs paid with 30 days of filing of second action. —

The trial court in the first action had the authority only to order that costs be paid by plaintiff. Under section (d) of this rule, the trial court in the first action did not have the authority to order that the costs be paid within 30 days of the filing of a second action. Fields v. Irvin H. Whitehouse & Sons, 98 N.C. App. 395, 390 S.E.2d 725, 1990 N.C. App. LEXIS 404 (1990).

Provision in cost taxing order in plaintiff’s first action against defendant, which plaintiff had voluntarily dismissed, directing plaintiff to pay the costs within 30 days and staying any pending undertaking, of which there was none, was not authorized by section (d) of this rule or any other rule or statute, and its effect, if any, was limited to that action; it could not control second action against same defendant, as section (d) expressly vests that authority in the judge presiding over the second case. Schaffner v. Pantelakos, 98 N.C. App. 399, 391 S.E.2d 41, 1990 N.C. App. LEXIS 397 (1990).

Court’s Authority After Dismissal. —

The filing of notice of dismissal, while it may terminate adversary proceedings in the case, does not terminate the court’s authority to enter orders apportioning and taxing costs. Fields v. Irvin H. Whitehouse & Sons, 98 N.C. App. 395, 390 S.E.2d 725, 1990 N.C. App. LEXIS 404 (1990).

Correction of Order. —

The trial court’s failure to allow and tax costs could be considered an oversight or omission in its order, and since the substantive rights of the parties were not affected thereby, the court had authority under G.S. 1A-1 , Rule 60(a) to correct such inadvertent omission. Ward v. Taylor, 68 N.C. App. 74, 314 S.E.2d 814, 1984 N.C. App. LEXIS 3189 (1984).

Authority of Superior Court Clerk. —

Although a voluntary dismissal is not per se a final judgment, the clerk of superior court has authority to tax costs against a plaintiff who takes a dismissal; in fact, the clerk is ordinarily the proper official to tax such costs. Ward v. Taylor, 68 N.C. App. 74, 314 S.E.2d 814, 1984 N.C. App. LEXIS 3189 (1984).

Clerk Has No Authority to Order Compensation for Survey. —

Where in an action involving a boundary dispute a survey has been ordered and made, and the trial judge has failed to order compensation, the clerk has no authority to do so. Ward v. Taylor, 68 N.C. App. 74, 314 S.E.2d 814, 1984 N.C. App. LEXIS 3189 (1984).

Assistant clerk of the superior court had the authority to tax the cost of a deposition against a plaintiff who took a voluntary dismissal of his case before it reached the trial calendar. Thigpen v. Piver, 37 N.C. App. 382, 246 S.E.2d 67, 1978 N.C. App. LEXIS 2751 , cert. denied, 295 N.C. 653 , 248 S.E.2d 257, 1978 N.C. LEXIS 1120 (1978).

Deposition Expenses. —

Trial court had full authority to tax, in its discretion, deposition expenses as costs pursuant to section (d) of this rule and G.S. 6-20 . Alsup v. Pitman, 98 N.C. App. 389, 390 S.E.2d 750, 1990 N.C. App. LEXIS 392 (1990).

“Costs” also includes “deposition expenses,” unless the depositions were unnecessary, even though an award of deposition expenses is not expressly allowed by statute. Sealey v. Grine, 115 N.C. App. 343, 444 S.E.2d 632, 1994 N.C. App. LEXIS 606 (1994), limited, Muse v. Eckberg, 139 N.C. App. 446, 533 S.E.2d 268, 2000 N.C. App. LEXIS 911 (2000).

Where an injured party could not avoid G.S. 1A-1 , Rule 37 sanctions by dismissing a claim pursuant to this rule when the sanctions motion was before the trial court, the proper standard of review in imposing sanctions was abuse of discretion, not de novo. Ayers v. Patz, 2002 N.C. App. LEXIS 2093 (N.C. Ct. App. Aug. 20, 2002).

Expert Witness Costs Limited. —

Even though about $170,000 was requested, a partial award of $1,726.25 for expert witness costs was not an abuse of discretion under G.S. 6-20 as expert witness fees were discretionary, “common law” costs that were not provided for in G.S. 7A-305(d); the trial judge, who presided over 20 days of trial, was in the best position to assess whether the costs were justified under G.S. 1A-1 , N.C. R. Civ. P. 41(d). Bennett v. Equity Residential, 192 N.C. App. 512, 665 S.E.2d 514, 2008 N.C. App. LEXIS 1609 (2008).

Expenses sought by defendant medical providers pursuant to this section were too far removed from deposition itself to be considered direct “deposition expenses”; for instance, some of the travel expenses related to travel to visit defendants’ witnesses, not travel to and from deposition, and the record failed to show conclusively that any of the expenses incurred for copying, long distance phone calls and postage stemmed directly from deposition. Muse v. Eckberg, 139 N.C. App. 446, 533 S.E.2d 268, 2000 N.C. App. LEXIS 911 (2000).

Defendants Not Entitled to Costs Where Plaintiff Took Voluntary Dismissal. —

Where plaintiff took voluntary dismissal, and then refiled, defendants were not entitled to expert witness fees, deposition transcripts, court reporter fees, or attorney travel costs under G.S. 1A-1 , Rule 41(a); assuming, arguendo, that all the expenses denied by the trial court were recoverable as common law costs under G.S. 6-20 , such an award was permissive, not mandatory. Cosentino v. Weeks, 160 N.C. App. 511, 586 S.E.2d 787, 2003 N.C. App. LEXIS 1830 (2003).

Costs recoverable following a voluntary dismissal are the costs enumerated in G.S. 7A-305(d); therefore, since a defendant requested costs not enumerated therein, a motion for costs following plaintiff’s voluntary dismissal was properly denied. PharmaResearch Corp. v. Mash, 163 N.C. App. 419, 594 S.E.2d 148, 2004 N.C. App. LEXIS 410 (2004).

Construction with Other Law. —

The trial court did not abuse its discretion and violate G.S. 7A-305 in taxing the expert witness fees to appellant/patient pursuant to G.S. 6-20 after he voluntarily dismissed his negligence suit pursuant to G.S. 1A-1 , Rule 41 on the day of trial; costs which are to be taxed under Rule 41(d) include those costs enumerated in G.S. 7A-305 (d) and that section does not preclude liability for other costs such as those outlined in G.S. 6-20 . Lewis v. Setty, 140 N.C. App. 536, 537 S.E.2d 505, 2000 N.C. App. LEXIS 1216 (2000).

Order to Pay Costs. —

Trial court’s order that an employee pay costs in the first case he brought against an agency was a civil judgment, and the trial court was not authorized to dismiss the employee’s second case against the agency for his failure to pay costs ordered in first case; however, the agency’s motion to dismiss was well founded, and the trial court’s refusal to award sanctions was affirmed. Leverette v. Batts Temp. Servs., 165 N.C. App. 328, 598 S.E.2d 192, 2004 N.C. App. LEXIS 1174 (2004).

Trial court erred by awarding interest on costs because the rule did not allow the trial court to award interest on costs assessed. Fintchre v. Duke Univ., 241 N.C. App. 232, 773 S.E.2d 318, 2015 N.C. App. LEXIS 446 (2015); Van-Go Transp., Inc. v. Sampson Cty., 254 N.C. App. 836, 803 S.E.2d 215, 2017 N.C. App. LEXIS 623 (2017).

County hospital and two surgery centers (the defendants) were entitled to costs and a stay after another surgery center and its partners (the plaintiffs) voluntarily dismissed the underlying action because, although the prior action and the present action were related, they were nonetheless separate lawsuits, and the court had no discretion to disregard the prior mandate for costs. Woodcock v. Cumberland Cty. Hosp. Sys., 2021 NCBC LEXIS 65 (N.C. Super. Ct. July 26, 2021).

Rule 42. Consolidation; separate trials.

  1. Consolidation. —  Except as provided in subdivision (b)(2) of this section, when actions involving a common question of law or fact are pending in one division of the court, the judge may order a joint hearing or trial of any or all the matters in issue in the actions; he may order all the actions consolidated; and he may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. When actions involving a common question of law or fact are pending in both the superior and the district court of the same county, a judge of the superior court in which the action is pending may order all the actions consolidated, and he may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.
  2. Separate trials. —
    1. The court may in furtherance of convenience or to avoid prejudice and shall for considerations of venue upon timely motion order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues.
    2. Upon motion of any party in an action that includes a claim commenced under Article 1G of Chapter 90 of the General Statutes involving a managed care entity as defined in G.S. 90-21.50, the court shall order separate discovery and a separate trial of any claim, cross-claim, counterclaim, or third-party claim against a physician or other medical provider.
    3. Upon motion of any party in an action in tort wherein the plaintiff seeks damages exceeding one hundred fifty thousand dollars ($150,000), the court shall order separate trials for the issue of liability and the issue of damages, unless the court for good cause shown orders a single trial. Evidence relating solely to compensatory damages shall not be admissible until the trier of fact has determined that the defendant is liable. The same trier of fact that tries the issues relating to liability shall try the issues relating to damages.
    4. Pursuant to G.S. 1-267.1 , any facial challenge to the validity of an act of the General Assembly, other than a challenge to plans apportioning or redistricting State legislative or congressional districts, shall be heard by a three-judge panel in the Superior Court of Wake County if a claimant raises such a challenge in the claimant’s complaint or amended complaint in any court in this State, or if such a challenge is raised by the defendant in the defendant’s answer, responsive pleading, or within 30 days of filing the defendant’s answer or responsive pleading. In that event, the court shall, on its own motion, transfer that portion of the action challenging the validity of the act of the General Assembly to the Superior Court of Wake County for resolution by a three-judge panel if, after all other matters in the action have been resolved, a determination as to the facial validity of an act of the General Assembly must be made in order to completely resolve any matters in the case. The court in which the action originated shall maintain jurisdiction over all matters other than the challenge to the act’s facial validity. For a motion filed under Rule 11 or Rule 12(b)(1) through (7), the original court shall rule on the motion, however, it may decline to rule on a motion that is based solely upon Rule 12(b)(6). If the original court declines to rule on a Rule 12(b)(6) motion, the motion shall be decided by the three-judge panel. The original court shall stay all matters that are contingent upon the outcome of the challenge to the act’s facial validity pending a ruling on that challenge and until all appeal rights are exhausted. Once the three-judge panel has ruled and all appeal rights have been exhausted, the matter shall be transferred or remanded to the three-judge panel or the trial court in which the action originated for resolution of any outstanding matters, as appropriate.

History. 1967, c. 954, s. 1; 2001-446, s. 4.8; 2011-400, s. 2; 2014-100, s. 18B.16(c); 2016-125, 4th Ex. Sess., s. 23(a).

Comment

Section (a), providing for consolidation of actions “involving a common question of law or fact,” invokes a power that North Carolina courts have long exercised. See McIntosh, North Carolina Practice and Procedure (1st ed.) pp. 536-537, § 506. Section (b) furnishes the court with the contrasting power of severance. With the multisided lawsuit made possible by these rules, it is safe to say that there will be more frequent occasion for the exercise of this power than formerly. Indeed, the power of severance is an indispensable safety valve to guard against the occasion where a suit of unmanageable size is thrust on the court. Whether or not there should be a severance rests in the sound discretion of the judge. For occasions where severance has been thought appropriate, see 5 Moore’s Federal Practice, § 42.03.

Editor’s Note.

Session Laws 2001-446, s. 8 provides: “Nothing in this act obligates the General Assembly to appropriate funds to implement this act.”

Effect of Amendments.

Session Laws 2014-100, s. 18B.16(c), added subdivision (b)(4). See Editor’s note for effective date and applicability.

Session Laws 2016-125, 4th Ex. Sess., s. 23(a), in subdivision (b)(4), divided the third sentence into the present third and sixth sentences by adding a period following “act’s facial validity” and adding “The original court,” and added the fourth and fifth sentences. For effective date and applicability, see editor’s note.

Legal Periodicals.

For article, “Legislative Expansion of Judicial Bifurcation: North Carolina’s Double-Edge Sword,” see 36 Campbell L. Rev. 201 (2014).

CASE NOTES

Analysis

I.In General

Purpose of Rule. —

This rule was enacted in view of the multisided lawsuit made possible by these rules for the purpose of guarding against the occasion where a suit of unmanageable size is thrust on the court. Wallace v. Evans, 60 N.C. App. 145, 298 S.E.2d 193, 1982 N.C. App. LEXIS 3275 (1982).

Jurisdiction to Hear Constitutional Challenge. —

Court of Appeals of North Carolina had jurisdiction to consider a claimant’s constitutional challenge to an act of the North Carolina General Assembly on appeal from a final decision and order of the North Carolina Industrial Commission because the claimant’s constitutional challenge was not required to be heard by a three-judge panel of the Superior Court of Wake County, North Carolina. In re Redmond, 369 N.C. 490 , 797 S.E.2d 275, 2017 N.C. LEXIS 132 (2017).

Because the patient included a facial challenge to G.S. 1A-1 , N.C. R. Civ. P. 9(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., 270 N.C. App. 267, 841 S.E.2d 307, 2020 N.C. App. LEXIS 173 (2020).

Unlike the trial court, the court of appeals cannot ask questions that might help resolve issues or prompt responses necessary to create a complete record. For this reason and others, the trial court should generally make the determinations required by G.S. 1-267.1(a1) and G.S. 1A-1 , N.C. R. Civ. P. 42(b)(4), in the first instance. Holdstock v. Duke Univ. Health Sys., 270 N.C. App. 267, 841 S.E.2d 307, 2020 N.C. App. LEXIS 173 (2020).

Although the Rule requires that facial challenges raised in a complaint must be transferred, sua sponte, for a ruling by a three-judge panel, the language of the Rule does not expressly prohibit the trial court from deciding a facial challenge if it is not filed in accordance with the limitations included in subsection (b)(4). Holdstock v. Duke Univ. Health Sys., 270 N.C. App. 267, 841 S.E.2d 307, 2020 N.C. App. LEXIS 173 (2020).

Rule mandates that the trial court transfer a facial challenge to a three-judge panel in certain circumstances, but does not expressly prohibit the trial court, in its discretion, from transferring a facial challenge that does not comply with the requirements of subsection (b)(4). Holdstock v. Duke Univ. Health Sys., 270 N.C. App. 267, 841 S.E.2d 307, 2020 N.C. App. LEXIS 173 (2020).

Considered in pari materia, a plain reading of G.S. 1-81.1(a1) and G.S. 1-267.1 (a1) and (c), and G.S. 1A-1 , N.C. R. Civ. P. 42(b)(4), prohibits entry of any order or judgment in a civil proceeding that rules an act of the General Assembly facially unconstitutional, unless: (1) it was made by a three-judge panel granted jurisdiction pursuant to G.S. 1-267.1 , and (2) the underlying facial challenge to the act was a properly raised challenge as required by Rule 42(b)(4). Holdstock v. Duke Univ. Health Sys., 270 N.C. App. 267, 841 S.E.2d 307, 2020 N.C. App. LEXIS 173 (2020).

Facial challenge made in a motion later than thirty days from the filing of the defendant’s answer or responsive pleading is not required to be transferred to a three-judge panel, and there is nothing in G.S. 1-81.1(a1) and G.S. 1-267.1 expressly prohibiting the trial court from considering a facial challenge, but if the trial court determines an act was facially unconstitutional or contrary to federal law, G.S. 1-267.1 (c) prohibits it from entering any order or judgment to that effect. Holdstock v. Duke Univ. Health Sys., 270 N.C. App. 267, 841 S.E.2d 307, 2020 N.C. App. LEXIS 173 (2020).

Plain language of both G.S. 1-267.1 and G.S. 1-81.1(a1) does not prohibit a trial court from considering a facial challenge to an act, making a ruling, and entering a judgment or order thereon so long as: (1) the trial court’s ruling in its judgment or order determines that the challenged act is not facially unconstitutional, and (2) the facial challenge was not filed in accordance with G.S. 1A-1 , N.C. R. Civ. P. 42(b)(4). Holdstock v. Duke Univ. Health Sys., 270 N.C. App. 267, 841 S.E.2d 307, 2020 N.C. App. LEXIS 173 (2020).

Transfer Not Required. —

Trial court was not required to transfer the landowners’ constitutional claims pursuant to G.S. 1-267.1 and G.S. 1A-1 , N.C. R. Civ. P. 42(b)(4), given their lack of standing. Byron v. SYNCO Props., 258 N.C. App. 372, 813 S.E.2d 455, 2018 N.C. App. LEXIS 286 (2018).

Transfer Improper. —

Transferring defendant’s motion to dismiss per N.C. Gen. Stat. §§ 1-81.1, 1-267.1 and N.C. Gen. Stat. § 1A-1, N.C. R. Civ. P. 42(b)(4), was error where contrary to the court’s statement, plaintiffs had not facially challenged the constitutionality of N.C. Gen. Stat. § 1-17(e) (2020), and defendant had challenged the statute as applied. Cryan v. Nat'l Council of YMCA of the United States, 2021-NCCOA-612, 280 N.C. App. 309, 867 S.E.2d 354, 2021- NCCOA-612, 2021 N.C. App. LEXIS 632 (2021).

II.Consolidation

Power of Judge to Consolidate Actions. —

A trial court has the discretionary power, even ex mero motu, to consolidate actions for trial. He may do so even though the actions are instituted by different plaintiffs against a common defendant, or by the same plaintiff against several defendants, when the causes of action grow out of the same transaction and substantially the same defenses are interposed, provided that such consolidation results in no prejudice or harmful complications to either party. Greenville City Bd. of Educ. v. Evans, 21 N.C. App. 493, 204 S.E.2d 899, 1974 N.C. App. LEXIS 1849 , cert. denied, 285 N.C. 588 , 206 S.E.2d 862, 1974 N.C. LEXIS 1015 (1974).

Trial court in the exercise of its discretion may consolidate several cases involving different plaintiffs against a common defendant when the causes of action grow out of the same transaction and substantially the same defenses are interposed, if such consolidation does not result in prejudice or harmful complications to either party. Wood v. Brown, 25 N.C. App. 241, 212 S.E.2d 690, 1975 N.C. App. LEXIS 2230 , cert. denied, 287 N.C. 469 , 215 S.E.2d 626, 1975 N.C. LEXIS 1156 (1975).

Decision as to Consolidation Is Within Discretion of Trial Judge. —

Where two cases were properly before the district court, it was within the discretion of the trial judge as to whether consolidation should be allowed. In re Moore, 11 N.C. App. 320, 181 S.E.2d 118, 1971 N.C. App. LEXIS 1513 (1971).

Consolidation Motion Properly Denied Where General Contractor’s Action Predated Subcontractor’s. —

Denial of subcontractor’s motion to consolidate actions under G.S. 1A-1-42 was proper because general contractor’s action predated subcontractor’s action and subcontractor’s action was abated; contrary to subcontractor’s argument, the filing of its action did not relate back to the filing of the claim of lien. Barrier Geotechnical Contrs., Inc. v. Radford Quarries of Boone, Inc., 184 N.C. App. 741, 646 S.E.2d 840, 2007 N.C. App. LEXIS 1599 (2007).

And Will Not Be Disturbed Absent Abuse of Discretion and Showing of Prejudice. —

An action of the trial judge as to a matter within his judicial discretion will not be disturbed unless a clear abuse of discretion is shown. Moreover, when the consolidation of actions for the purpose of trial is assigned as error, the appellant must show injury or prejudice arising therefrom. In re Moore, 11 N.C. App. 320, 181 S.E.2d 118, 1971 N.C. App. LEXIS 1513 (1971).

The trial court did not abuse its discretion by denying defendant’s motion to consolidate cases. Markham v. Nationwide Mut. Fire Ins. Co., 125 N.C. App. 443, 481 S.E.2d 349, 1997 N.C. App. LEXIS 132 (1997).

Judge Who Will Preside Must Make Consolidation Determination. —

Where a judge entered an interlocutory order of consolidation under this rule, which order was entered out of term and out of session, and he was not scheduled to preside at the session of court at which he had set the consolidated cases for trial, such consolidation was in error, since the determination whether or not to consolidate actions for trial is left to the sound discretion of the judge who will preside during the trial. Oxendine v. Catawba County Dep't of Social Servs., 49 N.C. App. 571, 272 S.E.2d 417, 1980 N.C. App. LEXIS 3449 (1980), modified, 303 N.C. 699 , 281 S.E.2d 370, 1981 N.C. LEXIS 1267 (1981).

The discretionary ruling of one superior court judge to consolidate claims for trial may not be forced upon another superior court judge who is to preside at that trial; therefore, the trial court in a child custody hearing erred in granting defendant’s motion to consolidate plaintiffs’ custody action and petition for adoption for trial in the superior court where the judge had a hearing on defendant’s motion and entered his order of consolidation out of term and out of session, but there was no indication that he was scheduled to preside at the session of court during which he set the consolidated cases to be presented for trial. Oxendine v. Catawba County Dep't of Social Servs., 303 N.C. 699 , 281 S.E.2d 370, 1981 N.C. LEXIS 1267 (1981).

Notice of Voluntary Dismissal Not Required. —

Because an owner was not a party to the lawsuit a limited liability company (LLC) brought against an individual, the LLC was not required to serve its notice of voluntary dismissal upon the owner; the trial court consolidated the LLC’s action against the individual and the owner’s action against the individual for trial, and although the actions were to be tried together for the sake of convenience and judicial economy, they did not become one action but remained separate suits. Tog Props., LLC v. Pugh (Apr. 6, 2021).

Notice of Appeal Insufficient. —

Defendant neither gave notice from the trial court’s denial of her motion to consolidate cases, nor used language that could be interpreted to refer to the denial of her consolidation motion, and thus she failed to give notice of appeal from the denial of her motion to consolidate. Daly v. McKenzie, 250 N.C. App. 611, 795 S.E.2d 120, 2016 N.C. App. LEXIS 1249 (2016).

Preservation for Review. —

Denial of defendant’s motion to consolidate cases did not involve the merits of plaintiff’s claim for money owed and did not affect the judgment in that case, for purposes of review and thus defendant failed to preserve for review the denial of her motion. Daly v. McKenzie, 250 N.C. App. 611, 795 S.E.2d 120, 2016 N.C. App. LEXIS 1249 (2016).

III.Separate Trials

Section (b) Confers Same Power as § 1A-1, Rule 20(b). —

Section (b) of this rule, which gives to the trial judge general power to sever, confers the same power contemplated by G.S. 1A-1 , Rule 20(b). Aetna Ins. Co. v. Carroll's Transf., Inc., 14 N.C. App. 481, 188 S.E.2d 612, 1972 N.C. App. LEXIS 2159 (1972).

Severance Authorized. —

Although the basic philosophy of the party joinder provisions is to allow relatively unrestricted initial joinder, there are provisions in G.S. 1A-1 , Rule 20(b) and section (b) of this rule for the trial judge to sever and order separate trials. Aetna Ins. Co. v. Carroll's Transf., Inc., 14 N.C. App. 481, 188 S.E.2d 612, 1972 N.C. App. LEXIS 2159 (1972); Wachovia Bank & Trust Co. v. Smith, 44 N.C. App. 685, 262 S.E.2d 646, 1980 N.C. App. LEXIS 2565 (1980).

The trial judge has discretion to sever issues for trial in order to further convenience or avoid prejudice. On remand, if the trial judge exercises such discretion, it is recommended that he enter findings and conclusions that will establish the appropriateness of severance. Vance Trucking Co. v. Phillips, 66 N.C. App. 269, 311 S.E.2d 318, 1984 N.C. App. LEXIS 2841 (1984).

Within Discretion of Trial Judge. —

Whether or not there should be severance rests in the sound discretion of the trial judge. Aetna Ins. Co. v. Carroll's Transf., Inc., 14 N.C. App. 481, 188 S.E.2d 612, 1972 N.C. App. LEXIS 2159 (1972); Wallace v. Evans, 60 N.C. App. 145, 298 S.E.2d 193, 1982 N.C. App. LEXIS 3275 (1982).

Severance is not a matter of right, but lies within the court’s discretion. Board of Transp. v. Royster, 40 N.C. App. 1, 251 S.E.2d 921, 1979 N.C. App. LEXIS 2577 (1979).

The decision to sever issues is in the discretion of the trial judge. Pinner v. Southern Bell Tel. & Tel. Co., 60 N.C. App. 257, 298 S.E.2d 749, 1983 N.C. App. LEXIS 2410 (1983).

While severance is discretionary, this rule provides for exercise of that discretion only in furtherance of convenience or to avoid prejudice. Wallace v. Evans, 60 N.C. App. 145, 298 S.E.2d 193, 1982 N.C. App. LEXIS 3275 (1982).

The plain language of subsection (b) vests in the trial court broad discretionary authority to determine when bifurcation is appropriate. Roberts v. Young, 120 N.C. App. 720, 464 S.E.2d 78, 1995 N.C. App. LEXIS 938 (1995).

When Bifurcation Is Appropriate. —

A bifurcated trial is particularly appropriate where separate submission of issues avoids confusion and promotes a logical presentation to the jury, and where resolution of a separated issue will potentially dispose of the entire case. In re Will of Hester, 320 N.C. 738 , 360 S.E.2d 801, 1987 N.C. LEXIS 2415 (1987).

There was no error in the bifurcation of a personal injury action, as the trial court was granted the authority to bifurcate a trial in furtherance of convenience or to avoid prejudice, in accordance with Rule 42(b); although commonly used in complicated tort proceedings, it was not restricted to such cases, and, if the jury in the instant case had found negligence, there would have been an opportunity to present evidence on damages. Marshall v. Williams, 153 N.C. App. 128, 574 S.E.2d 1, 2002 N.C. App. LEXIS 1071 (2002).

Separation Held Proper. —

Claim against one of several defendants arose from circumstances totally different from those that gave rise to the other claims involved and trying that issue separately was a comparatively simple process that had the advantage of possibly making it unnecessary to try the other issues; therefore, severance of that claim was proper. Hoots v. Toms & Bazzle, 100 N.C. App. 412, 396 S.E.2d 820, 1990 N.C. App. LEXIS 1040 (1990).

Issues concerning the validity of a testator’s 1995 will and the revocation of the testator’s 2002 will were separate, distinct, and compartmentalized, and a trial court’s order trifurcating the issues of the trial was not improper. In re Will of McFayden, 178 N.C. App. 704, 632 S.E.2d 520, 2006 N.C. App. LEXIS 1635 , superseded, 179 N.C. App. 595, 635 S.E.2d 65, 2006 N.C. App. LEXIS 2053 (2006).

Caveators alleged a second will, the original of which was lost, revoked the testator’s earlier will under G.S. 31-5.1 ; pursuant to G.S. 1A-1-42, the trial court did not abuse its discretion by trifurcating the case on three issues: (1) the validity of the earlier will; (2) whether the testator destroyed the later will; and (3) the validity of the later will, as these issues were separate, distinct, and compartmentalized. In re Will of McFayden, 179 N.C. App. 595, 635 S.E.2d 65, 2006 N.C. App. LEXIS 2053 (2006).

No Error Where Sound Grounds for Separation Exist. —

Since subsection (b) of this rule authorizes the trial judge to order a separate trial of any claim or issue “in furtherance of convenience or to avoid prejudice,” the severance of the claim against one of several defendants was within the court’s discretion, and was not error since sound grounds therefor existed. Hoots v. Toms & Bazzle, 100 N.C. App. 412, 396 S.E.2d 820, 1990 N.C. App. LEXIS 1040 (1990).

Bifurcation of Caveat Proceedings. —

Although this rule has most frequently been applied in complicated tort proceedings, there is no reason why bifurcation of a caveat proceeding may not be approached in the same fashion as in other civil litigation. In re Will of Hester, 320 N.C. 738 , 360 S.E.2d 801, 1987 N.C. LEXIS 2415 (1987).

Bifurcation of Underlying and Malpractice Claims. —

Severance of a legal malpractice claim, under G.S. 1A-1 , Rule 42(b), into a trial on whether the client’s underlying claim was valid, followed by a trial on whether the attorney committed malpractice, did not abuse discretion. Kearns v. Horsley, 144 N.C. App. 200, 552 S.E.2d 1, 2001 N.C. App. LEXIS 544 (2001).

Denial of Motion to Bifurcate. —

Trial court did not err in a wrongful death and medical malpractice action by denying a motion by the personal representative of the decedent’s estate to bifurcate the trial into liability and damages phases because the personal representative failed to carry the burden to show that the trial court’s finding of good cause in the case was manifestly unsupported by reason or so arbitrary that it could not have been the result of a reasoned decision. Clarke v. Mikhail, 243 N.C. App. 677, 779 S.E.2d 150, 2015 N.C. App. LEXIS 905 (2015).

Issues in Bifurcated Trial Held Nonappealable. —

In a case bifurcated pursuant to N.C. R. Civ. P. 42(b) as to liability and damages, an interlocutory judgment on liability was nonappealable where it was not certified as immediately appealable pursuant to N.C. R. Civ. P. 54(b). Land v. Land, 201 N.C. App. 672, 687 S.E.2d 511, 2010 N.C. App. LEXIS 39 (2010).

In a case bifurcated pursuant to N.C. R. Civ. P. 42(b) as to liability and damages, the denial of a motion for new trial as to the liability phase was interlocutory and nonappealable because the issues decided at the first trial were separate and distinct from those to be decided at the second trial, and there was no possibility of a second jury rendering a verdict inconsistent with the verdict of the first jury. Land v. Land, 201 N.C. App. 672, 687 S.E.2d 511, 2010 N.C. App. LEXIS 39 (2010).

In a case bifurcated pursuant to N.C. R. Civ. P. 42(b) as to liability and damages, the denial of a motion for new trial as to the liability phase was interlocutory and nonappealable and there was no automatic right of appeal under either G.S. 1-277 or G.S. 7A-27(d) in the absence of a showing of a substantial right because the denial of defendants’ motion for a new trial was only as to the liability phase of the trial. Land v. Land, 201 N.C. App. 672, 687 S.E.2d 511, 2010 N.C. App. LEXIS 39 (2010).

Because not all matters had been fully resolved, the statutory mandated transfer provisions did not apply, defendant’s interlocutory appeal was premature and was dismissed; nothing prevented defendant from raising the constitutionality of plaintiff’s covenant claims before a three-judge panel after all other issues in the case were resolved. Hull v. Brown, 2021-NCCOA-525, 279 N.C. App. 570, 866 S.E.2d 485, 2021- NCCOA-525, 2021 N.C. App. LEXIS 536 (2021).

Admissibility of Evidence. —

When a former patient opened the door to evidence relevant for impeachment purposes by testifying regarding the patient’s health condition during the liability portion of the bifurcated trial, the health care providers were allowed to ask questions and present relevant evidence for the limited purpose of impeaching that testimony, even though such evidence would otherwise have been inadmissible due to its relation to damages in the patient’s action for medical malpractice. Hill v. Boone, 2021-NCCOA-490, 279 N.C. App. 335, 865 S.E.2d 722, 2021- NCCOA-490, 2021 N.C. App. LEXIS 512 (2021).

Constitutionality of Eugenics Asexualization and Sterilization Compensation Program. —

General grant of jurisdiction to the court of appeals to review decisions of the North Carolina Industrial Commission, or more specifically, decisions denying compensation pursuant to the Eugenics Asexualization and Sterilization Compensation Program cannot supplant the intent that any facial challenge to the validity of an act of the General Assembly shall be transferred to the Superior Court of Wake County and be heard and determined by a three-judge panel of the Superior Court of Wake County. In re Hughes, 245 N.C. App. 398, 785 S.E.2d 111, 2016 N.C. App. LEXIS 196 (2016), rev'd, 369 N.C. 499 , 797 S.E.2d 264, 2017 N.C. LEXIS 130 (2017), rev'd, 369 N.C. 489 , 796 S.E.2d 784, 2017 N.C. LEXIS 129 (2017), rev'd, 369 N.C. 490 , 797 S.E.2d 275, 2017 N.C. LEXIS 132 (2017).

Court of appeals was without jurisdiction to consider estates’ appeal, arguing that the Eugenics Asexualization and Sterilization Compensation Program was unconstitutional, because, pursuant to the Compensation Program and the Tort Claims Act, the North Carolina Industrial Commission was constituted a court for resolution of the matters; the appropriate procedure was for the Commission to transfer the action to the Superior Court of Wake County for resolution by a three-judge panel. In re Hughes, 245 N.C. App. 398, 785 S.E.2d 111, 2016 N.C. App. LEXIS 196 (2016), rev'd, 369 N.C. 499 , 797 S.E.2d 264, 2017 N.C. LEXIS 130 (2017), rev'd, 369 N.C. 489 , 796 S.E.2d 784, 2017 N.C. LEXIS 129 (2017), rev'd, 369 N.C. 490 , 797 S.E.2d 275, 2017 N.C. LEXIS 132 (2017); Fuller v. Wake Cty., 254 N.C. App. 32, 802 S.E.2d 106, 2017 N.C. App. LEXIS 459 (2017).

Rule 43. Evidence.

  1. Form. —  In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules.
  2. Examination of hostile witnesses and adverse parties. —  A party may interrogate any unwilling or hostile witness by leading questions and may contradict and impeach him in all respects as if he had been called by the adverse party. A party may call an adverse party or an agent or employee of an adverse party, or an officer, director, or employee of a public or private corporation or of a partnership or association which is an adverse party, or an officer, agent or employee of a state, county or municipal government or agency thereof which is an adverse party, and interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party.
  3. Record of excluded evidence. —  In an action tried before a jury, if an objection to a question propounded to a witness is sustained by the court, the court on request of the examining attorney shall order a record made of the answer the witness would have given. The court may add such other or further statement as clearly shows the character of the evidence, the form in which it was offered, the objection made and the ruling thereon. In actions tried without a jury the same procedure may be followed, except that the court upon request shall take and report the evidence in full, unless it clearly appears that the evidence is not admissible on any grounds or that the witness is privileged.
  4. Affirmation in lieu of oath. —  Whenever under these rules an oath is required to be taken, a solemn affirmation may be accepted in lieu thereof.
  5. Evidence on motions. —  When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.

History. 1967, c. 954, s. 1.

Comment

While these rules do not deal extensively with questions of evidence, matters dealt with by the federal rules have been considered.

Section (a). — This section continues the usual practice of testimony being taken orally in open court. The “unless” clause refers principally to the provisions for the use of depositions in Rule 26(d).

Section (b). — This section deals with the situation where a party is forced to call his adversary as a witness. Under former provisions of § 8-50, one was permitted in this situation to cross-examine the witness and to contradict him but not to impeach him. This latter restriction is removed on the theory that a party who is so desperate as to be forced to call his adversary as a witness should be allowed the greatest latitude in refuting his adversary’s testimony, should that be desirable. Section (b) also enlarges and spells out in greater detail the category of witnesses to whom its special provisions apply. The former provisions of § 8-50 said only that where a corporation is a party, its “officers or agents” are within its scope.

Section (c). — This section continues present practice.

Section (d). — This section makes available to all the privilege of using an affirmation instead of an oath. Under § 11-4, only Quakers, Moravians, Dunkers and Mennonites are so privileged.

Section (e). — This section continues present practice.

Legal Periodicals.

For article, “Toward a Codification of the Law of Evidence in North Carolina,” see 16 Wake Forest L. Rev. 669 (1980).

For article, “The 1980 Amendments to the Federal Rules of Civil Procedure and Proposals for North Carolina Practice,” see 16 Wake Forest L. Rev. 915 (1980).

For survey of 1980 law on evidence, see 59 N.C.L. Rev. 1173 (1981).

Editor’s Note. —

Reserved for future annotations.

CASE NOTES

Analysis

I.In General
II.Form of Evidence

Court’s Discretion. —

In an alienation of affection suit, when the trial court’s exercise of personal jurisdiction was challenged, under G.S. 1A-1 , Rule 43(e) the trial court could decide the matter based on affidavits or could conduct an evidentiary hearing with witness testimony or depositions. Eluhu v. Rosenhaus, 159 N.C. App. 355, 583 S.E.2d 707, 2003 N.C. App. LEXIS 1525 (2003), aff'd, 358 N.C. 372 , 595 S.E.2d 146, 2004 N.C. LEXIS 343 (2004).

Affidavits Preferred for Pretrial Motions. —

For pretrial motion hearings it is affidavits and not oral testimony that is the preferred form of evidence. Lowder v. All Star Mills, Inc., 60 N.C. App. 699, 300 S.E.2d 241, 1983 N.C. App. LEXIS 2525 (1983).

Type of Offer of Proof Required. —

Statutes do not require that an offer of proof be made in any particular form, as one rule merely requires that the record be made to show how the witnesses would have testified, and another rule does not mandate that offers of proof be made in any particular manner; though a formal offer is the preferred method, there are reasons where a trial court may deem an informal offer to be appropriate, and the informal offer should be made with particularity, and it remains in the trial court’s discretion whether to allow the offer to be made informally. State v. Martin, 241 N.C. App. 602, 774 S.E.2d 330, 2015 N.C. App. LEXIS 516 (2015).

Personal Knowledge. —

Affidavit that stated that “to the best of (the affiant’s) knowledge,” the mortgagors were not in the Armed Forces and that the affiant was familiar with the records of petitioner in support of a foreclosure sale was properly considered under G.S. 1A-1 , N.C. R. Civ. P. 56(e) and 43(e) as the affiant put a self-imposed limitation to the affiant’s personal knowledge that based on the documents he had reviewed, his affirmations were true. In re Yopp, 217 N.C. App. 488, 720 S.E.2d 769, 2011 N.C. App. LEXIS 2609 (2011).

Use of Deposition at Trial Limited. —

Although the Rules of Civil Procedure provide extensive rights of discovery to any party, the use of a deposition in a civil case at the trial stage is sharply limited. Maness v. Bullins, 11 N.C. App. 567, 181 S.E.2d 750, cert. denied, 279 N.C. 395 , 183 S.E.2d 242 (1971). See also Rule 32 .

Oral Testimony in Equitable Distribution Trial. —

The trial court may not by rule or otherwise deprive the parties in an equitable distribution trial of the opportunity to present oral testimony in open court. Murrow v. Murrow, 87 N.C. App. 174, 359 S.E.2d 811, 1987 N.C. App. LEXIS 3069 (1987).

Oral Testimony in Termination of Parental Rights. —

Although a trial court considering a termination of parental rights petition can consider written reports, prior court order, and oral arguments by the attorneys involved in the case, some oral testimony needs to be taken by the court. In re A.M., 192 N.C. App. 538, 665 S.E.2d 534, 2008 N.C. App. LEXIS 1632 (2008).

III.Examination of Hostile Witnesses and Adverse Parties

Section (b) of this rule changed the established law of the State applicable to civil cases, while the rule against impeachment of one’s own witnesses in criminal cases remains unchanged. State v. Anderson, 283 N.C. 218 , 195 S.E.2d 561, 1973 N.C. LEXIS 934 (1973).

And Is Counterpart to G.S. 1A-1 , Rule 26(e). —

See Bowen v. Constructors Equip. Rental Co., 283 N.C. 395 , 196 S.E.2d 789, 1973 N.C. LEXIS 990 (1973).

Section (b) of this rule is applicable when plaintiff calls defendant as an adverse witness to testify at trial, instead of introducing the adverse examination of the defendant. Bowen v. Constructors Equip. Rental Co., 283 N.C. 395 , 196 S.E.2d 789, 1973 N.C. LEXIS 990 (1973).

Applicability of Section (b) to Adverse Party’s Testimony Under G.S. 1A-1 , Rule 26(e). —

The rule applicable to the testimony at trial of an adverse party under section (b) of this rule is equally applicable to the adverse party’s testimony under adverse examination under G.S. 1A-1 , Rule 26(e). Bowen v. Constructors Equip. Rental Co., 283 N.C. 395 , 196 S.E.2d 789, 1973 N.C. LEXIS 990 (1973).

A party calling his adversary as a witness is not concluded by his uncontradicted testimony, but may rely on such portion of his testimony as is favorable to him, and is not bound by his adverse testimony. Bowen v. Constructors Equip. Rental Co., 283 N.C. 395 , 196 S.E.2d 789, 1973 N.C. LEXIS 990 (1973).

Right to Elicit Facts Showing Hostility of Witness. —

A party to either a civil or criminal proceeding may elicit from an opposing witness on cross-examination particular facts having a logical tendency to show that the witness is biased against him, hostile to his cause or interested adversely to him in the outcome of the litigation. State v. White, 286 N.C. 395 , 211 S.E.2d 445, 1975 N.C. LEXIS 1192 (1975).

Use of Leading Questions on Cross-Examination. —

Leading questions may be asked on cross-examination, but the cross-examiner may be barred from doing so when the witness is not in fact unwilling or hostile. Fisher v. Thompson, 50 N.C. App. 724, 275 S.E.2d 507, 1981 N.C. App. LEXIS 2199 (1981).

The rulings of the judge on the use of leading questions are discretionary and may not be reversed absent an abuse of that discretion. Fisher v. Thompson, 50 N.C. App. 724, 275 S.E.2d 507, 1981 N.C. App. LEXIS 2199 (1981).

Termination of Parental Rights. —

A respondent in a proceeding to terminate her parental rights is a party to the proceeding, and may be called to testify as an adverse party when she appeared at the proceeding, and a subpoena was not required. In re Davis, 116 N.C. App. 409, 448 S.E.2d 303, 1994 N.C. App. LEXIS 1043 (1994).

IV.Record of Excluded Evidence

Right of Counsel to Make Trial Record. —

While it is fundamental that trial counsel be allowed to make a trial record sufficient for appellate review, not every failure by the trial court to comply with the rule will be deemed prejudicial error. State v. Rudd, 60 N.C. App. 425, 299 S.E.2d 251, 1983 N.C. App. LEXIS 2454 (1983).

Efforts by trial counsel to make a record should rarely occasion threats by the trial judge to incarcerate counsel, lest not only should a good trial record fail to be made, but also that such actions by the trial court may amount to such manifest abuse of the trial court’s discretion in the conduct of the trial as to prejudice the outcome. State v. Rudd, 60 N.C. App. 425, 299 S.E.2d 251, 1983 N.C. App. LEXIS 2454 (1983).

When attempts to make a record by trial counsel are met by not mere failure or refusal of the trial court to make such a record, but are met also by overt hostility of the trial judge to such efforts, the risks that a good trial record will not be made are significantly increased. State v. Rudd, 60 N.C. App. 425, 299 S.E.2d 251, 1983 N.C. App. LEXIS 2454 (1983).

While recognizing that the balancing of the needs of judicial efficiency against lawyer exuberance will often be difficult for the trial judge, the risk of regrettable judicial mistakes will be less likely if trial judges avoid overt hostile reactions to create a record by trial counsel. State v. Rudd, 60 N.C. App. 425, 299 S.E.2d 251, 1983 N.C. App. LEXIS 2454 (1983).

Because no evidence was presented as to the minor child’s competency as a witness, the trial court, by not allowing an offer of proof, had no basis upon which to make such a determination; the trial court quashed the subpoena and refused to allow any sort of offer of proof based upon potential trauma to the child, and while her well-being was an important concern, it was a not a legal basis to disregard the mandate within the rule. Counsel had to be allowed to make an offer of proof under these facts. Daly v. Kelly, 272 N.C. App. 448, 846 S.E.2d 830, 2020 N.C. App. LEXIS 537 (2020).

Judge Need Not be Present for Record to be Made. —

Where the trial court allowed the ex-husband to introduce the excluded evidence into the record, and there was no binding authority that required a trial court to personally take an offer of proof, the trial court’s failure to personally consider the ex-husband’s offer of proof was not prejudicial. Rhew v. Felton, 178 N.C. App. 475, 631 S.E.2d 859, 2006 N.C. App. LEXIS 1560 (2006).

The trial judge should be loath to deny an attorney his right to have an excluded answer placed in the record, because the appellate division may not concur in his judgment that the proffered testimony is clearly inadmissible. Nix v. Allstate Ins. Co., 68 N.C. App. 280, 314 S.E.2d 562, 1984 N.C. App. LEXIS 3181 (1984).

Exclusion Based on Claim of Privilege. —

Normally, excluded evidence must be placed in the record if offered, “unless it clearly appears . . . that the witness is privileged.” If the exclusion is based upon a claim of privilege, disclosure of the answer should not be required, as it would in some sense destroy the very privilege ostensibly recognized. Stone v. Martin, 69 N.C. App. 650, 318 S.E.2d 108, 1984 N.C. App. LEXIS 3531 (1984).

Section (c) of this rule does not state time to be of the essence in making a motion to let the record show the answers that would have been given to questions to which objections were sustained. State v. Willis, 20 N.C. App. 43, 200 S.E.2d 408, 1973 N.C. App. LEXIS 1464 (1973), aff'd, 285 N.C. 195 , 204 S.E.2d 33, 1974 N.C. LEXIS 935 (1974).

Right to Appeal Waived for Failure to Make Offer of Proof. —

Passenger waived her right to appeal the refusal of the trial court to allow her to rehabilitate her expert witness, a chiropractor; the passenger failed to make an offer of proof under G.S. 1A-1 , N.C. R. Civ. P. 43(c), indicating the relevance of the question or that the testimony was sought for purposes allowed under G.S. 8C-1 , N.C. R. Evid. 411. Griffis v. Lazarovich, 161 N.C. App. 434, 588 S.E.2d 918, 2003 N.C. App. LEXIS 2200 (2003).

An offer of proof under section (c) of this rule must be specific and must indicate what testimony the excluded witness would give. Currence v. Hardin, 296 N.C. 95 , 249 S.E.2d 387, 1978 N.C. LEXIS 1164 (1978).

Showing of Essential Content of Excluded Testimony Required. —

A simple indication or assertion that excluded testimony will concern a physician’s diagnosis of a party’s condition, although it indicates the general subject of the testimony, is not sufficiently specific for purposes of review. A showing of the essential content or substance of the witness’ testimony is required before the court can determine whether the error in excluding the evidence is prejudicial. Currence v. Hardin, 296 N.C. 95 , 249 S.E.2d 387, 1978 N.C. LEXIS 1164 (1978).

Significance of the Excluded Evidence Must Be Shown. —

Whether an objection is to the admissibility of testimony or to the competency of a witness to testify, the significance of the excluded evidence must be made to appear in the record if the matter is to be heard on review. Unless the significance of the evidence is obvious from the record, counsel offering the evidence must make a specific offer of what he expects to prove by the answer of the witness. Currence v. Hardin, 296 N.C. 95 , 249 S.E.2d 387, 1978 N.C. LEXIS 1164 (1978).

Exclusion of testimony cannot be held prejudicial on appeal unless appellant shows what witness would have testified if permitted to do so. Spinella v. Pearce, 12 N.C. App. 121, 182 S.E.2d 620, 1971 N.C. App. LEXIS 1298 (1971); Gibbs v. Duke, 32 N.C. App. 439, 232 S.E.2d 484, 1977 N.C. App. LEXIS 1967 , cert. denied, 292 N.C. 640 , 235 S.E.2d 61, 1977 N.C. LEXIS 1151 (1977); Love v. Pressley, 34 N.C. App. 503, 239 S.E.2d 574, 1977 N.C. App. LEXIS 1762 (1977), cert. denied, 294 N.C. 441 , 241 S.E.2d 843, 1978 N.C. LEXIS 1266 (1978).

Judge’s Refusal to Allow Preservation of Answer Not Prejudicial Error Where Immateriality Is Demonstrated. —

While section (c) of this rule specifically requires the judge to preserve the offer of evidence in the record in a civil case, where the witness has already answered the question sufficiently to demonstrate the immateriality of the inquiry, the judge’s refusal to allow the preservation of the answer will not be held prejudicial error. State v. Chapman, 294 N.C. 407 , 241 S.E.2d 667, 1978 N.C. LEXIS 1321 (1978).

Or Where Evidence Is Clearly Not Prejudicial. —

In actions tried without a jury, answers to questions to which objections have been properly sustained need not be placed into the record by the trial court if the evidence is clearly not admissible on any grounds. Sheppard v. Sheppard, 38 N.C. App. 712, 248 S.E.2d 871, 1978 N.C. App. LEXIS 2313 (1978), cert. denied, 296 N.C. 586 , 254 S.E.2d 34, 1979 N.C. LEXIS 1222 (1979).

While section (c) of this rule requires the trial court, upon request, to allow the insertion of excluded evidence in the record, the trial judge is not required to allow insertion of an answer in the record if it clearly appears that the proffered testimony is not admissible on any grounds. Nix v. Allstate Ins. Co., 68 N.C. App. 280, 314 S.E.2d 562, 1984 N.C. App. LEXIS 3181 (1984).

Offer of Proof Sufficient to Preserve Issue for Appellate Review. —

Property owners’ offer of proof regarding a licensed real estate broker’s testimony was sufficient to preserve the exclusion of the broker’s fair-market-value testimony for appellate review, regardless of whether the owners tried to call the broker to testify about fair market value at trial, because during the offer of proof, the broker laid out his credentials in detail; the broker also announced his estimate of the damages due to the owners and summarized the calculation that led to that estimate. N.C. DOT v. Mission Battleground Park, DST, 370 N.C. 477 , 810 S.E.2d 217, 2018 N.C. LEXIS 61 (2018).

V.Evidence on Motions

Requirements of G.S. 1A-1 , Rule 56(e) Read into Section (e) of this Rule. —

To the extent that section (e) of this rule applies to a motion to dismiss, the requirement of G.S. 1A-1 , Rule 56(e) that affidavits on motions for summary judgment shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein should be read into section (e) of this rule. Moreover, as a motion to dismiss can result in termination of a lawsuit just as much as a motion for summary judgment, the judge should rely only on material that would be admissible at trial in ruling on such a motion. Hankins v. Somers, 39 N.C. App. 617, 251 S.E.2d 640, 1979 N.C. App. LEXIS 2537 , cert. denied, 297 N.C. 300 , 254 S.E.2d 920, 1979 N.C. LEXIS 1306 (1979).

Rulings Must be Based on Material That Would be Admissible at Trial. —

To the extent N.C. R. Civ. P. 43(e) applies to a motion to dismiss, a trial court in ruling on a N.C. R. Civ. P. 12(b)(2) motion should rely only on material that would be admissible at trial. N.C. R. Civ. P. 43(e) has been applied to motions related to default judgments, and because a default judgment also results in the termination of a lawsuit, affidavits purporting to establish personal jurisdiction over a defendant should be based on personal knowledge. Lemon v. Combs, 164 N.C. App. 615, 596 S.E.2d 344, 2004 N.C. App. LEXIS 964 (2004).

Evidence as to Motions for Fees. —

Since a court may hear motions for fees on affidavits, it is not improper for court to allow fees without giving appellants a chance to cross-examine the receivers, attorneys and accountants as to the services rendered. Lowder v. All Star Mills, Inc., 60 N.C. App. 275, 300 S.E.2d 230, 1983 N.C. App. LEXIS 2444 , aff'd in part and rev'd in part, 309 N.C. 695 , 309 S.E.2d 193, 1983 N.C. LEXIS 1457 (1983).

Oral testimony at a hearing on a motion for summary judgment is admissible by virtue of section (e) of this rule. Walton v. Meir, 14 N.C. App. 183, 188 S.E.2d 56, 1972 N.C. App. LEXIS 2085 , cert. denied, 281 N.C. 515 , 189 S.E.2d 35, 1972 N.C. LEXIS 1100 (1972).

While under section (e) of this rule oral testimony is permissible on a motion for summary judgment, the admission of such testimony is in the court’s discretion. Hillman v. United States Liab. Ins. Co., 59 N.C. App. 145, 296 S.E.2d 302, 1982 N.C. App. LEXIS 3078 (1982).

For Use in Supplementary Capacity. —

Under section (e) of this rule, oral testimony offered at a hearing on a motion under G.S. 1A-1 , Rule 56 for summary judgment should be used only in a supplementary capacity, to provide a small link of required evidence, and not as the main evidentiary body of the hearing. Nationwide Mut. Ins. Co. v. Chantos, 21 N.C. App. 129, 203 S.E.2d 421, 1974 N.C. App. LEXIS 1736 (1974).

Although section (e) of this rule does permit the court to hear oral testimony in ruling upon a motion for summary judgment, this procedure should normally be utilized only if a small link of evidence is needed, and not for a long drawn out hearing to determine whether there is to be a trial. Chandler v. Cleveland Sav. & Loan Ass'n, 24 N.C. App. 455, 211 S.E.2d 484, 1975 N.C. App. LEXIS 2404 (1975).

Within Discretion of the Court. —

While oral testimony is permissible on a motion for summary judgment, the admission of such testimony is in the court’s discretion. Pearce Young Angel Co. v. Don Becker Enters., Inc., 43 N.C. App. 690, 260 S.E.2d 104, 1979 N.C. App. LEXIS 3172 (1979).

Affidavit Not Based on Personal Knowledge Held Insufficient. —

Where appellants sought a bond under G.S. 1-292 for a stay pending appeal of an order requiring them to sell land to appellee, an affidavit stating that appellee would incur damages of about $1.369 million per year if delayed in developing the land did not support the trial court’s $1 million bond requirement, as there was no showing the affidavit was based on the affiant’s personal knowledge. Currituck Assocs.-Residential P'ship v. Hollowell, 170 N.C. App. 399, 612 S.E.2d 386, 2005 N.C. App. LEXIS 1000 (2005).

As to propriety of considering affidavits in show cause hearings for injunctions, see State ex rel. Morgan v. Dare to Be Great, Inc., 15 N.C. App. 275, 189 S.E.2d 802, 1972 N.C. App. LEXIS 1898 (1972).

For case upholding court’s direction that evidentiary hearing on motion for relief from default judgment should be heard wholly on oral testimony, see Webb v. James, 46 N.C. App. 551, 265 S.E.2d 642, 1980 N.C. App. LEXIS 2858 (1980).

Rule 44. Proof of official record.

  1. Authentication of copy. —  An official record or an entry therein, when admissible for any purpose, may be evidence by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied with a certificate that such officer has the custody. If the office in which the record is kept is without the State of North Carolina but within the United States or within a territory or insular possession subject to the dominion of the United States, the certificate may be made by a judge of a court of record of the political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public officer having a seal of office and having official duties in the political subdivision in which the record is kept, authenticated by the seal of his office. If the office in which the record is kept is in a foreign state or country, the certificate may be made by a secretary of embassy or legation, consul general, consul, vice-consul, or consular agent or by any officer in the foreign service of the United States stationed in the foreign state or country in which the record is kept, and authenticated by the seal of his office.
  2. Proof of lack of record. —  A written statement signed by an officer having the custody of an official record or by his deputy that after diligent search no record or entry of a specified tenor is found to exist in the records of his office, accompanied by a certificate as above provided, is admissible as evidence that the records of his office contain no such record or entry.
  3. Other proof. —  This rule does not prevent the proof of official records specified in Title 28, U.S.C. §§ 1738 and 1739 in the manner therein provided; nor of entry or lack of entry in official records by any method authorized by any other applicable statute or by the rules of evidence at common law.

History. 1967, c. 954, s. 1.

Comment

North Carolina had no general statute, applying to all official custodians of records, in respect to the proof of official records. Section (a) supplies this omission and makes unnecessary reliance on statutes applicable to particular custodians and to particular situations. For reference to and discussion of the North Carolina statutes, see Stansbury, North Carolina Evidence, § 154.

Section (b) provides a simple method for producing evidence of nonexistence of a record.

Section (c), out of an abundance of caution, leaves as alternative methods of proof any methods now existing. For various statutes, see Chapter 8 of the General Statutes, Article 2 and Article 3. 28 U.S.C., §§ 1738 and 1739 have to do with proof of records in other states and in territories and possessions of the United States. In addition, the two sections prescribe the “faith and credit” these records are to have when duly authenticated.

Legal Periodicals.

For article, “Toward a Codification of the Law of Evidence in North Carolina,” see 16 Wake Forest L. Rev. 669 (1980).

For article, “The 1980 Amendments to the Federal Rules of Civil Procedure and Proposals for North Carolina Practice,” see 16 Wake Forest L. Rev. 915 (1980).

CASE NOTES

Authentication of Copy. —

Minutes of a meeting of the Joint Appropriations Expansion Budget Committee on Education were properly admitted although they were not admitted into evidence through the legislative librarian, where the minutes were introduced through an administrative officer for the General Assembly and custodian of materials contained in the legislative library and the minutes were testified to be a true and accurate copy of the original of the minutes. This was sufficient authentication of the official minutes. Morgan v. Polk County Bd. of Educ., 74 N.C. App. 169, 328 S.E.2d 320, 1985 N.C. App. LEXIS 3446 (1985).

Judgment from a Kentucky court in a class action against an insurer was properly authenticated for use in a North Carolina court, under G.S. 1A-1 , N.C. R. Civ. P. 44(c), through the affidavit of an attorney. Freeman v. Pac. Life Ins. Co., 156 N.C. App. 583, 577 S.E.2d 184, 2003 N.C. App. LEXIS 190 (2003).

Presumption of Validity. —

Once a judgment creditor was entitled to a presumption that an out of state judgment was entitled to full faith and credit, the plaintiff was not required to bring forth evidence that none of the defenses available to defendants were valid; rather the defendants were required to bring forth evidence to rebut the presumption of validity, and, as the defendants offered no such evidence, the trial court correctly ordered that the plaintiff’s motion to enforce the judgment be allowed and ordered that the out of state judgment be given full faith and credit. Lust v. Fountain of Life, Inc., 110 N.C. App. 298, 429 S.E.2d 435, 1993 N.C. App. LEXIS 456 (1993).

Foreign judgment that the judgment creditor obtained in New York was entitled to a presumption that the judgment was entitled to full faith and credit, as the judgment creditor met its burden of showing that entitlement by filing a properly authenticated judgment; however, the general contractor timely moved for relief from the foreign judgment by raising the defense that the New York trial court that entered it did not have personal jurisdiction over the general contractor, and because the trial court did not make any findings of fact or conclusions of law regarding the motion to enforce the judgment, the conclusion that the foreign judgment was enforceable in North Carolina was not supported by competent evidence and the case had to be remanded to the trial court for further proceedings. Quantum Corp. Funding, Ltd. v. B.H. Bryan Bldg. Co., 175 N.C. App. 483, 623 S.E.2d 793, 2006 N.C. App. LEXIS 187 (2006).

Rule 44.1. Determination of foreign law.

A party who intends to raise an issue concerning the law of a foreign country shall give notice by pleadings or by other reasonable written notice. The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under Chapter 8 of the General Statutes and State law. The court’s determination shall be treated as a ruling on a question of law.

History. 1995, c. 389, s. 5.

Rule 45. Subpoena.

  1. Form; Issuance. —
    1. Every subpoena shall state all of the following:
      1. The title of the action, the name of the court in which the action is pending, the number of the civil action, and the name of the party at whose instance the witness is summoned.
      2. A command to each person to whom it is directed to attend and give testimony or to produce and permit inspection and copying of designated records, books, papers, documents, electronically stored information, or tangible things in the possession, custody, or control of that person therein specified.
      3. The protections of persons subject to subpoenas under subsection (c) of this rule.
      4. The requirements for responses to subpoenas under subsection (d) of this rule.
    2. A command to produce records, books, papers, electronically stored information, or tangible things may be joined with a command to appear at trial or hearing or at a deposition, or any subpoena may be issued separately. A subpoena may specify the form or forms in which electronically stored information is to be produced.
    3. A subpoena shall issue from the court in which the action is pending.
    4. The clerk of court in which the action is pending shall issue a subpoena, signed but otherwise blank, to a party requesting it, who shall complete it before service. Any judge of the superior court, judge of the district court, magistrate, or attorney, as officer of the court, may also issue and sign a subpoena.
  2. Service. —
    1. Manner. —  Any subpoena may be served by the sheriff, by the sheriff’s deputy, by a coroner, or by any person who is not a party and is not less than 18 years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to that person or by registered or certified mail, return receipt requested. Service of a subpoena for the attendance of a witness only may also be made by telephone communication with the person named therein only by a sheriff, the sheriff’s designee who is not less than 18 years of age and is not a party, or a coroner.
    2. Service of copy. —  A copy of the subpoena served under subdivision (b)(1) of this subsection shall also be served upon each party in the manner prescribed by Rule 5(b).
    3. Subdivision (b)(2) of this subsection does not apply to subpoenas issued under G.S. 15A-801 or G.S. 15A-802 .
  3. Protection of Persons Subject to Subpoena. —
    1. Avoid undue burden or expense. —  A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing an undue burden or expense on a person subject to the subpoena. The court shall enforce this subdivision and impose upon the party or attorney in violation of this requirement an appropriate sanction that may include compensating the person unduly burdened for lost earnings and for reasonable attorney’s fees.
    2. For production of public records or hospital medical records. —  Where the subpoena commands any custodian of public records or any custodian of hospital medical records, as defined in G.S. 8-44.1 , to appear for the sole purpose of producing certain records in the custodian’s custody, the custodian subpoenaed may, in lieu of personal appearance, tender to the court in which the action is pending by registered or certified mail or by personal delivery, on or before the time specified in the subpoena, certified copies of the records requested together with a copy of the subpoena and an affidavit by the custodian testifying that the copies are true and correct copies and that the records were made and kept in the regular course of business, or if no such records are in the custodian’s custody, an affidavit to that effect. When the copies of records are personally delivered under this subdivision, a receipt shall be obtained from the person receiving the records. Any original or certified copy of records or an affidavit delivered according to the provisions of this subdivision, unless otherwise objectionable, shall be admissible in any action or proceeding without further certification or authentication. Copies of hospital medical records tendered under this subdivision shall not be open to inspection or copied by any person, except to the parties to the case or proceedings and their attorneys in depositions, until ordered published by the judge at the time of the hearing or trial. Nothing contained herein shall be construed to waive the physician-patient privilege or to require any privileged communication under law to be disclosed.
    3. Written objection to subpoenas. —  Subject to subsection (d) of this rule, a person commanded to appear at a deposition or to produce and permit the inspection and copying of records, books, papers, documents, electronically stored information, or tangible things may, within 10 days after service of the subpoena or before the time specified for compliance if the time is less than 10 days after service, serve upon the party or the attorney designated in the subpoena written objection to the subpoena, setting forth the specific grounds for the objection. The written objection shall comply with the requirements of Rule 11. Each of the following grounds may be sufficient for objecting to a subpoena:
      1. The subpoena fails to allow reasonable time for compliance.
      2. The subpoena requires disclosure of privileged or other protected matter and no exception or waiver applies to the privilege or protection.
      3. The subpoena subjects a person to an undue burden or expense.
      4. The subpoena is otherwise unreasonable or oppressive.
      5. The subpoena is procedurally defective.
    4. Order of court required to override objection. —  If objection is made under subdivision (3) of this subsection, the party serving the subpoena shall not be entitled to compel the subpoenaed person’s appearance at a deposition or to inspect and copy materials to which an objection has been made except pursuant to an order of the court. If objection is made, the party serving the subpoena may, upon notice to the subpoenaed person, move at any time for an order to compel the subpoenaed person’s appearance at the deposition or the production of the materials designated in the subpoena. The motion shall be filed in the court in the county in which the deposition or production of materials is to occur.
    5. Motion to quash or modify subpoena. —  A person commanded to appear at a trial, hearing, deposition, or to produce and permit the inspection and copying of records, books, papers, documents, electronically stored information, or other tangible things, within 10 days after service of the subpoena or before the time specified for compliance if the time is less than 10 days after service, may file a motion to quash or modify the subpoena. The court shall quash or modify the subpoena if the subpoenaed person demonstrates the existence of any of the reasons set forth in subdivision (3) of this subsection. The motion shall be filed in the court in the county in which the trial, hearing, deposition, or production of materials is to occur.
    6. Order to compel; expenses to comply with subpoena. —  When a court enters an order compelling a deposition or the production of records, books, papers, documents, electronically stored information, or other tangible things, the order shall protect any person who is not a party or an agent of a party from significant expense resulting from complying with the subpoena. The court may order that the person to whom the subpoena is addressed will be reasonably compensated for the cost of producing the records, books, papers, documents, electronically stored information, or tangible things specified in the subpoena.
    7. Trade secrets; confidential information. —  When a subpoena requires disclosure of a trade secret or other confidential research, development, or commercial information, a court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena, or when the party on whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot otherwise be met without undue hardship, the court may order a person to make an appearance or produce the materials only on specified conditions stated in the order.
    8. Order to quash; expenses. —  When a court enters an order quashing or modifying the subpoena, the court may order the party on whose behalf the subpoena is issued to pay all or part of the subpoenaed person’s reasonable expenses including attorney’s fees.
  4. Duties in Responding to Subpoenas. —
    1. Form of response. —  A person responding to a subpoena to produce records, books, documents, electronically stored information, or tangible things shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request.
    2. Form of producing electronically stored information not specified. —  If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it ordinarily is maintained or in a reasonably useable form or forms.
    3. Electronically stored information in only one form. —  The person responding need not produce the same electronically stored information in more than one form.
    4. Inaccessible electronically stored information. —  The person responding need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, after considering the limitations of Rule 26(b)(1a). The court may specify conditions for discovery, including requiring the party that seeks discovery from a nonparty to bear the costs of locating, preserving, collecting, and producing the electronically stored information involved.
    5. Specificity of objection. —  When information subject to a subpoena is withheld on the objection that it is subject to protection as trial preparation materials, or that it is otherwise privileged, the objection shall be made with specificity and shall be supported by a description of the nature of the communications, records, books, papers, documents, electronically stored information, or other tangible things not produced, sufficient for the requesting party to contest the objection.

      (d1) Opportunity for Inspection of Subpoenaed Material. — A party or attorney responsible for the issuance and service of a subpoena shall, within five business days after the receipt of material produced in compliance with the subpoena, serve all other parties with notice of receipt of the material produced in compliance with the subpoena and, upon request, shall provide all other parties a reasonable opportunity to copy and inspect such material at the expense of the inspecting party.

  5. Contempt; Expenses to Force Compliance With Subpoena. —
    1. Failure by any person without adequate excuse to obey a subpoena served upon the person may be deemed a contempt of court. Failure by any party without adequate cause to obey a subpoena served upon the party shall also subject the party to the sanctions provided in Rule 37(d).
    2. The court may award costs and attorney’s fees to the party who issued a subpoena if the court determines that a person objected to the subpoena or filed a motion to quash or modify the subpoena, and the objection or motion was unreasonable or was made for improper purposes such as unnecessary delay.
  6. Discovery From Persons Residing Outside the State. —
    1. Any party may obtain discovery from a person residing in another state of the United States or a territory or an insular possession subject to its jurisdiction in any one or more of the following forms: (i) oral depositions, (ii) depositions upon written questions, or (iii) requests for production of documents and tangible things. In doing so, the party shall use and follow any applicable process and procedures required and available under the laws of the state, territory, or insular possession where the discovery is to be obtained. If required by the process or procedure of the state, territory, or insular possession where the discovery is to be obtained, a commission may issue from the court in which the action is pending in accordance with the procedures set forth in subdivision (2) of this subsection.
    2. Obtaining a commission. —
      1. The party desiring a commission to obtain discovery outside the State shall prepare and file a motion indicating the party’s intent to obtain a commission and requesting that the commission be issued.
      2. The motion shall indicate that the moving party has conferred, or describe fully the moving party’s good faith attempts to confer, with counsel for all other parties regarding the request and shall indicate whether the motion is unopposed. The motion shall also attach a copy of any proposed subpoena, notice of deposition, or other papers to be served on the person from whom the moving party is seeking to obtain discovery.
      3. The motion shall indicate that counsel for the moving party has read the applicable rules and procedures of the foreign state and that the moving party will comply with those rules and procedures in obtaining the requested discovery.
      4. If the motion reflects that it is unopposed or indicates that the moving party has made reasonable, good faith efforts to confer with all other parties and that no other party has indicated that it opposes the motion, the motion shall immediately be placed on the calendar for a hearing within 20 days before the court in which the action is pending where the commission shall be issued. However, if the court determines, in its discretion, that the moving party has failed to make reasonable, good faith efforts to confer with all other parties prior to filing the motion, the court shall refuse to issue the commission, and the motion shall be denied.
      5. If the motion does not reflect that it is unopposed or that the moving party has made reasonable, good faith efforts to confer with all other parties and that no other party has indicated that it opposes the motion, any party wishing to oppose the motion shall file written objections to issuance of the commission within 10 days of being served with the motion, and the motion shall immediately be placed on the calendar for a hearing to be held within 20 days before the court in which the action is pending. The hearing may be held by telephone in the court’s discretion. The court may refuse to issue the commission only upon a showing of substantial good cause to deny the motion.
      6. If the court, in its discretion, determines that any party opposing the motion did so without good cause, the court shall require the party opposing the motion to pay the moving party the reasonable costs and expenses incurred in obtaining the order, including attorneys’ fees, unless circumstances exist which make an award of expenses unjust.
    3. In addition to any terms required by the foreign jurisdiction to initiate the process of obtaining the requested discovery, the commission shall:
      1. State the time and place at which the requested discovery is to occur;
      2. State the name and address of the person from whom the discovery is sought, if known, and, if unknown, a general description sufficient to identify the person or the particular class or group to which he or she belongs; and
      3. Attach a copy of any case management order, discovery order, local rule, or other rule or order establishing any discovery deadlines in the North Carolina action.

History. 1967, c. 954, s. 1; 1969, c. 886, s. 1; 1971, c. 159; 1975, c. 762, s. 3; 1983, c. 665, s. 1; c. 722; 1989, c. 262, s. 1; 2003-276, s. 1; 2007-514, s. 1; 2011-199, s. 6; 2011-247, s. 3.

Comment

This rule would seem to be largely self-explanatory. An effort has been made to provide a convenient and highly flexible practice in respect to subpoenas. It will be noted that the subpoena is to be directed to the witness rather than to the sheriff as our present statute provides. The party obtaining the subpoena will deliver it to the appropriate sheriff or other proper person for service.

The differences between sections (a) and (c) on the one hand, and section (d) on the other should also be noted. In sections (a) and (c), it is contemplated that the subpoena will issue from the court where the action is to be tried wherever the witness is likely to be found, while in section (d) the idea is that the subpoena shall issue from the court of the county where the deposition is to be taken. The limitations of section (d) in no way affect where the subpoena may be served nor do they in any way apply to sections (a) and (c).

OFFICIAL COMMENT

Comment to the 1975 Amendment.

Section (d). — The reference in subsection (d)(1) is amended to conform to the relocation of the section to which it refers. The second paragraph of subsection (d)(1) is borrowed from the federal rule. Former subsection (d)(2) is relocated to Rule 30(b)(1) where, as modified, it applies to all deponents, and not just those whose presence can be compelled only by subpoena.

Section (e). — This provision is amended to require service of a copy of a subpoena duces tecum by delivery or by registered or certified mail and to allow a person other than a sheriff, his deputy or a coroner to serve a subpoena for the attendance of a witness by registered or certified mail. The amendment also requires the server to be of legal age.

OFFICIAL COMMENT

Comment to the 2011 Amendment.

Rule 45 is amended to conform the provisions for subpoenas to changes in other discovery rules, largely related to discovery of electronically stored information. In addition, in a number of places, words identifying parts of the rule have been changed to make this rule consistent with the language of other Rules of Civil Procedure, without an intention to change substance.

Subsection (a) . Subdivision (a)(1) is amended to recognize that electronically stored information, as defined in Rule 34(a), also can be sought by subpoena. Like Rule 34(b), subdivision (a)(2) is amended to provide that the subpoena can designate a form or forms for production of electronic data. Under subdivision (c)(3), the person served with a subpoena may object to the requested form or forms if producing in the requested form would subject the person to undue burden or expense or is otherwise unreasonable or oppressive.

Subsection (c) . As with discovery of electronically stored information from parties, complying with a subpoena for such information may impose burdens on the responding nonparty. Subsection (c) provides protection against undue impositions on nonparties. For example, subdivision (c)(1) directs that a party serving a subpoena “shall take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena,” subdivision (c)(3) permits the person served with the subpoena to object to it, and subdivision (c)(6) directs that an order requiring compliance “shall protect any person who is not a party or an agent of a party from significant expense resulting from” compliance.

Subsection (d) . As under Rule 34(b), subdivision (d)(2) is amended to provide that if the subpoena does not specify the form or forms for electronically stored information, the person served with the subpoena must produce electronically stored information in a form or forms in which it is usually maintained or in a form or forms that are reasonably usable. Subdivision (d)(3) is added to provide that the person producing electronically stored information should not have to produce the same information in more than one form.

Subdivision (d)(4) is added to provide that the responding person need not provide discovery of electronically stored information from sources the person identifies as not reasonably accessible, unless the court orders such discovery for good cause, considering the limitations of Rule 26(b)(1a), on terms that protect a nonparty against undue burden or cost. As with a party under Rule 26(c) or 37(a)(2), the person objecting to production pursuant to a subpoena bears the burden of showing the burden or cost and its unreasonableness under the circumstances. If the showing is made, the judge has the authority to quash the subpoena or, upon a showing of good cause by the requesting party and consideration of limitations on frequency and extent set out in Rule 26(b)(1a), require compliance upon condition.

Editor’s Note.

Session Laws 2011-199, s. 7, provides: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all explanatory comments of the drafters of this act, the North Carolina Bar Association Litigation Section E-Discovery Committee, as the Revisor may deem appropriate.”

Effect of Amendments.

Session Laws 2007-514, s. 1, effective October 1, 2007, and applicable to actions filed on or after that date, added subsection (d1).

Legal Periodicals.

For article, “The 1980 Amendments to the Federal Rules of Civil Procedure and Proposals for North Carolina Practice,” see 16 Wake Forest L. Rev. 915 (1980).

For article analyzing the 1983 amendments to Rules 6, 7, 11, 16, 26, 52, 53 and 67, FRCP, comparing these rules with North Carolina practice, and suggesting changes in certain state and federal rules, see 20 Wake Forest L. Rev. 819 (1984).

For article, “Taking a Deposition Under North Carolina Law,” see 21 N.C. Cent. L.J. 215 (1995).

CASE NOTES

Subpoenas are not available by statute until an action has been commenced. In re Superior Court Order Dated April 8, 1983, 70 N.C. App. 63, 318 S.E.2d 843, 1984 N.C. App. LEXIS 3604 (1984), rev'd, 315 N.C. 378 , 338 S.E.2d 307, 1986 N.C. LEXIS 1868 (1986).

At the investigatory stage there is insufficient evidence to support a finding of probable cause, and administrative or criminal search warrants cannot be used. In re Superior Court Order Dated April 8, 1983, 70 N.C. App. 63, 318 S.E.2d 843, 1984 N.C. App. LEXIS 3604 (1984), rev'd, 315 N.C. 378 , 338 S.E.2d 307, 1986 N.C. LEXIS 1868 (1986).

Corporations have never possessed the kind of protection under U.S. Const., Amend. XIV accorded to persons and their homes. Corporations’ special status as creatures of the state exposes them to exhaustive state scrutiny in exchange for the privilege of state recognition. In re Superior Court Order Dated April 8, 1983, 70 N.C. App. 63, 318 S.E.2d 843, 1984 N.C. App. LEXIS 3604 (1984), rev'd, 315 N.C. 378 , 338 S.E.2d 307, 1986 N.C. LEXIS 1868 (1986).

Nothing in common law prohibits an order requiring production of bank records as part of an investigation of criminal activities of the bank’s customers, and, if anything, the common law courts affirmatively possessed such power. By extension, then, the Superior Courts of North Carolina continue to possess such power where the interests of justice so require. In re Superior Court Order Dated April 8, 1983, 70 N.C. App. 63, 318 S.E.2d 843, 1984 N.C. App. LEXIS 3604 (1984), rev'd, 315 N.C. 378 , 338 S.E.2d 307, 1986 N.C. LEXIS 1868 (1986).

Notice Required. —

Court rejected North Carolina State Bar’s assertion that an attorney could not argue a lack of due process in the production of evidence at trial relating to a different alleged misrepresentation than that alleged in the complaint because she did not ask to examine the documents produced by the lender before the hearing; the State Bar never informed the attorney that the documents had been obtained, in violation of G.S. 1A-1 , N.C. R. Civ. P. 45(d1). It could be reasonably inferred that the Rule 45(d1) violation would have indicated to the attorney that no documents had been received from the lender, and a party did not waive her due process rights by failing to request documents that the opposing party had implied did not exist and would not be part of the case against her. N.C. State Bar v. Barrett, 219 N.C. App. 481, 724 S.E.2d 126, 2012 N.C. App. LEXIS 380 (2012).

Trial court properly held defendant in criminal contempt for failure to appear and testify in accordance with subpoenas served on her because, while the subpoena personally served on her contained only the first page, and the protections required by statute were on the missing second page, the subpoena was properly served via telephone by a member of the county sheriff’s department, the trial court was not required to make any findings of improper conduct before issuing a show cause order, and the trial court used the reasonable doubt standard when presenting its findings in open court. State v. Gonzalez, 2021-NCCOA-309, 278 N.C. App. 302, 862 S.E.2d 427, 2021- NCCOA-309, 2021 N.C. App. LEXIS 314 , writ denied, 379 N.C. 151 , 863 S.E.2d 590, 2021 N.C. LEXIS 1044 (2021).

Trial court properly held defendant in criminal contempt for failure to appear and testify in accordance with subpoenas served on her because, while the subpoena personally served on her contained only the first page, and the protections required by statute were on the missing second page, the subpoena was properly served via telephone by a member of the county sheriff’s department, the trial court was not required to make any findings of improper conduct before issuing a show cause order, and the trial court used the reasonable doubt standard when presenting its findings in open court. State v. Gonzalez, 2021-NCCOA-309, 278 N.C. App. 302, 862 S.E.2d 427, 2021- NCCOA-309, 2021 N.C. App. LEXIS 314 , writ denied, 379 N.C. 151 , 863 S.E.2d 590, 2021 N.C. LEXIS 1044 (2021).

Erroneous Imposition of Sanctions on Non-Party. —

When a non-party was properly held in contempt for failing to comply with a subpoena directing the non-party to attend a deposition, it was error to impose sanctions, under G.S. 1A-1-37(d), on the non-party in the form of attorney fees and costs because: (1) the legislature did not intend to allow the imposition of sanctions on non-parties; and (2) sanctions were not sought or imposed under G.S. 1A-1-37(a)(4). First Mt. Vernon Indus. Loan Ass'n v. ProDev XXII, LLC, 209 N.C. App. 126, 703 S.E.2d 836, 2011 N.C. App. LEXIS 97 (2011).

When a non-party was properly held in contempt for failing to comply with a subpoena directing the non-party to attend a deposition, a trial court was not authorized to impose attorney fees pursuant to the court’s contempt power because: (1) no statutory authority for the imposition of such fees was cited; and (2) G.S. 1A-1-45(e)(2) did not authorize the imposition of such fees, as the nonparty did not object to the subpoena or move to quash or modify the subpoena. First Mt. Vernon Indus. Loan Ass'n v. ProDev XXII, LLC, 209 N.C. App. 126, 703 S.E.2d 836, 2011 N.C. App. LEXIS 97 (2011).

In order to compel the deposition testimony of a nonparty, a subpoena must be issued from the county in which the deposition is to be taken, and a proper subpoena should have been issued from the Clerk of Superior Court of Wake County directing a nonparty in a divorce case to appear in Wake County; therefore, nonparty and her attorney were substantially justified in opposing the discovery sought pursuant to the subpoena issued from Mecklenburg County, and the trial court’s imposition of attorneys’ fees under G.S. 1A-1 , Rule 37(a)(4) was error. Cochran v. Cochran, 93 N.C. App. 574, 378 S.E.2d 580, 1989 N.C. App. LEXIS 243 (1989).

Non-party was properly held in contempt for failing to obey a subpoena directing the non-party to attend a deposition, despite the trial court’s failure to find the non-party was “willfully disobedient,” because: (1) G.S. 5A-11(a)(3), defining criminal contempt, did not apply, so the trial court did not have to find the non-party was “willfully disobedient”; (2) the court, under G.S. 1A-1-45(e), only had to find the non-party failed to obey the subpoena without adequate excuse; and (3) the non-party offered no evidence explaining the non-party’s absence from the deposition. First Mt. Vernon Indus. Loan Ass'n v. ProDev XXII, LLC, 209 N.C. App. 126, 703 S.E.2d 836, 2011 N.C. App. LEXIS 97 (2011).

Where it was evident that plaintiffs waited until the last minute to serve an extremely broad subpoena, the court properly found that the subpoena was unreasonable and oppressive and did not abuse its discretion in quashing it. Ward v. Taylor, 68 N.C. App. 74, 314 S.E.2d 814, 1984 N.C. App. LEXIS 3189 (1984).

Mental Health Records Previously Admitted Into Evidence. —

Trial court did not err by considering mental health records of a mother contained within the underlying file and previously admitted into evidence in proceedings to terminate her parental rights, because the mental health records challenged by the mother were originally admitted into evidence during a permanency planning review hearing and were not challenged by the mother at that time. In re J.B., 172 N.C. App. 1, 616 S.E.2d 264, 2005 N.C. App. LEXIS 1589 (2005).

Award of Costs for Expert Witnesses Compelled to Appear and Testify. —

Health care providers were entitled to an award of costs for expert witnesses that they called to appear and testify in the executors’ medical malpractice action against the health care providers. Pursuant to G.S. 1A-1 , N.C. R. Civ. P. 45(e)(1), the expert witnesses were compelled to attend because they had been served with subpoenas, and the award of costs did not also depend on the opposing party being served with the subpoena. Greene v. Hoekstra, 189 N.C. App. 179, 657 S.E.2d 415, 2008 N.C. App. LEXIS 416 (2008).

Award for lost earnings and significant expense for the law firm that represented a defendant was warranted under G.S. 1A-1-45(c)(1), (6), considering the particular circumstances of the case, which included the breadth of the subpoena, the number of times plaintiff was warned that it was overly broad, and the law firm’s status as a nonparty and defendant’s counsel. Kelley v. Agnoli, 205 N.C. App. 84, 695 S.E.2d 137, 2010 N.C. App. LEXIS 1161 (2010).

Outside Contract Not Reviewed. —

Trial court abused its discretion by granting a motion to quash a subpoena when it failed to review an outside contract that allegedly protected the information sought under the subpoena and granted the motion solely on the basis of the moving party’s assertion that the contract protected the information. Taylor v. Perni, 265 N.C. App. 587, 829 S.E.2d 240, 2019 N.C. App. LEXIS 461 (2019).

Quashing Subpoena Proper. —

Mother failed to show that the trial court abused its discretion in quashing a subpoena for her child’s testimony because the guardian ad litem (GAL) demonstrated that the subpoena was unreasonable or oppressive; the GAL presented evidence regarding the child’s mental health condition and his extreme distress during and following contacts with the mother regarding her desire that he testify. In re A.H., 250 N.C. App. 546, 794 S.E.2d 866, 2016 N.C. App. LEXIS 1245 (2016).

Trial court did not abuse its discretion in quashing s mother’s subpoena for her child’s testimony because its decision to quash the subpoena was based on a reasonable weighing of the relevance of the child’s testimony and the detrimental effect that testifying would have on the child; the trial court’s evidentiary rulings assured fairness and equality and provided the mother with a meaningful opportunity to participate in the termination proceeding. In re A.H., 250 N.C. App. 546, 794 S.E.2d 866, 2016 N.C. App. LEXIS 1245 (2016).

Access Limited. —

N.C. Gen. Stat. § 1A-1, N.C. R. Civ. P. 45(d)(1), did not automatically entitle defendants to review all documents subpoenaed from the daughter's ex-husband as the General Assembly intended N.C. Gen. Stat. § 1A-1, N.C. R. Civ. P. 26(b)(1a), to limit access to subpoenaed privileged documents. Wing v. Goldman Sachs Trust Co., N.A., 2021-NCCOA-662, 2021 N.C. App. LEXIS 671 (December 7, 2021).

Rule 46. Objections and exceptions.

  1. Rulings on admissibility of evidence. —
    1. When there is objection to the admission of evidence on the ground that the witness is for a specified reason incompetent or not qualified or disqualified, it shall be deemed that a like objection has been made to any subsequent admission of evidence from the witness in question. Similarly, when there is objection to the admission of evidence involving a specified line of questioning, it shall be deemed that a like objection has been taken to any subsequent admission of evidence involving the same line of questioning.
    2. If there is proper objection to the admission of evidence and the objection is overruled, the ruling of the court shall be deemed excepted to by the party making the objection. If an objection to the admission of evidence is sustained or if the court for any reason excludes evidence offered by a party, the ruling of the court shall be deemed excepted to by the party offering the evidence.
    3. No objections are necessary with respect to questions propounded to a witness by the court or a juror but it shall be deemed that each such question has been properly objected to and that the objection has been overruled and that an exception has been taken to the ruling of the court by all parties to the action.
  2. Pretrial rulings, interlocutory orders, trial rulings, and other orders not directed to the admissibility of evidence. —  With respect to pretrial rulings, interlocutory orders, trial rulings, and other orders of the court not directed to the admissibility of evidence, formal objections and exceptions are unnecessary. In order to preserve an exception to any such ruling or order or to the court’s failure to make any such ruling or order, it shall be sufficient if a party, at the time the ruling or order is made or sought, makes known to the court the party’s objection to the action of the court or makes known the action that the party desires the court to take and the party’s grounds for its position. If a party has no opportunity to object or except to a ruling or order at the time it is made, the absence of an objection or exception does not thereafter prejudice that party.
  3. Repealed by Session Laws 2001-379, s. 6, effective October 1, 2001.

History. 1967, c. 954, s. 1; 2001-379, s. 6.

Comment

Section (a)(1) is aimed at situations where repeated objections in respect to the admission of evidence have been necessary in order to assure review. In Shelton v. Southern Ry., 193 N.C. 670 , 139 S.E. 232 (1927), the court declared:

“It is thoroughly established in this State that, if incompetent evidence is admitted over objection, but the same evidence has theretofore or thereafter been given in other parts of the examination, the benefit of the exception is ordinarily lost.”

This proposition has recently been reaffirmed in Dunes Club, Inc. v. Cherokee Ins. Co., 259 N.C. 293 , 130 S.E.2d 625 (1963). Thus, apparently the only course of safety for counsel to follow under prior practice would be to object at every opportunity. It would seem that a single objection should suffice in either of the two situations specified in subsection (a)(1).

Section (a)(2) continues the present practice.

Section (a)(3) continues the present practice of making unnecessary objection or exception with respect to questions propounded by a juror or the judge. See former § 1-206(d).

Section (b), it will be noted, applies to all nonevidentiary rulings and orders. In this respect, it is new. However, the general principle of the section has been in North Carolina practice for some time in respect to rulings on motions for nonsuit. See former § 1-183.

Section (c) continues present practice. See former § 1-206, subsection (b), and the note to Rule 51.

Cross References.

As to instructions, generally, see G.S. 1-181 , G.S. 1A-1 , Rule 51, and Rule 10(b) of the North Carolina Rules of Appellate Procedure.

Legal Periodicals.

For article discussing North Carolina jury instruction practice, see 52 N.C.L. Rev. 719 (1974).

For survey of 1976 case law on evidence, see 55 N.C.L. Rev. 1033 (1977).

For article, “Toward a Codification of the Law of Evidence in North Carolina,” see 16 Wake Forest L. Rev. 669 (1980).

For survey of 1980 law on civil procedure, see 59 N.C.L. Rev. 1067 (1981).

For survey of 1980 law on evidence, see 59 N.C.L. Rev. 1173 (1981).

For article discussing the mechanics of objecting, see 4 Campbell L. Rev. 339 (1982).

CASE NOTES

Analysis

I.In General

Subsection (a)(1) of this rule operates to preserve the continued effect of a specific objection, once made, to a particular line of questioning. It eliminates, therefore, the burdens and tactical disadvantages which would otherwise result to objecting counsel from the necessity for repeated statements of essentially the same objection. Duke Power Co. v. Winebarger, 300 N.C. 57 , 265 S.E.2d 227, 1980 N.C. LEXIS 1047 (1980).

But subsection (a)(1) of this rule does not modify the general principle that the benefit of an objection, seasonably made, is lost if thereafter substantially the same evidence is admitted without any objection. Duke Power Co. v. Winebarger, 300 N.C. 57 , 265 S.E.2d 227, 1980 N.C. LEXIS 1047 (1980).

General Objection Insufficient Under Subsection (a)(1). —

A general objection will not suffice to afford counsel the benefits of subsection (a)(1) of this rule. Rather, objecting counsel must alert the trial judge to the specific legal infirmities which may inhere in a “specified line of questioning.” If at that point counsel’s objection is overruled, he is entitled to assume that the court will continue to make the same ruling in response to subsequent objections to the same line of questioning. Duke Power Co. v. Winebarger, 300 N.C. 57 , 265 S.E.2d 227, 1980 N.C. LEXIS 1047 (1980).

A general objection will not enable a party to take advantage of subsection (a)(1) of this rule. Butler & Sidbury, Inc. v. Green St. Baptist Church, 90 N.C. App. 65, 367 S.E.2d 380, 1988 N.C. App. LEXIS 387 (1988).

In order to obtain the benefit of subsection (a)(1) of this rule, either the objecting party must precisely define the objectionable line of questioning, or the line of questioning objected to must be apparent to the court and the parties. Butler & Sidbury, Inc. v. Green St. Baptist Church, 90 N.C. App. 65, 367 S.E.2d 380, 1988 N.C. App. LEXIS 387 (1988).

Requirement of subsection (a)(1) of this rule that counsel object to a “specified” line of questioning was obviously satisfied where the “line” of questioning objected to was apparent to the court and the parties. Duke Power Co. v. Winebarger, 300 N.C. 57 , 265 S.E.2d 227, 1980 N.C. LEXIS 1047 (1980); McKay v. Parham, 63 N.C. App. 349, 304 S.E.2d 784, 1983 N.C. App. LEXIS 3052 (1983).

Section (b) of this rule only requires a statement of the grounds for an objection, not the case law in support thereof. Doby v. Fowler, 49 N.C. App. 162, 270 S.E.2d 532, 1980 N.C. App. LEXIS 3356 (1980).

Where no proper exception was made, but the transcript showed that the plaintiff informed the court of his opposition to the directed verdict and the grounds for his opposition, the exception was properly preserved pursuant to section (b) of this rule. McKay v. Parham, 63 N.C. App. 349, 304 S.E.2d 784, 1983 N.C. App. LEXIS 3052 (1983).

Preserving Matters Underlying a Motion in Limine. —

It is not sufficient to simply file a pretrial motion in limine to exclude evidence which the trial judge has not heard; to preserve for appeal matters underlying a motion in limine, the movant must make at least general objection when the evidence is offered at trial. Beaver v. Hampton, 106 N.C. App. 172, 416 S.E.2d 8, 1992 N.C. App. LEXIS 444 (1992), aff'd in part, vacated in part, 333 N.C. 455 , 427 S.E.2d 317, 1993 N.C. LEXIS 95 (1993).

Filing of Rule 12 (b)(6) Motion Sufficient. —

For rulings and orders of the trial court not directed to admissibility of evidence, no formal objections or exceptions are necessary; thus, when defendants filed their motion to dismiss under G.S. 1A-1 , Rule 12(b)(6), G.S. 1A-1 , no further action in the trial court was required by defendants in order to preserve their exception. Inman v. Inman, 136 N.C. App. 707, 525 S.E.2d 820, 2000 N.C. App. LEXIS 136 , cert. denied, 351 N.C. 641 , 543 S.E.2d 870, 2000 N.C. LEXIS 384 (2000).

Right of Court to Exclude Evidence on Its Own Motion. —

In the exercise of its right to control and regulate the conduct of a trial, a trial court may, of its own motion, exclude or strike evidence which is wholly incompetent or inadmissible for any purpose, even though no objection is interposed to such evidence; the exercise of such right must be kept within proper bounds. Worrell v. Hennis Credit Union, 12 N.C. App. 275, 182 S.E.2d 874, 1971 N.C. App. LEXIS 1344 (1971).

Failure to Object to Discussion Between Court and Jurors. —

Plaintiff who did not object or otherwise voice a concern during a discussion between the court and jurors regarding court’s procedure for correcting jury’s failure to deliberate on the issues, failed to preserve an exception to that procedure. Tin Originals, Inc. v. Colonial Tin Works, Inc., 98 N.C. App. 663, 391 S.E.2d 831, 1990 N.C. App. LEXIS 433 (1990).

Failure to Object to Substitution Order. —

Because defendants did not specifically reference the trial court’s order of substitution in the notice of appeal and because the record contained no indication that they had objected to the entry of that order, the appellate court lacked jurisdiction to review their contentions regarding the order. Dixon v. Hill, 174 N.C. App. 252, 620 S.E.2d 715, 2005 N.C. App. LEXIS 2393 (2005), cert. denied, 548 U.S. 906, 126 S. Ct. 2972, 165 L. Ed. 2d 954, 2006 U.S. LEXIS 4950 (2006).

Plaintiff vigorously opposed defendant’s motion for a protective order by filing an objection to defendants’ motion, filing a motion to compel discovery of the disputed documents, and presenting his arguments during a trial court hearing. Therefore, at the time the ruling or order was made or sought, he made known to the trial court his objection to the action of the trial court and made known the action that he desired the trial court to take and his grounds for his position, G.S. 1A-1 , R. 46(b). Yorke v. Novant Health, Inc., 192 N.C. App. 340, 666 S.E.2d 127, 2008 N.C. App. LEXIS 1620 (2008).

Memorandum Served as Timely Exception. —

Appellate court had jurisdiction to review the dismissal of an insured’s breach of contract claim under this rule and N.C. R. App. 3 since the insured’s memorandum made known the action which she desired the court to take and her ground therefor, and served as a timely exception, the order was interlocutory and not immediately appealable, and the dismissal involved the merits of the case because it deprived the insured of a cause of action. Kane v. N.C. Teachers' & State Emples. Comprehensive Maj. Med. Plan, 229 N.C. App. 386, 747 S.E.2d 420, 2013 N.C. App. LEXIS 939 (2013).

Interlocutory Appeal from Summary Judgment. —

When, in a homeowners’ association’s suit in which a restrictive covenant was enforced against a company, the company’s notice of appeal did not specifically identify the order from which the company intended to appeal, contrary to the requirements of N.C. R. App. P. 3(d) to specify the order appealed from, the appellate court nonetheless had jurisdiction to review the action pursuant to G.S. 1-278 because (1) the company timely objected to the trial court’s summary judgment order, under G.S. 1A-1 , N.C. R. Civ. P. 46(b), by submitting affidavits, arguments, and a memorandum of law in opposition to the association’s summary judgment motion, (2) the trial court’s order was interlocutory and not immediately appealable, and (3) the order involved the merits and necessarily affected the trial court’s judgment. Fairfield Harbour Prop. Owners Ass'n v. Midsouth Golf, LLC, 215 N.C. App. 66, 715 S.E.2d 273, 2011 N.C. App. LEXIS 1728 (2011).

II.Decisions under Prior Law

Editor’s Note. —

The cases cited below were decided under former G.S. 1-206.

Exceptions taken upon the trial should be as specific as possible and should point out the nature of the error complained of. Williams v. Johnston, 94 N.C. 633 , 1886 N.C. LEXIS 116 (1886); State v. English, 164 N.C. 497 , 80 S.E. 72, 1913 N.C. LEXIS 94 (1913). See Streator v. Streator, 145 N.C. 337 , 59 S.E. 112, 1907 N.C. LEXIS 303 (1907); Hendricks v. Ireland, 162 N.C. 523 , 77 S.E. 1011, 1913 N.C. LEXIS 386 (1913).

A “broadside” exception cannot be entertained on appeal. Kelly v. Johnson, 135 N.C. 650 , 47 S.E. 672, 1904 N.C. LEXIS 76 (1904); Jackson v. Williams, 152 N.C. 203 , 67 S.E. 755, 1910 N.C. LEXIS 240 (1910).

Formal Objections to Charge Not Required. —

Errors in charge of the court, or the granting or refusing to grant prayers for instruction, shall be deemed excepted to without the filing of any formal objections, if specifically raised and properly presented in the case on appeal, and prepared and tendered in proper time; and when exceptions are taken, they should be considered and passed upon by the trial court, and upon being overruled, should be made to appear in the record on the appeal. Paul v. Burton, 180 N.C. 45 , 104 S.E. 37, 1920 N.C. LEXIS 17 (1920). See also, Rice v. Swannanoa-Berkeley Hotel Co., 209 N.C. 519 , 184 S.E. 3, 1936 N.C. LEXIS 280 (1936).

Omitted Charge Not Error Absent Request Therefor. —

An omission to give a charge to which a party would have been entitled is not error, unless the same was requested on the trial and refused. Fry v. Currie, 91 N.C. 436 , 1884 N.C. LEXIS 93 (1884).

Exception to Charge Held Sufficient. —

Where the judge below, in instructing the jury, submitted a phase of a question which there was no evidence to support, an oral exception to the question immediately taken, noted, and assigned as error for the case on appeal was sufficient to present the matter on appeal, even though no written instruction on the subject was prayed for by the excepting counsel. Lee v. Williams, 112 N.C. 510 , 17 S.E. 165, 1893 N.C. LEXIS 241 (1893).

Exceptions to Instructions May be Raised on Appeal. —

In regard to the trial court’s instructions as to applicable law and as to the contentions of the parties with respect to such law, a party is not required to except at the trial, but may set out exceptions for the first time in his case on appeal. State v. Lambe, 232 N.C. 570 , 61 S.E.2d 608, 1950 N.C. LEXIS 581 (1950). See also, Cherry v. Atlantic Coast Line R.R., 186 N.C. 263 , 119 S.E. 361, 1923 N.C. LEXIS 227 (1923).

Rule 47. Jurors.

Inquiry as to the fitness and competency of any person to serve as a juror and the challenging of such person shall be as provided in Chapter 9 of the General Statutes.

History. 1967, c. 954, s. 1.

Rule 48. Juries of less than twelve — majority verdict.

Except in actions in which a jury is required by statute, the parties may stipulate that the jury will consist of any number less than 12 or that a verdict or a finding of a stated majority of the jurors shall be taken as the verdict or finding of the jury.

History. 1967, c. 954, s. 1.

Comment

Since jury trial may be waived entirely, it is certainly appropriate with the consent of the parties that trial be by a jury of less than 12 and that the usual rule of unanimity not prevail. The rule recognizes the exception in actions for divorce provided by G.S. 50-10 . Under the rule therefore, if there is a jury trial in a divorce action (there may not be; G.S. 50-10 provides for waiver when the ground alleged is one year’s separation) it will be by a jury of 12 and the rule of unanimity will prevail.

Legal Periodicals.

For survey of 1980 law on civil procedure, see 59 N.C.L. Rev. 1047 (1981).

CASE NOTES

When Agreement Pursuant to Rule May Be Made. —

An agreement, made pursuant to this rule, that a verdict of a majority of the jurors will be accepted as the verdict, need not be made before the jury begins its deliberations, but may be made at any time, and defendant who agreed to accept a verdict of less than 12 could not complain when the verdict ultimately rendered was 11 to one, and the court accepted it as the verdict. U.S. Indus., Inc. v. Tharpe, 47 N.C. App. 754, 268 S.E.2d 824, 1980 N.C. App. LEXIS 3194 (1980).

Rule 49. Verdicts.

  1. General and special verdicts. —  The judge may require a jury to return either a general or a special verdict and in all cases may instruct the jury, if it renders a general verdict, to find upon particular questions of fact, to be stated in writing, and may direct a written finding thereon. A general verdict is that by which the jury pronounces generally upon all or any of the issues, either in favor of the plaintiff or defendant. A special verdict is that by which the jury finds the facts only.
  2. Framing of issues. —  Issues shall be framed in concise and direct terms, and prolixity and confusion must be avoided by not having too many issues. The issues, material to be tried, must be made up by the attorneys appearing in the action, or by the judge presiding, and reducing to writing, before or during the trial.
  3. Waiver of jury trial on issue. —  If, in submitting the issues to the jury, the judge omits any issue of fact raised by the pleadings or by the evidence, each party waives his right to a trial by jury of the issue so omitted unless before the jury retires he demands its submission to the jury. As to an issue omitted without such demand the judge may make a finding; or, if he fails to do so, he shall be deemed to have made a finding in accord with the judgment entered.
  4. Special finding inconsistent with general verdict. —  Where a special finding of facts is inconsistent with the general verdict, the former controls, and the judge shall give judgment accordingly.

History. 1967, c. 954, s. 1.

Comment

A distinguished scholar has said that the North Carolina verdict practice “has enabled, more than any other factor perhaps, a very small judiciary to care for the litigation of one of the larger states.” Green, A New Development in Jury Trial, 13 ABAJ 715, at p. 716 (1927). The Commission shares this high opinion of the North Carolina practice and, in its more essential respects, the Commission proposed its retention. It will be observed that sections (a), (b) and (d) are practically drawn verbatim from former §§ 1-200 [section (b) of this rule]; 1-201 [the last two sentences of section (a)]; § 1-202 [section (d)]; former § 1-203 [the first sentence of section (a)].

There are some changes produced by the rule. Former § 1-203 permitted the jury “in their discretion” to return either a general or special verdict “in every action for the recovery of money only or specific real property.” No instances of an exercise of this discretion were known to the Commission, and it saw no purpose in not allowing the judge to control the form of verdict. Accordingly, it omitted any reference to the jury’s discretion in this respect.

Section (c) changes the law in respect to issues omitted by the judge in submitting a case to the jury. The right to jury trial on such issues would be lost in the absence of a demand for such submission and the judge would be empowered to make a finding on the issue in question. The idea is that the inadvertent omission of an issue ought not to jeopardize a whole trial when an impartial fact finder is on hand to make the requisite finding. Ample means for a party to protect his right to jury trial on all issues are clearly available. All he has to do is demand their submission “before the jury retires.”

Section (c) also employs, in the case of an omitted issue and an omitted finding by the judge, a presumption of a finding in accord with the judgment. Formerly, in this situation, nothing was presumed in support of the judgment in jury cases. Tucker v. Satterthwaite, 120 N.C. 118 , 27 S.E. 45 (1897).

Finally, it will be observed that the rule speaks of issues “raised in the pleadings or by the evidence.” Normally, the issues will be raised by the pleadings but under Rule 15(b) provision is made for regarding the pleadings as amended whenever an issue outside the pleadings is tried with consent of the parties, express or implied. Thus, it will not be essential for the pleadings to reflect, on every occasion, all the issues.

CASE NOTES

Analysis

I.In General

Purpose. —

This rule was designed to prevent otherwise proper trials from being jeopardized through the inadvertent omission of an issue. Vernon v. Crist, 291 N.C. 646 , 231 S.E.2d 591, 1977 N.C. LEXIS 1229 (1977).

Section (b) of this rule contains substantially the same language as former G.S. 1-200. Brant v. Compton, 16 N.C. App. 184, 191 S.E.2d 383, 1972 N.C. App. LEXIS 1671 , cert. denied, 282 N.C. 672 , 196 S.E.2d 809, 1972 N.C. LEXIS 1000 (1972).

Issues in a case arise only upon the controverted material facts raised by the pleadings and supported by the evidence. Crowder v. Jenkins, 11 N.C. App. 57, 180 S.E.2d 482, 1971 N.C. App. LEXIS 1450 (1971).

The judge is required to submit such issues as are necessary to settle the material controversies arising on the pleadings. Harrison v. McLear, 49 N.C. App. 121, 270 S.E.2d 577, 1980 N.C. App. LEXIS 3363 (1980).

It is the duty of the judge, either of his own motion or at the suggestion of counsel, to submit such issues as are necessary to settle the material controversies arising on the pleadings. Howell v. Howell, 24 N.C. App. 127, 210 S.E.2d 216, 1974 N.C. App. LEXIS 1949 (1974).

It is the duty of the trial judge to submit to the jury such issues as are necessary to settle the material controversies raised in the pleadings. Link v. Link, 278 N.C. 181 , 179 S.E.2d 697, 1971 N.C. LEXIS 957 (1971); Rental Towel & Uniform Serv. v. Bynum Int'l, Inc., 304 N.C. 174 , 282 S.E.2d 426, 1981 N.C. LEXIS 1328 (1981).

It is the duty of the trial judge to submit to the jury issues which are raised by the evidence, and which, when answered, will resolve all material controversies between the parties. Wooten v. Nationwide Mut. Ins. Co., 60 N.C. App. 268, 298 S.E.2d 727, 1983 N.C. App. LEXIS 2417 (1983); La Notte, Inc. v. New Way Gourmet, Inc., 83 N.C. App. 480, 350 S.E.2d 889, 1986 N.C. App. LEXIS 2734 (1986), cert. denied, 319 N.C. 459 , 354 S.E.2d 888, 1987 N.C. LEXIS 2021 (1987).

The trial judge must submit to the jury all issues which are necessary to settle the material controversies arising out of the pleadings. Winston-Salem Joint Venture v. City of Winston-Salem, 65 N.C. App. 532, 310 S.E.2d 58, 1983 N.C. App. LEXIS 3540 (1983).

Trial court properly submitted the issues to the jury which reflected the material controversies involved in the case, and did not abuse its discretion by combining the issues. Griffis v. Lazarovich, 161 N.C. App. 434, 588 S.E.2d 918, 2003 N.C. App. LEXIS 2200 (2003).

The issues to be submitted to the jury are those raised by the pleadings and supported by the evidence. Johnson v. Massengill, 280 N.C. 376 , 186 S.E.2d 168, 1972 N.C. LEXIS 1255 (1972).

Form and number of issues submitted is a matter which rests in the sound discretion of the trial judge, assuming that the issue is raised by the pleadings, liberally construed. Link v. Link, 278 N.C. 181 , 179 S.E.2d 697, 1971 N.C. LEXIS 957 (1971).

Ordinarily it is within the sound discretion of the trial judge as to the form of the issues. Brant v. Compton, 16 N.C. App. 184, 191 S.E.2d 383, 1972 N.C. App. LEXIS 1671 , cert. denied, 282 N.C. 672 , 196 S.E.2d 809, 1972 N.C. LEXIS 1000 (1972).

The number, form and phraseology of the issues lie within the sound discretion of the trial court, and the issues will not be held for error if they are sufficiently comprehensive to resolve all factual controversies and to enable the court to render a judgment fully determining the cause. Rental Towel & Uniform Serv. v. Bynum Int'l, Inc., 304 N.C. 174 , 282 S.E.2d 426, 1981 N.C. LEXIS 1328 (1981).

The form and number of issues to be submitted is a matter which rests in the sound discretion of the trial judge, assuming that the issue is raised by the pleadings, liberally construed. Lenins v. K-Mart Corp., 98 N.C. App. 590, 391 S.E.2d 843, 1990 N.C. App. LEXIS 442 (1990).

Issues as presented allowed the jury to render judgment fully determining the cause because the issues submitted to the jury properly reflected the material controversies involved in the negligent misrepresentation action. The trial court did not abuse its discretion by failing to submit one element of negligent misrepresentation as a separate issue or by combining the elements of the offense of negligent misrepresentation into one issue. Walker v. Town of Stoneville, 211 N.C. App. 24, 712 S.E.2d 239, 2011 N.C. App. LEXIS 709 (2011).

The trial judge must explain and apply the law to the specific facts pertinent to the issue involved. Harrison v. McLear, 49 N.C. App. 121, 270 S.E.2d 577, 1980 N.C. App. LEXIS 3363 (1980).

Separate Submission of Related Issues Upheld. —

Where the allegations of the complaint were sufficient to justify submission to the jury of the questions of fraud, duress and undue influence, which are not synonymous although they overlap to some degree, submission of these several possibilities in a single issue would have been confusing and would have necessitated an exceedingly complicated charge; thus there was no abuse of the trial court’s discretion in their submission as three separate issues. Link v. Link, 278 N.C. 181 , 179 S.E.2d 697, 1971 N.C. LEXIS 957 (1971).

In a will caveat proceeding, the parties may not waive, either by consent or by implication, jury resolution of an issue upon which the evidence is in conflict and material facts are in controversy and, therefore, the provisions of subsection (c) cannot apply and the trial judge cannot resolve disputed factual issues in such proceeding. In re Will of Dunn, 129 N.C. App. 321, 500 S.E.2d 99, 1998 N.C. App. LEXIS 521 (1998).

Failure to Submit Issue Held Error. —

Where the evidence presented was ample to allow the jury to make a finding on an issue, the trial court erred by not submitting the issue requested. Brewer v. Harris, 279 N.C. 288 , 182 S.E.2d 345, 1971 N.C. LEXIS 776 (1971).

Trial court did not err in failing to submit an issue as to whether the parties had entered into a contract as alleged in the complaint, where defendant did not deny plaintiff ’s allegations as to the making of the contract or the terms thereof and did not allege a different contract, and where defendant made no demand for the submission of such an issue. Johnson v. Massengill, 280 N.C. 376 , 186 S.E.2d 168, 1972 N.C. LEXIS 1255 (1972).

The trial judge may vacate the answer to a particular issue when to do so does not affect or alter the import of the answers to the other issues. Southern Nat'l Bank v. Pocock, 29 N.C. App. 52, 223 S.E.2d 518, 1976 N.C. App. LEXIS 2376 , cert. denied, 290 N.C. 94 , 225 S.E.2d 324, 1976 N.C. LEXIS 1028 (1976).

Waiver of issue by failure to object. —

By application of section (c) of this rule, where the defendants failed to object to the first issue submitted to the jury, they waived their right to appeal on the ground that it was erroneous. Barnett v. Security Ins. Co., 84 N.C. App. 376, 352 S.E.2d 855, 1987 N.C. App. LEXIS 2499 (1987), limited, Carter v. West Am. Ins. Co., 190 N.C. App. 532, 661 S.E.2d 264, 2008 N.C. App. LEXIS 1021 (2008).

Right to have an issue of fact determined by the jury is waived unless a party demands its submission before the jury retires. Superior Foods, Inc. v. Harris-Teeter Super Mkts., Inc., 288 N.C. 213 , 217 S.E.2d 566, 1975 N.C. LEXIS 895 (1975).

Assuming the plaintiff ’s evidence warranted the submission of an issue of punitive damages, plaintiff waived his right to have this issue submitted when he tendered to the court the issues which were submitted and failed to request the submission of an issue of punitive damages. Frazier v. Glasgow, 24 N.C. App. 641, 211 S.E.2d 852, 1975 N.C. App. LEXIS 2458 , cert. denied, 286 N.C. 722 , 213 S.E.2d 721, 1975 N.C. LEXIS 1276 (1975).

When defendants neither objected to an issue which was submitted to the jury nor requested the court to submit the issue, they waived their right to have such issue passed upon by the jury. Van Poole v. Masser, 25 N.C. App. 203, 212 S.E.2d 548, 1975 N.C. App. LEXIS 2214 (1975).

If the parties consent to the issues submitted or do not object at the time or ask for different or additional issues, the objection cannot be made later. Brant v. Compton, 16 N.C. App. 184, 191 S.E.2d 383, 1972 N.C. App. LEXIS 1671 , cert. denied, 282 N.C. 672 , 196 S.E.2d 809, 1972 N.C. LEXIS 1000 (1972).

Where the jury’s findings are indefinite or inconsistent, the presiding judge may give additional instructions and direct the jury to retire again to bring in a proper verdict, but he may not tell them what their verdict shall be. Southern Nat'l Bank v. Pocock, 29 N.C. App. 52, 223 S.E.2d 518, 1976 N.C. App. LEXIS 2376 , cert. denied, 290 N.C. 94 , 225 S.E.2d 324, 1976 N.C. LEXIS 1028 (1976).

Resubmission of Issues for Inconsistency. —

In an action to recover on a written contract of guaranty, where the trial judge noted inconsistency in the jury’s answers to the third and fourth issues, which related only to the amount of damages, it was within the court’s sound discretion to either resubmit all issues or resubmit only on issues as to damages. Southern Nat'l Bank v. Pocock, 29 N.C. App. 52, 223 S.E.2d 518, 1976 N.C. App. LEXIS 2376 , cert. denied, 290 N.C. 94 , 225 S.E.2d 324, 1976 N.C. LEXIS 1028 (1976).

No Inconsistency. —

In an action regarding the purchase and sale of a business, when the jury answered interrogatories as to claimed misrepresentations under a deceptive trade practices claim in the negative, but answered interrogatories as to misrepresentations under a negligent misrepresentation claim in the affirmative, the trial court was not required by G.S. 1A-1 , Rule 49(d) to enter judgment on the special findings in the questions pertaining to deceptive trade practices, as the jury was not confused and was properly instructed. Kindred of N.C. Inc. v. Bond, 160 N.C. App. 90, 584 S.E.2d 846, 2003 N.C. App. LEXIS 1765 (2003).

Award of Damages as Surplusage. —

Trial court erred in failing to treat jury’s award of damages to plaintiff as surplusage after jury found plaintiff contributorily negligent. Rogers v. Sportsworld of Rocky Mount, Inc., 134 N.C. App. 709, 518 S.E.2d 551, 1999 N.C. App. LEXIS 900 (1999).

Finding Deemed Made in Accord with Judgment Entered. —

Where an alleged usage of trade was not in writing, the question of its existence was not submitted to the jury as an issue of fact, plaintiff made no demand for its submission before the jury retired, and the trial judge himself made no finding on the issue, the judge was “deemed to have made a finding in accord with the judgment entered.” Superior Foods, Inc. v. Harris-Teeter Super Mkts., Inc., 288 N.C. 213 , 217 S.E.2d 566, 1975 N.C. LEXIS 895 (1975).

Where defendant did not formally object to instructions or request additional instructions, and jury was not asked to determine key factual contract issues, the trial court was “deemed to have made a finding in accord with the judgment entered.” Patterson v. Strickland, 139 N.C. App. 510, 515 S.E.2d 915 (1999).

Before a verdict is complete it must be accepted by the court. Southern Nat'l Bank v. Pocock, 29 N.C. App. 52, 223 S.E.2d 518, 1976 N.C. App. LEXIS 2376 , cert. denied, 290 N.C. 94 , 225 S.E.2d 324, 1976 N.C. LEXIS 1028 (1976).

It is the duty of the presiding judge, before accepting a verdict, to scrutinize its form and substance to prevent insufficient or inconsistent findings from becoming a record of the court. Southern Nat'l Bank v. Pocock, 29 N.C. App. 52, 223 S.E.2d 518, 1976 N.C. App. LEXIS 2376 , cert. denied, 290 N.C. 94 , 225 S.E.2d 324, 1976 N.C. LEXIS 1028 (1976).

II.Decisions under Prior Law

Editor’s Note. —

The cases cited below were decided under former G.S. 1-196 , 1-198, 1-200 and 1-201.

The object of pleading is to produce proper issues of law and fact, so that justice may be administered between the parties litigant with regularity and certainty. Parsley v. Nicholson, 65 N.C. 207 , 1871 N.C. LEXIS 66 (1871). See also, Braswell v. Johnston, 108 N.C. 150 , 12 S.E. 911, 1891 N.C. LEXIS 26 (1891); Tucker v. Satterthwaite, 120 N.C. 118 , 27 S.E. 45, 1897 N.C. LEXIS 25 (1897).

Submission of issues is not a mere matter within the discretion of the court, but is a mandatory requirement of the law, and a failure to observe this requirement will entitle the party who has not in some way lost the right to have the error of the court corrected. East Coast Oil Co. v. Fair, 3 N.C. App. 175, 164 S.E.2d 482, 1968 N.C. App. LEXIS 816 (1968).

Former G.S. 1-200 was mandatory, and where no issues were tendered by either party, it was the duty of the judge either to compel counsel to prepare the proper issues or to prepare them himself and submit them to the jury. Such an adherence to the requirements was absolutely essential, not only to the fair trial of the case, but to an intelligent appreciation of its merits upon appeal. Denmark v. Atlantic & N.C.R.R., 107 N.C. 185 , 12 S.E. 54, 1890 N.C. LEXIS 36 (1890); Burton v. Rosemary Mfg. Co., 132 N.C. 17 , 43 S.E. 480, 1903 N.C. LEXIS 218 (1903); Griffin v. United Servs. Life Ins. Co., 225 N.C. 684 , 36 S.E.2d 225, 1945 N.C. LEXIS 392 (1945). See also, Stanback v. Haywood, 209 N.C. 798 , 184 S.E. 831, 1936 N.C. LEXIS 353 (1936) (citing) Tucker v. Satterthwaite, 120 N.C. 118 , 27 S.E. 45, 1897 N.C. LEXIS 25 (1897).

Former provisions were mandatory. It was the duty of the judge, either of his own motion or at the suggestion of counsel, to submit such issues as were necessary to settle the material controversies arising on the pleadings. Wheeler v. Wheeler, 239 N.C. 646 , 80 S.E.2d 755, 1954 N.C. LEXIS 628 (1954); Nebel v. Nebel, 241 N.C. 491 , 85 S.E.2d 876, 1955 N.C. LEXIS 400 (1955). See also, Coulbourn v. Armstrong, 243 N.C. 663 , 91 S.E.2d 912, 1956 N.C. LEXIS 603 (1956); General Tire & Rubber Co. v. Distributors, Inc., 253 N.C. 459 , 117 S.E.2d 479, 1960 N.C. LEXIS 695 (1960); Johnson v. Lamb, 273 N.C. 701 , 161 S.E.2d 131, 1968 N.C. LEXIS 650 (1968).

But ordinarily the form and number of issues in a civil action are left to the sound discretion of the judge, and a party cannot complain because a particular issue was not submitted to jury in the form tendered. Griffin v. United Servs. Life Ins. Co., 225 N.C. 684 , 36 S.E.2d 225, 1945 N.C. LEXIS 392 (1945); Durham Lumber Co. v. Wrenn-Wilson Constr. Co., 249 N.C. 680 , 107 S.E.2d 538, 1959 N.C. LEXIS 414 (1959); General Tire & Rubber Co. v. Distributors, Inc., 253 N.C. 459 , 117 S.E.2d 479, 1960 N.C. LEXIS 695 (1960).

Ordinarily it is within the sound discretion of the trial judge as to what issues shall be submitted to the jury and the form thereof. East Coast Oil Co. v. Fair, 3 N.C. App. 175, 164 S.E.2d 482, 1968 N.C. App. LEXIS 816 (1968).

It is within the sound discretion of the trial judge to determine what issues shall be submitted, and to frame them subject to the restrictions that the verdict must constitute a sufficient basis for a judgment, and that a party may not be debarred, for want of an additional issue or issues, of the opportunity to present to the jury some view of the law arising out of the evidence. Stanback v. Haywood, 209 N.C. 798 , 184 S.E. 831, 1936 N.C. LEXIS 353 (1936).

The form and number of issues to be submitted is a matter which rests in the sound discretion of the trial judge, it being sufficient that the issues be framed so as to present the material matters in dispute, to enable each party to have the full benefit of his contentions before the jury, and to enable the court, when the issues are answered, to determine the rights of the parties under the law. Johnson v. Lamb, 273 N.C. 701 , 161 S.E.2d 131, 1968 N.C. LEXIS 650 (1968).

The court need not submit issues in any particular form. If they are framed in such a way as to present the material matters in dispute and so as to enable each of the parties to have the full benefit of his contention before the jury and a fair chance to develop his case, and if, when answered, the issues are sufficient to determine the rights of the parties and to support the judgment, the statutory requirements are fully met. O'Briant v. O'Briant, 239 N.C. 101 , 79 S.E.2d 252, 1953 N.C. LEXIS 639 (1953).

Of the issues raised by the pleadings, the judge may in his discretion submit one or many, provided that neither of the parties to the action is denied the opportunity to present to the jury any view of the law arising out of the evidence through the medium of pertinent instructions on some issue passed upon. East Coast Oil Co. v. Fair, 3 N.C. App. 175, 164 S.E.2d 482, 1968 N.C. App. LEXIS 816 (1968).

It was not error for the court to submit only an issue involving the question whether plaintiff had been injured and had sustained damage through the negligence of a defendant, even where contributory negligence was set up as a defense. McAdoo v. Richmond & D.R.R., 105 N.C. 140 , 11 S.E. 316, 1890 N.C. LEXIS 212 (1890); People ex rel. Boyer v. Teague, 106 N.C. 576 , 11 S.E. 665, 1890 N.C. LEXIS 355 (1890).

The judge is required to submit such issues as are necessary to settle the material controversies arising on the pleadings. East Coast Oil Co. v. Fair, 3 N.C. App. 175, 164 S.E.2d 482, 1968 N.C. App. LEXIS 816 (1968).

It is the duty of the judge to submit such issues as are necessary to settle the material controversies in the pleadings. In the absence of such issues, without admissions of record sufficient to justify the judgment rendered, the Supreme Court will remand the case for a new trial. Rural Plumbing & Heating, Inc. v. H.C. Jones Constr. Co., 268 N.C. 23 , 149 S.E.2d 625, 1966 N.C. LEXIS 1124 (1966).

It is the duty of the judge, either of his own motion or at the suggestion of counsel, to submit such issues as are necessary to settle the material controversies arising on the pleadings. Wheeler v. Wheeler, 239 N.C. 646 , 80 S.E.2d 755, 1954 N.C. LEXIS 628 (1954); Nebel v. Nebel, 241 N.C. 491 , 85 S.E.2d 876, 1955 N.C. LEXIS 400 (1955). See also, Coulbourn v. Armstrong, 243 N.C. 663 , 91 S.E.2d 912, 1956 N.C. LEXIS 603 (1956); General Tire & Rubber Co. v. Distributors, Inc., 253 N.C. 459 , 117 S.E.2d 479, 1960 N.C. LEXIS 695 (1960).

But it is not contemplated that an issue be submitted as to every important material fact controverted by the pleadings, nor is it necessary, expedient, or proper to do so. Patton v. Western N.C.R.R., 96 N.C. 455 , 1 S.E. 863, 1887 N.C. LEXIS 81 (1887).

Issues of fact raised by the pleadings must be submitted to the jury. Baker v. Malan Constr. Corp., 255 N.C. 302 , 121 S.E.2d 731, 1961 N.C. LEXIS 612 (1961).

When They Are Material and Determinative of Parties’ Rights. —

Even though the facts relating to a particular issue are controverted in the pleadings, when such issue is not “material to be tried” and is not determinative of the rights of the parties, it is error to submit such issue. Henry Vann Co. v. Barefoot, 249 N.C. 22 , 105 S.E.2d 104, 1958 N.C. LEXIS 405 (1958).

It is necessary to submit to the jury only such issues as arise upon the pleadings and are material to be tried. Johnson v. Lamb, 273 N.C. 701 , 161 S.E.2d 131, 1968 N.C. LEXIS 650 (1968).

What Is Material Fact. —

A material fact is one which constitutes a part of plaintiff ’s cause of action or defendant’s defense. Wells v. Clayton, 236 N.C. 102 , 72 S.E.2d 16, 1952 N.C. LEXIS 491 (1952); In re Estate of Wallace, 267 N.C. 204 , 147 S.E.2d 922, 1966 N.C. LEXIS 1009 (1966); Johnson v. Lamb, 273 N.C. 701 , 161 S.E.2d 131, 1968 N.C. LEXIS 650 (1968).

Material Fact Not Denied Is Taken as True. —

If a material fact alleged in the complaint is not denied by the answer, such allegation, for the purpose of the action, is taken as true, and no issue arises therefrom. Johnson v. Lamb, 273 N.C. 701 , 161 S.E.2d 131, 1968 N.C. LEXIS 650 (1968).

Evidential Issues Need Not Be Submitted. —

The only issues proper to be submitted to the jury are those raised by the constitutive facts alleged on the one side and denied on the other; and those issues which are merely evidential and which, when found by the jury, only furnish facts which would be evidence to prove the main issue, should never be submitted. Patton v. Western N.C.R.R., 96 N.C. 455 , 1 S.E. 863, 1887 N.C. LEXIS 81 (1887).

When Issue Is Raised for Jury. —

An issue of fact is raised for the determination of the jury whenever a material fact, which is one constituting a part of plaintiff ’s cause of action or defendant’s defense, is alleged by one party and denied by the other. Sullivan v. Johnson, 3 N.C. App. 581, 165 S.E.2d 507, 1969 N.C. App. LEXIS 1626 (1969).

An issue of fact arises on the pleadings whenever a material fact is maintained by one part and controverted by the other. Wells v. Clayton, 236 N.C. 102 , 72 S.E.2d 16, 1952 N.C. LEXIS 491 (1952); In re Estate of Wallace, 267 N.C. 204 , 147 S.E.2d 922, 1966 N.C. LEXIS 1009 (1966).

An issue of fact arises when the answer controverts a material allegation of the complaint. Baker v. Malan Constr. Corp., 255 N.C. 302 , 121 S.E.2d 731, 1961 N.C. LEXIS 612 (1961).

Issues Presenting All Phases of Controversy Sufficient. —

If the issues submitted by the court are sufficient in form and substance to present all phases of the controversy, there is no ground for exception to the same. Bailey v. Hassell, 184 N.C. 450 , 115 S.E. 166, 1922 N.C. LEXIS 106 (1922).

Issues and Answers Must Support Judgment Disposing of Whole Case. —

The issues submitted, together with the answers thereto, must be sufficient to support a judgment disposing of the whole case. Griffin v. United Servs. Life Ins. Co., 225 N.C. 684 , 36 S.E.2d 225, 1945 N.C. LEXIS 392 (1945) (citing) Tucker v. Satterthwaite, 120 N.C. 118 , 27 S.E. 45, 1897 N.C. LEXIS 25 (1897); Coulbourn v. Armstrong, 243 N.C. 663 , 91 S.E.2d 912, 1956 N.C. LEXIS 603 (1956).

Separate Issues as to Separate Causes of Action. —

Where plaintiff brings a single suit on two distinct causes of action, a separate issue should be submitted as to the damages arising on each separate cause of action. Kelley v. Durham Traction Co., 133 N.C. 418 , 45 S.E. 826, 1903 N.C. LEXIS 77 (1903).

Submission of Single Issue on Inconsistent Causes of Action Held Error. —

Where plaintiff alleged inconsistent causes of action in different counts of his complaint, it was error for the court to submit the case on a single issue as to whether plaintiff was injured by defendant’s negligence, as alleged in the complaint. Griffin v. Atlantic Coast Line R.R., 134 N.C. 101 , 46 S.E. 7, 1903 N.C. LEXIS 207 (1903).

Submission of Issues Held Insufficient. —

Where, in an action for damages, defendant tendered the issues: (1) Were plaintiff’s injuries caused by the defendant’s negligence, (2) was there contributory negligence on the part of the plaintiff, and (3) what damage was the plaintiff entitled to recover, and the court declined to submit these, but substituted instead a single issue as to what damages, if any, the plaintiff was entitled to recover, this was error. Denmark v. Atlantic & N.C.R.R., 107 N.C. 185 , 12 S.E. 54, 1890 N.C. LEXIS 36 (1890).

In an action to recover on a policy of life insurance, where there were issues squarely raised by the pleadings and supported by evidence as to valid delivery and payment of the first premium, but the court declined to submit such issues or others of similar import which would be determinative of questions presented, the appellate court would remand for a new trial. Griffin v. United Servs. Life Ins. Co., 225 N.C. 684 , 36 S.E.2d 225, 1945 N.C. LEXIS 392 (1945).

Addition of Issue of Contributory Negligence. —

Where plaintiff brought suit against two defendants as joint tort-feasors, and one defendant answered alleging contributory negligence while the other defendant did not file an answer, upon which plaintiff tendered issues of negligence of the answering defendant and the court added the issue of contributory negligence arising upon the pleading of this defendant, it was held that, as a rule, the court must submit the issue arising on the pleadings, but the plaintiff waived this by tendering only one issue as to the answering defendant and allowing the case to be tried on that theory. Ammons v. Fisher, 208 N.C. 712 , 182 S.E. 479, 1935 N.C. LEXIS 107 (1935).

Where a contract alleged in the complaint was different from that submitted in the issue, an instruction that if the contract was as alleged the issue should be answered in the affirmative was error. Dickens v. Perkins, 134 N.C. 220 , 46 S.E. 490, 1904 N.C. LEXIS 86 (1904).

Verdict, whether in response to one or many issues, must establish sufficient facts to enable the court to proceed to judgment. East Coast Oil Co. v. Fair, 3 N.C. App. 175, 164 S.E.2d 482, 1968 N.C. App. LEXIS 816 (1968).

Distinct findings are contemplated upon material issues. These should be submitted where this can be done without repetition or confusion. Emery v. Raleigh & G.R.R., 102 N.C. 209 , 9 S.E. 139, 1889 N.C. LEXIS 28 (1889).

Judgment Based on Nondeterminative Issues Error. —

A judgment upon the verdict of the jury upon issues raised by the pleadings which were not determinative of the controversy between the parties was erroneously entered. Merchants Nat'l Bank v. Carolina Broom Co., 188 N.C. 508 , 125 S.E. 12, 1924 N.C. LEXIS 112 (1924).

Courts look with favor on stipulations designed to simplify, shorten, or settle litigation and save cost to the parties, and such practice will be encouraged. Rural Plumbing & Heating, Inc. v. H.C. Jones Constr. Co., 268 N.C. 23 , 149 S.E.2d 625, 1966 N.C. LEXIS 1124 (1966).

Stipulations May Eliminate Necessity of Submitting Issues. —

Although the parties may not agree upon improper issues, they may, by stipulation or judicial admission, establish any material fact which has been in controversy between them, and thereby eliminate the necessity of submitting an issue to the jury with reference to it. Rural Plumbing & Heating, Inc. v. H.C. Jones Constr. Co., 268 N.C. 23 , 149 S.E.2d 625, 1966 N.C. LEXIS 1124 (1966).

But stipulations do not dispense with necessity that pleadings support proof. Rural Plumbing & Heating, Inc. v. H.C. Jones Constr. Co., 268 N.C. 23 , 149 S.E.2d 625, 1966 N.C. LEXIS 1124 (1966).

It is contemplated that issues shall be drawn before introduction of testimony. Beasley v. Surles, 140 N.C. 5 , 140 N.C. 605 , 53 S.E. 360, 1906 N.C. LEXIS 51 (1906).

Issues May Not Be Tendered or Objected to on Appeal. —

If defendant has not tendered issues or otherwise objected to trial on the issues submitted, it cannot do so on appeal. East Coast Oil Co. v. Fair, 3 N.C. App. 175, 164 S.E.2d 482, 1968 N.C. App. LEXIS 816 (1968).

If the parties consent to the issues submitted, or do not object at the time or ask for different or additional issues, the objection cannot be made later. East Coast Oil Co. v. Fair, 3 N.C. App. 175, 164 S.E.2d 482, 1968 N.C. App. LEXIS 816 (1968).

General Verdict Defined. —

The verdict is general when the jury, under appropriate instructions from the court as to the applicable law, simply responds affirmatively or negatively to the issues submitted. Morrison v. Watson, 95 N.C. 479 , 1886 N.C. LEXIS 289 (1886); Porter v. Western N.C.R.R., 97 N.C. 63 , 97 N.C. 66 , 2 S.E. 580, 1887 N.C. LEXIS 111 (1877).

A party has the right to be present upon the rendition of the verdict. State v. Jones, 91 N.C. 654 , 1884 N.C. LEXIS 136 (1884).

Right to be present at the rendition of the verdict is personal to the parties themselves, and the absence of counsel at the rendition is not a ground for a new trial. Barger Bros. v. Alley, 167 N.C. 362 , 83 S.E. 612, 1914 N.C. LEXIS 128 (1914).

Entry of a verdict against a plaintiff who is not present either in person or by attorney is irregular. Graham v. Tate, 77 N.C. 120 , 1877 N.C. LEXIS 35 (1877).

Waiver of Right to Be Present. —

The right of the parties to be present when the verdict is returned in a civil case is waivable. Barger Bros. v. Alley, 167 N.C. 362 , 83 S.E. 612, 1914 N.C. LEXIS 128 (1914).

Right to Have Jury Polled. —

The right of a party to have the jury polled after the rendition of its verdict exists in civil as well as criminal cases. State v. Young, 77 N.C. 498 , 1877 N.C. LEXIS 134 (1877); State v. Toole, 106 N.C. 736 , 11 S.E. 168, 1890 N.C. LEXIS 379 (1890); Smith v. Paul, 133 N.C. 66 , 45 S.E. 348, 1903 N.C. LEXIS 15 (1903).

But it is not essential to validity of proceedings that the jury be polled; this is merely a privilege which may be asked for by either party. State v. Toole, 106 N.C. 736 , 11 S.E. 168, 1890 N.C. LEXIS 379 (1890); Smith v. Paul, 133 N.C. 66 , 45 S.E. 348, 1903 N.C. LEXIS 15 (1903).

On a poll of the jury, dissent of one juror renders the verdict invalid. Owens v. Southern Ry., 123 N.C. 183 , 31 S.E. 383, 1898 N.C. LEXIS 43 (1898).

But mere reluctance on the part of one juror will not be fatal to the verdict. Lowe v. Dorsett, 125 N.C. 301 , 34 S.E. 442, 1899 N.C. LEXIS 205 (1899).

New Trial Where Findings of Jury Conflict. —

If there is an irreconcilable conflict in the findings of the jury upon the issues submitted, or between the verdict and the judgment, a new trial will be awarded. Morrison v. Watson, 95 N.C. 479 , 1886 N.C. LEXIS 289 (1886). See also, Porter v. Western N.C.R.R., 97 N.C. 63 , 97 N.C. 66 , 2 S.E. 580, 1887 N.C. LEXIS 111 (1877).

For discussion of the provisions and requirements of former G.S. 1-200, see Piedmont Wagon Co. v. Byrd, 119 N.C. 460 , 26 S.E. 144, 1896 N.C. LEXIS 312 (1896).

When the facts constituting a waiver do not appear in the pleadings, the party relying thereon must specially plead the defense, and it must be pleaded with certainty and particularity and established by the greater weight of the evidence. Rural Plumbing & Heating, Inc. v. H.C. Jones Constr. Co., 268 N.C. 23 , 149 S.E.2d 625, 1966 N.C. LEXIS 1124 (1966).

Rule 50. Motion for a directed verdict and for judgment notwithstanding the verdict.

  1. When made; effect. —  A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order granting a motion for a directed verdict shall be effective without any assent of the jury.
  2. Motion for judgment notwithstanding the verdict. —
    1. Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the submission of the action to the jury shall be deemed to be subject to a later determination of the legal questions raised by the motion. Not later than 10 days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned such party, within 10 days after the jury has been discharged, may move for judgment in accordance with his motion for a directed verdict. In either case the motion shall be granted if it appears that the motion for directed verdict could properly have been granted. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned the judge may allow the judgment to stand or may set aside the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned the judge may direct the entry of judgment as if the requested verdict had been directed or may order a new trial. Not later than ten (10) days after entry of judgment or the discharge of the jury if a verdict was not returned, the judge on his own motion may, with or without further notice and hearing, grant, deny, or redeny a motion for directed verdict made at the close of all the evidence that was denied or for any reason was not granted.
    2. An appellate court, on finding that a trial judge should have granted a motion for directed verdict made at the close of all the evidence, may not direct entry of judgment in accordance with the motion unless the party who made the motion for a directed verdict also moved for judgment in accordance with Rule 50(b)(1) or the trial judge on his own motion granted, denied or redenied the motion for a directed verdict in accordance with Rule 50(b)(1).
  3. Motion for judgment notwithstanding the verdict — Conditional rulings on grant of motion. —
    1. If the motion for judgment notwithstanding the verdict, provided for in section (b) of this rule, is granted, the court shall also rule on the motion for new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial. If the motion for new trial is thus conditionally granted, the order thereon does not affect the finality of the judgment. In case the motion for new trial has been conditionally granted and the judgment is reversed on appeal, the new trial shall proceed unless the appellate division has otherwise ordered. In case the motion for new trial has been conditionally denied, the appellee on appeal may assert error in that denial; and if the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate division.
    2. The party whose verdict has been set aside on motion for judgment notwithstanding the verdict may serve a motion for a new trial pursuant to Rule 59 not later than 10 days after entry of the judgment notwithstanding the verdict.
  4. Motion for judgment notwithstanding the verdict — Denial of motion. —  If the motion for judgment notwithstanding the verdict is denied, the party who prevailed on that motion may, as appellee, assert grounds entitling him to a new trial in the event the appellate division concludes that the trial court erred in denying the motion for judgment notwithstanding the verdict. If the appellate division reverses the judgment, nothing in this rule precludes it from determining that the appellee is entitled to a new trial, or from directing the trial court to determine whether a new trial shall be granted.

History. 1967, c. 954, s. 1; 1969, c. 895, s. 11.

Comment

It will be recalled that Rule 41(b) provides the procedure in those cases tried to the court where the party defending believes the evidence of his adversary is insufficient to permit a recovery. Section (a) of this rule provides the procedure in comparable circumstances in those cases tried by jury. It further provides a procedure whereby a claimant in a jury trial may urge that he is entitled to a recovery as a matter of law.

The rule contemplates that a party defending may move for a directed verdict at the close of his adversary’s evidence or at the close of all the evidence whether or not he has made a prior motion. The rule further contemplates that any party may move for a directed verdict at the close of all the evidence.

Some important changes are effected by Rules 41(a) and 50(a) taken together. Formerly, a party defending had available the motion for nonsuit provided by former § 1-183. Judgment pursuant to a grant of the motion was not a judgment on the merits. In addition, any party had available the common-law motion for a directed verdict which does, if granted, result in a judgment on the merits. Everett v. Williams, 152 N.C. 117 , 67 S.E. 265 (1910). Despite the greater potential of the directed verdict, the motion was infrequently employed because the claimant could always, under prior practice, forestall the directed verdict by taking a voluntary nonsuit.

Under the rules, at the close of the claimant’s evidence, the party defending in a jury trial will be restricted to the directed verdict motion — a motion that if granted will result in a judgment on the merits disposing of the case finally in the absence of reversal on appeal. But it should be remembered that the judge will have power under Rule 41(a)(2) on the claimant’s motion to allow a dismissal that is not on the merits.

The last sentence in section (a) is simply for the purpose of avoiding a useless formality. When a judge decides that a directed verdict is appropriate, actually he is deciding that the question has become one exclusively of law and that the jury has no function to serve. In these circumstances, it is an idle gesture to require the jury to go through the motions of returning the verdict directed.

Section (b), providing for a motion for judgment notwithstanding the verdict or, as it is commonly called “a judgment NOV” (an abbreviation for non obstante veredicto) introduces an entirely new procedure to North Carolina practice. It is true that North Carolina had a judgment NOV of sorts — for use in a situation where the party against whom a verdict is rendered would have been entitled to a judgment on the pleadings. See McIntosh, North Carolina Practice and Procedure (1st ed.), § 612. The judgment NOV in this rule is an altogether different affair. In essence, it involves allowing a judge to consider the question of the sufficiency of the evidence after the jury has returned a verdict.

This power has been sought — unsuccessfully it must be said — by superior court judges on more than one occasion. See, e.g., Batson v. City Laundry Co., 202 N.C. 560 , 163 S.E. 600 (1932); Jones v. Dixie Fire Ins. Co., 210 N.C. 559 , 187 S.E. 769 (1936). A moment’s reflection will show why. A motion challenging the sufficiency of the evidence will often present a close question of great difficulty. A jury verdict for the movant eliminates this question and an appeal based on the ruling on the motion. But under prior practice, the judge was not permitted to consider the question raised by the motion after submitting the case to the jury. He was required to rule, finally, before the case was submitted.

If the motion was granted, there would likely be an appeal. If the trial judge was affirmed, it was quite possible that the appeal was unnecessary since the jury, had it been allowed to consider the evidence, might well have found for the movant. If the trial judge was reversed, there would have to be a new trial, repeating much of the expenditure in time and effort that was put into the first trial because there was no verdict on which judgment could be entered.

Under the rule, whenever a motion for a directed verdict made at the close of all the evidence is not granted, it will be deemed that the judge submitted the case to the jury having reserved for later determination the legal question raised by the motion. Thus, if there is a verdict for the nonmovant or if for some reason a verdict is not returned, the judge can reconsider the sufficiency of the evidence and, if convinced that it is insufficient, can grant the motion. If, on appeal it should prove that the judge was correct, that is, that he properly granted the motion, then the appellate court can affirm and, in appropriate cases, order judgment entered for the movant. On the other hand, if it should prove that the trial judge improperly granted the motion, the appellate court is not restricted to granting a new trial, as under the prior practice, but can order judgment entered on the verdict.

The utility of the judgment NOV must be obvious. It will certainly eliminate some appeals and it will certainly eliminate some second trials.

Turning now to the procedure for employing the motion for judgment NOV, it will be observed that making an appropriate motion for a directed verdict is an absolute prerequisite for the motion for judgment NOV. 5 Moore’s Federal Practice, § 50.08 and cases cited.

Second, it will be observed that the motion can, but need not be, coupled with a motion for a new trial. If it is joined with a motion for a new trial, the proper procedure, as laid down by the Supreme Court in Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S. Ct. 189, 85 L. Ed. 147 (1940) and as spelled out in sections (c) and (d) is for the court to rule on both motions. If the motion for judgment is granted and this is approved on appeal, the lower court’s ruling on the movant’s (verdict loser’s) motion for new trial becomes irrelevant. Final judgment for the movant is affirmed. If, however, the lower court is reversed on appeal as to the motion for judgment, then its ruling on the new trial motion becomes a matter of importance. If the movant (verdict loser) was granted a new trial, “the new trial shall proceed unless the appellate court has otherwise ordered.” Of course, the appellate court might very well “otherwise order” since the nonmovant (verdict winner) could assert on appeal not only error in the grant of the motion for judgment but error in the grant of the new trial. If the movant was denied a new trial although granted a judgment NOV, he can, under section (c), “assert error in that denial” on appeal.

Section (d) deals with the situation where the motion for judgment is denied. The movant may have coupled with his motion a motion for new trial. If the new trial motion was also denied, then the movant could appeal in respect to both motions. If the appellate court reverses as to the motion for judgment, it can order judgment for the movant or a new trial as the case may be. If the appellate court affirms in respect to the motion for judgment, it may of course reverse or affirm in respect to the new trial motion.

OFFICIAL COMMENT

Comment to the 1969 Amendment.

Rule 50, both in its old version and in the new, contemplates that when a party moves for a directed verdict and his motion is denied or for any reason is not granted, that party may, after an adverse verdict or the failure of the jury to return a verdict, move for judgment notwithstanding the verdict. When the movant for a directed verdict who is not immediately successful later moves for a judgment notwithstanding the verdict and his motion is granted or denied, and there is an appeal, the powers of the appellate court are reasonably clear, as outlined in section 50(c) and (d). But when the movant for a directed verdict later fails to move for a judgment notwithstanding the verdict, there has been in the federal courts uncertainty about the powers of an appellate court. See 5 Moore’s Federal Practice, § 2365-2374. The uncertainty revolves around the question of whether an appellate court can direct entry of judgment for a party who was erroneously denied a directed verdict but who later failed to move, as the rule contemplates, for a motion for judgment notwithstanding the verdict. The Supreme Court ruled in Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 67 S. Ct. 752, 91 L. Ed. 849 (1947), that in the circumstances outlined the appellate court was limited to directing a new trial.

It might be said that the rationale of the court’s ruling in the Cone case rests on a desire that no final conclusive judgment be rendered against a party unless the trial judge has had an opportunity to consider whether the loser should be given another chance. The trial judge would not have this opportunity in the absence of some such rule as that enunciated in Cone.

The Commission has from the first embraced the Cone result. The Commission has gone further and attempted to meet some of the problems spawned by the Cone decision.

Its first effort was the rather clumsy one comprised in the last two sentences of Rule 50(b) as it was originally enacted. These two sentences have now been deleted and they should be forgotten.

In their stead, the General Assembly has added a new final sentence to what is now section 50(b)(1) and a new section 50(b)(2). These additions make clear the power of a trial judge, once there has been a motion for a directed verdict, to consider on his own motion, after entry of judgment (see Rule 58 as to when judgment is deemed to be entered), entry of judgment in accordance with the directed verdict motion. The additions also make clear that without some post-verdict consideration of a motion for judgment or the reserved motion for a directed verdict, the appellate court cannot, if it should find erroneous the failure to grant the motion for directed verdict, direct entry of judgment for the appellant but can only order a new trial.

Legal Periodicals.

For article on legislative changes to the new Rules of Civil Procedure, see 6 Wake Forest Intra. L. Rev. 267 (1970).

For survey of decisions under the North Carolina Rules of Civil Procedure, see 50 N.C.L. Rev. 729 (1972).

For comment on directing verdict in favor of the party with the burden of proof, see 50 N.C.L. Rev. 843 (1972).

For survey of 1977 law on civil procedure, see 56 N.C.L. Rev. 874 (1978).

For survey of 1979 law on civil procedure, see 58 N.C.L. Rev. 1261 (1980).

For note on directed verdicts in favor of the party with the burden of proof, see 16 Wake Forest L. Rev. 607 (1980).

For survey of 1980 law on civil procedure, see 59 N.C.L. Rev. 1067 (1981).

For survey of 1981 law on civil procedure, see 60 N.C.L. Rev. 1214 (1982).

For article analyzing the 1983 amendments to Rules 6, 7, 11, 16, 26, 52, 53 and 67, FRCP, comparing these rules with North Carolina practice, and suggesting changes in certain state and federal rules, see 20 Wake Forest L. Rev. 819 (1984).

CASE NOTES

Analysis

I.In General

Right to Jury Trial. —

N.C. Const., Art. I, § 25 has been construed to guarantee trial by jury in all civil actions where the parties have not waived the right. Cutts v. Casey, 278 N.C. 390 , 180 S.E.2d 297, 1971 N.C. LEXIS 986 (1971).

Use of Federal Interpretations to Supplement Caselaw. —

Since North Carolina and Federal Rules 50 are substantially similar, federal interpretations are instructive to supplement the North Carolina decisions. Love v. Pressley, 34 N.C. App. 503, 239 S.E.2d 574, 1977 N.C. App. LEXIS 1762 (1977), cert. denied, 294 N.C. 441 , 241 S.E.2d 843, 1978 N.C. LEXIS 1266 (1978).

When Motions Granted. —

A defendant is not entitled to a directed verdict or a judgment notwithstanding the verdict unless the evidence, viewed in the light most favorable to the plaintiff, establishes its defense as a matter of law. Goodwin v. Investors Life Ins. Co. of N. Am., 332 N.C. 326 , 419 S.E.2d 766, 1992 N.C. LEXIS 483 (1992).

Appeals After Motion for Directed Verdict and Motion for Judgment Notwithstanding the Verdict. —

Where the specific issues regarding the sufficiency of the evidence presented in plaintiffs’ appeal of a judgment in favor of a husband and wife in a fraudulent transfer of property action had not been presented to the trial court in plaintiff’s motion for directed verdict, the appellate court was precluded from considering them. Tiber Holding Corp. v. DiLoreto, 160 N.C. App. 583, 586 S.E.2d 538, 2003 N.C. App. LEXIS 1823 (2003).

Motions under this rule apply only to issues tried by a jury, not a judge. Holthusen v. Holthusen, 79 N.C. App. 618, 339 S.E.2d 823, 1986 N.C. App. LEXIS 2095 (1986).

Attorneys’ Fees. —

G.S. 6-21.5 provides in part that the entry of judgment pursuant to this rule or G.S. 1A-1 , Rule 56 may be some evidence that an attorneys’ fee may be warranted. The statute’s reference to these rules, which are applicable only if evidence in addition to the pleadings is before the court, thus implies that when deciding whether to grant a motion under G.S. 6-21.5 the trial court may consider evidence developed after the pleadings have been filed. Sunamerica Fin. Corp. v. Bonham, 328 N.C. 254 , 400 S.E.2d 435, 1991 N.C. LEXIS 106 (1991).

Motions Properly Denied. —

Motions for a directed verdict and for judgment notwithstanding the verdict by corporations who employed bouncers were properly denied because the bouncers that beat up a patron were acting within the scope of their employment: (1) the operations manager sent the bouncers to check on the patron, (2) an organized plan to remove the patron from the bar was developed, (3) instead of waiting for the police, the bouncers, in consultation with the operations manager, tried to remove the patron, which quickly turned into a beating, and (4) the operations manager made no attempt to restrain the bouncers. Wallace v. M, M & R, Inc., 165 N.C. App. 827, 600 S.E.2d 514, 2004 N.C. App. LEXIS 1510 (2004).

Where defendants claimed adverse possession of a cemetery lot under G.S. 1-40 , plaintiffs’ motions for a directed verdict and for JNOV were properly denied; evidence that defendants had been farming the lot since the 1960’s and that there had not been a burial in the lot in nearly 60 years provided more than a scintilla of evidence that defendants had made exclusive use of the lot as farmland for the requisite period; there was no evidence that plaintiffs had used the lot. Jernigan v. Herring, 179 N.C. App. 390, 633 S.E.2d 874, 2006 N.C. App. LEXIS 1901 (2006).

City did not preserve its claims of error in the denial of its motions for a directed verdict and for a judgment notwithstanding the verdict as it failed to renew its motion for a directed verdict at the close of the evidence. City of Charlotte v. Hurlahe, 178 N.C. App. 144, 631 S.E.2d 28, 2006 N.C. App. LEXIS 1296 (2006).

Superior court did not abuse its discretion when it denied defendants’ motions for a directed verdict and for a judgment notwithstanding a jury’s verdict because the fired state employee who filed the suit against defendants presented sufficient evidence to support submitting his retaliation claim under G.S. 126-85 to the jury; the employee presented more than a mere scintilla of evidence showing that he had engaged in protected activity by participating in a state investigation of his state agency employer, that he was terminated after his supervisors learned of that activity, and that the activity was a substantial or motivating factor in his termination. Brookshire v. N.C. DOT, DMV, 180 N.C. App. 670, 637 S.E.2d 902, 2006 N.C. App. LEXIS 2513 (2006).

Trial court did not err in denying an employer’s motions for a directed verdict or judgment notwithstanding the verdict in a toxic workplace suit because the evidence on the issue of causation was sufficient to justify submission to the jury; the evidence showed that the facility had a history of leaks and moisture, that coworkers suffered injuries similar to that of the employee, and that the employee, who was in excellent health when he started working for the employer, suffered from irreversible vestibular dysfunction within less than two years. Cameron v. Merisel Props., 187 N.C. App. 40, 652 S.E.2d 660, 2007 N.C. App. LEXIS 2318 (2007).

Because: (1) the Court of Appeals of North Carolina declined to add a fourth element to the landowners’ burden of proof in the first part of the cartway proceeding; (2) the jury instruction on the element of the landowners’ claim to establish the right to a cartway, requiring them to show that their land was being used for one of the purposes enumerated in the statute, conformed with the pattern jury instructions without the addition of the language suggested by the adjoining landowners and fairly and accurately stated the landowners’ element of proof as to the use of their property; and (3) the instruction requested by the adjoining landowners gave undue emphasis to their claim the landowners’ intended to use the land for future residential development, which, while not enumerated under the statute, did not defeat the landowners’ right to a cartway, the trial court’s orders denying both a directed verdict and a judgment notwithstanding the verdict were upheld on appeal. Jones v. Robbins, 190 N.C. App. 405, 660 S.E.2d 118, 2008 N.C. App. LEXIS 901 (2008).

Grantee’s motion for directed verdict or judgment notwithstanding the verdict was properly denied on the issue of conspiracy because a witness’s testimony, standing alone, was more than a scintilla of evidence supporting a property owner’s claim that the grantee and a neighbor entered into an agreement to forge a deed and that the grantee committed acts in furtherance of the agreement, which led to the owner’s harm. Mace v. Pyatt, 203 N.C. App. 245, 691 S.E.2d 81, 2010 N.C. App. LEXIS 534 (2010).

Grantee’s motion for directed verdict or judgment notwithstanding the verdict was properly denied on the issue of conversion because a witness provided testimony critical to proving the grantee’s culpability in the conversion of a property owner’s personal property, and that evidence was sufficient to present the owner’s claim of conversion against the grantee to the jury. Mace v. Pyatt, 203 N.C. App. 245, 691 S.E.2d 81, 2010 N.C. App. LEXIS 534 (2010).

Trial court did not err in denying a grantee’s motion for directed verdict or judgment notwithstanding the verdict on the issue of whether a property owner was entitled to punitive damages because nominal damages were recoverable for the loss of the owner’s personal property as a matter of law, and her punitive damages award could be properly supported by an award of nominal damages standing alone; by purposely entering the owner’s property, pillaging her assets, and then removing or eradicating every one of her personal possessions located at the property, the grantee, at the very least, showed a conscious and intentional disregard of and indifference to the rights and safety of others under G.S. 1D-5(7) , and the jury’s finding that the grantee’s conversion was accompanied by an aggravating factor was supported by clear and convincing evidence. Mace v. Pyatt, 203 N.C. App. 245, 691 S.E.2d 81, 2010 N.C. App. LEXIS 534 (2010).

Motions Improperly Denied. —

Trial court erred in denying a grantee’s motion for directed verdict or judgment notwithstanding the verdict on the issue of whether a property owner was entitled to compensatory damages because submitting the issue of compensatory damages to the jury was reversible error since there was no evidence supporting the jury’s substantial compensatory damages of $50,000; no evidence was offered by the owner as to the amount of compensatory damages that were incurred as a result of the conversion of her personal property, and the owner conclusively showed that she suffered at least nominal damages due to the loss of her personal property. Mace v. Pyatt, 203 N.C. App. 245, 691 S.E.2d 81, 2010 N.C. App. LEXIS 534 (2010).

Issue Not Considered on Appeal. —

Neighbors’ claim in their directed verdict motion that there was insufficient evidence as to whether the property owners had an easement by prescription over the neighbors’ property was not considered on appeal as the jury did not reach the issue and the neighbors failed to raise the issue in their brief on appeal. Boggess v. Spencer, 173 N.C. App. 614, 620 S.E.2d 10, 2005 N.C. App. LEXIS 2114 (2005).

II.Directed Verdict
A.In General

Purpose of This Rule. —

Settled principles establish that the purpose of a motion under section (a) of this rule for directed verdict is to test the legal sufficiency of the evidence to take the case to the jury and to support a verdict for plaintiffs. Wallace v. Evans, 60 N.C. App. 145, 298 S.E.2d 193, 1982 N.C. App. LEXIS 3275 (1982); Southern Ry. v. O'Boyle Tank Lines, 70 N.C. App. 1, 318 S.E.2d 872, 1984 N.C. App. LEXIS 3623 (1984); Burris v. Shumate, 77 N.C. App. 209, 334 S.E.2d 514, 1985 N.C. App. LEXIS 4035 (1985); Rice v. Wood, 82 N.C. App. 318, 346 S.E.2d 205, 1986 N.C. App. LEXIS 2445 (1986); Hitchcock v. Cullerton, 82 N.C. App. 296, 346 S.E.2d 215, 1986 N.C. App. LEXIS 2426 (1986); Britt v. Britt, 82 N.C. App. 303, 346 S.E.2d 259, 1986 N.C. App. LEXIS 2465 (1986), aff'd in part and rev'd in part, 320 N.C. 573 , 359 S.E.2d 467, 1987 N.C. LEXIS 2387 (1987); Wellmon v. Hickory Constr. Co., 88 N.C. App. 76, 362 S.E.2d 591, 1987 N.C. App. LEXIS 3454 (1987).

A motion for directed verdict is to test the legal sufficiency of the evidence to take the case to the jury. DeHart v. R/S Fin. Corp., 78 N.C. App. 93, 337 S.E.2d 94, 1985 N.C. App. LEXIS 4264 (1985).

The purpose of a motion for a directed verdict is to test the legal sufficiency of the evidence. Allison v. Food Lion, Inc., 84 N.C. App. 251, 352 S.E.2d 256, 1987 N.C. App. LEXIS 2485 (1987).

As to the difference between directed verdicts in criminal and civil cases, see State v. Riley, 113 N.C. 648 , 18 S.E. 168, 1893 N.C. LEXIS 143 (1893); Cutts v. Casey, 278 N.C. 390 , 180 S.E.2d 297, 1971 N.C. LEXIS 986 (1971).

A motion for directed verdict is appropriate only to a case tried before a jury. In nonjury trials, a motion for involuntary dismissal under G.S. 1A-1 , Rule 41(b) provides a procedure whereby, at the close of the plaintiff ’s evidence, the judge can give judgment against the plaintiff, not only because his proof has failed to make out a case, but also on the basis of facts as the judge may determine them. Goodrich v. Rice, 75 N.C. App. 530, 331 S.E.2d 195, 1985 N.C. App. LEXIS 3715 (1985).

Motion for a directed verdict was not appropriate in an action tried by the trial court without a jury. Rather, the appropriate motion by which a defendant tested the sufficiency of a plaintiff’s evidence to show a right to relief in an action tried by the trial court without a jury was a motion for an involuntary dismissal. Carolina Mulching Co. v. Raleigh-Wilmington Investors II, LLC, 2021-NCSC-79, 378 N.C. 100 , 861 S.E.2d 496, 2021- NCSC-79, 2021 N.C. LEXIS 712 (2021).

Directed Verdict When Plaintiff’s Evidence Does Not Show Contributory Negligence.— Negligence.—

Conduct pointed to as evidence of the decedent’s contributory negligence occurred not before or contemporaneous with but following the doctor’s negligent acts that caused injury; there was no evidence that the decedent contributed to the negligent conduct that damaged her neck, and the trial court’s directed verdict on contributory negligence was proper. Justus v. Rosner, 254 N.C. App. 55, 802 S.E.2d 142, 2017 N.C. App. LEXIS 448 (2017), aff'd, 371 N.C. 818 , 821 S.E.2d 765, 2018 N.C. LEXIS 1136 (2018).

In the landlord and tenant dispute where there was no jury trial, the trial court erroneously granted a directed verdict under G.S. 1A-1-50 in favor of the landlord; in such cases, involuntary dismissal under G.S. 1A-1-41(b) was the appropriate method for disposing of the case. Dean v. Hill, 171 N.C. App. 479, 615 S.E.2d 699, 2005 N.C. App. LEXIS 1275 (2005).

Defendants’ motion to dismiss in an action tried before the judge without a jury was actually a motion to dismiss made under G.S. 1A-1-41(b), not G.S. 1A-1-50(a); the distinction was significant because, under G.S. 1A-1-41(b), the trial judge did not consider the evidence in the light most favorable to the plaintiff, as he would have when considering a G.S. 1A-1-50(a) motion for a directed verdict in a trial before a jury. Hammonds v. Lumbee River Elec. Mbrshp. Corp., 178 N.C. App. 1, 631 S.E.2d 1, 2006 N.C. App. LEXIS 1301 (2006).

Trial court’s order granting plaintiff summary judgment on an action alleging that defendant was in default on two promissory notes could not be treated as a directed verdict where the parties were in court for a pretrial hearing on a motion in limine and were not participating in a jury trial. Buckner v. TigerSwan, Inc., 244 N.C. App. 385, 781 S.E.2d 494, 2015 N.C. App. LEXIS 1039 (2015).

Plaintiff must make out his case by proving the facts essential to his cause of action or by proving facts permitting an inference of the material facts as a fair and logical conclusion. Southern Bell Tel. & Tel. Co. v. West, 100 N.C. App. 668, 397 S.E.2d 765, 1990 N.C. App. LEXIS 1136 (1990), aff'd, 328 N.C. 566 , 402 S.E.2d 409, 1991 N.C. LEXIS 248 (1991).

Degree of Probability Must Exist with Issue of Causation. —

Some degree of probability, however small, must exist to provide the jury with a question of causation to resolve, not just mere possibility. Hinson v. National Starch & Chem. Corp., 99 N.C. App. 198, 392 S.E.2d 657, 1990 N.C. App. LEXIS 464 (1990).

Peremptory Instruction in Favor of Party with Burden of Proof Contrasted with Directed Verdict. —

When there is no conflict in the evidence and but one inference is permissible from it, the court may give a peremptory instruction in favor of the party having the burden of proof. Such an instruction directs the jury to answer the issue in favor of the plaintiff if it finds the facts to be as all the evidence tends to show; otherwise not. A peremptory instruction does not deprive the jury of its right to reject the evidence because of lack of faith in its credibility. Such an instruction differs from a directed verdict. Cutts v. Casey, 278 N.C. 390 , 180 S.E.2d 297, 1971 N.C. LEXIS 986 (1971).

For case comparing motions for summary judgment and for directed verdict, see Edwards v. Northwestern Bank, 53 N.C. App. 492, 281 S.E.2d 86, 1981 N.C. App. LEXIS 2615 (1981).

Denial of Summary Judgment No Bar to Directed Verdict. —

The earlier denial of a motion for summary judgment should not, in any way, be considered a barrier to later consideration of a motion for directed verdict. Edwards v. Northwestern Bank, 53 N.C. App. 492, 281 S.E.2d 86, 1981 N.C. App. LEXIS 2615 (1981).

Denial of a motion for summary judgment, based upon only a forecast of evidence, should not operate to bar the granting of a directed verdict or a judgment notwithstanding the verdict based on the evidence actually presented at trial. Whittaker Gen. Medical Corp. v. Daniel, 87 N.C. App. 659, 362 S.E.2d 302, 1987 N.C. App. LEXIS 3313 (1987), rev'd, 374 S.E.2d 268, 1988 N.C. LEXIS 691 (N.C. 1988), rev'd in part, 324 N.C. 523 , 379 S.E.2d 824, 1989 N.C. LEXIS 299 (1989).

Nonsuit Replaced by Motion for Directed Verdict. —

In jury trials the motion for nonsuit has been replaced by the motion for a directed verdict. Creasman v. First Fed. Sav. & Loan Ass'n, 279 N.C. 361 , 183 S.E.2d 115, 1971 N.C. LEXIS 803 (1971), cert. denied, 405 U.S. 977, 92 S. Ct. 1204, 31 L. Ed. 2d 252, 1972 U.S. LEXIS 3431 (1972).

Treatment of Motion for “Judgment of Nonsuit” as Motion for Directed Verdict. —

Defendant’s motion for “judgment of nonsuit,” made at the close of plaintiff ’s evidence and again at the close of all the evidence, was treated as a motion for a directed verdict under this rule. The new rules contemplate that the name of the motion is not as important as the substance. Wheeler v. Denton, 9 N.C. App. 167, 175 S.E.2d 769, 1970 N.C. App. LEXIS 1304 (1970).

Classes of cases not subject to nonsuit would not be ordinarily subject to directed verdict under the new rules. Aetna Cas. & Sur. Co. v. Lumbermen's Mut. Cas. Co., 11 N.C. App. 490, 181 S.E.2d 727, 1971 N.C. App. LEXIS 1564 (1971).

The words “without any assent of the jury” are used to dispel any apprehension that the jury is required to perform a perfunctory act in connection with the verdict in a case which is not submitted to it for determination. Kelly v. International Harvester Co., 278 N.C. 153 , 179 S.E.2d 396, 1971 N.C. LEXIS 955 (1971).

Directed Verdict Not Proper in Processioning Proceedings. —

A directed verdict is never proper when the question is for the jury, and in processioning proceedings the determination of the boundary is for the jury. Beal v. Dellinger, 38 N.C. App. 732, 248 S.E.2d 775, 1978 N.C. App. LEXIS 2318 (1978).

The primary purpose of a processioning proceeding is to establish the correct location of the disputed dividing line. Such a proceeding may not be dismissed by a directed verdict. A plaintiff instituting a true processioning proceeding has the legal right to have the line ascertained and fixed by judicial decree, regardless of the sufficiency of his evidence to establish the line as contended for by him. Sipe v. Blankenship, 37 N.C. App. 499, 246 S.E.2d 527, 1978 N.C. App. LEXIS 2794 (1978).

Motion for directed verdict is the only procedure by which a party can challenge the sufficiency of his adversary’s evidence to go to the jury. Creasman v. First Fed. Sav. & Loan Ass'n, 279 N.C. 361 , 183 S.E.2d 115, 1971 N.C. LEXIS 803 (1971), cert. denied, 405 U.S. 977, 92 S. Ct. 1204, 31 L. Ed. 2d 252, 1972 U.S. LEXIS 3431 (1972).

In a jury trial, the motion for a directed verdict is the only device by which the adverse party can challenge the sufficiency of the evidence to go to the jury. Cutts v. Casey, 278 N.C. 390 , 180 S.E.2d 297, 1971 N.C. LEXIS 986 (1971); Yeargin v. Spurr, 78 N.C. App. 243, 336 S.E.2d 680, 1985 N.C. App. LEXIS 4283 (1985).

In a case tried to a jury, after a plaintiff has put on evidence and rested, a defendant who asserts that the evidence of the plaintiff is insufficient to permit a recovery is restricted to making a motion for a directed verdict under section (a) of this rule. Creasman v. First Fed. Sav. & Loan Ass'n, 10 N.C. App. 182, 177 S.E.2d 770, 1970 N.C. App. LEXIS 1228 (1970), aff'd, 279 N.C. 361 , 183 S.E.2d 115, 1971 N.C. LEXIS 803 (1971).

When a case is tried by a jury a defendant may move for a directed verdict to test the sufficiency of the evidence to go to the jury. Roberts v. William N. & Kate B. Reynolds Mem. Park, 281 N.C. 48 , 187 S.E.2d 721, 1972 N.C. LEXIS 1004 (1972).

Directed verdicts are appropriate only in jury cases. Bryant v. Kelly, 279 N.C. 123 , 181 S.E.2d 438, 1971 N.C. LEXIS 757 (1971); Town of Rolesville v. Perry, 21 N.C. App. 354, 204 S.E.2d 719, 1974 N.C. App. LEXIS 1804 (1974); Hasty v. Carpenter, 51 N.C. App. 333, 276 S.E.2d 513, 1981 N.C. App. LEXIS 2233 (1981).

A motion for directed verdict under section (a) of this rule is appropriate when trial is held before a jury. Aiken v. Collins, 16 N.C. App. 504, 192 S.E.2d 617, 1972 N.C. App. LEXIS 1748 (1972); Whitaker v. Earnhardt, 289 N.C. 260 , 221 S.E.2d 316, 1976 N.C. LEXIS 1249 (1976).

A motion for directed verdict and a directed verdict are not proper where the trial is before the judge sitting without a jury. Porter Bros. v. Jones, 11 N.C. App. 215, 181 S.E.2d 177, 1971 N.C. App. LEXIS 1498 (1971).

This rule has no application to trials before the judge without a jury. In actions tried before the judge without a jury a motion to dismiss is made pursuant to G.S. 1A-1 , Rule 41(b). Crump v. Coffey, 59 N.C. App. 553, 297 S.E.2d 131, 1982 N.C. App. LEXIS 3142 (1982).

Directed verdicts are appropriate only in jury cases. In nonjury civil cases the appropriate motion by which a defendant may test the sufficiency of the plaintiff’s evidence to show a right to relief is a motion for involuntary dismissal under G.S. 1A-1 , Rule 41(b). The distinction is more than one of mere nomenclature, as a different test is to be applied to determine the sufficiency of the evidence to withstand the motion when the case is tried before the court and jury than when the court alone is finder of facts. Mayo v. Mayo, 73 N.C. App. 406, 326 S.E.2d 283, 1985 N.C. App. LEXIS 3277 (1985).

The purpose of a motion for directed verdict, made pursuant to section (a) of this rule, is to test the legal sufficiency of the evidence to take the case to the jury and to support a verdict for the nonmoving party. In passing upon the motion, the court must consider the evidence in the light most favorable to the nonmoving party, taking all evidence which tends to support his position as true, resolving all contradictions, conflicts and inconsistencies in his favor and giving him the benefit of all reasonable inferences. The motion may be granted only if the evidence is insufficient, as a matter of law, to support a verdict for the nonmoving party. The same test is apposite whether considering a section (a) motion directed at the plaintiff’s claim or at the defendant’s counterclaim. Eatman v. Bunn, 72 N.C. App. 504, 325 S.E.2d 50, 1985 N.C. App. LEXIS 3097 (1985).

A motion for a directed verdict under section (a) of this rule presents substantially the same question as was formerly presented by motion for judgment of nonsuit. Harrell v. Clarke, 72 N.C. App. 516, 325 S.E.2d 33, 1985 N.C. App. LEXIS 3140 (1985).

The appellate court would treat a motion for a directed verdict made pursuant to this section as a Rule 41(b) motion, because the motion was made in a bench trial, and would reverse the trial court’s order dismissing the plaintiff’s claim for unfair and deceptive trade practices because the court failed to make the required findings. Hill v. Lassiter, 135 N.C. App. 515, 520 S.E.2d 797, 1999 N.C. App. LEXIS 1148 (1999).

While Motions for Involuntary Dismissal Are Proper in Nonjury Cases. —

A motion for a directed verdict under section (a) of this rule is proper when a trial is being held before a jury. Where a case is tried by the judge without a jury, the appropriate motion in such case is for involuntary dismissal under G.S. 1A-1 , Rule 41(b). Bryant v. Kelly, 10 N.C. App. 208, 178 S.E.2d 113, 1970 N.C. App. LEXIS 1238 (1970), rev'd, 279 N.C. 123 , 181 S.E.2d 438, 1971 N.C. LEXIS 757 (1971); Neff v. Queen City Coach Co., 16 N.C. App. 466, 192 S.E.2d 587, 1972 N.C. App. LEXIS 1743 (1972).

Directed verdicts are appropriate only in jury cases. In nonjury civil cases the appropriate motion by which a defendant may test the sufficiency of the plaintiff’s evidence to show a right to relief is a motion for involuntary dismissal under G.S. 1A-1 , Rule 41(b). Higgins v. Builders & Fin., Inc., 20 N.C. App. 1, 200 S.E.2d 397, 1973 N.C. App. LEXIS 1457 (1973), cert. denied, 284 N.C. 616 , 201 S.E.2d 689, 1974 N.C. LEXIS 1296 (1974); Tanglewood Land Co. v. Wood, 40 N.C. App. 133, 252 S.E.2d 546, 1979 N.C. App. LEXIS 2609 (1979).

Motion for directed verdict under this rule and motion for involuntary dismissal under G.S. 1A-1 , Rule 41(b) are to be distinguished; the former is proper when the case is tried before a jury, and the latter is appropriate where the court sits as trier of fact. McNeely v. Southern Ry., 19 N.C. App. 502, 199 S.E.2d 164, 1973 N.C. App. LEXIS 1689 , cert. denied, 284 N.C. 425 , 200 S.E.2d 660, 1973 N.C. LEXIS 883 (1973).

Where a case is tried before a jury, the appropriate motion by which a defendant tests the sufficiency of plaintiff’s evidence to permit a recovery is the motion for a directed verdict under section (a) of this rule. The motion for involuntary dismissal, made under G.S. 1A-1 , Rule 41(b), performs a similar function in an action tried by the court without a jury. Duke v. Meisky, 12 N.C. App. 329, 183 S.E.2d 292, 1971 N.C. App. LEXIS 1354 (1971).

A motion to dismiss under G.S. 1A-1 , Rule 41(b) is properly made only in cases tried by a judge without a jury, while the proper motion in jury cases is for a directed verdict under section (a) of this rule. Hamm v. Texaco, Inc., 17 N.C. App. 451, 194 S.E.2d 560, 1973 N.C. App. LEXIS 1381 (1973); Nytco Leasing, Inc. v. Southeastern Motels, Inc., 40 N.C. App. 120, 252 S.E.2d 826, 1979 N.C. App. LEXIS 2614 (1979).

Motion for directed verdict pursuant to N.C. R. Civ. P. 50 is not the appropriate mechanism to challenge the sufficiency of plaintiffs’ evidence because the correct motion is one for involuntary dismissal pursuant to N.C. R. Civ. P. 41(b) that based upon the facts and the law the plaintiff has shown no right to relief. Chase Dev. Group v. Fisher, Clinard & Cornwell, PLLC, 211 N.C. App. 295, 710 S.E.2d 218, 2011 N.C. App. LEXIS 738 (2011).

Different Tests for Sufficiency on Motions for Directed Verdict and Involuntary Dismissal. —

The distinction between a motion for a directed verdict and a motion for an involuntary dismissal is more than one of mere nomenclature, as a different test is to be applied to determine the sufficiency of the evidence to withstand the motion when the case is tried before court and jury than when the court alone is finder of the facts. Neff v. Queen City Coach Co., 16 N.C. App. 466, 192 S.E.2d 587, 1972 N.C. App. LEXIS 1743 (1972).

Same Tests for Sufficiency on Motions for Directed Verdict and Demand for Jury Trial. —

Following a compulsory reference, the test to determine a demand for jury trial is the same as that for a motion for directed verdict pursuant to this rule. Dockery v. Hocutt, 357 N.C. 210 , 581 S.E.2d 431, 2003 N.C. LEXIS 596 (2003).

G.S. 1A-1 , Rule 53(b)(2)(c) provides that if there is a trial by jury upon any issue referred, the trial will be only upon the evidence taken before the referee, so, when a trial court reviews a referee’s order, the claimant has been put to the full burden of proof; the trial court had before it all the testimony, including cross-examination, not merely a forecast of the evidence, and, given the limitation imposed by Rule 53(b)(2)(c), the trial court, in ruling on a party’s demand for jury trial following a compulsory reference, was in a position analogous to that of a trial judge in ruling on a motion for directed verdict pursuant to this rule at the close of all evidence. Dockery v. Hocutt, 357 N.C. 210 , 581 S.E.2d 431, 2003 N.C. LEXIS 596 (2003).

Treatment of Involuntary Dismissal in Jury Trial as Directed Verdict. —

Where judgment of involuntary dismissal in a trial before a jury was improperly entered under G.S. 1A-1 , Rule 41(b), which is applicable only in a trial by the court without a jury, it may properly be treated as a motion for a directed verdict under this rule. Pergerson v. Williams, 9 N.C. App. 512, 176 S.E.2d 885, 1970 N.C. App. LEXIS 1395 (1970).

Where a motion for dismissal is made pursuant to G.S. 1A-1 , Rule 41(b) in a jury case, it may properly be treated as a motion for directed verdict. Creasman v. First Fed. Sav. & Loan Ass'n, 279 N.C. 361 , 183 S.E.2d 115, 1971 N.C. LEXIS 803 (1971), cert. denied, 405 U.S. 977, 92 S. Ct. 1204, 31 L. Ed. 2d 252, 1972 U.S. LEXIS 3431 (1972).

It is permissible for motions made under G.S. 1A-1 , Rule 41(b) at the close of plaintiff’s evidence in jury trials to be treated as motions for directed verdict under section (a) of this rule. Sample v. Morgan, 311 N.C. 717 , 319 S.E.2d 607, 1984 N.C. LEXIS 1757 (1984).

Judgment entered upon a directed verdict is a final judgment on the merits. Taylor v. Tri-County Elec. Membership Corp., 17 N.C. App. 143, 193 S.E.2d 402, 1972 N.C. App. LEXIS 1597 (1972).

A judgment entered upon a directed verdict is a judgment on the merits for res judicata purposes. Phipps v. Paley, 90 N.C. App. 170, 368 S.E.2d 21, 1988 N.C. App. LEXIS 444 (1988).

And Defendant Is Entitled to Judgment on Merits When Motion for Directed Verdict Is Granted. —

When a motion for a directed verdict under this rule is granted, the defendant is entitled to a judgment on the merits. Kelly v. International Harvester Co., 278 N.C. 153 , 179 S.E.2d 396, 1971 N.C. LEXIS 955 (1971); Cutts v. Casey, 278 N.C. 390 , 180 S.E.2d 297, 1971 N.C. LEXIS 986 (1971).

Unless Court Permits Voluntary Dismissal Under G.S. 1A-1 , Rule 41(a)(2). —

When a motion for a directed verdict under this rule is granted, the defendant is entitled to a judgment on the merits unless the court permits a voluntary dismissal of the action under G.S. 1A-1 , Rule 41(a)(2). Kelly v. International Harvester Co., 278 N.C. 153 , 179 S.E.2d 396, 1971 N.C. LEXIS 955 (1971); Cutts v. Casey, 278 N.C. 390 , 180 S.E.2d 297, 1971 N.C. LEXIS 986 (1971); Taylor v. Tri-County Elec. Membership Corp., 17 N.C. App. 143, 193 S.E.2d 402, 1972 N.C. App. LEXIS 1597 (1972).

G.S. 1A-1 , Rule 41(b) has no application when considering a motion for a directed verdict in a jury trial. Kelly v. International Harvester Co., 278 N.C. 153 , 179 S.E.2d 396, 1971 N.C. LEXIS 955 (1971).

By offering evidence, defendant waives motion for directed verdict made at the close of plaintiff ’s evidence. Woodard v. Marshall, 14 N.C. App. 67, 187 S.E.2d 430, 1972 N.C. App. LEXIS 2037 (1972); Overman v. Gibson Prods. Co. of Thomasville, Inc., 30 N.C. App. 516, 227 S.E.2d 159, 1976 N.C. App. LEXIS 2296 (1976).

However, he may renew the motion at the close of all the evidence. Overman v. Gibson Prods. Co. of Thomasville, Inc., 30 N.C. App. 516, 227 S.E.2d 159, 1976 N.C. App. LEXIS 2296 (1976).

Power of Judge to Grant, Deny or Redeny Directed Verdict on Own Motion. —

The trial judge on his own motion, within the time prescribed in subsection (b)(1) of this rule, may grant, deny, or redeny the motion for a directed verdict. Hensley v. Ramsey, 283 N.C. 714 , 199 S.E.2d 1, 1973 N.C. LEXIS 1062 (1973).

Under subsection (b)(1) of this rule a trial judge, on his own motion, may enter a directed verdict within 10 days after the jury is discharged for failing to reach a verdict. Odell v. Lipscomb, 12 N.C. App. 318, 183 S.E.2d 299, 1971 N.C. App. LEXIS 1352 (1971).

Any party may move for a directed verdict at the close of all the evidence. Snipes v. Snipes, 55 N.C. App. 498, 286 S.E.2d 591, 1982 N.C. App. LEXIS 2256 , aff'd, 306 N.C. 373 , 293 S.E.2d 187, 1982 N.C. LEXIS 1450 (1982).

Directed verdict is appealable, and operates with full res judicata effect. Taylor v. Tri-County Elec. Membership Corp., 17 N.C. App. 143, 193 S.E.2d 402, 1972 N.C. App. LEXIS 1597 (1972).

As Considered in the Light Most Favorable to Nonmovant. —

A motion under this rule is directed to the sufficiency of the evidence to justify a verdict for the plaintiff when considered in the light most favorable to him. Evans v. Carney, 29 N.C. App. 611, 225 S.E.2d 157, 1976 N.C. App. LEXIS 2582 (1976); Oliver v. Royall, 36 N.C. App. 239, 243 S.E.2d 436, 1978 N.C. App. LEXIS 2456 (1978).

In considering a motion for a directed verdict, the evidence must be viewed in the light most favorable to plaintiff. Naylor v. Naylor, 11 N.C. App. 384, 181 S.E.2d 222, 1971 N.C. App. LEXIS 1531 (1971); Bowen v. Constructors Equip. Rental Co., 283 N.C. 395 , 196 S.E.2d 789, 1973 N.C. LEXIS 990 (1973); Brooks v. Boucher, 22 N.C. App. 676, 207 S.E.2d 282, 1974 N.C. App. LEXIS 2414 , cert. denied, 286 N.C. 211 , 209 S.E.2d 319, 1974 N.C. LEXIS 1199 (1974); Prevatte v. Cabble, 24 N.C. App. 524, 211 S.E.2d 528, 1975 N.C. App. LEXIS 2419 (1975); Brewer v. Majors, 48 N.C. App. 202, 268 S.E.2d 229, 1980 N.C. App. LEXIS 3198 (1980); Crisp v. Benfield, 64 N.C. App. 357, 307 S.E.2d 179, 1983 N.C. App. LEXIS 3259 (1983); Douglas v. Parks, 68 N.C. App. 496, 315 S.E.2d 84, 1984 N.C. App. LEXIS 3312 (1984); Allison v. Food Lion, Inc., 84 N.C. App. 251, 352 S.E.2d 256, 1987 N.C. App. LEXIS 2485 (1987).

In passing upon a motion for a directed verdict, the court must consider the evidence in the light most favorable to the nonmovant. Summey v. Cauthen, 283 N.C. 640 , 197 S.E.2d 549, 1973 N.C. LEXIS 1029 (1973); Snider v. Dickens, 293 N.C. 356 , 237 S.E.2d 832, 1977 N.C. LEXIS 943 (1977); Loy v. Lorm Corp., 52 N.C. App. 428, 278 S.E.2d 897, 1981 N.C. App. LEXIS 2468 (1981); In re Allen, 58 N.C. App. 322, 293 S.E.2d 607, 1982 N.C. App. LEXIS 2763 (1982); Myers v. Myers, 62 N.C. App. 291, 302 S.E.2d 476, 1983 N.C. App. LEXIS 2838 (1983); Rice v. Wood, 82 N.C. App. 318, 346 S.E.2d 205, 1986 N.C. App. LEXIS 2445 (1986); Britt v. Britt, 82 N.C. App. 303, 346 S.E.2d 259, 1986 N.C. App. LEXIS 2465 (1986), aff'd in part and rev'd in part, 320 N.C. 573 , 359 S.E.2d 467, 1987 N.C. LEXIS 2387 (1987).

On a motion by a defendant for a directed verdict at the close of plaintiff ’s evidence in a jury case, the evidence must be taken as true and considered in the light most favorable to plaintiff. Farmer v. Chaney, 292 N.C. 451 , 233 S.E.2d 582, 1977 N.C. LEXIS 1106 (1977); Brown v. Brown, 38 N.C. App. 607, 248 S.E.2d 397, 1978 N.C. App. LEXIS 2252 (1978); Tuttle v. Tuttle, 38 N.C. App. 651, 248 S.E.2d 896, 1978 N.C. App. LEXIS 2302 (1978), cert. denied, 296 N.C. 589 , 254 S.E.2d 32, 1979 N.C. LEXIS 1236 (1979).

In considering the sufficiency of the evidence to withstand a motion for directed verdict, the appellate court must consider the evidence in the light most favorable to the nonmoving party. Wilson v. Bob Robinson's Auto Serv., Inc., 20 N.C. App. 47, 200 S.E.2d 393, 1973 N.C. App. LEXIS 1465 (1973); McDonald v. Trustees of Fayetteville Technical Inst., 46 N.C. App. 77, 264 S.E.2d 123, 1980 N.C. App. LEXIS 2751 (1980).

On a defendant’s motion for a directed verdict, plaintiff ’s evidence must be taken as true and all the evidence must be considered in the light most favorable to the plaintiff, giving him the benefit of every reasonable inference to be drawn therefrom. Atlantic Tobacco Co. v. Honeycutt, 101 N.C. App. 160, 398 S.E.2d 641, 1990 N.C. App. LEXIS 1218 (1990).

With Contradictions, Conflicts and Inconsistencies Resolved in Nonmovant’s Favor. —

Contradictions, conflicts and inconsistencies in the evidence must be resolved in plaintiff ’s favor in determining the sufficiency of the evidence to withstand a motion for directed verdict. Tripp v. Pate, 49 N.C. App. 329, 271 S.E.2d 407, 1980 N.C. App. LEXIS 3388 (1980); Southern Ry. v. O'Boyle Tank Lines, 70 N.C. App. 1, 318 S.E.2d 872, 1984 N.C. App. LEXIS 3623 (1984); Allison v. Food Lion, Inc., 49 N.C. App. 329, 352 S.E.2d 256 (1987).

On a motion by a defendant for directed verdict, any conflict in the evidence must be resolved in the plaintiff’s favor. McAdams v. Union Sec. Life Ins. Co., 36 N.C. App. 463, 244 S.E.2d 692, 1978 N.C. App. LEXIS 2529 (1978).

In ruling on a motion for directed verdict, the court must resolve any discrepancies in the evidence in favor of the party against whom the motion is made, and must give that party the benefit of every legitimate inference which may be reasonably drawn from the evidence. Odell v. Lipscomb, 12 N.C. App. 318, 183 S.E.2d 299, 1971 N.C. App. LEXIS 1352 (1971).

In passing on plaintiff ’s motion for a directed verdict, insofar as the defendant’s testimony creates a conflict in his testimony, it must be resolved in his favor. Coppley v. Carter, 10 N.C. App. 512, 179 S.E.2d 118, 1971 N.C. App. LEXIS 1660 (1971).

In determining whether the evidence is sufficient to withstand a motion for directed verdict, plaintiff’s evidence must be taken as true and all the evidence must be viewed in the light most favorable to him, giving him the benefit of every reasonable inference which may legitimately be drawn therefrom, with conflicts, contradictions and inconsistencies being resolved in plaintiff’s favor. Hornby v. Pennsylvania Nat'l Mut. Cas. Ins. Co., 62 N.C. App. 419, 303 S.E.2d 332, 1983 N.C. App. LEXIS 2916 (1983).

On defendants’ motion for directed verdict, plaintiff’s evidence is taken as true, along with all reasonable inferences therefrom, resolving all conflicts and inconsistencies in plaintiff’s favor, and disregarding defendant’s evidence unless favorable to plaintiff or tending to clarify plaintiff’s case. Forsyth County v. Shelton, 74 N.C. App. 674, 329 S.E.2d 730, 1985 N.C. App. LEXIS 3557 (1985).

In considering a motion for directed verdict, the nonmovant’s evidence must be taken as true, and contradictions, inconsistencies and conflicts in the evidence must be resolved in favor of the nonmovant. Morris v. Bruney, 78 N.C. App. 668, 338 S.E.2d 561, 1986 N.C. App. LEXIS 1995 (1986).

And Giving Nonmovant the Benefit of Every Reasonable Inference. —

When a motion for directed verdict is made under this rule at the conclusion of the plaintiff ’s evidence, the trial judge must determine whether the evidence, taken in the light most favorable to the plaintiff and giving to it the benefit of every reasonable inference which can be drawn therefrom was sufficient to withstand defendant’s motion for a directed verdict. Sawyer v. Shackleford, 8 N.C. App. 631, 175 S.E.2d 305, 1970 N.C. App. LEXIS 1637 (1970); Riddick v. Whitaker, 13 N.C. App. 416, 185 S.E.2d 602, 1972 N.C. App. LEXIS 2253 , cert. denied, 281 N.C. 154 , 187 S.E.2d 585, 1972 N.C. LEXIS 1024 (1972); Cook v. Export Leaf Tobacco Co., 50 N.C. App. 89, 272 S.E.2d 883, 1980 N.C. App. LEXIS 3455 (1980); Scott v. Kiker, 59 N.C. App. 458, 297 S.E.2d 142, 1982 N.C. App. LEXIS 3147 (1982); Southern Ry. v. O'Boyle Tank Lines, 70 N.C. App. 1, 318 S.E.2d 872, 1984 N.C. App. LEXIS 3623 (1984).

Upon a motion for a directed verdict, all evidence which supports plaintiff’s claim must be taken as true and considered in the light most favorable to plaintiff, giving to plaintiff the benefit of every reasonable inference which may legitimately be drawn therefrom, and with contradictions, conflicts and inconsistencies being resolved in plaintiff ’s favor. Pergerson v. Williams, 9 N.C. App. 512, 176 S.E.2d 885, 1970 N.C. App. LEXIS 1395 (1970); Maness v. Fowler-Jones Constr. Co., 10 N.C. App. 592, 179 S.E.2d 816, 1971 N.C. App. LEXIS 1680 , cert. denied, 278 N.C. 522 , 180 S.E.2d 610, 1971 N.C. LEXIS 1004 (1971); Ingold v. Carolina Power & Light Co., 11 N.C. App. 253, 181 S.E.2d 173, 1971 N.C. App. LEXIS 1501 (1971), aff'd, State v. Farris, 336 N.C. 552 , 444 S.E.2d 182, 1994 N.C. LEXIS 300 (1994); Kinston Bldg. Supply Co. v. Murphy, 13 N.C. App. 351, 185 S.E.2d 440, 1971 N.C. App. LEXIS 1251 (1971); Raynor v. Foster, 12 N.C. App. 193, 182 S.E.2d 806, 1971 N.C. App. LEXIS 1326 , cert. denied, 279 N.C. 512 , 183 S.E.2d 688, 1971 N.C. LEXIS 873 (1971); Jenkins v. Starrett Corp., 13 N.C. App. 437, 186 S.E.2d 198, 1972 N.C. App. LEXIS 2261 (1972); Rogers v. City of Asheville, 14 N.C. App. 514, 188 S.E.2d 656, 1972 N.C. App. LEXIS 2164 (1972); Teachey v. Woolard, 16 N.C. App. 249, 191 S.E.2d 903, 1972 N.C. App. LEXIS 1683 , cert. denied, 282 N.C. 430 , 192 S.E.2d 840, 1972 N.C. LEXIS 999 (1972); Love v. Pressley, 34 N.C. App. 503, 239 S.E.2d 574, 1977 N.C. App. LEXIS 1762 (1977), cert. denied, 294 N.C. 441 , 241 S.E.2d 843, 1978 N.C. LEXIS 1266 (1978); Oliver v. Royall, 36 N.C. App. 239, 243 S.E.2d 436, 1978 N.C. App. LEXIS 2456 (1978); Lyvere v. Ingles Mkts., Inc., 36 N.C. App. 560, 244 S.E.2d 437, 1978 N.C. App. LEXIS 2547 (1978); Murphy v. Edwards & Warren, 36 N.C. App. 653, 245 S.E.2d 212, 1978 N.C. App. LEXIS 2607 , cert. denied, 295 N.C. 551 , 248 S.E.2d 728, 1978 N.C. LEXIS 1039 (1978); Weyerhaeuser Co. v. Godwin Bldg. Supply Co., 40 N.C. App. 743, 253 S.E.2d 625, 1979 N.C. App. LEXIS 2332 (1979); Thompson v. Soles, 42 N.C. App. 462, 257 S.E.2d 59, 1979 N.C. App. LEXIS 2783 (1979), aff'd in part, modified, 299 N.C. 484 , 263 S.E.2d 599, 1980 N.C. LEXIS 947 (1980); Hart v. Warren, 46 N.C. App. 672, 266 S.E.2d 53, 1980 N.C. App. LEXIS 2920 (1980); Sessoms v. Roberson, 47 N.C. App. 573, 268 S.E.2d 24, 1980 N.C. App. LEXIS 3169 (1980); Wachovia Bank & Trust Co. v. Smith, 44 N.C. App. 685, 262 S.E.2d 646, 1980 N.C. App. LEXIS 2565 (1980); Bone Int'l, Inc. v. Brooks, 51 N.C. App. 183, 275 S.E.2d 556, 1981 N.C. App. LEXIS 2210 , rev'd, 304 N.C. 371 , 283 S.E.2d 518, 1981 N.C. LEXIS 1351 (1981); Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362 , 329 S.E.2d 333, 1985 N.C. LEXIS 1541 (1985); Chastain v. Wall, 78 N.C. App. 350, 337 S.E.2d 150, 1985 N.C. App. LEXIS 4292 (1985); Woodruff v. Shuford, 82 N.C. App. 260, 346 S.E.2d 173, 1986 N.C. App. LEXIS 2436 (1986); Harshbarger v. Murphy, 90 N.C. App. 393, 368 S.E.2d 450, 1988 N.C. App. LEXIS 534 (1988).

In considering defendant’s motion for a directed verdict, the court must view the evidence in the light most favorable to plaintiff, resolving all conflicts in his favor and giving the plaintiff the benefit of every inference that reasonably can be drawn in his favor. Husketh v. Convenient Sys., 295 N.C. 459 , 245 S.E.2d 507, 1978 N.C. LEXIS 897 (1978), overruled in part, Nelson v. Freeland, 349 N.C. 615 , 507 S.E.2d 882, 1998 N.C. LEXIS 849 (1998); Cantey v. Barnes, 51 N.C. App. 356, 276 S.E.2d 490, 1981 N.C. App. LEXIS 2255 (1981); Sharpe v. Wyse, 317 N.C. 694 , 346 S.E.2d 485, 1986 N.C. LEXIS 2397 (1986); United Labs., Inc. v. Kuykendall, 322 N.C. 643 , 370 S.E.2d 375, 1988 N.C. LEXIS 485 (1988).

Upon defendant’s motion for a directed verdict, all of plaintiff ’s evidence must be taken as true and considered in the light most favorable to plaintiff, giving him the benefit of all reasonable inferences and resolving all inconsistencies in his favor. Jones v. Satterfield Dev. Co., 16 N.C. App. 80, 191 S.E.2d 435, 1972 N.C. App. LEXIS 1645 , cert. denied, 282 N.C. 304 , 192 S.E.2d 194, 1972 N.C. LEXIS 940 (1972).

On defendant’s motion for a directed verdict, plaintiff ’s evidence must be taken as true and all the evidence must be considered in the light most favorable to the plaintiff, giving him the benefit of every reasonable inference to be drawn therefrom. Clark v. Bodycombe, 289 N.C. 246 , 221 S.E.2d 506, 1976 N.C. LEXIS 1247 (1976); Manganello v. Permastone, Inc., 291 N.C. 666 , 231 S.E.2d 678, 1977 N.C. LEXIS 1231 (1977); Mintz v. Foster, 35 N.C. App. 638, 242 S.E.2d 181, 1978 N.C. App. LEXIS 3050 (1978); McAdams v. Union Sec. Life Ins. Co., 36 N.C. App. 463, 244 S.E.2d 692, 1978 N.C. App. LEXIS 2529 (1978); Southern Ry. v. Jeffco Fibres, Inc., 41 N.C. App. 694, 255 S.E.2d 749, 1979 N.C. App. LEXIS 2752 , cert. denied, 298 N.C. 299 , 259 S.E.2d 302, 1979 N.C. LEXIS 1597 (1979); American Home Prods. Corp. v. Howell's Motor Freight, Inc., 46 N.C. App. 276, 264 S.E.2d 774, 1980 N.C. App. LEXIS 2825 (1980); Brewer v. Majors, 48 N.C. App. 202, 268 S.E.2d 229, 1980 N.C. App. LEXIS 3198 (1980); E.F. Hutton & Co. v. Sexton, 48 N.C. App. 413, 269 S.E.2d 257, 1980 N.C. App. LEXIS 3232 (1980); Norman v. Royal Crown Bottling Co., 49 N.C. App. 661, 272 S.E.2d 355, 1980 N.C. App. LEXIS 3436 (1980); Jones v. Allred, 52 N.C. App. 38, 278 S.E.2d 521, 1981 N.C. App. LEXIS 2312 , aff'd, 304 N.C. 387 , 283 S.E.2d 517, 1981 N.C. LEXIS 1349 (1981); Koonce v. May, 59 N.C. App. 633, 298 S.E.2d 69, 1982 N.C. App. LEXIS 3194 (1982); Phelps v. Duke Power Co., 78 N.C. App. 222, 332 S.E.2d 715; Hall v. Mabe, 77 N.C. App. 758, 336 S.E.2d 427, 1985 N.C. App. LEXIS 4372 (1985).

On a motion for directed verdict, plaintiff ’s evidence is to be taken as true and all of the evidence must be considered in the light most favorable to plaintiff, giving him the benefit of every fact and inference of fact pertaining to the issues which may be reasonably deduced from the evidence. Anderson v. Butler, 284 N.C. 723 , 202 S.E.2d 585, 1974 N.C. LEXIS 1337 (1974), overruled in part, Nelson v. Freeland, 349 N.C. 615 , 507 S.E.2d 882, 1998 N.C. LEXIS 849 (1998).

In considering defendant’s motion for a directed verdict, the evidence is to be considered in the light most favorable to plaintiff, and plaintiff is entitled to all reasonable inferences that can be drawn from that evidence. Tan v. Tan, 49 N.C. App. 516, 272 S.E.2d 11, 1980 N.C. App. LEXIS 3416 (1980), cert. denied, 302 N.C. 402 , 279 S.E.2d 356, 1981 N.C. LEXIS 1237 (1981); Everhart v. LeBrun, 52 N.C. App. 139, 277 S.E.2d 816, 1981 N.C. App. LEXIS 2307 (1981); Clark v. Moore, 65 N.C. App. 609, 309 S.E.2d 579, 1983 N.C. App. LEXIS 3546 (1983); Henderson v. Traditional Log Homes, Inc., 70 N.C. App. 303, 319 S.E.2d 290, 1984 N.C. App. LEXIS 3651 (1984).

On motion for a directed verdict all the evidence which tends to support the nonmovant’s case against it must be taken as true and considered in the light most favorable to the nonmovant, which is entitled to the benefit of every reasonable inference which may legitimately be drawn from the evidence. Mann v. Virginia Dare Transp. Co., 283 N.C. 734 , 198 S.E.2d 558, 1973 N.C. LEXIS 1063 (1973).

On passing on a motion for a directed verdict, the evidence is to be taken in the light most favorable to the nonmoving party, and he is entitled to all reasonable inferences that can be drawn from it. Murray v. Murray, 296 N.C. 405 , 250 S.E.2d 276, 1979 N.C. LEXIS 1146 (1979).

In passing on a motion under section (a) of this rule, the trial judge must consider the evidence in the light most favorable to the nonmovant, and conflicts in the evidence together with inferences which may be drawn from it must be resolved in favor of the nonmovant. Arnold v. Sharpe, 296 N.C. 533 , 251 S.E.2d 452, 1979 N.C. LEXIS 1194 (1979); Stallings v. Purvis, 42 N.C. App. 690, 257 S.E.2d 664, 1979 N.C. App. LEXIS 2988 (1979); Aarhus v. Wake Forest Univ., 57 N.C. App. 405, 291 S.E.2d 837, 1982 N.C. App. LEXIS 2674 (1982); Davis v. Davis, 58 N.C. App. 25, 293 S.E.2d 268, 1982 N.C. App. LEXIS 2721 (1982); DeHart v. R/S Fin. Corp., 78 N.C. App. 93, 337 S.E.2d 94, 1985 N.C. App. LEXIS 4264 (1985).

The court must consider the evidence in the light most favorable to the nonmovant, deeming all evidence which tends to support his position to be true, resolving all evidentiary conflicts favorably to him and giving the nonmovant the benefit of all inferences reasonably to be drawn in his favor. Daughtry v. Turnage, 295 N.C. 543 , 246 S.E.2d 788, 1978 N.C. LEXIS 1021 (1978); McCollum v. Grove Mfg. Co., 58 N.C. App. 283, 293 S.E.2d 632, 1982 N.C. App. LEXIS 2770 (1982), aff'd, 307 N.C. 695 , 300 S.E.2d 374, 1983 N.C. LEXIS 1116 (1983); Cameron v. New Hanover Mem. Hosp., 58 N.C. App. 414, 293 S.E.2d 901, 1982 N.C. App. LEXIS 2801 (1982); Wilkie v. Wilkie, 58 N.C. App. 624, 294 S.E.2d 230, 1982 N.C. App. LEXIS 2809 (1982).

The evidence in favor of the nonmovant must be deemed true, all conflicts in the evidence must be resolved in his favor and he is entitled to the benefit of every inference reasonably to be drawn in his favor. Summey v. Cauthen, 283 N.C. 640 , 197 S.E.2d 549, 1973 N.C. LEXIS 1029 (1973); Snider v. Dickens, 293 N.C. 356 , 237 S.E.2d 832, 1977 N.C. LEXIS 943 (1977); Snow v. Duke Power Co., 297 N.C. 591 , 256 S.E.2d 227, 1979 N.C. LEXIS 1406 (1979); Nytco Leasing, Inc. v. Southeastern Motels, Inc., 40 N.C. App. 120, 252 S.E.2d 826, 1979 N.C. App. LEXIS 2614 (1979); Loy v. Lorm Corp., 52 N.C. App. 428, 278 S.E.2d 897, 1981 N.C. App. LEXIS 2468 (1981); Bruegge v. Mastertemp, Inc., 83 N.C. App. 508, 350 S.E.2d 918, 1986 N.C. App. LEXIS 2728 (1986); Atwater v. Castlebury, 84 N.C. App. 512, 353 S.E.2d 263, 1987 N.C. App. LEXIS 2526 (1987).

The evidence must be considered in the light most favorable to the party opposing the motion, and the opponent is entitled to the benefit of every reasonable inference which may legitimately be drawn from the evidence, and all conflicts in the evidence are resolved in favor of the opponent. Morrison v. Concord Kiwanis Club, 52 N.C. App. 454, 279 S.E.2d 96, 1981 N.C. App. LEXIS 2453 , cert. denied, 304 N.C. 196 , 285 S.E.2d 100, 1981 N.C. LEXIS 1444 (1981).

On appeal from the granting of a motion for directed verdict against the plaintiff, all the evidence tending to support plaintiff ’s claim must be taken as true and considered in the light most favorable to him, giving him the benefit of every reasonable inference which legitimately may be drawn therefrom, with contradictions, conflicts and inconsistencies therein being resolved in plaintiff’s favor. Musgrave v. Mutual Sav. & Loan Ass'n, 8 N.C. App. 385, 174 S.E.2d 820, 1970 N.C. App. LEXIS 1574 (1970); Adler v. Lumber Mut. Fire Ins. Co., 10 N.C. App. 720, 179 S.E.2d 786, 1971 N.C. App. LEXIS 1708 , aff'd, 280 N.C. 146 , 185 S.E.2d 144, 1971 N.C. LEXIS 1106 (1971); Tate v. Bryant, 16 N.C. App. 132, 191 S.E.2d 433, 1972 N.C. App. LEXIS 1655 (1972); Hawkins v. State Capital Ins. Co., 74 N.C. App. 499, 328 S.E.2d 793, 1985 N.C. App. LEXIS 3509 (1985).

On a motion by a defendant for a directed verdict in a jury case, the court must consider all the evidence in the light most favorable to the plaintiff and may grant the motion only if, as a matter of law, the evidence is insufficient to justify a verdict for the plaintiff. The same factors are considered in determining if a judgment notwithstanding the verdict should be granted as in the directed verdict decision. Colony Assocs. v. Fred L. Clapp & Co., 60 N.C. App. 634, 300 S.E.2d 37, 1983 N.C. App. LEXIS 2537 (1983).

In ruling on a motion for directed verdict, plaintiff ’s evidence must be taken as true and considered in the light most favorable to him. All conflicts must be resolved in plaintiff ’s favor, and he must be given the benefit of every reasonable inference. The same standard applies to a motion for judgment n.o.v. Shields v. Nationwide Mut. Fire Ins. Co., 61 N.C. App. 365, 301 S.E.2d 439, 1983 N.C. App. LEXIS 2699 (1983).

Upon a motion for a directed verdict, the court must view the evidence in the light most favorable to the nonmovant, resolving all conflicts in his favor and giving him the benefit of every inference that could reasonably be drawn from the evidence in his favor. It is only where the evidence, when so considered, is insufficient to support a verdict in the nonmovant’s favor that the motion for directed verdict should be granted. West v. Slick, 313 N.C. 33 , 326 S.E.2d 601, 1985 N.C. LEXIS 1522 (1985).

When passing on a motion for a directed verdict, the plaintiff should be given the benefit of all reasonable inferences; the motion should be denied if there is a scintilla of evidence to support plaintiffs’ prima facie case in all its constituent elements. These principles are equally applicable to defendants’ counterclaim. Burris v. Shumate, 77 N.C. App. 209, 334 S.E.2d 514, 1985 N.C. App. LEXIS 4035 (1985).

On a directed verdict motion, the record is viewed in the light most favorable to the nonmoving party, resolving all conflicts in its favor and giving it the benefit of every favorable inference. Broyhill v. Coppage, 79 N.C. App. 221, 339 S.E.2d 32, 1986 N.C. App. LEXIS 2048 (1986).

On a motion for directed verdict, the evidence in favor of the nonmovant must be taken as true, resolving all conflicts in the nonmovant’s favor and entitling him to the benefit of all reasonable inferences. Rice v. Wood, 82 N.C. App. 318, 346 S.E.2d 205, 1986 N.C. App. LEXIS 2445 (1986).

Motion for a directed verdict under section (a) of this rule tests the legal sufficiency of the evidence to take the case to the jury and support a verdict for the plaintiff. Manganello v. Permastone, Inc., 291 N.C. 666 , 231 S.E.2d 678, 1977 N.C. LEXIS 1231 (1977); Byerly v. Byerly, 38 N.C. App. 551, 248 S.E.2d 433, 1978 N.C. App. LEXIS 2237 (1978); McCollum v. Grove Mfg. Co., 58 N.C. App. 283, 293 S.E.2d 632, 1982 N.C. App. LEXIS 2770 (1982), aff'd, 307 N.C. 695 , 300 S.E.2d 374, 1983 N.C. LEXIS 1116 (1983); Koonce v. May, 59 N.C. App. 633, 298 S.E.2d 69, 1982 N.C. App. LEXIS 3194 (1982); Harshbarger v. Murphy, 90 N.C. App. 393, 368 S.E.2d 450, 1988 N.C. App. LEXIS 534 (1988).

On a motion for a directed verdict, the trial court must consider whether the evidence presented is sufficient to go to the jury. Wilkie v. Wilkie, 58 N.C. App. 624, 294 S.E.2d 230, 1982 N.C. App. LEXIS 2809 (1982).

A motion for directed verdict by a defendant tests the legal sufficiency of the evidence to go to the jury. Hall v. Mabe, 77 N.C. App. 758, 336 S.E.2d 427, 1985 N.C. App. LEXIS 4372 (1985).

Question Presented by Motion for Directed Verdict. —

The question presented by the defendant’s motion for a directed verdict is whether the evidence, when considered in the light most favorable to plaintiff, is sufficient for submission to the jury. Kelly v. International Harvester Co., 278 N.C. 153 , 179 S.E.2d 396, 1971 N.C. LEXIS 955 (1971); Investment Properties of Asheville, Inc. v. Allen, 283 N.C. 277 , 196 S.E.2d 262, 1973 N.C. LEXIS 957 (1973); Stone v. Paradise Park Homes, 37 N.C. App. 97, 245 S.E.2d 801, 1978 N.C. App. LEXIS 2664 , cert. denied, 295 N.C. 653 , 248 S.E.2d 257, 1978 N.C. LEXIS 1119 (1978); Nytco Leasing, Inc. v. Southeastern Motels, Inc., 40 N.C. App. 120, 252 S.E.2d 826, 1979 N.C. App. LEXIS 2614 (1979); Southern Ry. v. Jeffco Fibres, Inc., 41 N.C. App. 694, 255 S.E.2d 749, 1979 N.C. App. LEXIS 2752 , cert. denied, 298 N.C. 299 , 259 S.E.2d 302, 1979 N.C. LEXIS 1597 (1979); Hunt v. Montgomery Ward & Co., 49 N.C. App. 642, 272 S.E.2d 357, 1980 N.C. App. LEXIS 3434 (1980); Helvy v. Sweat, 58 N.C. App. 197, 292 S.E.2d 733, 1982 N.C. App. LEXIS 2751 (1982); Horne v. Trivette, 58 N.C. App. 77, 293 S.E.2d 290, 1982 N.C. App. LEXIS 2731 (1982); Hong v. George Goodyear Co., 63 N.C. App. 741, 306 S.E.2d 157, 1983 N.C. App. LEXIS 3197 (1983); Northern Nat'l Life Ins. Co. v. Lacy J. Miller Mach. Co., 311 N.C. 62 , 316 S.E.2d 256, 1984 N.C. LEXIS 1718 (1984); Allison v. Food Lion, Inc., 84 N.C. App. 251, 352 S.E.2d 256, 1987 N.C. App. LEXIS 2485 (1987).

A motion for a directed verdict under this rule presents the same question for both trial and appellate courts: Whether the evidence, taken in the light most favorable to plaintiff, was sufficient for submission to the jury. Helvy v. Sweat, 58 N.C. App. 197, 292 S.E.2d 733, 1982 N.C. App. LEXIS 2751 (1982).

A motion for a directed verdict presents the question of whether, as a matter of law, the evidence offered by plaintiff, when considered in the light most favorable to the plaintiff, is sufficient to be submitted to the jury. Roberts v. William N. & Kate B. Reynolds Mem. Park, 281 N.C. 48 , 187 S.E.2d 721, 1972 N.C. LEXIS 1004 (1972); Penney v. Carpenter, 32 N.C. App. 147, 231 S.E.2d 171, 1977 N.C. App. LEXIS 1871 (1977).

The defendant’s motion for a directed verdict under this rule presents a question of law for decision by the court, namely, whether the evidence is sufficient to entitle the plaintiff to have the jury pass on it. Kelly v. International Harvester Co., 278 N.C. 153 , 179 S.E.2d 396, 1971 N.C. LEXIS 955 (1971); Odell v. Lipscomb, 12 N.C. App. 318, 183 S.E.2d 299, 1971 N.C. App. LEXIS 1352 (1971); Bowen v. Constructors Equip. Rental Co., 283 N.C. 395 , 196 S.E.2d 789, 1973 N.C. LEXIS 990 (1973); Hunt v. Montgomery Ward & Co., 49 N.C. App. 642, 272 S.E.2d 357, 1980 N.C. App. LEXIS 3434 (1980).

The question of law presented by defendant’s motion for a directed verdict is whether plaintiff ’s evidence was sufficient for submission to the jury. Stewart v. Nation-Wide Check Corp., 279 N.C. 278 , 182 S.E.2d 410, 1971 N.C. LEXIS 775 (1971); Cameron v. New Hanover Mem. Hosp., 58 N.C. App. 414, 293 S.E.2d 901, 1982 N.C. App. LEXIS 2801 (1982).

A defendant’s motion for a directed verdict presents the question whether the evidence is sufficient to entitle the plaintiff to have the jury pass on it. Maness v. Fowler-Jones Constr. Co., 10 N.C. App. 592, 179 S.E.2d 816, 1971 N.C. App. LEXIS 1680 , cert. denied, 278 N.C. 522 , 180 S.E.2d 610, 1971 N.C. LEXIS 1004 (1971); United Labs., Inc. v. Kuykendall, 322 N.C. 643 , 370 S.E.2d 375, 1988 N.C. LEXIS 485 (1988).

A motion for directed verdict raises the question whether the evidence, considered in the light most favorable to the plaintiff, will justify a verdict in his favor. Rayfield v. Clark, 283 N.C. 362 , 196 S.E.2d 197, 1973 N.C. LEXIS 967 (1973); Snow v. Duke Power Co., 297 N.C. 591 , 256 S.E.2d 227, 1979 N.C. LEXIS 1406 (1979); Colson v. Shaw, 46 N.C. App. 402, 265 S.E.2d 407, 1980 N.C. App. LEXIS 2842 (1980), rev'd, 301 N.C. 677 , 273 S.E.2d 243, 1981 N.C. LEXIS 1008 (1981); Thompson & Little, Inc. v. Colvin, 46 N.C. App. 774, 266 S.E.2d 46, 1980 N.C. App. LEXIS 2913 (1980).

The question presented by a defendant’s motion for a directed verdict is whether all the evidence which supports the plaintiff ’s claim, when taken as true, considered in the light most favorable to the plaintiff and given the benefit of every reasonable inference in the plaintiff ’s favor which may legitimately be drawn therefrom, is sufficient for submission to the jury. Tripp v. Pate, 49 N.C. App. 329, 271 S.E.2d 407, 1980 N.C. App. LEXIS 3388 (1980).

The motion for a directed verdict in a jury trial presents the question whether the evidence, when considered in the light most favorable to the party against whom the motion is made, is sufficient for submission to the jury. Sink v. Sink, 11 N.C. App. 549, 181 S.E.2d 721, 1971 N.C. App. LEXIS 1576 (1971); Thompson v. Soles, 42 N.C. App. 462, 257 S.E.2d 59, 1979 N.C. App. LEXIS 2783 (1979), aff'd in part, modified, 299 N.C. 484 , 263 S.E.2d 599, 1980 N.C. LEXIS 947 (1980); Sessoms v. Roberson, 47 N.C. App. 573, 268 S.E.2d 24, 1980 N.C. App. LEXIS 3169 (1980).

A motion for a directed verdict presents the question of whether the evidence is sufficient to carry the case to the jury. Hasty v. Carpenter, 51 N.C. App. 333, 276 S.E.2d 513, 1981 N.C. App. LEXIS 2233 (1981); Vance Trucking Co. v. Phillips, 51 N.C. App. 85, 275 S.E.2d 497, 1981 N.C. App. LEXIS 2177 (1981); Aarhus v. Wake Forest Univ., 57 N.C. App. 405, 291 S.E.2d 837, 1982 N.C. App. LEXIS 2674 (1982).

A motion for directed verdict under this rule presents the question whether the evidence is sufficient to entitle the party against whom the motion is made to have a jury pass on it. Paccar Fin. Corp. v. Harnett Transf., Inc., 51 N.C. App. 1, 275 S.E.2d 243, 1981 N.C. App. LEXIS 2190 , cert. denied, 302 N.C. 629 , 280 S.E.2d 441, 1981 N.C. LEXIS 1244 (1981).

A motion for a directed verdict pursuant to section (a) of this rule presents the question of whether the evidence presented is sufficient to carry the case to the jury. In passing on this motion, the trial judge must consider the evidence in the light most favorable to the nonmovant, and conflicts in the evidence together with inferences which may be drawn from it must be resolved in favor of the nonmovant. The motion may be granted only if the evidence is insufficient to justify a verdict for the nonmovant as a matter of law. Satterfield v. Pappas, 67 N.C. App. 28, 312 S.E.2d 511, 1984 N.C. App. LEXIS 2992 (1984).

A motion for a directed verdict presents the same question for both the trial and appellate courts: Whether the evidence, taken in the light most favorable to the nonmovant, and giving the nonmovant the benefit of every reasonable inference arising from the evidence, is sufficient for submission to the jury. Alston v. Herrick, 76 N.C. App. 246, 332 S.E.2d 720, 1985 N.C. App. LEXIS 3847 (1985), aff'd, 315 N.C. 386 , 337 S.E.2d 851, 1986 N.C. LEXIS 1873 (1986).

The court may grant a motion for directed verdict only if, as a matter of law, the evidence is insufficient to justify a verdict for the plaintiff. Cates v. Wilson, 83 N.C. App. 448, 350 S.E.2d 898, 1986 N.C. App. LEXIS 2731 (1986), aff'd in part, modified, 321 N.C. 1 , 361 S.E.2d 734, 1987 N.C. LEXIS 2508 (1987).

Where Question Is Close, Better Practice Is to Reserve Decision and Submit Case to Jury. —

Where the question of granting a directed verdict is a close one, the better practice is for the trial judge to reserve his decision on the motion and allow the case to be submitted to the jury. If the jury returns a verdict in favor of the moving party, no decision on the motion is necessary and an appeal may be avoided. If the jury finds for the nonmoving party, the judge may reconsider the motion and enter a judgment notwithstanding the verdict, provided he is convinced the evidence was insufficient. On appeal, if the motion proves to have been improperly granted, the appellate court then has the option of ordering entry of the judgment on the verdict, thereby eliminating the expense and delay involved in a retrial. Koonce v. May, 59 N.C. App. 633, 298 S.E.2d 69, 1982 N.C. App. LEXIS 3194 (1982); Tice v. Hall, 63 N.C. App. 27, 303 S.E.2d 832, 1983 N.C. App. LEXIS 3010 (1983), aff'd, 310 N.C. 589 , 313 S.E.2d 565, 1984 N.C. LEXIS 1622 (1984).

Where the question of granting a directed verdict is a close one, the better practice is for the trial judge to reserve his decision on the motion and allow the case to be submitted to the jury. Wallace v. Evans, 60 N.C. App. 145, 298 S.E.2d 193, 1982 N.C. App. LEXIS 3275 (1982).

If There Is More Than a Scintilla of Evidence, Motion Should Be Denied. —

The court should deny a motion for directed verdict when it finds any evidence more than a scintilla to support plaintiff’s prima facie case in all its constituent elements. Clark v. Moore, 65 N.C. App. 609, 309 S.E.2d 579, 1983 N.C. App. LEXIS 3546 (1983).

The court should deny motion for directed verdict if there is more than a scintilla of evidence to support the plaintiff’s prima facie case. Southern Ry. v. O'Boyle Tank Lines, 70 N.C. App. 1, 318 S.E.2d 872, 1984 N.C. App. LEXIS 3623 (1984); Rice v. Wood, 82 N.C. App. 318, 346 S.E.2d 205, 1986 N.C. App. LEXIS 2445 (1986).

If there is more than a scintilla of evidence supporting each element of nonmovant’s case, the motion for directed verdict should be denied. Broyhill v. Coppage, 79 N.C. App. 221, 339 S.E.2d 32, 1986 N.C. App. LEXIS 2048 (1986).

More than a scintilla of evidence existed from which the jury could find that defendant’s trespass was accompanied by a reckless disregard for plaintiffs’ rights and an element of intent after defendant discovered he had trespassed on plaintiffs’ property and continued to trespass; therefore, the trial court properly denied defendant’s motions for directed verdict and judgment notwithstanding the verdict on the issue of punitive damages. Lee v. Bir, 116 N.C. App. 584, 449 S.E.2d 34, 1994 N.C. App. LEXIS 1068 (1994), cert. denied, 340 N.C. 113 , 454 S.E.2d 652, 1995 N.C. LEXIS 124 (1995).

Where an apartment owner’s original condominium plans included a six-foot fence along the adjacent owner’s property, but after the condominium project was abandoned, purportedly as a result of the city counsel, of which the adjacent property owner was a member, and the fence grew to ten feet, the evidence was sufficient to be submitted to the jury as there was more than a scintilla of evidence supporting each element of the adjacent owner’s claim that the apartment owner erected a spite fence. Austin v. Bald II, L.L.C., 189 N.C. App. 338, 658 S.E.2d 1, 2008 N.C. App. LEXIS 543 (2008).

Trial court erred in granting a town’s motion for a directed verdict on a police officer’s civil rights claim because, inter alia, the officer presented “more than a scintilla” of evidence to support his claim that he was fired for running for sheriff, and as it could not be determined whom the trial court believed to be necessary parties or why, even if they might be proper parties, they would be necessary, the trial court should allow the named parties to be heard on whether any other parties should be joined. Lambert v. Town of Sylva, 259 N.C. App. 294, 816 S.E.2d 187, 2018 N.C. App. LEXIS 439 (2018).

On motion by plaintiff for a directed verdict on a counterclaim of defendant, the trial court must determine the preliminary question of whether all of the evidence which tends to support defendant’s case on the counterclaim, taken as true and considered in the light most favorable to the defendant, giving him the benefit of every fact and inference of fact pertaining to the issue which may be reasonably deduced from the evidence, is sufficient to submit to the jury. Sloan v. Wells, 37 N.C. App. 177, 245 S.E.2d 529, 1978 N.C. App. LEXIS 2678 (1978), rev'd, 296 N.C. 570 , 251 S.E.2d 449, 1979 N.C. LEXIS 1200 (1979).

Motion for a directed verdict presents substantially the same question for sufficiency as did a motion for an involuntary nonsuit. Investment Properties of Asheville, Inc. v. Allen, 281 N.C. 174 , 188 S.E.2d 441, 1972 N.C. LEXIS 1101 (1972); Younts v. State Farm Mut. Auto. Ins. Co., 281 N.C. 582 , 189 S.E.2d 137, 1972 N.C. LEXIS 1113 (1972); McCoy v. Dowdy, 16 N.C. App. 242, 192 S.E.2d 81, 1972 N.C. App. LEXIS 1682 (1972); Robinson v. Whitley Moving & Storage, Inc., 37 N.C. App. 638, 246 S.E.2d 839, 1978 N.C. App. LEXIS 2825 (1978).

A motion for a directed verdict presents substantially the same question as did a motion for judgment as of nonsuit. Jenkins v. Starrett Corp., 13 N.C. App. 437, 186 S.E.2d 198, 1972 N.C. App. LEXIS 2261 (1972); City of Winston-Salem v. Rice, 16 N.C. App. 294, 192 S.E.2d 9, 1972 N.C. App. LEXIS 1690 , cert. denied, 282 N.C. 425 , 192 S.E.2d 835, 1972 N.C. LEXIS 973 (1972); Dickinson v. Pake, 284 N.C. 576 , 201 S.E.2d 897, 1974 N.C. LEXIS 1290 (1974); Anderson v. Butler, 284 N.C. 723 , 202 S.E.2d 585, 1974 N.C. LEXIS 1337 (1974), overruled in part, Nelson v. Freeland, 349 N.C. 615 , 507 S.E.2d 882, 1998 N.C. LEXIS 849 (1998); Daughtry v. Turnage, 295 N.C. 543 , 246 S.E.2d 788, 1978 N.C. LEXIS 1021 (1978).

A motion for a directed verdict pursuant to section (a) of this rule presents the same question as did a motion for nonsuit prior to adoption of the new Rules of Civil Procedure. The question is whether the evidence presented is sufficient to carry the case to the jury. Arnold v. Sharpe, 296 N.C. 533 , 251 S.E.2d 452, 1979 N.C. LEXIS 1194 (1979); Stallings v. Purvis, 42 N.C. App. 690, 257 S.E.2d 664, 1979 N.C. App. LEXIS 2988 (1979).

A defendant’s motion made in a jury trial for a directed verdict presents substantially the same question as that formerly presented by a motion for judgment of involuntary nonsuit, namely, whether the evidence was sufficient to entitle the plaintiff to have the jury pass on it. Raynor v. Foster, 12 N.C. App. 193, 182 S.E.2d 806, 1971 N.C. App. LEXIS 1326 , cert. denied, 279 N.C. 512 , 183 S.E.2d 688, 1971 N.C. LEXIS 873 (1971); Sadler v. Purser, 12 N.C. App. 206, 182 S.E.2d 850, 1971 N.C. App. LEXIS 1328 (1971); Summey v. Cauthen, 283 N.C. 640 , 197 S.E.2d 549, 1973 N.C. LEXIS 1029 (1973).

Motion for a directed verdict presents substantially the same question formerly presented by the motion for nonsuit, that is, whether the evidence considered in the light most favorable to the claimant will justify a verdict in his favor. Cutts v. Casey, 278 N.C. 390 , 180 S.E.2d 297, 1971 N.C. LEXIS 986 (1971); American Personnel, Inc. v. Harbolick, 16 N.C. App. 107, 191 S.E.2d 412, 1972 N.C. App. LEXIS 1649 (1972).

And Will Ordinarily Be Treated the Same. —

A motion directed verdict produces virtually the same effect and ordinarily will be treated the same as a motion for nonsuit under the old rules in determining whether the evidence should be submitted to the jury. Aetna Cas. & Sur. Co. v. Lumbermen's Mut. Cas. Co., 11 N.C. App. 490, 181 S.E.2d 727, 1971 N.C. App. LEXIS 1564 (1971).

Applicability of Same Principles as Those Used on Motion for Nonsuit. —

In determining the sufficiency of a plaintiff ’s evidence to withstand a defendant’s motion for a directed verdict in a jury case, the trial court and the appellate court are guided by the same principles that prevailed under the former procedure with respect to the sufficiency of evidence to withstand a motion for nonsuit under former G.S. 1-183 . Musgrave v. Mutual Sav. & Loan Ass'n, 8 N.C. App. 385, 174 S.E.2d 820, 1970 N.C. App. LEXIS 1574 (1970); Pergerson v. Williams, 9 N.C. App. 512, 176 S.E.2d 885, 1970 N.C. App. LEXIS 1395 (1970); Naylor v. Naylor, 11 N.C. App. 384, 181 S.E.2d 222, 1971 N.C. App. LEXIS 1531 (1971); Byrd v. Potts, 12 N.C. App. 262, 182 S.E.2d 837, 1971 N.C. App. LEXIS 1339 (1971); Jones v. Satterfield Dev. Co., 16 N.C. App. 80, 191 S.E.2d 435, 1972 N.C. App. LEXIS 1645 , cert. denied, 282 N.C. 304 , 192 S.E.2d 194, 1972 N.C. LEXIS 940 (1972); Tate v. Bryant, 16 N.C. App. 132, 191 S.E.2d 433, 1972 N.C. App. LEXIS 1655 (1972).

Determination of the sufficiency of the evidence to withstand a motion for a directed verdict made by a defendant under the provisions of this rule is guided by the same principles that prevailed under the former procedure with respect to motion for nonsuit. Ingold v. Carolina Power & Light Co., 11 N.C. App. 253, 181 S.E.2d 173, 1971 N.C. App. LEXIS 1501 (1971), aff'd, State v. Farris, 336 N.C. 552 , 444 S.E.2d 182, 1994 N.C. LEXIS 300 (1994).

Objections Not Equivalent to Directed Verdict. —

Plaintiff’s objections to the issue of contributory negligence made at the conference on the jury instructions were not the equivalent of a motion for directed verdict made pursuant to subdivision (a) of this rule, as plaintiff could have made a proper motion at the close of evidence and plaintiff’s objection during the jury instruction conference would not allow defendant a proper chance to correct any errors in its proof of contributory negligence. Thus, the trial court erred in holding that plaintiff’s objection to the contributory negligence issue was the equivalent of a directed verdict. Enns v. Zayre Corp., 116 N.C. App. 687, 449 S.E.2d 478, 1994 N.C. App. LEXIS 1118 (1994), cert. denied, 339 N.C. 737 , 454 S.E.2d 649, 1995 N.C. LEXIS 105 (1995), aff'd, 342 N.C. 406 , 464 S.E.2d 298, 1995 N.C. LEXIS 692 (1995).

A verdict may never be directed when the facts are in dispute. Cutts v. Casey, 278 N.C. 390 , 180 S.E.2d 297, 1971 N.C. LEXIS 986 (1971); Jones v. Satterfield Dev. Co., 16 N.C. App. 80, 191 S.E.2d 435, 1972 N.C. App. LEXIS 1645 , cert. denied, 282 N.C. 304 , 192 S.E.2d 194, 1972 N.C. LEXIS 940 (1972); Bone Int'l, Inc. v. Brooks, 51 N.C. App. 183, 275 S.E.2d 556, 1981 N.C. App. LEXIS 2210 , rev'd, 304 N.C. 371 , 283 S.E.2d 518, 1981 N.C. LEXIS 1351 (1981).

On the motion of a defendant for a directed verdict, if the evidence is of such character that reasonable men may form divergent opinions of its import, the issue is for the jury. Brewer v. Majors, 48 N.C. App. 202, 268 S.E.2d 229, 1980 N.C. App. LEXIS 3198 (1980).

A verdict may not be directed when the facts are in dispute, and the credibility of testimony is for the jury, not the trial judge. Population Planning Assocs. v. Mews, 65 N.C. App. 96, 308 S.E.2d 739, 1983 N.C. App. LEXIS 3409 (1983).

A verdict may never be directed when there is conflicting evidence on contested issues of fact. Northern Nat'l Life Ins. Co. v. Lacy J. Miller Mach. Co., 311 N.C. 62 , 316 S.E.2d 256, 1984 N.C. LEXIS 1718 (1984); DeHart v. R/S Fin. Corp., 78 N.C. App. 93, 337 S.E.2d 94, 1985 N.C. App. LEXIS 4264 (1985).

The judge may direct a verdict only when the issue submitted presents a question of law based on admitted facts. Cutts v. Casey, 278 N.C. 390 , 180 S.E.2d 297, 1971 N.C. LEXIS 986 (1971); Jones v. Satterfield Dev. Co., 16 N.C. App. 80, 191 S.E.2d 435, 1972 N.C. App. LEXIS 1645 , cert. denied, 282 N.C. 304 , 192 S.E.2d 194, 1972 N.C. LEXIS 940 (1972).

Trial Court Should Not Make Findings of Fact or State Conclusions of Law. —

In resolving the question presented by a motion for directed verdict, it is neither required nor appropriate that the trial court make “findings of fact” and state “conclusions of law.” Kelly v. International Harvester Co., 278 N.C. 153 , 179 S.E.2d 396, 1971 N.C. LEXIS 955 (1971); Sink v. Sink, 11 N.C. App. 549, 181 S.E.2d 721, 1971 N.C. App. LEXIS 1576 (1971).

Jury to Determine Issue Where More Than One Conclusion Possible. —

Where more than one conclusion can reasonably be drawn, determination of the issue is properly for the jury. Maness v. Fowler-Jones Constr. Co., 10 N.C. App. 592, 179 S.E.2d 816, 1971 N.C. App. LEXIS 1680 , cert. denied, 278 N.C. 522 , 180 S.E.2d 610, 1971 N.C. LEXIS 1004 (1971).

Discrepancies and contradictions in the evidence are to be resolved by the jury and not by the court. Naylor v. Naylor, 11 N.C. App. 384, 181 S.E.2d 222, 1971 N.C. App. LEXIS 1531 (1971).

Contradictions or discrepancies in the evidence on a motion for a directed verdict, even when arising from plaintiff ’s evidence, must be resolved by the jury rather than the trial judge. Clark v. Bodycombe, 289 N.C. 246 , 221 S.E.2d 506, 1976 N.C. LEXIS 1247 (1976).

Discrepancies and contradictions in the evidence, even though such occur in the evidence offered on behalf of the nonmovant, are to be resolved by the jury, not by the court. Murray v. Murray, 296 N.C. 405 , 250 S.E.2d 276, 1979 N.C. LEXIS 1146 (1979).

If there is conflicting testimony that permits different inferences, one of which is favorable to the nonmoving party, a directed verdict in favor of the party with the burden of proof is improper. United Labs., Inc. v. Kuykendall, 322 N.C. 643 , 370 S.E.2d 375, 1988 N.C. LEXIS 485 (1988).

Defendant’s denial of an alleged fact raises an issue as to its existence, even though he offers no evidence tending to contradict that offered by plaintiff. Cutts v. Casey, 278 N.C. 390 , 180 S.E.2d 297, 1971 N.C. LEXIS 986 (1971); Weeks Motor Co. v. Daniels, 18 N.C. App. 442, 197 S.E.2d 29, 1973 N.C. App. LEXIS 1896 (1973).

Ordinarily Credibility Is a Jury Question. —

The credibility of testimony is for the jury, not the court, and a genuine issue of fact must be tried by a jury unless this right is waived. Cutts v. Casey, 278 N.C. 390 , 180 S.E.2d 297, 1971 N.C. LEXIS 986 (1971); Price v. Conley, 21 N.C. App. 326, 204 S.E.2d 178, 1974 N.C. App. LEXIS 1793 (1974).

The jury and not the judge passes on credibility. Hinson v. Sparrow, 21 N.C. App. 554, 204 S.E.2d 925, 1974 N.C. App. LEXIS 1872 (1974).

Contributory Negligence Should Have Been a Jury Question. —

Where evidence did not establish plaintiff’s contributory negligence as a matter of law, that issue should have been resolved by the jury, and the directed verdict in favor of defendant was reversed. Crane v. Caldwell, 113 N.C. App. 362, 438 S.E.2d 449, 1994 N.C. App. LEXIS 27 (1994).

Whether “Genuine Issue of Fact” Exists Is Preliminary Question for Judge. Price v. Conley, 21 N.C. App. 326, 204 S.E.2d 178, 1974 N.C. App. LEXIS 1793 (1974).

Sufficiency of evidence is a question of law to be determined by the court. Booker v. Everhart, 33 N.C. App. 1, 234 S.E.2d 46, 1977 N.C. App. LEXIS 2089 (1977), rev'd, 294 N.C. 146 , 240 S.E.2d 360, 1978 N.C. LEXIS 1192 (1978).

When the defendant has moved for a directed verdict, and the trial court considers all the evidence in the light most favorable to the plaintiff, whether this evidence is sufficient to create an issue of fact for the jury is solely a question of law to be determined by the court. Prevatte v. Cabble, 24 N.C. App. 524, 211 S.E.2d 528, 1975 N.C. App. LEXIS 2419 (1975).

Motion for directed verdict may be granted only if the evidence is insufficient to justify a verdict for the nonmovant as a matter of law. Arnold v. Sharpe, 296 N.C. 533 , 251 S.E.2d 452, 1979 N.C. LEXIS 1194 (1979); Bost v. Riley, 44 N.C. App. 638, 262 S.E.2d 391, 1980 N.C. App. LEXIS 2573 , cert. denied, 300 N.C. 194 , 269 S.E.2d 621, 1980 N.C. LEXIS 1530 (1980); Cameron v. New Hanover Mem. Hosp., 58 N.C. App. 414, 293 S.E.2d 901, 1982 N.C. App. LEXIS 2801 (1982); Colony Assocs. v. Fred L. Clapp & Co., 60 N.C. App. 634, 300 S.E.2d 37, 1983 N.C. App. LEXIS 2537 (1983); Homeland, Inc. v. Backer, 78 N.C. App. 477, 337 S.E.2d 114, 1985 N.C. App. LEXIS 4317 (1985).

A motion for a directed verdict may be granted only if the evidence is insufficient, as a matter of law, to support a verdict for the plaintiff. Husketh v. Convenient Sys., 295 N.C. 459 , 245 S.E.2d 507, 1978 N.C. LEXIS 897 (1978), overruled in part, Nelson v. Freeland, 349 N.C. 615 , 507 S.E.2d 882, 1998 N.C. LEXIS 849 (1998); Wachovia Bank & Trust Co. v. Smith, 44 N.C. App. 685, 262 S.E.2d 646, 1980 N.C. App. LEXIS 2565 (1980); Russell v. Sam Solomon Co., 49 N.C. App. 126, 270 S.E.2d 518, 1980 N.C. App. LEXIS 3349 (1980); Bone Int'l, Inc. v. Brooks, 51 N.C. App. 183, 275 S.E.2d 556, 1981 N.C. App. LEXIS 2210 , rev'd, 304 N.C. 371 , 283 S.E.2d 518, 1981 N.C. LEXIS 1351 (1981); Cantey v. Barnes, 51 N.C. App. 356, 276 S.E.2d 490, 1981 N.C. App. LEXIS 2255 (1981); Aarhus v. Wake Forest Univ., 57 N.C. App. 405, 291 S.E.2d 837, 1982 N.C. App. LEXIS 2674 (1982); Davis v. Davis, 58 N.C. App. 25, 293 S.E.2d 268, 1982 N.C. App. LEXIS 2721 (1982); Henderson v. Traditional Log Homes, Inc., 70 N.C. App. 303, 319 S.E.2d 290, 1984 N.C. App. LEXIS 3651 (1984); Morris v. Bruney, 78 N.C. App. 668, 338 S.E.2d 561, 1986 N.C. App. LEXIS 1995 (1986); Woodruff v. Shuford, 82 N.C. App. 260, 346 S.E.2d 173, 1986 N.C. App. LEXIS 2436 (1986); Moore v. North Carolina Farm Bureau Mut. Ins. Co., 82 N.C. App. 616, 347 S.E.2d 489, 1986 N.C. App. LEXIS 2615 (1986).

On a motion by a defendant for a directed verdict in a jury case, the court must consider all the evidence in the light most favorable to the plaintiff and may grant the motion only if, as a matter of law, the evidence is insufficient to justify a verdict for the plaintiff. Kelly v. International Harvester Co., 278 N.C. 153 , 179 S.E.2d 396, 1971 N.C. LEXIS 955 (1971); Creasman v. First Fed. Sav. & Loan Ass'n, 279 N.C. 361 , 183 S.E.2d 115, 1971 N.C. LEXIS 803 (1971), cert. denied, 405 U.S. 977, 92 S. Ct. 1204, 31 L. Ed. 2d 252, 1972 U.S. LEXIS 3431 (1972); Stewart v. Nation-Wide Check Corp., 279 N.C. 278 , 182 S.E.2d 410, 1971 N.C. LEXIS 775 (1971); Odell v. Lipscomb, 12 N.C. App. 318, 183 S.E.2d 299, 1971 N.C. App. LEXIS 1352 (1971); Younts v. State Farm Mut. Auto. Ins. Co., 281 N.C. 582 , 189 S.E.2d 137, 1972 N.C. LEXIS 1113 (1972); McCoy v. Dowdy, 16 N.C. App. 242, 192 S.E.2d 81, 1972 N.C. App. LEXIS 1682 (1972); Dickinson v. Pake, 284 N.C. 576 , 201 S.E.2d 897, 1974 N.C. LEXIS 1290 (1974); Ward v. Thompson Heights Swimming Club, Inc., 27 N.C. App. 218, 219 S.E.2d 73, 1975 N.C. App. LEXIS 1801 (1975); Denning v. Lee, 35 N.C. App. 565, 241 S.E.2d 706, 1978 N.C. App. LEXIS 3028 (1978); Pearce v. Southern Bell Tel. & Tel. Co., 41 N.C. App. 62, 254 S.E.2d 243, 1979 N.C. App. LEXIS 2399 (1979), rev'd, 299 N.C. 64 , 261 S.E.2d 176, 1980 N.C. LEXIS 903 (1980); Hecht Realty, Inc. v. Whisnant, 41 N.C. App. 702, 255 S.E.2d 647, 1979 N.C. App. LEXIS 2761 , cert. denied, 298 N.C. 299 , 259 S.E.2d 912, 1979 N.C. LEXIS 1598 (1979); American Home Prods. Corp. v. Howell's Motor Freight, Inc., 46 N.C. App. 276, 264 S.E.2d 774, 1980 N.C. App. LEXIS 2825 (1980); Vickery v. Olin Hill Constr. Co., 47 N.C. App. 98, 266 S.E.2d 711, 1980 N.C. App. LEXIS 2991 (1980); Wesley v. Greyhound Lines, 47 N.C. App. 680, 268 S.E.2d 855, 1980 N.C. App. LEXIS 3189 (1980), limited, Holiday v. Cutchin, 63 N.C. App. 369, 305 S.E.2d 45, 1983 N.C. App. LEXIS 3059 (1983); Brewer v. Majors, 48 N.C. App. 202, 268 S.E.2d 229, 1980 N.C. App. LEXIS 3198 (1980); E.F. Hutton & Co. v. Sexton, 48 N.C. App. 413, 269 S.E.2d 257, 1980 N.C. App. LEXIS 3232 (1980); Burnett v. First Citizens Bank & Trust Co., 48 N.C. App. 585, 269 S.E.2d 317, 1980 N.C. App. LEXIS 3261 (1980); Ward v. City of Charlotte, 48 N.C. App. 463, 269 S.E.2d 663, 1980 N.C. App. LEXIS 3282 (1980); Dorsey v. Buchanan, 52 N.C. App. 597, 279 S.E.2d 92, 1981 N.C. App. LEXIS 2455 (1981); Cooper v. Henderson, 55 N.C. App. 234, 284 S.E.2d 756, 1981 N.C. App. LEXIS 3008 (1981); Meacham v. Montgomery County Bd. of Educ., 59 N.C. App. 381, 297 S.E.2d 192, 1982 N.C. App. LEXIS 3171 (1982); John D. Latimer & Assocs. v. Housing Auth., 59 N.C. App. 638, 297 S.E.2d 779, 1982 N.C. App. LEXIS 3180 (1982); Colony Assocs. v. Fred L. Clapp & Co., 60 N.C. App. 634, 300 S.E.2d 37, 1983 N.C. App. LEXIS 2537 (1983).

It is only when the evidence is insufficient to support a verdict in the nonmovant’s favor that the motion should be granted. Snow v. Duke Power Co., 297 N.C. 591 , 256 S.E.2d 227, 1979 N.C. LEXIS 1406 (1979); Northern Nat'l Life Ins. Co. v. Lacy J. Miller Mach. Co., 311 N.C. 62 , 316 S.E.2d 256, 1984 N.C. LEXIS 1718 (1984).

The standard for entry of a directed verdict is that the evidence, when viewed in the light most favorable to the nonmovant, must be insufficient as a matter of law to support a verdict in favor of the nonmovant. Oakley v. Oakley, 54 N.C. App. 161, 282 S.E.2d 589, 1981 N.C. App. LEXIS 2818 (1981).

A directed verdict in favor of the party with the burden of proof is proper only when the proponent has established a clear and uncontradicted prima facie case and the credibility of his evidence is manifest as a matter of law. Homeland, Inc. v. Backer, 78 N.C. App. 477, 337 S.E.2d 114, 1985 N.C. App. LEXIS 4317 (1985).

And If Plaintiff Shows No Right to Relief. —

When it is clear that the plaintiff has shown no right to relief, the judge will direct a verdict for the defendant at the close of plaintiff ’s evidence, just as he could formerly grant a motion for compulsory nonsuit. Cutts v. Casey, 278 N.C. 390 , 180 S.E.2d 297, 1971 N.C. LEXIS 986 (1971).

A directed verdict for defendant is not properly allowed unless it appears, as a matter of law, that a recovery cannot be had by the plaintiff upon any view of the facts which the evidence reasonably tends to establish. Manganello v. Permastone, Inc., 291 N.C. 666 , 231 S.E.2d 678, 1977 N.C. LEXIS 1231 (1977); Everhart v. LeBrun, 52 N.C. App. 139, 277 S.E.2d 816, 1981 N.C. App. LEXIS 2307 (1981); Koonce v. May, 59 N.C. App. 633, 298 S.E.2d 69, 1982 N.C. App. LEXIS 3194 (1982); Mitchell v. Parker, 68 N.C. App. 458, 315 S.E.2d 76, 1984 N.C. App. LEXIS 3309 (1984); Willis v. Russell, 68 N.C. App. 424, 315 S.E.2d 91, 1984 N.C. App. LEXIS 3315 (1984).

The scope of review of a trial court’s decision granting the defendant’s motion for a directed verdict is whether the evidence, when considered in the light most favorable to the plaintiff, is sufficient for submission to the jury; if the plaintiff fails to make a prima facie showing for relief, it is not entitled to have its case sent to the jury and the judge may rule on the issue as a matter of law. Air Traffic Conference of Am. v. Marina Travel, Inc., 69 N.C. App. 179, 316 S.E.2d 642, 1984 N.C. App. LEXIS 3387 (1984).

A directed verdict is proper only if it appears that the nonmovant failed to show a right to recover upon any view of the facts which the evidence reasonably tends to establish. West v. Slick, 313 N.C. 33 , 326 S.E.2d 601, 1985 N.C. LEXIS 1522 (1985).

Only if plaintiff’s uncontradicted evidence shows that physical facts irreconcilably conflict with plaintiff’s evidence is a trial judge warranted in taking the case from the jury on a motion for directed verdict against plaintiff. McFetters v. McFetters, 98 N.C. App. 187, 390 S.E.2d 348, 1990 N.C. App. LEXIS 380 (1990).

Evidence which does no more than raise a possibility or conjecture of fact is not sufficient to withstand a motion by defendant for a directed verdict. Ingold v. Carolina Power & Light Co., 11 N.C. App. 253, 181 S.E.2d 173, 1971 N.C. App. LEXIS 1501 (1971), aff'd, State v. Farris, 336 N.C. 552 , 444 S.E.2d 182, 1994 N.C. LEXIS 300 (1994); Bruegge v. Mastertemp, Inc., 83 N.C. App. 508, 350 S.E.2d 918, 1986 N.C. App. LEXIS 2728 (1986).

The court must consider even “incompetent” evidence in ruling on a motion for a directed verdict. Hart v. Warren, 46 N.C. App. 672, 266 S.E.2d 53, 1980 N.C. App. LEXIS 2920 (1980).

The court must consider even incompetent evidence in ruling on a motion for a directed verdict. The reason for this rule is that the admission of incompetent evidence may have caused the plaintiff to omit competent evidence of the same import. Haney v. Alexander, 71 N.C. App. 731, 323 S.E.2d 430, 1984 N.C. App. LEXIS 3981 (1984), cert. denied, 313 N.C. 329 , 327 S.E.2d 889, 1985 N.C. LEXIS 1576 (1985).

Illustrative Cases. —

In an action regarding the purchase and sale of a business, the sellers were not entitled to a directed verdict as to the buyer’s negligent misrepresentation claim, under G.S. 1A-1 , Rule 50(a), as the buyer investigated the sellers’ statements to the extent she was able and reasonably relied on them, and the sellers had a duty to provide the buyer with accurate financial information as they controlled that information and the buyer could not independently investigate it. Kindred of N.C. Inc. v. Bond, 160 N.C. App. 90, 584 S.E.2d 846, 2003 N.C. App. LEXIS 1765 (2003).

Trial court erred by submitting the issue of whether sufficient evidence that someone other than the former wife was the beneficiary of the decedent’s retirement accounts to the jury where the parties stipulated that the former wife was the designated beneficiary, and language in a separation agreement suggesting that the decedent might have planned to change the beneficiary of certain accounts after entering into that agreement notwithstanding, no evidence was presented to the jury during the trial that anyone other than the wife was the beneficiary of the accounts. As a result, the trial court erred in denying the wife’s motions for directed verdict and for judgment nothwithstanding the verdict. Berke v. Fid. Brokerage Servs., 270 N.C. App. 374, 841 S.E.2d 592, 2020 N.C. App. LEXIS 203 (2020).

As to entry of directed verdict on basis of adverse testimony in deposition, see Woods v. Smith, 297 N.C. 363 , 255 S.E.2d 174, 1979 N.C. LEXIS 1253 (1979).

What Evidence of Movant May Be Considered on Motion for Directed Verdict. —

In passing upon motion for directed verdict made at the close of all the evidence, a defendant’s evidence that tends to contradict or refute the plaintiff ’s evidence is not considered, but the other evidence presented by a defendant may be considered to the extent that it clarifies the plaintiff ’s case. Jenkins v. Starrett Corp., 13 N.C. App. 437, 186 S.E.2d 198, 1972 N.C. App. LEXIS 2261 (1972); American Home Prods. Corp. v. Howell's Motor Freight, Inc., 46 N.C. App. 276, 264 S.E.2d 774, 1980 N.C. App. LEXIS 2825 (1980); John D. Latimer & Assocs. v. Housing Auth., 59 N.C. App. 638, 297 S.E.2d 779, 1982 N.C. App. LEXIS 3180 (1982); Koonce v. May, 59 N.C. App. 633, 298 S.E.2d 69, 1982 N.C. App. LEXIS 3194 (1982); Henderson v. Traditional Log Homes, Inc., 70 N.C. App. 303, 319 S.E.2d 290, 1984 N.C. App. LEXIS 3651 (1984).

In passing upon a motion for directed verdict made at the close of all the evidence, a defendant’s evidence that tends to contradict or refute the plaintiff ’s evidence is not considered, but other evidence presented by a defendant which is not in conflict with that of the plaintiff may be considered in ascertaining whether the evidence is sufficient to raise an issue for the jury. Murphy v. Edwards & Warren, 36 N.C. App. 653, 245 S.E.2d 212, 1978 N.C. App. LEXIS 2607 , cert. denied, 295 N.C. 551 , 248 S.E.2d 728, 1978 N.C. LEXIS 1039 (1978).

Upon defendant’s motion under this rule, his own evidence may not be considered unless it is favorable to the plaintiff or unless it is not in conflict with the plaintiff ’s evidence and explains or makes clear that which has been ordered by the plaintiff. Tate v. Bryant, 16 N.C. App. 132, 191 S.E.2d 433, 1972 N.C. App. LEXIS 1655 (1972).

Affirmative Defenses. —

Where a defendant establishes an affirmative defense as a matter of law, there are no issues to submit to a jury and a plaintiff has no right to recover. Directing a verdict for the defendant in such instance is appropriate. Goodwin v. Investors Life Ins. Co. of N. Am., 332 N.C. 326 , 419 S.E.2d 766, 1992 N.C. LEXIS 483 (1992).

Normally the motion for a directed verdict is made against the party who has the burden of proof. Paccar Fin. Corp. v. Harnett Transf., Inc., 51 N.C. App. 1, 275 S.E.2d 243, 1981 N.C. App. LEXIS 2190 , cert. denied, 302 N.C. 629 , 280 S.E.2d 441, 1981 N.C. LEXIS 1244 (1981).

And the court can direct a verdict against the party with the burden of proof if there is no evidence in his favor. Cutts v. Casey, 278 N.C. 390 , 180 S.E.2d 297, 1971 N.C. LEXIS 986 (1971); Roberts v. William N. & Kate B. Reynolds Mem. Park, 281 N.C. 48 , 187 S.E.2d 721, 1972 N.C. LEXIS 1004 (1972).

Or Where Evidence is Insufficient to Go to the Jury. —

A directed verdict becomes proper against the defendants who have the burden on affirmative defenses if their evidence is insufficient to carry those defenses to the jury. Booker v. Everhart, 33 N.C. App. 1, 234 S.E.2d 46, 1977 N.C. App. LEXIS 2089 (1977), rev'd, 294 N.C. 146 , 240 S.E.2d 360, 1978 N.C. LEXIS 1192 (1978).

It is rarely appropriate to grant a directed verdict for a party bearing the burden of proof. Looney v. Community Bible Holiness Church, 103 N.C. App. 469, 405 S.E.2d 811, 1991 N.C. App. LEXIS 795 (1991).

Ordinarily, it is not permissible to direct a verdict in favor of a litigant on whom rests the burden of proof. Smith v. Burleson, 9 N.C. App. 611, 177 S.E.2d 451, 1970 N.C. App. LEXIS 1421 (1970); Austin v. R.W. Raines Enters., Inc., 45 N.C. App. 709, 264 S.E.2d 121, 1980 N.C. App. LEXIS 2700 (1980); Stutts v. Green Ford, Inc., 47 N.C. App. 503, 267 S.E.2d 919, 1980 N.C. App. LEXIS 3173 (1980).

The party having the burden of proof on all the issues is not entitled to a directed verdict. Mull v. Mull, 13 N.C. App. 154, 185 S.E.2d 14, 1971 N.C. App. LEXIS 1177 (1971).

Judge cannot direct a verdict upon any controverted issue in favor of the party having the burden of proof, even though the evidence is uncontradicted. Cutts v. Casey, 278 N.C. 390 , 180 S.E.2d 297, 1971 N.C. LEXIS 986 (1971); Little v. Poole, 11 N.C. App. 597, 182 S.E.2d 206, 1971 N.C. App. LEXIS 1596 (1971).

As Where His Right to Recover Depends on Credibility. —

Under this rule, the trial judge cannot direct a verdict in favor of the party having the burden of proof when his right to recover depends upon the credibility of his witnesses. Cutts v. Casey, 278 N.C. 390 , 180 S.E.2d 297, 1971 N.C. LEXIS 986 (1971); Schell v. Rice, 37 N.C. App. 377, 246 S.E.2d 61, 1978 N.C. App. LEXIS 2750 , cert. denied, 295 N.C. 648 , 248 S.E.2d 253 (1978); Paccar Fin. Corp. v. Harnett Transf., Inc., 51 N.C. App. 1, 275 S.E.2d 243, 1981 N.C. App. LEXIS 2190 , cert. denied, 302 N.C. 629 , 280 S.E.2d 441, 1981 N.C. LEXIS 1244 (1981).

The trial court cannot direct a verdict under this rule in favor of the party having the burden of proof when his right to recover depends upon the credibility of his witnesses, since it is the established policy of this State, declared in both the Constitution and the statutes, that the credibility of testimony is for the jury, not the court, and that a genuine issue of fact must be tried by the jury unless the right is waived. Fowler-Barham Ford, Inc. v. Indiana Lumbermens Mut. Ins. Co., 45 N.C. App. 625, 263 S.E.2d 825, 1980 N.C. App. LEXIS 2686 (1980).

Direction of Verdict in Favor of Party with Burden Permissible When Facts Are Not Subject to Inquiry. —

When facts are judicially admitted and are no longer a subject of inquiry, then directing a verdict in favor of a litigant on whom rests the burden of proof is not only permissible, but it is the duty of the judge to answer the issue. Smith v. Burleson, 9 N.C. App. 611, 177 S.E.2d 451, 1970 N.C. App. LEXIS 1421 (1970).

A directed verdict for the party with the burden of proof is not improper where his right to recover does not depend on the credibility of his witnesses and the pleadings, evidence, and stipulations show that there is no issue of genuine fact for jury consideration. Paccar Fin. Corp. v. Harnett Transf., Inc., 51 N.C. App. 1, 275 S.E.2d 243, 1981 N.C. App. LEXIS 2190 , cert. denied, 302 N.C. 629 , 280 S.E.2d 441, 1981 N.C. LEXIS 1244 (1981).

There is no constitutional or procedural impediment to granting a directed verdict in favor of the party with the burden of proof when the credibility of the movant’s witnesses is manifest as a matter of law. Smith v. Price, 74 N.C. App. 413, 328 S.E.2d 811, 1985 N.C. App. LEXIS 3503 (1985), aff'd in part and rev'd in part, 315 N.C. 523 , 340 S.E.2d 408, 1986 N.C. LEXIS 1905 (1986).

And Where No Other Reasonable Conclusion Is Possible. —

After looking at all of the evidence, if no other reasonable conclusion is possible, then a directed verdict would be proper, even though such directed verdict is in favor of the litigant upon whom rests the burden of proof. Smith v. Burleson, 9 N.C. App. 611, 177 S.E.2d 451, 1970 N.C. App. LEXIS 1421 (1970).

As Where Credibility of Movants’ Evidence Is Manifest. —

There are neither constitutional nor procedural impediments to directing a verdict for the party with the burden of proof where the credibility of movant’s evidence is manifest as a matter of law. North Carolina Nat'l Bank v. Burnette, 297 N.C. 524 , 256 S.E.2d 388, 1979 N.C. LEXIS 1399 (1979); Snipes v. Snipes, 55 N.C. App. 498, 286 S.E.2d 591, 1982 N.C. App. LEXIS 2256 , aff'd, 306 N.C. 373 , 293 S.E.2d 187, 1982 N.C. LEXIS 1450 (1982).

Where, in view of facts which were stipulated before trial and admitted by defendant at trial, the issue presented only a question of law for the court, the general rule that the court cannot direct a verdict in favor of a party having the burden of proof does not apply. American Personnel, Inc. v. Harbolick, 16 N.C. App. 107, 191 S.E.2d 412, 1972 N.C. App. LEXIS 1649 (1972).

A directed verdict cannot be granted for the party with the burden of proof when his right to recover depends on the credibility of his witnesses. However, there may be rare occasions in which credibility seems compelled as a matter of law. Murray v. Murray, 296 N.C. 405 , 250 S.E.2d 276, 1979 N.C. LEXIS 1146 (1979).

Where the moving party has the burden of proof, the courts generally will not direct a verdict if credibility remains an issue unless the evidence so clearly establishes the fact in issue that no reasonable inferences to the contrary can be drawn. Snipes v. Snipes, 55 N.C. App. 498, 286 S.E.2d 591, 1982 N.C. App. LEXIS 2256 , aff'd, 306 N.C. 373 , 293 S.E.2d 187, 1982 N.C. LEXIS 1450 (1982).

A directed verdict or judgment n.o.v. can be granted for the party having the burden of proof only where the credibility of movant’s evidence is manifest as a matter of law. Johnson v. Robert Dunlap & Racing, Inc., 53 N.C. App. 312, 280 S.E.2d 759, 1981 N.C. App. LEXIS 2597 (1981), cert. denied, 305 N.C. 153 , 289 S.E.2d 380, 1982 N.C. LEXIS 1357 (1982).

The granting of a directed verdict for the party with the burden of proof is permissible when the only evidence is plaintiff ’s own evidence and defendant’s burden is met for him by the plaintiff. Alligood v. Seaboard Coastline R.R., 21 N.C. App. 419, 204 S.E.2d 706, 1974 N.C. App. LEXIS 1820 (1974).

A directed verdict or a judgment notwithstanding the verdict may be entered in favor of the party with the burden of proof where credibility is manifest as a matter of law. Smith v. Price, 315 N.C. 523 , 340 S.E.2d 408, 1986 N.C. LEXIS 1905 (1986).

Situations Where Credibility Is Manifest. —

Review of the modern cases indicates three recurrent situations where credibility is manifest: (1) Where nonmovant establishes proponent’s case by admitting the truth of the basic facts upon which the claim of proponent rests; (2) Where the controlling evidence is documentary and nonmovant does not deny the authenticity or correctness of the documents; (3) Where there are only latent doubts as to the credibility of oral testimony and the opposing party has failed to point to specific areas of impeachment and contradictions. North Carolina Nat'l Bank v. Burnette, 297 N.C. 524 , 256 S.E.2d 388, 1979 N.C. LEXIS 1399 (1979); Snipes v. Snipes, 55 N.C. App. 498, 286 S.E.2d 591, 1982 N.C. App. LEXIS 2256 , aff'd, 306 N.C. 373 , 293 S.E.2d 187, 1982 N.C. LEXIS 1450 (1982).

There are rare instances in which credibility may be established as a matter of law, as where the nonmovant admits the truth of the facts upon which movant’s claim rests, where the controlling evidence is documentary and the nonmovant does not deny the authenticity of or correctness of the document, or where there are only latent doubts as to the credibility of oral testimony. Stutts v. Green Ford, Inc., 47 N.C. App. 503, 267 S.E.2d 919, 1980 N.C. App. LEXIS 3173 (1980).

Where the plaintiffs fail to make a prima facie showing for relief, they are not entitled to have their case sent to the jury and the trial judge may rule on the issue as a matter of law. Hong v. George Goodyear Co., 63 N.C. App. 741, 306 S.E.2d 157, 1983 N.C. App. LEXIS 3197 (1983).

Where Party With Burden of Proof Presents No Evidence. —

Trial court properly placed on a corporation the burden of establishing whether a liquidated damages clause in a contract with a hotel was enforceable because the corporation was the party seeking to invalidate the liquidated damages provision; given that the corporation presented no evidence tending to show that the clause was unenforceable, the trial court was correct in entering a verdict against the corporation under G.S. 1A-1-50, even in the absence of any evidence from the hotel. Seven Seventeen HB Charlotte Corp. v. Shrine Bowl of the Carolinas, Inc., 182 N.C. App. 128, 641 S.E.2d 711, 2007 N.C. App. LEXIS 499 (2007).

Directed Verdict Not Necessarily Prevented by Prima Facie Case. —

Nonmoving party’s establishment of a prima facie case did not necessarily prevent the granting of a directed verdict in the moving party’s favor. Goodwin v. Investors Life Ins. Co. of N. Am., 332 N.C. 326 , 419 S.E.2d 766, 1992 N.C. LEXIS 483 (1992).

Directed Verdict Granted Despite Establishment of Prima Facie Case. —

Where insurer showed that the insured made representations which were material and false and, by so doing, fully overcame plaintiff’s prima facie case, insurer was entitled to a directed verdict as a matter of law. Goodwin v. Investors Life Ins. Co. of N. Am., 332 N.C. 326 , 419 S.E.2d 766, 1992 N.C. LEXIS 483 (1992).

The granting of a directed verdict in favor of the party with the burden of proof will be more closely scrutinized than otherwise. North Carolina Nat'l Bank v. Burnette, 38 N.C. App. 120, 247 S.E.2d 648, 1978 N.C. App. LEXIS 2116 (1978), rev'd, 297 N.C. 524 , 256 S.E.2d 388, 1979 N.C. LEXIS 1399 (1979).

A directed verdict is seldom appropriate in a negligence case. Alva v. Cloninger, 51 N.C. App. 602, 277 S.E.2d 535, 1981 N.C. App. LEXIS 2287 (1981).

When Defendant Entitled to Directed Verdict in a Negligence Action. —

Defendant was not entitled to a directed verdict or to judgment notwithstanding the verdict unless plaintiff failed as a matter of law to establish the elements of actionable negligence or unless the evidence, viewed in the light most favorable to plaintiff, showed contributory negligence as a matter of law. Everhart v. LeBrun, 52 N.C. App. 139, 277 S.E.2d 816, 1981 N.C. App. LEXIS 2307 (1981); Thomas v. Dixson, 88 N.C. App. 337, 363 S.E.2d 209, 1988 N.C. App. LEXIS 27 (1988).

A defendant in a negligence action is not entitled to a directed verdict unless the plaintiff has failed, as matter of law to establish the elements of actionable negligence. McMurray v. Surety Fed. Sav. & Loan Ass'n, 82 N.C. App. 729, 348 S.E.2d 162, 1986 N.C. App. LEXIS 2622 (1986), cert. denied, 318 N.C. 695 , 351 S.E.2d 748, 1987 N.C. LEXIS 1817 (1987).

A defendant is not entitled to a directed verdict in a negligence action unless the plaintiff has not established the elements of negligence as a matter of law. Felts v. Liberty Emergency Serv., 97 N.C. App. 381, 388 S.E.2d 619, 1990 N.C. App. LEXIS 128 (1990), overruled in part, Fields v. Fields, 242 N.C. App. 521, 776 S.E.2d 898, 2015 N.C. App. LEXIS 639 (2015).

Directed verdict was properly granted to a store in a customer’s suit against the store to recover for injuries sustained when he fell over a stock cart parked in a store aisle, and thus, the trial court improperly set aside its earlier order granting a directed verdict and, instead, granted the customer’s motion for a new trial, because the customer presented no evidence regarding who left the stock cart in the position which caused the customer to fall, when it was placed there, or how long it remained; additionally, the customer did not present evidence that the store failed to correct a dangerous condition after it received actual or constructive notice of the condition. Herring v. Food Lion, LLC, 175 N.C. App. 22, 623 S.E.2d 281, 2005 N.C. App. LEXIS 2754 (2005), aff'd, 360 N.C. 472 , 628 S.E.2d 761, 2006 N.C. LEXIS 43 (2006).

Only in exceptional cases is it proper to enter a directed verdict or a judgment n.o.v. Against a plaintiff in a negligence case, since issues arising in negligence cases are ordinarily not susceptible of summary adjudication, because application of the prudent man test, or any other applicable standard of care, is generally for the jury. Taylor v. Walker, 320 N.C. 729 , 360 S.E.2d 796, 1987 N.C. LEXIS 2403 (1987).

Only in exceptional cases is it proper to enter a directed verdict against a plaintiff in a negligence case. Wiggins v. Paramount Motor Sales, Inc., 89 N.C. App. 119, 365 S.E.2d 192, 1988 N.C. App. LEXIS 246 (1988).

When a defendant moves for a directed verdict in a medical malpractice case, the question raised is whether plaintiff has offered evidence of each of the following elements of his claim for relief: (1) the standard of care; (2) breach of the standard of care; (3) proximate causation; and (4) damages. Mitchell v. Parker, 68 N.C. App. 458, 315 S.E.2d 76, 1984 N.C. App. LEXIS 3309 (1984).

A directed verdict for defendant is improper unless it appears as a matter of law that a recovery cannot be had by the plaintiff upon any view of the facts which the evidence reasonably tends to establish. Felts v. Liberty Emergency Serv., 97 N.C. App. 381, 388 S.E.2d 619, 1990 N.C. App. LEXIS 128 (1990), overruled in part, Fields v. Fields, 242 N.C. App. 521, 776 S.E.2d 898, 2015 N.C. App. LEXIS 639 (2015).

Directed Verdict in Personal Injury Actions. —

To overcome a motion for a directed verdict in a personal injury action the plaintiff is required to offer evidence sufficient to establish, beyond mere speculation or conjecture, every essential element of negligence. Upon his failure to do so, a motion for a directed verdict is properly granted. Oliver v. Royall, 36 N.C. App. 239, 243 S.E.2d 436, 1978 N.C. App. LEXIS 2456 (1978).

In an action for personal injury arising out of an automobile accident, the defendants’ motion for a directed verdict should be allowed if the jury could draw no conclusion from the evidence but that either the collision was not proximately caused by the negligence of defendant, or that the contributory negligence of the plaintiff was a proximate cause of the collision. Shay v. Nixon, 45 N.C. App. 108, 262 S.E.2d 294, 1980 N.C. App. LEXIS 2557 (1980).

If the facts proved establish the more reasonable probability that the defendant has been guilty of actionable negligence, the case cannot be withdrawn from the jury, even though the possibility of accident may arise on the evidence. Bruegge v. Mastertemp, Inc., 83 N.C. App. 508, 350 S.E.2d 918, 1986 N.C. App. LEXIS 2728 (1986).

Evidence that defendant “lured” plaintiff’s husband away was not required to overcome defendant’s motion for a directed verdict under this section and to submit the issue of alienation of affection to the jury where the defendant was the effective cause of the alienation. Ward v. Beaton, 141 N.C. App. 44, 539 S.E.2d 30, 2000 N.C. App. LEXIS 1288 (2000), cert. denied, 353 N.C. 398 , 547 S.E.2d 431, 2001 N.C. LEXIS 211 (2001).

Evidence which raises only a conjecture of negligence may not properly be submitted to the jury. To hold that evidence that a defendant could have been negligent is sufficient to go to a jury, in the absence of any evidence, direct or circumstantial, that such a defendant actually was negligent, is to allow the jury to indulge in speculation and guesswork. Jenkins v. Starrett Corp., 13 N.C. App. 437, 186 S.E.2d 198, 1972 N.C. App. LEXIS 2261 (1972).

Medical evidence which merely shows it possible for the fact in issue to be as alleged, or which raises a mere conjecture that it was so, is an insufficient foundation for a verdict and should not be left to the jury. Sharpe v. Pugh, 21 N.C. App. 110, 203 S.E.2d 330, 1974 N.C. App. LEXIS 1732 , aff'd, 286 N.C. 209 , 209 S.E.2d 456, 1974 N.C. LEXIS 1198 (1974).

Determination of Validity of Will. —

Where appropriate, a trial court may direct a verdict for propounders of a will in a caveat proceeding at the close of all evidence. In re Will of Jarvis, 107 N.C. App. 34, 418 S.E.2d 520, 1992 N.C. App. LEXIS 636 (1992), aff'd in part and rev'd in part, 334 N.C. 140 , 430 S.E.2d 922, 1993 N.C. LEXIS 294 (1993).

Directed Verdict When Plaintiff’s Evidence Shows Contributory Negligence. —

A directed verdict on the ground that plaintiff ’s evidence reveals contributory negligence as a matter of law is proper only when contributory negligence is so clearly established that no other conclusion can reasonably be reached. Naylor v. Naylor, 11 N.C. App. 384, 181 S.E.2d 222, 1971 N.C. App. LEXIS 1531 (1971); Riddick v. Whitaker, 13 N.C. App. 416, 185 S.E.2d 602, 1972 N.C. App. LEXIS 2253 , cert. denied, 281 N.C. 154 , 187 S.E.2d 585, 1972 N.C. LEXIS 1024 (1972); Seaman v. McQueen, 51 N.C. App. 500, 277 S.E.2d 118, 1981 N.C. App. LEXIS 2267 (1981).

A motion for directed verdict upon the ground of contributory negligence should be allowed only when plaintiff ’s evidence, considered in the light most favorable to him, together with inferences favorable to him that may be reasonably drawn therefrom, so clearly establishes the defense of contributory negligence that no other conclusion can reasonably be drawn. Peeler v. Southern Ry., 32 N.C. App. 759, 233 S.E.2d 685, 1977 N.C. App. LEXIS 2056 (1977).

Directed verdict for a defendant on the ground of contributory negligence may only be granted when the evidence, taken in the light most favorable to plaintiff, establishes contributory negligence so clearly that no other reasonable inference or conclusion may be drawn therefrom. Bowen v. Constructors Equip. Rental Co., 283 N.C. 395 , 196 S.E.2d 789, 1973 N.C. LEXIS 990 (1973); Clary v. Alexander County Bd. of Educ., 286 N.C. 525 , 212 S.E.2d 160, 1975 N.C. LEXIS 1248 (1975); Clark v. Bodycombe, 289 N.C. 246 , 221 S.E.2d 506, 1976 N.C. LEXIS 1247 (1976); Rappaport v. Days Inn of Am., Inc., 296 N.C. 382 , 250 S.E.2d 245, 1979 N.C. LEXIS 1151 (1979), overruled in part, Nelson v. Freeland, 349 N.C. 615 , 507 S.E.2d 882, 1998 N.C. LEXIS 849 (1998); Flexlon Fabrics, Inc. v. Wicker Pick-Up & Delivery Serv., Inc., 39 N.C. App. 443, 250 S.E.2d 723, 1979 N.C. App. LEXIS 2522 (1979); Harrington v. Collins, 40 N.C. App. 530, 253 S.E.2d 288, 1979 N.C. App. LEXIS 2306 , aff'd, 298 N.C. 535 , 259 S.E.2d 275, 1979 N.C. LEXIS 1384 (1979); Thomas v. Deloatch, 45 N.C. App. 322, 263 S.E.2d 615, 1980 N.C. App. LEXIS 3014 (1980); Taylor v. Hudson, 49 N.C. App. 296, 271 S.E.2d 70, 1980 N.C. App. LEXIS 3376 (1980); Hunt v. Montgomery Ward & Co., 49 N.C. App. 642, 272 S.E.2d 357, 1980 N.C. App. LEXIS 3434 (1980); Davis v. Gamble, 55 N.C. App. 617, 286 S.E.2d 629, 1982 N.C. App. LEXIS 2241 (1982); Helvy v. Sweat, 58 N.C. App. 197, 292 S.E.2d 733, 1982 N.C. App. LEXIS 2751 (1982); Horne v. Trivette, 58 N.C. App. 77, 293 S.E.2d 290, 1982 N.C. App. LEXIS 2731 (1982).

In order for a directed verdict to be granted for a defendant on the grounds of contributory negligence, it is required that the plaintiff establish his own negligence so clearly by his own evidence that no other reasonable inference or conclusion can be drawn therefrom. Beatty v. H.B. Owsley & Sons, 53 N.C. App. 178, 280 S.E.2d 484, 1981 N.C. App. LEXIS 2573 , cert. denied, 304 N.C. 192 , 285 S.E.2d 95, 1981 N.C. LEXIS 1424 (1981).

A directed verdict on the ground of contributory negligence should be granted only when this defense is so clearly established that no other reasonable inference can be drawn from the evidence. Daughtry v. Turnage, 295 N.C. 543 , 246 S.E.2d 788, 1978 N.C. LEXIS 1021 (1978); Clark v. Moore, 65 N.C. App. 609, 309 S.E.2d 579, 1983 N.C. App. LEXIS 3546 (1983).

A trial court should grant a directed verdict on the ground of contributory negligence when the evidence establishes the nonmovant’s contributory negligence so clearly that no other reasonable inference or conclusion may be drawn therefrom. Frye v. Anderson, 86 N.C. App. 94, 356 S.E.2d 370, 1987 N.C. App. LEXIS 2672 (1987).

A directed verdict on the ground of contributory negligence should be granted only when this defense is so clearly established that no other reasonable inference can be drawn from the evidence. Williams v. Hall, 100 N.C. App. 655, 397 S.E.2d 767, 1990 N.C. App. LEXIS 1134 (1990).

Ordinarily, the question of contributory negligence of a guest in an automobile is for the jury to determine in the light of the facts and circumstances of the case. Thus, whether a passenger’s failure to take affirmative action for his own safety constitutes contributory negligence is for the jury where conflicting inferences may be drawn from the circumstances. Harrington v. Collins, 40 N.C. App. 530, 253 S.E.2d 288, 1979 N.C. App. LEXIS 2306 , aff'd, 298 N.C. 535 , 259 S.E.2d 275, 1979 N.C. LEXIS 1384 (1979).

As Is Question of Contributory Negligence of Child Between 7 and 14. —

Whether the rebuttable presumption that a child between the ages of 7 and 14 is incapable of contributory negligence has been rebutted in a particular case is a question for the jury, and a directed verdict on the basis that a child between 7 and 14 was contributorily negligent is not proper. Johnson v. Clay, 38 N.C. App. 542, 248 S.E.2d 382, 1978 N.C. App. LEXIS 2235 (1978).

Contributory Negligence Not Sufficient for Directed Verdict Where Defendant’s Conduct Willful. —

Although a plaintiff in a personal injury action may have been contributorily negligent as a matter of law, this is not a sufficient basis on which to direct a verdict against plaintiff where defendant’s conduct is willful or wanton as a matter of law, or where there is sufficient evidence to submit the issue of whether his conduct was willful or wanton to the jury. Harrington v. Collins, 40 N.C. App. 530, 253 S.E.2d 288, 1979 N.C. App. LEXIS 2306 , aff'd, 298 N.C. 535 , 259 S.E.2d 275, 1979 N.C. LEXIS 1384 (1979).

When a defendant pleads as a defense the plaintiff ’s contributory negligence, the defendant has the burden of proof on the issue, and if the defendant offers no evidence, a directed verdict for the defendant based on plaintiff’s contributory negligence is appropriate only when there are no genuine issues of fact, and the non-movant’s contributory negligence is so clearly established that no other reasonable inference or conclusion may be drawn therefrom. Price v. Jack Eckerd Corp., 100 N.C. App. 732, 398 S.E.2d 49, 1990 N.C. App. LEXIS 1161 (1990).

Directed verdict on issue of contributory negligence was improper where the plaintiff testified that he was not completely blinded by the oncoming headlights as he approached the tractor-trailer, the plaintiff could see much more than the edge of the road, and the plaintiff may have been keeping a proper lookout without realizing that he was partially blinded only as to the area beyond the tractor-trailer’s headlights. In such a deceptive visual situation, the plaintiff may not have been knowingly driving into a blinded area, for it would have appeared as though he could see into the distant darkness. From the evidence there was insufficient evidence to establish that plaintiff was contributorily negligent as a matter of law. Williams v. Hall, 100 N.C. App. 655, 397 S.E.2d 767, 1990 N.C. App. LEXIS 1134 (1990).

Trial court erred in directing verdict on issue of contributory negligence. —

See Alston v. Herrick, 76 N.C. App. 246, 332 S.E.2d 720, 1985 N.C. App. LEXIS 3847 (1985), aff'd, 315 N.C. 386 , 337 S.E.2d 851, 1986 N.C. LEXIS 1873 (1986).

Advisability of Reserving Ruling on Motion in Contributory Negligence Cases. —

In light of the trend by the Supreme Court to place on a defendant in a negligence action a heavier burden in establishing contributory negligence as a matter of law, it may be advisable for the trial court, in cases where the line is not clear, to reserve its ruling on a motion for directed verdict until the jury has returned a verdict and then allow or deny a motion for a judgment notwithstanding that verdict under section (b) of this rule, which on appeal may obviate the need for a new trial if the appellate court reverses the judgment notwithstanding the verdict. Partin v. Carolina Power & Light Co., 40 N.C. App. 630, 253 S.E.2d 605, 1979 N.C. App. LEXIS 2338 , cert. denied, 297 N.C. 611 , 257 S.E.2d 219, 1979 N.C. LEXIS 1505 (1979).

Withholding of Ruling Until Return of Verdict Disapproved. —

Procedure whereby trial judge withheld his ruling on a motion for a directed verdict until after the jury had returned its verdict is disapproved. It is preferable to rule upon a motion for a directed verdict prior to submission of a case to the jury. Hamel v. Young Spring & Wire Corp., 12 N.C. App. 199, 182 S.E.2d 839, 1971 N.C. App. LEXIS 1327 , cert. denied, 279 N.C. 511 , 183 S.E.2d 687, 1971 N.C. LEXIS 868 (1971).

Movant for a motion under section (b) of this rule must make a motion for a directed verdict at the close of all evidence. Penley v. Penley, 314 N.C. 1 , 332 S.E.2d 51, 1985 N.C. LEXIS 1706 (1985).

By introducing evidence, defendants waived their motion for directed verdict made at the close of plaintiffs’ evidence. Rice v. Wood, 82 N.C. App. 318, 346 S.E.2d 205, 1986 N.C. App. LEXIS 2445 (1986).

Any error in the denial of neighbors’ motion for a directed verdict at the close of the property owners’ case was waived as the neighbors presented evidence. Boggess v. Spencer, 173 N.C. App. 614, 620 S.E.2d 10, 2005 N.C. App. LEXIS 2114 (2005).

Preservation of Motion in Record Necessary. —

Having failed to preserve the record of any motion for directed verdict at the close of all evidence, defendant waived his right to assign error to either the trial judge’s purported ruling on that motion or the ruling on the motion for judgment notwithstanding the verdict. Jansen v. Collins, 92 N.C. App. 516, 374 S.E.2d 641, 1988 N.C. App. LEXIS 1060 (1988).

Failure to Show One Cause of Damages More Likely than Others. —

Directed verdict was proper where plaintiff did not offer any testimony suggesting that one cause of his damages was more likely than the others. Such testimony as to causation, being speculative in nature, would have resulted in a verdict founded upon a series of mere possibilities; and reliance upon a choice of possibilities amounts to nothing more than guesswork. Southern Bell Tel. & Tel. Co. v. West, 100 N.C. App. 668, 397 S.E.2d 765, 1990 N.C. App. LEXIS 1136 (1990), aff'd, 328 N.C. 566 , 402 S.E.2d 409, 1991 N.C. LEXIS 248 (1991).

Denial of Directed Verdict. —

If there is more than a scintilla of evidence supporting each element of the nonmovant’s case, the motion for directed verdict should be denied. Snead v. Holloman, 101 N.C. App. 462, 400 S.E.2d 91, 1991 N.C. App. LEXIS 85 (1991).

A directed verdict for the defendant is not properly allowed unless it appears as a matter of law that a recovery cannot be had by the plaintiff upon any view of the facts which the evidence reasonably tends to establish; a motion for judgment notwithstanding the verdict is essentially a renewal of a motion for directed verdict and the rules regarding the sufficiency of the evidence to go to the jury are equally applicable. Kremer v. Food Lion, Inc., 102 N.C. App. 291, 401 S.E.2d 837, 1991 N.C. App. LEXIS 295 (1991).

Directed Verdict Improperly Denied on Causation Issue. —

The defendant psychiatrist’s alleged negligence in treating and diagnosing the plaintiff who suffered from schizophrenia was not the proximate cause of plaintiff’s injuries (plaintiff was shot in the leg and confined to a mental institution after killing two people), and therefore he was entitled to a directed verdict and JNOV. Williamson v. Liptzin, 141 N.C. App. 1, 539 S.E.2d 313, 2000 N.C. App. LEXIS 1276 (2000).

Directed Verdict Improper Where Defendant Had Not Offered All His Evidence. —

Trial judge erred in determining as a matter of law that a separation/property settlement agreement was unconscionable before defendant had the opportunity to offer all of his evidence concerning the validity of the agreement. Garris v. Garris, 92 N.C. App. 467, 374 S.E.2d 638, 1988 N.C. App. LEXIS 1077 (1988).

Or His Evidence Is Sufficient to Survive Motion. —

Plaintiffs’ evidence tending to establish a prescriptive easement was sufficient to survive defendants’ motions for directed verdict and for judgment notwithstanding the verdict and the trial court properly dismissed defendants’ counterclaim. Mecimore v. Cothren, 109 N.C. App. 650, 428 S.E.2d 470, 1993 N.C. App. LEXIS 372 (1993).

Testimony by clinical psychologist which indicated that conduct violated the standard of care as it related to clinical assistants in substance abuse hospitals in similar communities and which indicated that victim suffered severe emotional distress as a result was sufficient to withstand a directed verdict. Johnson v. Amethyst Corp., 120 N.C. App. 529, 463 S.E.2d 397, 1995 N.C. App. LEXIS 919 (1995).

Question Presented on Appeal of Directed Verdict. —

On appeal of a motion granting directed verdict, the reviewing court is confronted with the identical task as the trial court, that is, to determine whether the evidence, when considered in the light most favorable to the nonmovant, was sufficient to have been submitted to the jury. Harshbarger v. Murphy, 90 N.C. App. 393, 368 S.E.2d 450, 1988 N.C. App. LEXIS 534 (1988).

Trial judge was held to have authority to direct verdict of his own initiative; however, mindful of the low evidentiary threshold necessary to take a case to the jury, and also of the detailed procedure outlined in this rule, which presumes the use of a motion before a verdict is directed, the court of appeals did not encourage the frequent use of this practice, and cautioned trial judges to use it sparingly. L. Harvey & Son Co. v. Jarman, 76 N.C. App. 191, 333 S.E.2d 47, 1985 N.C. App. LEXIS 3849 (1985).

Motion for Directed Verdict Properly Granted. —

Defendant presented ample evidence of plaintiffs’ breach of fiduciary duty; accordingly, the trial court did not err in denying plaintiffs’ motion for a directed verdict at the close of defendant’s evidence. Powell v. Omli, 110 N.C. App. 336, 429 S.E.2d 774, 1993 N.C. App. LEXIS 521 (1993).

In an action for injuries arising from an automobile accident, a directed verdict was properly granted as the injured party’s contributory negligence was shown without the necessity of submitting the question to a jury because, viewed most favorably to the injured party, the evidence showed he stopped at a stop sign and looked left and right, but failed to look at an exit ramp from which the motorist who struck him approached the intersection where the accident occurred, before entering the intersection. Williams v. Davis, 157 N.C. App. 696, 580 S.E.2d 85, 2003 N.C. App. LEXIS 936 (2003).

Where an employer’s independent contractor assaulted victims after breaking into their house, but the contractor did not meet the victims as a result of his relationship with the employer, and the employer received no benefit from “meeting” between the contractor and the victims, the employer owed no duty to the victims, the victims’ negligent hiring claim against the employer was not proven, and the trial court properly granted the employer’s motion for a directed verdict. Little v. Omega Meats I, Inc., 171 N.C. App. 583, 615 S.E.2d 45, 2005 N.C. App. LEXIS 1318 , aff'd, 360 N.C. 164 , 622 S.E.2d 494, 2005 N.C. LEXIS 1313 (2005).

Directed verdict in favor of a manufacturing plant, a maintenance company, and its successor on the issue of punitive damages was upheld on appeal, because plaintiff workers failed to demonstrate any willful or wanton misconduct with regard to their exposure to asbestos when they removed insulation. The trial court’s reduction of the workers’ compensatory damages awards was also upheld on appeal, because the workers received prior workers’ compensation claim settlements and prior third-party settlement amounts and were entitled to only one recovery for their asbestos exposure. Schenk v. HNA Holdings, Inc., 170 N.C. App. 555, 613 S.E.2d 503, 2005 N.C. App. LEXIS 1067 (2005).

Motion for Directed Verdict Improperly Granted. —

See Calhoun v. Calhoun, 76 N.C. App. 305, 332 S.E.2d 734, 1985 N.C. App. LEXIS 3872 (1985).

Even though defendant had pled guilty to manslaughter, evidence of his plea was only some evidence in civil proceeding, and did not justify a directed verdict for plaintiff on the issue of defendant’s negligence. Young v. Warren, 95 N.C. App. 585, 383 S.E.2d 381, 1989 N.C. App. LEXIS 829 (1989).

Where driver ran into horse and rider who claimed not to have had time to get out of the way, the trial court improperly granted the defendant’s motion for directed verdict as to the issues of contributory negligence and willful and wanton conduct. Wilburn v. Honeycutt, 135 N.C. App. 373, 519 S.E.2d 774, 1999 N.C. App. LEXIS 1049 (1999).

Wife was not entitled to a directed verdict under Rule 50(a) in the husband’s malicious prosecution claim; there was sufficient evidence of special damages to establish malicious prosecution where the wife had improperly sought and received an ex parte protective order against husband, as the order substantially interfered with husband’s person and property. Alexander v. Alexander, 152 N.C. App. 169, 567 S.E.2d 211, 2002 N.C. App. LEXIS 898 (2002).

It was error to direct a verdict for a seller in an unfair and deceptive trade practices action because the buyers alleged that the seller committed an injurious unfair or deceptive act in or affecting commerce by changing the size of a subdivision lot that the buyers had purchased after the buyers relied upon the lot size as staked and were denied a plat record before signing a contract. Brotherton v. Point on Norman, LLC, 156 N.C. App. 577, 577 S.E.2d 361, 2003 N.C. App. LEXIS 241 (2003).

Trial court erred in granting a directed verdict to the seller on the buyers’ fraud claim related to a real estate sale, as more than a scintilla of evidence existed to support the element that the buyers reasonably relied on the seller’s alleged misrepresentations regarding the property, especially since the jury could find that the seller’s misrepresentations would have led a reasonable person to have foregone any further investigation. Little v. Stogner, 162 N.C. App. 25, 592 S.E.2d 5, 2004 N.C. App. LEXIS 13 (2004).

Granting of a directed verdict under G.S. 1A-1 , N.C. R. Civ. P. 50 in favor of a brokerage service in a broker’s breach of contract action against it was improper because the broker presented sufficient evidence of a breach of contract for the case to be submitted to the jury. He offered evidence of the material terms of a commission agreement between the parties, evidence that he performed his obligations, and evidence that the brokerage service later brokered the sale of the property at issue and earned a sizeable commission that it failed to split with him. Maxwell v. Michael P. Doyle, Inc., 164 N.C. App. 319, 595 S.E.2d 759, 2004 N.C. App. LEXIS 822 (2004).

Appellate court held that North Carolina recognized a claim for wrongful discharge in violation of public policy even though the discharge was constructive, and it reversed the trial court’s judgment granting an employer’s motion for a directed verdict on a former employee’s claim that the employer tolerated a hostile work environment and was responsible for her decision to quit her job. Whitt v. Harris Teeter, Inc., 165 N.C. App. 32, 598 S.E.2d 151, 2004 N.C. App. LEXIS 1160 (2004), rev'd, 359 N.C. 625 , 614 S.E.2d 531, 2005 N.C. LEXIS 638 (2005).

In a medical malpractice action based on the negligence of the labor and delivery nurses and the neonatal nurse practitioners, the hospital was not entitled to a directed verdict, as the hospital did not show, as a matter of law, that the neonatal nurses were the intervening cause of the infant’s injuries due to their failure to timely order a blood transfusion, as the labor and delivery nurses did not tell neonatal nurses about blood loss. Pope v. Cumberland County Hosp. Sys., 171 N.C. App. 748, 615 S.E.2d 715, 2005 N.C. App. LEXIS 1357 (2005).

Caveators alleged a second will, the original of which was lost, revoked the testator’s earlier will pursuant to G.S. 31-5.1 , as they presented evidence that the testator was not responsible for the loss of the later will, and they rebutted the presumption that it was destroyed; therefore, the trial court erred in granting the propounder of the first will a directed verdict under G.S. 1A-1-50. In re Will of McFayden, 179 N.C. App. 595, 635 S.E.2d 65, 2006 N.C. App. LEXIS 2053 (2006).

Motion for Directed Verdict Properly Denied. —

The trial court properly denied the plaintiffs’ directed verdict motion where the record reflected that a truck suddenly crossed in front of the defendant’s automobile, causing him to brake and swerve to his right to avoid colliding with it, whereupon he struck the plaintiffs’ vehicle as she was turning into the driveway of her son’s residence, and although plaintiffs presented conflicting evidence as to defendant’s speed and opportunity to avoid the collision, defendant’s showing permitted the inference that he was not negligent. Long v. Harris, 137 N.C. App. 461, 528 S.E.2d 633, 2000 N.C. App. LEXIS 415 (2000).

A directed verdict for defendant-grocery store was improper for procedural and substantive reasons; issues still existed for the jury to resolve as to whether the defendant was negligent and whether the slip-and-fall plaintiff was contributorily negligent. Stallings v. Food Lion, Inc., 141 N.C. App. 135, 539 S.E.2d 331, 2000 N.C. App. LEXIS 1281 (2000).

Trial court’s denial of defendant’s motions pursuant to this section and the court’s order concluding the settlement between plaintiff patient and the defendant doctor and medical center was in good faith, and dismissing those defendants to the detriment of the defendant pharmacy was not “manifestly unsupported by reason” or “so arbitrary that it could not have been the result of a reasoned decision.” Brooks v. Wal-Mart Stores, Inc., 139 N.C. App. 637, 535 S.E.2d 55, 2000 N.C. App. LEXIS 1038 (2000).

Trial court properly denied a motion for directed verdict in a trial involving ownership of real property as the party opposing the motion presented sufficient evidence of each element of their claim of adverse possession to survive the motion. Lancaster v. Maple St. Homeowners Ass'n, 156 N.C. App. 429, 577 S.E.2d 365, 2003 N.C. App. LEXIS 194 , aff'd, 357 N.C. 571 , 597 S.E.2d 672, 2003 N.C. LEXIS 1268 (2003).

Trial court properly denied one partner’s motion for a directed verdict as the other partners presented sufficient evidence of the partner’s breach of a partnership agreement, breach of fiduciary duty, constructive fraud, and unfair and deceptive trade practices to withstand the motion. Compton v. Kirby, 157 N.C. App. 1, 577 S.E.2d 905, 2003 N.C. App. LEXIS 369 (2003).

Trial court did not err in denying the one business partner’s motion to dismiss, for a directed verdict, or for judgment notwithstanding the verdict on the second business partner’s counterclaim alleging constructive fraud and breach of contract, as the evidence the second business partner introduced at trial showed that the parties were business partners, which was a fiduciary relationship as a matter of law, and evidence that the one business partner breached his fiduciary duty to the second business partner showed that the one business partner committed constructive fraud. Marketplace Antique Mall, Inc. v. Lewis, 163 N.C. App. 596, 594 S.E.2d 121, 2004 N.C. App. LEXIS 415 (2004).

Trial court properly denied employers’ motion for directed verdict because the employee proffered sufficient evidence to support his causes of action for breach of contract and violation of the North Carolina Wage and Hour Act, G.S. 95-25.1 et seq. The evidence offered by the employee was that: (1) the employers’ representative orally agreed to pay the employee an annual bonus as part of a contract; (2) the employers modified the employee’s bonus formula without his consent; and (3) the employers failed to give the employee notice of the change in the bonus formula. Arndt v. First Union Nat'l Bank, 170 N.C. App. 518, 613 S.E.2d 274, 2005 N.C. App. LEXIS 1080 (2005).

Denial of neighbors’ motion for a directed verdict at the close of all of the evidence was proper as: (1) the properties were severed from common ownership in 1943; (2) there was no evidence that the owners’ predecessors had public road access to their parcel by means other than a gravel road over the neighbors’ property; (3) the road over the neighbors’ property had been used by all of the owners’ predecessors as a means of ingress and egress; (4) the owners met their burden of showing that an easement by necessity arose upon the severance of their parcel from common ownership; and (5) the jury found that the common owners intended the owners’ predecessors and their successors to have a right to use the road in the same manner and to the same extent as the owners’ predecessors used it. Boggess v. Spencer, 173 N.C. App. 614, 620 S.E.2d 10, 2005 N.C. App. LEXIS 2114 (2005).

Where a mail carrier alleged negligence regarding a car accident that occurred while they were driving in opposite directions in a curve on a narrow road, the mail carrier’s motion for a directed verdict was properly denied because there was sufficient evidence of the mail carrier’s contributory negligence to submit the issue to the jury since a trooper’s testimony tended to show that both vehicles skidded approximately the same distance before impact and that neither party exercised proper control of their vehicles. Seay v. Snyder, 181 N.C. App. 248, 638 S.E.2d 584, 2007 N.C. App. LEXIS 94 (2007).

Evidence established more than a scintilla of evidence supporting each element of a husband’s alienation of affections claim against an individual, and the trial court did not err in denying the individual’s motion for a directed verdict; evidence showed that the individual engaged in conduct, such as encouraging the husband’s wife’s adulterous relationship and preventing communication between the husband and the wife, that would probably affect the husband’s marital relationship with the wife. Heller v. Somdahl, 206 N.C. App. 313, 696 S.E.2d 857, 2010 N.C. App. LEXIS 1437 (2010).

Trial court properly denied defendant’s motion for a directed verdict under G.S. 1A-1 , N.C. R. Civ. P. 50(a), and submitted the breach of contract claim to the jury because defendant submitted more than a scintilla of evidence that plaintiff’s paving job did not comply with the terms of the paving contract; plaintiff failed to address the second requirement of the paving contract regarding the thickness of the stone base. J.T. Russell & Sons, Inc. v. Silver Birch Pond L.L.C., 217 N.C. App. 290, 721 S.E.2d 699, 2011 N.C. App. LEXIS 2421 (2011).

Motion for Directed Verdict Improperly Denied. —

Trial court incorrectly denied defendants’ motions under subsection (a) of this rule: G.S. 20-71.1 merely provides prima facie evidence of motor vehicle ownership but does not remove the plaintiff’s burden of proof as to agency which, in this case, he failed to carry as to the first defendant and which issue the court removed in error from the jury as to the second defendant. Winston v. Brodie, 134 N.C. App. 260, 517 S.E.2d 203, 1999 N.C. App. LEXIS 745 (1999).

Jury award to the victim of a dog bite was vacated as the trial court erred by not granting the defendants’ motion for a directed verdict because the victim failed to establish that the defendants that the victim sued were the owners or the keepers of the dog that bit the victim, rather the evidence showed that it was the defendant’s son and the son’s girlfriend that owned the dog that bit the victim. Lee v. Rice, 154 N.C. App. 471, 572 S.E.2d 219, 2002 N.C. App. LEXIS 1446 (2002).

Nursing home and related entities were entitled to a directed verdict as well as a judgment notwithstanding the verdict in an estate representative’s negligence suit for a decedent’s death because the representative’s experts testified about a national standard of care, but they did not establish the standard of care applicable to the nursing home’s community. Hawkins v. SSC Hendersonville Operating Co., LLC, 202 N.C. App. 707, 690 S.E.2d 35, 2010 N.C. App. LEXIS 361 (2010), writ denied, 365 N.C. 87 , 706 S.E.2d 248, 2011 N.C. LEXIS 125 (2011).

Trial court erred in denying a county’s motion for a directed verdict pursuant to G.S. 1A-1 , Rule 50, in an action by a retired police officer seeking continuation of insurance payments by the county; individual county commissioners did not have authority to bind the county to such payments pursuant to G.S. 153A-92 or G.S. 153A-11 , and a county manager did not did not have authority pursuant to G.S. 153A-82 to bind the county to an agreement to pay the insurance premiums without an express delegation of power by the Board of County Commissioners. Denson v. Richmond County, 159 N.C. App. 408, 583 S.E.2d 318, 2003 N.C. App. LEXIS 1498 (2003).

Evidence Sufficient to Put Issue to Jury. —

Because the cohabitant provided numerous benefits to the property owner, as, inter alia, she improved his property by helping to build a home, she also assisted him in improving his garage, she worked alongside him in his business, kept up his home, raised his child and grandchild, and relied on his promise that she would share in the results of their mutual efforts in the business and property ownership, she presented sufficient evidence to infer that the parties conducted their daily lives as a partnership; thus, the property owner was not entitled to a directed verdict under N.C. R. Civ. P. 50. Rhue v. Rhue, 189 N.C. App. 299, 658 S.E.2d 52, 2008 N.C. App. LEXIS 542 (2008).

An order denying a motion for directed verdict following a mistrial is not appealable based on the reasoning that such orders are interlocutory and do not affect a substantial right of the movant. Samia v. A.J. Ballard, Jr. Tire & Oil Co., 25 N.C. App. 601, 214 S.E.2d 222, 1975 N.C. App. LEXIS 2334 (1975).

Appellate Review of Motion. —

Because defendant failed to assert the insufficiency of the evidence to support plaintiffs’ action for trespass or an award of actual damages as grounds for his motion for a directed verdict, defendant waived his right to appellate review of these issues. Lee v. Bir, 116 N.C. App. 584, 449 S.E.2d 34, 1994 N.C. App. LEXIS 1068 (1994), cert. denied, 340 N.C. 113 , 454 S.E.2d 652, 1995 N.C. LEXIS 124 (1995).

Raising of Issues on Appeal. —

When a specific ground for a directed verdict is not stated in the original motion, it cannot be raised on appeal; even the sufficiency of the evidence cannot be raised for the first time on appeal. Lee v. Keck, 68 N.C. App. 320, 315 S.E.2d 323, 1984 N.C. App. LEXIS 3322 (1984).

Scope of Review on Appeal. —

On review of a directed verdict, appellate review is usually limited to those grounds asserted by the movant upon making his motion before the trial judge. Warren v. Canal Indus., Inc., 61 N.C. App. 211, 300 S.E.2d 557, 1983 N.C. App. LEXIS 2650 (1983).

Where a party moves for a directed verdict, the trial court must determine whether the evidence, when considered in the light most favorable to the nonmovant, is sufficient to take the case to the jury. Upon appeal, the scope of review is limited to those grounds asserted by the moving party before the trial court. Southern Bell Tel. & Tel. Co. v. West, 100 N.C. App. 668, 397 S.E.2d 765, 1990 N.C. App. LEXIS 1136 (1990), aff'd, 328 N.C. 566 , 402 S.E.2d 409, 1991 N.C. LEXIS 248 (1991).

In reviewing a grant of directed verdict, an appellate court may consider all of the grounds specifically stated by the moving party in its motion to the trial court. Merrick v. Peterson, 143 N.C. App. 656, 548 S.E.2d 171, 2001 N.C. App. LEXIS 342 (2001).

The question presented on appeal of the granting of a motion for a directed verdict is whether the evidence, taken in the light most favorable to the appellant, is sufficient for submission of the case to the jury. Hitchcock v. Cullerton, 82 N.C. App. 296, 346 S.E.2d 215, 1986 N.C. App. LEXIS 2426 (1986).

Appellate Court to Consider All Relevant Evidence. —

All relevant evidence admitted by the trial court, whether competent or not, must be accorded its full probative force in determining the correctness of its ruling upon a motion for judgment as of nonsuit. Jenkins v. Starrett Corp., 13 N.C. App. 437, 186 S.E.2d 198, 1972 N.C. App. LEXIS 2261 (1972); Beal v. K.H. Stephenson Supply Co., 36 N.C. App. 505, 244 S.E.2d 463, 1978 N.C. App. LEXIS 2536 (1978).

Without Regard to Trial Court’s Purported “Findings” and “Conclusions.” —

To pass upon the single question of law presented, namely, the sufficiency of plaintiff ’s evidence to withstand defendant’s motion for a directed verdict, the appellate court must look to the evidence and base its decision thereon, without regard to the trial court’s “findings of fact” and “conclusions of law.” Sink v. Sink, 11 N.C. App. 549, 181 S.E.2d 721, 1971 N.C. App. LEXIS 1576 (1971).

But Must Accept Testimony of Plaintiff ’s Witnesses at Face Value. —

In passing upon a motion for a judgment notwithstanding the verdict based upon it, the testimony of plaintiff ’s witnesses must be accepted as face value by the appellate court. Rayfield v. Clark, 283 N.C. 362 , 196 S.E.2d 197, 1973 N.C. LEXIS 967 (1973); McCollum v. Grove Mfg. Co., 58 N.C. App. 283, 293 S.E.2d 632, 1982 N.C. App. LEXIS 2770 (1982), aff'd, 307 N.C. 695 , 300 S.E.2d 374, 1983 N.C. LEXIS 1116 (1983).

On defendant’s motion for directed verdict, the testimony of the plaintiff ’s witnesses must be accepted at face value. McCollum v. Grove Mfg. Co., 58 N.C. App. 283, 293 S.E.2d 632, 1982 N.C. App. LEXIS 2770 (1982), aff'd, 307 N.C. 695 , 300 S.E.2d 374, 1983 N.C. LEXIS 1116 (1983).

All Evidence Given Full Probative Force. —

On a motion for directed verdict, all evidence admitted, whether competent or not, must be given full probative force. McCollum v. Grove Mfg. Co., 58 N.C. App. 283, 293 S.E.2d 632, 1982 N.C. App. LEXIS 2770 (1982), aff'd, 307 N.C. 695 , 300 S.E.2d 374, 1983 N.C. LEXIS 1116 (1983).

Effect of Voluntary Dismissal with Prejudice on Appeal. —

In wrongful death action, plaintiffs’ voluntary dismissal with prejudice of the issue of negligence, upon which all of their claims were based, rendered their appeal of directed verdict moot. Bailey v. Gitt, 135 N.C. App. 119, 518 S.E.2d 794, 1999 N.C. App. LEXIS 920 (1999).

B.Statement of Specific Grounds

Subsection (a) requires that a motion for directed verdict state specific grounds for the motion; failure to state such grounds is not a basis for an automatic reversal of the directed verdict on appeal. In re Will of Jones, 114 N.C. App. 782, 443 S.E.2d 363, 1994 N.C. App. LEXIS 494 (1994).

A motion for directed verdict must state the grounds therefor; otherwise, error may not be urged on appeal. Hall v. Mabe, 77 N.C. App. 758, 336 S.E.2d 427, 1985 N.C. App. LEXIS 4372 (1985).

Requirement That Specific Grounds Be Stated in Motion for Directed Verdict Is Mandatory. —

The provision of this rule which requires that “specific grounds” shall be stated in a motion for a directed verdict is mandatory. Wheeler v. Denton, 9 N.C. App. 167, 175 S.E.2d 769, 1970 N.C. App. LEXIS 1304 (1970); Turner v. Turner, 9 N.C. App. 336, 176 S.E.2d 24, 1970 N.C. App. LEXIS 1353 (1970); Worrell v. Hennis Credit Union, 12 N.C. App. 275, 182 S.E.2d 874, 1971 N.C. App. LEXIS 1344 (1971); Hensley v. Ramsey, 283 N.C. 714 , 199 S.E.2d 1, 1973 N.C. LEXIS 1062 (1973); Anderson v. Butler, 284 N.C. 723 , 202 S.E.2d 585, 1974 N.C. LEXIS 1337 (1974), overruled in part, Nelson v. Freeland, 349 N.C. 615 , 507 S.E.2d 882, 1998 N.C. LEXIS 849 (1998); Clary v. Alexander County Bd. of Educ., 286 N.C. 525 , 212 S.E.2d 160, 1975 N.C. LEXIS 1248 (1975); Love v. Pressley, 34 N.C. App. 503, 239 S.E.2d 574, 1977 N.C. App. LEXIS 1762 (1977), cert. denied, 294 N.C. 441 , 241 S.E.2d 843, 1978 N.C. LEXIS 1266 (1978); Byerly v. Byerly, 38 N.C. App. 551, 248 S.E.2d 433, 1978 N.C. App. LEXIS 2237 (1978); Lindsey v. Clinic for Women, 40 N.C. App. 456, 253 S.E.2d 304, 1979 N.C. App. LEXIS 2302 (1979); Jones v. Allred, 52 N.C. App. 38, 278 S.E.2d 521, 1981 N.C. App. LEXIS 2312 , aff'd, 304 N.C. 387 , 283 S.E.2d 517, 1981 N.C. LEXIS 1349 (1981).

Purpose of the rule that specific grounds for the motion be stated is to apprise the court and the adverse parties of movants’ grounds for the motion. Anderson v. Butler, 284 N.C. 723 , 202 S.E.2d 585, 1974 N.C. LEXIS 1337 (1974), overruled in part, Nelson v. Freeland, 349 N.C. 615 , 507 S.E.2d 882, 1998 N.C. LEXIS 849 (1998); Feibus Co. v. Godley Constr. Co., 301 N.C. 294 , 271 S.E.2d 385, 1980 N.C. LEXIS 1175 (1980).

The courts need not inflexibly enforce the rule as to stating specific grounds when the grounds for the motion are apparent to the court and the parties. Anderson v. Butler, 284 N.C. 723 , 202 S.E.2d 585, 1974 N.C. LEXIS 1337 (1974), overruled in part, Nelson v. Freeland, 349 N.C. 615 , 507 S.E.2d 882, 1998 N.C. LEXIS 849 (1998); Hodges v. Hodges, 37 N.C. App. 459, 246 S.E.2d 812, 1978 N.C. App. LEXIS 2790 (1978); Lindsey v. Clinic for Women, 40 N.C. App. 456, 253 S.E.2d 304, 1979 N.C. App. LEXIS 2302 (1979); Heist v. Heist, 46 N.C. App. 521, 265 S.E.2d 434, 1980 N.C. App. LEXIS 2851 (1980); Humphrey v. Hill, 55 N.C. App. 359, 285 S.E.2d 293, 1982 N.C. App. LEXIS 2197 (1982).

While the better practice is to state specific grounds for a motion for directed verdict, it is not necessary where the issue is identified and the grounds for the motion are apparent to the court and the parties. Smith v. Price, 74 N.C. App. 413, 328 S.E.2d 811, 1985 N.C. App. LEXIS 3503 (1985), aff'd in part and rev'd in part, 315 N.C. 523 , 340 S.E.2d 408, 1986 N.C. LEXIS 1905 (1986).

The purpose of the “specific grounds” requirement of section (a) of this rule is to allow the adverse party to meet any defects with further proof and avoid the entry of a judgment notwithstanding the verdict at the close of the trial on a ground that could have been met with proof had it been suggested earlier. Byerly v. Byerly, 38 N.C. App. 551, 248 S.E.2d 433, 1978 N.C. App. LEXIS 2237 (1978); Nelson v. Chin Yung Chang, 78 N.C. App. 471, 337 S.E.2d 650, 1985 N.C. App. LEXIS 4313 (1985).

The better practice is to set forth the specific grounds in a written motion. If the movant relies upon an oral statement for such specific grounds, a transcript thereof must be incorporated in the case on appeal. Hensley v. Ramsey, 283 N.C. 714 , 199 S.E.2d 1, 1973 N.C. LEXIS 1062 (1973); Burden Pallet Co. v. Ryder Truck Rental, Inc., 49 N.C. App. 286, 271 S.E.2d 96, 1980 N.C. App. LEXIS 3368 (1980), cert. denied, 301 N.C. 722 , 276 S.E.2d 282, 1981 N.C. LEXIS 1124 (1981).

Citation to Earlier Case Not Approved Method of Complying with Requirement. —

A motion for a directed verdict, “citing the case of Blake v. Mallard, decided by Justice Sharp in 1964,” is certainly not an approved method of complying with the requirement that “a motion for a directed verdict shall state the specific grounds therefor.” Grant v. Greene, 11 N.C. App. 537, 181 S.E.2d 770, 1971 N.C. App. LEXIS 1573 (1971).

Failure to State Grounds as Sufficient Basis for Overruling Motion. —

A defendant’s failure to state the grounds for his motions for a directed verdict is sufficient basis for the court’s overruling them. Dixon v. Shelton, 9 N.C. App. 392, 176 S.E.2d 390, 1970 N.C. App. LEXIS 1364 (1970); Byerly v. Byerly, 38 N.C. App. 551, 248 S.E.2d 433, 1978 N.C. App. LEXIS 2237 (1978).

Defendants’ failure to restate specific grounds for their motion at the close of all the evidence would not be deemed fatal where it must have been apparent to the court and to the plaintiff that their motion was a renewal of the motion previously made, this time challenging the sufficiency of all the evidence on the grounds previously stated. Hodges v. Hodges, 37 N.C. App. 459, 246 S.E.2d 812, 1978 N.C. App. LEXIS 2790 (1978).

Failure to Renew Motion Following Opponent’s Additional Evidence Held Fatal to Appeal. —

Where defendant failed to renew a motion for a directed verdict following plaintiff ’s additional evidence, the Court of Appeals would not pass upon the sufficiency of the evidence to survive a motion for a directed verdict. Gragg v. Burns, 9 N.C. App. 240, 175 S.E.2d 774, 1970 N.C. App. LEXIS 1323 (1970).

Grounds Should Be Included in Record on Appeal. —

Litigants would be well advised to include in the record the specific grounds stated in the motion for a directed verdict. A failure to do so could result in a dismissal of the appeal. Davis v. Peacock, 10 N.C. App. 256, 178 S.E.2d 133, 1970 N.C. App. LEXIS 1247 (1970), cert. denied, 277 N.C. 725 , 178 S.E.2d 832, 1971 N.C. LEXIS 1072 (1971).

Appellant who fails to state specific grounds is not entitled upon appeal to question the insufficiency of the evidence to support the verdict. Wheeler v. Denton, 9 N.C. App. 167, 175 S.E.2d 769, 1970 N.C. App. LEXIS 1304 (1970); Builders Supplies Co. v. Gainey, 10 N.C. App. 364, 178 S.E.2d 794, 1971 N.C. App. LEXIS 1636 , cert. denied, 278 N.C. 300 , 180 S.E.2d 178, 1971 N.C. LEXIS 973 (1971).

If the court denies a motion for a directed verdict which fails to state the specific grounds for the motion, the moving party may not complain of the denial on appeal. Pergerson v. Williams, 9 N.C. App. 512, 176 S.E.2d 885, 1970 N.C. App. LEXIS 1395 (1970).

A motion for directed verdict must state the grounds therefor, and grounds not asserted in the trial court may not be asserted on appeal. Broyhill v. Coppage, 79 N.C. App. 221, 339 S.E.2d 32, 1986 N.C. App. LEXIS 2048 (1986).

Party Not Objecting Below to Failure to State Grounds Precluded from Objecting on Appeal. —

If the court grants a motion for a directed verdict which fails to state the specific grounds for the motion, the adverse party who did not object to failure of the motion to state specific grounds therefor cannot raise such objection in the appellate court. Pergerson v. Williams, 9 N.C. App. 512, 176 S.E.2d 885, 1970 N.C. App. LEXIS 1395 (1970); Builders Supplies Co. v. Gainey, 10 N.C. App. 364, 178 S.E.2d 794, 1971 N.C. App. LEXIS 1636 , cert. denied, 278 N.C. 300 , 180 S.E.2d 178, 1971 N.C. LEXIS 973 (1971); Byerly v. Byerly, 38 N.C. App. 551, 248 S.E.2d 433, 1978 N.C. App. LEXIS 2237 (1978); Snipes v. Snipes, 55 N.C. App. 498, 286 S.E.2d 591, 1982 N.C. App. LEXIS 2256 , aff'd, 306 N.C. 373 , 293 S.E.2d 187, 1982 N.C. LEXIS 1450 (1982).

Upholding of Directed Verdict by Court of Appeals on Different Ground Improper. —

The Court of Appeals erred in upholding a directed verdict for defendants on a ground different from that upon which the trial court reached its decision when the ground relied upon by the Court of Appeals was not stated in defendant’s motion or argument on the motion in the trial court. Feibus Co. v. Godley Constr. Co., 301 N.C. 294 , 271 S.E.2d 385, 1980 N.C. LEXIS 1175 (1980).

Grounds Found Adequate. —

Plaintiff’s assignment of error to the trial court’s refusal to submit an issue of punitive damages to the jury encompassed the trial court’s grant, during the jury charge conference, of plaintiff’s motion for a directed verdict on the issue of punitive damages and adequately preserved that issue for review. McNeill v. Holloway, 141 N.C. App. 109, 539 S.E.2d 309, 2000 N.C. App. LEXIS 1279 (2000).

III.Judgment Notwithstanding the Verdict and New Trial.

Editor’s Note. —

See also the annotations appearing under Analysis line II, Directed Verdict, above.

What Is Motion for Judgment N.O.V. —

The motion for judgment n.o.v. is a motion that judgment be entered in accordance with the movant’s earlier motion for a directed verdict, notwithstanding the contrary verdict actually returned by the jury. Summey v. Cauthen, 283 N.C. 640 , 197 S.E.2d 549, 1973 N.C. LEXIS 1029 (1973); Dickinson v. Pake, 284 N.C. 576 , 201 S.E.2d 897, 1974 N.C. LEXIS 1290 (1974); Kaperonis v. Underwriters at Lloyd's, London, 25 N.C. App. 119, 212 S.E.2d 532, 1975 N.C. App. LEXIS 2201 (1975); Nytco Leasing, Inc. v. Southeastern Motels, Inc., 40 N.C. App. 120, 252 S.E.2d 826, 1979 N.C. App. LEXIS 2614 (1979); Johnson v. Robert Dunlap & Racing, Inc., 53 N.C. App. 312, 280 S.E.2d 759, 1981 N.C. App. LEXIS 2597 (1981), cert. denied, 305 N.C. 153 , 289 S.E.2d 380, 1982 N.C. LEXIS 1357 (1982); Northern Nat'l Life Ins. Co. v. Lacy J. Miller Mach. Co., 311 N.C. 62 , 316 S.E.2d 256, 1984 N.C. LEXIS 1718 (1984); DeHart v. R/S Fin. Corp., 78 N.C. App. 93, 337 S.E.2d 94, 1985 N.C. App. LEXIS 4264 (1985); Streeter v. Cotton, 133 N.C. App. 80, 514 S.E.2d 539, 1999 N.C. App. LEXIS 338 (1999).

A motion for judgment notwithstanding the verdict is technically a renewal of the motion for a directed verdict. Harvey v. Norfolk S. Ry., 60 N.C. App. 554, 299 S.E.2d 664, 1983 N.C. App. LEXIS 2485 (1983); Northern Nat'l Life Ins. Co. v. Lacy J. Miller Mach. Co., 311 N.C. 62 , 316 S.E.2d 256, 1984 N.C. LEXIS 1718 (1984); Penley v. Penley, 314 N.C. 1 , 332 S.E.2d 51, 1985 N.C. LEXIS 1706 (1985).

A motion for judgment notwithstanding the verdict is essentially the renewal of prior motion for a directed verdict. Therefore, rules regarding the sufficiency of the evidence to go to the jury are equally applicable to a motion that judgment be entered in accordance with the movant’s earlier motion for a directed verdict, notwithstanding the contrary verdict reached by the jury. Henderson v. Traditional Log Homes, Inc., 70 N.C. App. 303, 319 S.E.2d 290, 1984 N.C. App. LEXIS 3651 (1984).

A motion for judgment notwithstanding the verdict, or judgment N.O.V., is in effect a directed verdict granted after the jury verdict. Bryant v. Nationwide Mut. Fire Ins. Co., 67 N.C. App. 616, 313 S.E.2d 803, 1984 N.C. App. LEXIS 3109 (1984), aff'd in part and rev'd in part, 313 N.C. 362 , 329 S.E.2d 333, 1985 N.C. LEXIS 1541 (1985).

A motion under section (b) of this rule is essentially a renewal of an earlier motion for a directed verdict. Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362 , 329 S.E.2d 333, 1985 N.C. LEXIS 1541 (1985).

A motion for judgment pursuant to subdivision (b)(1) is essentially a renewal of an earlier motion for a directed verdict. Cook v. Wake County Hosp. Sys., 125 N.C. App. 618, 482 S.E.2d 546, 1997 N.C. App. LEXIS 221 (1997); Couch v. Private Diagnostic Clinic, 133 N.C. App. 93, 515 S.E.2d 30, 1999 N.C. App. LEXIS 370 , cert. denied, 350 N.C. 827 , 537 S.E.2d 816, 1999 N.C. LEXIS 820 (1999), aff'd, 351 N.C. 92 , 520 S.E.2d 785, 1999 N.C. LEXIS 1157 (1999).

The purpose of the rule which makes a specific directed verdict motion a prerequisite for a judgment notwithstanding the verdict is to allow the adverse party to meet any defects in his case with further proof and thus avoid the entry of a judgment n.o.v. at the close of the trial on a ground that could have been met with proof had it been suggested earlier. Garrison v. Garrison, 87 N.C. App. 591, 361 S.E.2d 921, 1987 N.C. App. LEXIS 3272 (1987).

The availability of a motion for a judgment notwithstanding the verdict constitutes an innovation in the civil procedure of this State. Formerly, a motion for nonsuit made under the provisions of former G.S. 1-183 could not be allowed after verdict for insufficiency of the evidence. Musgrave v. Mutual Sav. & Loan Ass'n, 8 N.C. App. 385, 174 S.E.2d 820, 1970 N.C. App. LEXIS 1574 (1970).

When Subsection (b)(1) Is Applicable. —

The language of subsection (b)(1) of this rule presupposes that its provisions are applicable only to situations in which the party moving for a directed verdict has his motion denied and the verdict of the jury is adverse to his position. Hathcock v. Lowder, 16 N.C. App. 255, 192 S.E.2d 124, 1972 N.C. App. LEXIS 1684 , cert. denied, 282 N.C. 426 , 192 S.E.2d 836, 1972 N.C. LEXIS 978 (1972).

This rule contemplates that any party may move for a directed verdict at the close of all the evidence. When such motion is made by any party and denied, or for any reason not granted, and the jury returns a verdict for the nonmovant, the movant may make a motion for judgment notwithstanding the verdict. North Carolina Nat'l Bank v. Burnette, 297 N.C. 524 , 256 S.E.2d 388, 1979 N.C. LEXIS 1399 (1979).

Subsection (b)(1) of this rule allows the grant of a judgment notwithstanding the verdict in favor of a party who has previously moved for a directed verdict. Colony Assocs. v. Fred L. Clapp & Co., 60 N.C. App. 634, 300 S.E.2d 37, 1983 N.C. App. LEXIS 2537 (1983).

Section (b) of this rule authorizes a “reserved directed verdict” motion practice. Hensley v. Ramsey, 283 N.C. 714 , 199 S.E.2d 1, 1973 N.C. LEXIS 1062 (1973); Dickinson v. Pake, 284 N.C. 576 , 201 S.E.2d 897, 1974 N.C. LEXIS 1290 (1974).

If the judge denies, or simply does not grant, a motion for directed verdict made at the conclusion of all the evidence and a verdict is then either not returned or is returned against the movant, the judge may then entertain a motion by him for judgment “in accordance with his motion for directed verdict.” Dickinson v. Pake, 284 N.C. 576 , 201 S.E.2d 897, 1974 N.C. LEXIS 1290 (1974).

Reservation of final ruling on a motion for directed verdict affords the basis for the post-verdict motion for judgment n.o.v. Hensley v. Ramsey, 283 N.C. 714 , 199 S.E.2d 1, 1973 N.C. LEXIS 1062 (1973).

Evidence Considered On JNOV Motion. —

Proper procedure for considering a motion for a judgment notwithstanding the verdict at the close of the plaintiff’s evidence is that the trial court may either rule on the motion or reserve its ruling on the motion; by offering evidence, however, a defendant waives its motion for directed verdict made at the close of the plaintiff’s evidence. Accordingly, if a defendant offers evidence after making a motion for directed verdict, any subsequent ruling by the trial judge upon defendant’s motion for directed verdict must be upon a renewal of the motion by the defendant at the close of all the evidence, and the judge’s ruling must be based upon the evidence of both the plaintiff and the defendant. Cox v. Steffes, 161 N.C. App. 237, 587 S.E.2d 908, 2003 N.C. App. LEXIS 2037 (2003).

Motion for Judgment N.O.V. Proper After Submission of Case to Jury. —

After a case has been submitted to a jury, the proper motion to be ruled upon at that time is a motion for judgment notwithstanding the verdict. Hamel v. Young Spring & Wire Corp., 12 N.C. App. 199, 182 S.E.2d 839, 1971 N.C. App. LEXIS 1327 , cert. denied, 279 N.C. 511 , 183 S.E.2d 687, 1971 N.C. LEXIS 868 (1971).

Denial of a motion for directed verdict is not a bar to a motion for judgment notwithstanding the verdict. Investment Properties of Asheville, Inc. v. Allen, 281 N.C. 174 , 188 S.E.2d 441, 1972 N.C. LEXIS 1101 (1972).

Where intervenor did not make a motion for directed verdict at the close of all the evidence, she could not make a motion for judgment notwithstanding the verdict under section (b) of this rule. State ex rel. Thornburg v. Tavern & Other Bldgs. & Lots at 1907 N. Main St., 96 N.C. App. 84, 384 S.E.2d 585, 1989 N.C. App. LEXIS 942 (1989).

Motion for Directed Verdict Prerequisite to Motion for Judgment N.O.V. —

The language of this rule is almost identical to the language of FRCP, Rule 50, and the well-recognized interpretation of this rule is that the making of an appropriate motion for a directed verdict is an absolute prerequisite for the motion for judgment notwithstanding the verdict. Glen Forest Corp. v. Bensch, 9 N.C. App. 587, 176 S.E.2d 851, 1970 N.C. App. LEXIS 1412 (1970).

Motion for judgment n.o.v. must be preceded by a motion for a directed verdict. Whitaker v. Earnhardt, 289 N.C. 260 , 221 S.E.2d 316, 1976 N.C. LEXIS 1249 (1976).

A motion for judgment n.o.v. may be entertained only if the movant has made a motion for a directed verdict at the close of all the evidence. Gibbs v. Duke, 32 N.C. App. 439, 232 S.E.2d 484, 1977 N.C. App. LEXIS 1967 , cert. denied, 292 N.C. 640 , 235 S.E.2d 61, 1977 N.C. LEXIS 1151 (1977); Smith v. Price, 74 N.C. App. 413, 328 S.E.2d 811, 1985 N.C. App. LEXIS 3503 (1985), aff'd in part and rev'd in part, 315 N.C. 523 , 340 S.E.2d 408, 1986 N.C. LEXIS 1905 (1986); Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362 , 329 S.E.2d 333, 1985 N.C. LEXIS 1541 (1985).

Plaintiffs have no standing after the verdict to move for judgment n.o.v. where they did not move for directed verdict at the close of their evidence or at the close of all the evidence. Graves v. Walston, 302 N.C. 332 , 275 S.E.2d 485, 1981 N.C. LEXIS 1058 (1981).

Where a party failed to move for a directed verdict at the close of all the evidence, the motion for judgment notwithstanding the verdict did not meet the requirement of subsection (b)(1) of this rule that a motion for judgment notwithstanding the verdict be supported by a timely motion for directed verdict. Dean v. Nash, 12 N.C. App. 661, 184 S.E.2d 521, 1971 N.C. App. LEXIS 1428 (1971).

Where intervenor did not make a motion for directed verdict at the close of all the evidence, she could not make a motion for judgment notwithstanding the verdict under section (b) of this rule. State ex rel. Thornburg v. Tavern & Other Bldgs. & Lots at 1907 N. Main St., 96 N.C. App. 84, 384 S.E.2d 585, 1989 N.C. App. LEXIS 942 (1989).

Where basis of plaintiff’s motion for JNOV was that evidence clearly established that defendant’s negligence was the proximate cause of his injuries, as proximate cause was not specifically raised by the plaintiff to support the directed verdict motion, JNOV on that basis would not be proper. Lassiter v. English, 126 N.C. App. 489, 485 S.E.2d 840, 1997 N.C. App. LEXIS 523 (1997).

Motion for Directed Verdict After Jury Has Returned Verdict Is Too Late. —

A litigant’s motion for directed verdict nunc pro tunc, which is made after the jury has returned its verdict in a case, comes too late to preserve right to move for judgment notwithstanding the verdict. Glen Forest Corp. v. Bensch, 9 N.C. App. 587, 176 S.E.2d 851, 1970 N.C. App. LEXIS 1412 (1970).

This rule provides for a motion for a directed verdict at the close of plaintiff ’s evidence or at the close of all the evidence. It does not give a litigant the option of waiting until after the verdict is in to make the motion for a directed verdict to attempt to preserve his right to move for judgment notwithstanding the verdict. Glen Forest Corp. v. Bensch, 9 N.C. App. 587, 176 S.E.2d 851, 1970 N.C. App. LEXIS 1412 (1970).

Grounds Not Asserted on Motion for Directed Verdict Not Available. —

The motion for judgment notwithstanding the verdict is technically only a renewal of the motion for a directed verdict made at the close of all the evidence, and thus the movant cannot assert grounds not included in the motion for directed verdict. Love v. Pressley, 34 N.C. App. 503, 239 S.E.2d 574, 1977 N.C. App. LEXIS 1762 (1977), cert. denied, 294 N.C. 441 , 241 S.E.2d 843, 1978 N.C. LEXIS 1266 (1978); Couch v. Private Diagnostic Clinic, 133 N.C. App. 93, 515 S.E.2d 30, 1999 N.C. App. LEXIS 370 , cert. denied, 350 N.C. 827 , 537 S.E.2d 816, 1999 N.C. LEXIS 820 (1999), aff'd, 351 N.C. 92 , 520 S.E.2d 785, 1999 N.C. LEXIS 1157 (1999).

Motion Must Be Argued with Particularity, Not Incorporation. —

Defendant failed to advance an argument for why the trial court erred by denying his JNOV motion following jury verdict in a third trial, where his brief merely incorporated arguments directed to the trial court’s denial of his JNOV motion at the second trial. Burchette v. Lynch, 139 N.C. App. 756, 535 S.E.2d 77, 2000 N.C. App. LEXIS 1025 (2000).

Movant Bears Heavy Burden. —

Party moving for judgment notwithstanding the verdict, like the party seeking a directed verdict, bears a heavy burden under North Carolina law. Griffis v. Lazarovich, 161 N.C. App. 434, 588 S.E.2d 918, 2003 N.C. App. LEXIS 2200 (2003).

A motion for judgment notwithstanding the verdict is cautiously and sparingly granted. Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362 , 329 S.E.2d 333, 1985 N.C. LEXIS 1541 (1985).

Standard is high for the party seeking a judgment notwithstanding the verdict; the motion should be denied if there is more than a scintilla of evidence to support the plaintiff’s prima facie case; the evidence supporting the plaintiffs’ claims must be taken as true, all conflicts and inconsistencies in the evidence must be resolved in the plaintiffs’ favor, and the plaintiffs must receive the benefit of every reasonable inference. Cox v. Steffes, 161 N.C. App. 237, 587 S.E.2d 908, 2003 N.C. App. LEXIS 2037 (2003).

Standards for granting a motion for judgment n.o.v. Are the same as those for granting a directed verdict. Investment Properties of Asheville, Inc. v. Allen, 281 N.C. 174 , 188 S.E.2d 441, 1972 N.C. LEXIS 1101 (1972); Kaperonis v. Underwriters at Lloyd's, London, 25 N.C. App. 119, 212 S.E.2d 532, 1975 N.C. App. LEXIS 2201 (1975); Brokers, Inc. v. High Point City Bd. of Educ., 33 N.C. App. 24, 234 S.E.2d 56, 1977 N.C. App. LEXIS 2091 (1977); North Carolina Nat'l Bank v. Burnette, 38 N.C. App. 120, 247 S.E.2d 648, 1978 N.C. App. LEXIS 2116 (1978), rev'd, 297 N.C. 524 , 256 S.E.2d 388, 1979 N.C. LEXIS 1399 (1979); Nytco Leasing, Inc. v. Southeastern Motels, Inc., 40 N.C. App. 120, 252 S.E.2d 826, 1979 N.C. App. LEXIS 2614 (1979); Weyerhaeuser Co. v. Godwin Bldg. Supply Co., 40 N.C. App. 743, 253 S.E.2d 625, 1979 N.C. App. LEXIS 2332 (1979); State v. Moore, 315 N.C. 738 , 340 S.E.2d 401, 1986 N.C. LEXIS 1881 (1986).

The same test is to be applied on a motion under subsection (b)(1) of this rule for judgment notwithstanding the verdict as is applied on a motion under section (a) of this rule for a directed verdict. Snellings v. Roberts, 12 N.C. App. 476, 183 S.E.2d 872, 1971 N.C. App. LEXIS 1386 , cert. denied, 279 N.C. 727 , 184 S.E.2d 886, 1971 N.C. LEXIS 922 (1971); DeHart v. R/S Fin. Corp., 78 N.C. App. 93, 337 S.E.2d 94, 1985 N.C. App. LEXIS 4264 (1985).

The same standard of sufficiency of evidence as that under the directed verdict motion is applied. Dickinson v. Pake, 284 N.C. 576 , 201 S.E.2d 897, 1974 N.C. LEXIS 1290 (1974).

The propriety of granting a motion for judgment notwithstanding the verdict is determined by the same considerations as that of a motion for a directed verdict. Investment Properties of Asheville, Inc. v. Allen, 281 N.C. 174 , 188 S.E.2d 441, 1972 N.C. LEXIS 1101 (1972); Summey v. Cauthen, 283 N.C. 640 , 197 S.E.2d 549, 1973 N.C. LEXIS 1029 (1973); Dickinson v. Pake, 284 N.C. 576 , 201 S.E.2d 897, 1974 N.C. LEXIS 1290 (1974); North Carolina Nat'l Bank v. Burnette, 297 N.C. 524 , 256 S.E.2d 388, 1979 N.C. LEXIS 1399 (1979).

Since the motion for judgment notwithstanding the verdict under this rule is simply a motion that judgment be entered in accordance with the movant’s earlier motion for a directed verdict, notwithstanding the contrary verdict reached by the jury, the same standard of sufficiency of the evidence must be utilized in reviewing both motions. Snider v. Dickens, 293 N.C. 356 , 237 S.E.2d 832, 1977 N.C. LEXIS 943 (1977).

The test for determining the sufficiency of the evidence when ruling on a motion for judgment notwithstanding the verdict is the same as that applied when ruling on a motion for directed verdict. Northern Nat'l Life Ins. Co. v. Lacy J. Miller Mach. Co., 311 N.C. 62 , 316 S.E.2d 256, 1984 N.C. LEXIS 1718 (1984).

A motion for judgment non obstante veredicto is essentially a renewal of a motion for directed verdict, and the same standards govern the trial court’s consideration of it as govern a directed verdict motion. Smith v. Price, 74 N.C. App. 413, 328 S.E.2d 811, 1985 N.C. App. LEXIS 3503 (1985), aff'd in part and rev'd in part, 315 N.C. 523 , 340 S.E.2d 408, 1986 N.C. LEXIS 1905 (1986).

If the motion for directed verdict could have been properly granted, then the subsequent motion for judgment notwithstanding the verdict should also be granted. Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362 , 329 S.E.2d 333, 1985 N.C. LEXIS 1541 (1985).

The same rules by which the sufficiency of the evidence is tested upon motion for a directed verdict pursuant to section (a) of this rule apply to the determination of a motion for judgment notwithstanding the verdict. Allen v. Pullen, 82 N.C. App. 61, 345 S.E.2d 469, 1986 N.C. App. LEXIS 2408 (1986).

A motion for judgment notwithstanding the verdict, like a motion for a directed verdict, tests the legal sufficiency of the evidence to take the case to the jury. Taylor v. Walker, 84 N.C. App. 507, 353 S.E.2d 239, 1987 N.C. App. LEXIS 2523 , rev'd, 320 N.C. 729 , 360 S.E.2d 796, 1987 N.C. LEXIS 2403 (1987).

The test for determining the sufficiency of the evidence when ruling on a motion for judgment is identical to that applied when ruling on a motion for directed verdict. Cook v. Wake County Hosp. Sys., 125 N.C. App. 618, 482 S.E.2d 546, 1997 N.C. App. LEXIS 221 (1997); Griffis v. Lazarovich, 161 N.C. App. 434, 588 S.E.2d 918, 2003 N.C. App. LEXIS 2200 (2003).

Applicability of Principles Formerly Prevailing on Motion for Nonsuit. —

In determining the sufficiency of the evidence upon a motion for judgment notwithstanding the verdict, the courts are guided by the same principles that prevailed under former procedure with respect to the sufficiency of evidence to withstand a motion for nonsuit. Snellings v. Roberts, 12 N.C. App. 476, 183 S.E.2d 872, 1971 N.C. App. LEXIS 1386 , cert. denied, 279 N.C. 727 , 184 S.E.2d 886, 1971 N.C. LEXIS 922 (1971).

A motion for judgment non obstante veredicto presents substantially the same question as that presented by a motion for nonsuit under former G.S. 1-183 . City of Winston-Salem v. Rice, 16 N.C. App. 294, 192 S.E.2d 9, 1972 N.C. App. LEXIS 1690 , cert. denied, 282 N.C. 425 , 192 S.E.2d 835, 1972 N.C. LEXIS 973 (1972); Anderson v. Butler, 284 N.C. 723 , 202 S.E.2d 585, 1974 N.C. LEXIS 1337 (1974), overruled in part, Nelson v. Freeland, 349 N.C. 615 , 507 S.E.2d 882, 1998 N.C. LEXIS 849 (1998).

Sufficiency of Evidence Questioned on Motion for Judgment N.O.V. —

Upon a motion for judgment non obstante veredicto, the sufficiency of the evidence upon which the jury based its verdict is drawn into question. Horton v. Iowa Mut. Ins. Co., 9 N.C. App. 140, 175 S.E.2d 725, 1970 N.C. App. LEXIS 1299 (1970); Coppley v. Carter, 10 N.C. App. 512, 179 S.E.2d 118, 1971 N.C. App. LEXIS 1660 (1971).

A motion for judgment notwithstanding the verdict permits the judge to consider the sufficiency of the evidence after the jury has returned a verdict. Investment Properties of Asheville, Inc. v. Allen, 281 N.C. 174 , 188 S.E.2d 441, 1972 N.C. LEXIS 1101 (1972).

A motion for judgment notwithstanding the verdict presents the question of whether the evidence was sufficient to entitle the plaintiff to have a jury pass on it. Morrison v. Concord Kiwanis Club, 52 N.C. App. 454, 279 S.E.2d 96, 1981 N.C. App. LEXIS 2453 , cert. denied, 304 N.C. 196 , 285 S.E.2d 100, 1981 N.C. LEXIS 1444 (1981).

Evidence Must Be Viewed in Light Most Favorable to Nonmovant. —

When passing on a motion for judgment notwithstanding the verdict, the court must view the evidence in the light most favorable to the nonmovant. Investment Properties of Asheville, Inc. v. Allen, 281 N.C. 174 , 188 S.E.2d 441, 1972 N.C. LEXIS 1101 (1972); Summey v. Cauthen, 283 N.C. 640 , 197 S.E.2d 549, 1973 N.C. LEXIS 1029 (1973); Kaperonis v. Underwriters at Lloyd's, London, 25 N.C. App. 119, 212 S.E.2d 532, 1975 N.C. App. LEXIS 2201 (1975).

Insofar as the defendant’s testimony creates a conflict in his testimony, it must be resolved in his favor in passing on the plaintiff ’s motion for judgment notwithstanding the verdict. Coppley v. Carter, 10 N.C. App. 512, 179 S.E.2d 118, 1971 N.C. App. LEXIS 1660 (1971).

In resolving the question of whether the evidence is sufficient to support the verdict, the evidence, of course, must be viewed in the light most favorable to the party who won the verdict. Dailey v. Integon Gen. Ins. Corp., 75 N.C. App. 387, 331 S.E.2d 148, 1985 N.C. App. LEXIS 3699 (1985); Couch v. Private Diagnostic Clinic, 133 N.C. App. 93, 515 S.E.2d 30, 1999 N.C. App. LEXIS 370 , cert. denied, 350 N.C. 827 , 537 S.E.2d 816, 1999 N.C. LEXIS 820 (1999), aff'd, 351 N.C. 92 , 520 S.E.2d 785, 1999 N.C. LEXIS 1157 (1999).

In ruling on a motion for a directed verdict or for a judgment notwithstanding the verdict, the trial court must consider the evidence in the light most favorable to the nonmoving party, giving him the benefit of all reasonable inferences to be drawn therefrom and resolving all conflicts in the evidence in his favor. Griffis v. Lazarovich, 161 N.C. App. 434, 588 S.E.2d 918, 2003 N.C. App. LEXIS 2200 (2003).

Giving Nonmovant the Benefit of Every Inference and Resolving Contradictions in His Favor. —

Upon defendant’s motion for judgment non obstante veredicto, all the evidence which supports plaintiffs’ claim must be taken as true and considered in the light most favorable to plaintiffs, giving them the benefit of every reasonable inference which may legitimately be drawn therefrom, with contradictions, conflicts and inconsistencies being resolved in plaintiffs’ favor. Horton v. Iowa Mut. Ins. Co., 9 N.C. App. 140, 175 S.E.2d 725, 1970 N.C. App. LEXIS 1299 (1970); Dickinson v. Pake, 19 N.C. App. 287, 198 S.E.2d 467, 1973 N.C. App. LEXIS 1633 (1973), rev'd, 284 N.C. 576 , 201 S.E.2d 897, 1974 N.C. LEXIS 1290 (1974); Wilson v. Miller, 20 N.C. App. 156, 201 S.E.2d 55, 1973 N.C. App. LEXIS 1498 (1973); Love v. Pressley, 34 N.C. App. 503, 239 S.E.2d 574, 1977 N.C. App. LEXIS 1762 (1977), cert. denied, 294 N.C. 441 , 241 S.E.2d 843, 1978 N.C. LEXIS 1266 (1978); North Carolina Nat'l Bank v. Burnette, 38 N.C. App. 120, 247 S.E.2d 648, 1978 N.C. App. LEXIS 2116 (1978), rev'd, 297 N.C. 524 , 256 S.E.2d 388, 1979 N.C. LEXIS 1399 (1979); Hart v. Warren, 46 N.C. App. 672, 266 S.E.2d 53, 1980 N.C. App. LEXIS 2920 (1980); Seaman v. McQueen, 51 N.C. App. 500, 277 S.E.2d 118, 1981 N.C. App. LEXIS 2267 (1981).

All of the evidence which supports the claim of the party opposing the motion must be taken as true and considered in the light most favorable to him, giving him the benefit of every reasonable inference which may legitimately be drawn therefrom, and with contradictions, conflicts and inconsistencies being resolved in his favor. Coppley v. Carter, 10 N.C. App. 512, 179 S.E.2d 118, 1971 N.C. App. LEXIS 1660 (1971); Nytco Leasing, Inc. v. Southeastern Motels, Inc., 40 N.C. App. 120, 252 S.E.2d 826, 1979 N.C. App. LEXIS 2614 (1979); Penley v. Penley, 314 N.C. 1 , 332 S.E.2d 51, 1985 N.C. LEXIS 1706 (1985); Allen v. Pullen, 82 N.C. App. 61, 345 S.E.2d 469, 1986 N.C. App. LEXIS 2408 (1986); Taylor v. Walker, 84 N.C. App. 507, 353 S.E.2d 239, 1987 N.C. App. LEXIS 2523 , rev'd, 320 N.C. 729 , 360 S.E.2d 796, 1987 N.C. LEXIS 2403 (1987).

In passing on a motion for judgment notwithstanding the verdict, the evidence is to be taken in the light most favorable to the nonmoving party, and he is entitled to all reasonable inferences that can be drawn from it. Murray v. Murray, 296 N.C. 405 , 250 S.E.2d 276, 1979 N.C. LEXIS 1146 (1979).

A motion for judgment notwithstanding the verdict presents the question of whether the evidence was sufficient to entitle the plaintiff to have a jury pass on it. The evidence must be considered in the light most favorable to the party opposing the motion, and the opponent is entitled to the benefit of every reasonable inference which may legitimately be drawn from the evidence, and all conflicts in the evidence are resolved in favor of the opponent. Smith v. Price, 74 N.C. App. 413, 328 S.E.2d 811, 1985 N.C. App. LEXIS 3503 (1985), aff'd in part and rev'd in part, 315 N.C. 523 , 340 S.E.2d 408, 1986 N.C. LEXIS 1905 (1986).

In considering a motion for judgment n.o.v., the trial court is to consider all evidence in the light most favorable to the party opposing the motion. The nonmovant is to be given the benefit of every reasonable inference that legitimately may be drawn from the evidence, and contradictions must be resolved in the nonmovant’s favor. Smith v. Price, 315 N.C. 523 , 340 S.E.2d 408, 1986 N.C. LEXIS 1905 (1986).

Evidence Must Be Accorded its Full Probative Force. —

In determining the correctness of a motion for a judgment notwithstanding the verdict, all relevant evidence admitted by the trial court, whether competent or not, must be accorded its full probative force. Cox v. Steffes, 161 N.C. App. 237, 587 S.E.2d 908, 2003 N.C. App. LEXIS 2037 (2003).

Motion for Judgment N.O.V. Proper Where Evidence Insufficient to Support Verdict. —

When passing on a motion for judgment notwithstanding the verdict, the court must consider the evidence in the light most favorable to the plaintiff and may grant the motion only if, as a matter of law, the evidence is insufficient to support a verdict for plaintiff. Brokers, Inc. v. High Point City Bd. of Educ., 33 N.C. App. 24, 234 S.E.2d 56, 1977 N.C. App. LEXIS 2091 (1977).

Judgment notwithstanding the verdict should be granted only when the evidence is insufficient as a matter of law to support the verdict. Where the evidence admitted at trial, taken in the light most favorable to the nonmoving party with all reasonable inferences drawn in his favor, is sufficient to support the verdict, it should not be set aside. Harvey v. Norfolk S. Ry., 60 N.C. App. 554, 299 S.E.2d 664, 1983 N.C. App. LEXIS 2485 (1983).

A motion for a judgment notwithstanding the verdict, like a motion for a directed verdict, will be granted only if the evidence, considered in the light most favorable to the plaintiff, is insufficient as a matter of law to justify a verdict for the plaintiff. Perry v. Williams, 84 N.C. App. 527, 353 S.E.2d 226, 1987 N.C. App. LEXIS 2519 (1987).

And Where Defendants Were Entitled to Judgment as a Matter of Law. —

Where defendants were entitled to a judgment as a matter of law and a motion for directed verdict was made at the close of all the evidence, the judge’s entry of a judgment notwithstanding the verdict was proper under subsection (b)(1) of this rule. Wolfe v. Eaker, 50 N.C. App. 144, 272 S.E.2d 781, 1980 N.C. App. LEXIS 3469 (1980), cert. denied, 302 N.C. 222 , 277 S.E.2d 69, 1981 N.C. LEXIS 1178 (1981).

Trial court decision denying JNOV to a city, one of its police officers, and its police department was reversed on appeal because the plaintiff, an arrestee injured in a squad car, failed to prove gross negligence and only showed simple negligence by evidence that the police officer drove 30 to 35 miles above the legal speed limit although he knew that plaintiff was not wearing a seat belt and had to brake suddenly to avoid a collision causing plaintiff to propel into the metal screen in the squad car. Clayton v. Branson, 170 N.C. App. 438, 613 S.E.2d 259, 2005 N.C. App. LEXIS 1070 (2005).

Grant of Judgment N.O.V. Erroneous Where Case Was Sufficient to Go to Jury. —

If the plaintiffs have made out a case sufficient to go to the jury, then it is error to enter a judgment setting aside the verdict and granting a judgment for the defendant notwithstanding the verdict. Horton v. Iowa Mut. Ins. Co., 9 N.C. App. 140, 175 S.E.2d 725 (1970); Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362 , 329 S.E.2d 333 (1985). In accord with first paragraph in the main volume. See Kron Medical Corp. v. Collier Cobb & Assocs., 107 N.C. App. 331, 420 S.E.2d 192, 1992 N.C. App. LEXIS 693 (1992).

Where the evidence admitted at trial, taken in the light most favorable to the nonmoving party with all reasonable inferences drawn in his favor, is sufficient to support the verdict, it should not be set aside. Beal v. K.H. Stephenson Supply Co., 36 N.C. App. 505, 244 S.E.2d 463, 1978 N.C. App. LEXIS 2536 (1978).

If More Than Scintilla of Evidence, Motion Should Be Denied. —

The court should deny a motion for judgment notwithstanding the verdict when it finds any evidence more than a scintilla to support plaintiff’s prima facie case in all its constituent elements. Clark v. Moore, 65 N.C. App. 609, 309 S.E.2d 579, 1983 N.C. App. LEXIS 3546 (1983); Couch v. Private Diagnostic Clinic, 133 N.C. App. 93, 515 S.E.2d 30, 1999 N.C. App. LEXIS 370 , cert. denied, 350 N.C. 827 , 537 S.E.2d 816, 1999 N.C. LEXIS 820 (1999), aff'd, 351 N.C. 92 , 520 S.E.2d 785, 1999 N.C. LEXIS 1157 (1999).

Where defendant has the burden of proof on an affirmative defense, the granting of a directed verdict or judgment notwithstanding the verdict in his favor will be more closely scrutinized. Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362 , 329 S.E.2d 333, 1985 N.C. LEXIS 1541 (1985).

Trial tactics employed by defendant were not sufficient reason to order a new trial. Booe v. Shadrick, 322 N.C. 567 , 369 S.E.2d 554, 1988 N.C. LEXIS 473 (1988).

Contributory Negligence as Grounds for Judgment N.O.V. —

Judgment notwithstanding the verdict on the grounds of contributory negligence should be granted only when the evidence establishes plaintiff’s negligence so clearly that no other reasonable inference can be drawn from the evidence. Clark v. Moore, 65 N.C. App. 609, 309 S.E.2d 579, 1983 N.C. App. LEXIS 3546 (1983); Taylor v. Walker, 84 N.C. App. 507, 353 S.E.2d 239, 1987 N.C. App. LEXIS 2523 , rev'd, 320 N.C. 729 , 360 S.E.2d 796, 1987 N.C. LEXIS 2403 (1987).

Lack of Contributory Negligence as Grounds for Judgment N.O.V. —

Trial court erred in denying driver’s motion for judgment notwithstanding the verdict in her negligence action against a motorist, arising from a collision when the motorist went through a stop sign at an intersection; the fact that the motorist estimated that the driver was speeding, without more, was insufficient to allow the issue of contributory negligence to be considered by the jury pursuant to G.S. 1-139 because there was no causal connection established between the speeding and the accident. Ellis v. Whitaker, 156 N.C. App. 192, 576 S.E.2d 138, 2003 N.C. App. LEXIS 77 (2003).

Failure of Jury to Reach Verdict Irrelevant in Deciding Whether Evidence Was Sufficient. —

In deciding whether the evidence was sufficient to entitle a plaintiff to have the jury pass on it, the court should give no consideration to the fact that the jury may have failed to reach a verdict, but should consider only the evidence in the case. Odell v. Lipscomb, 12 N.C. App. 318, 183 S.E.2d 299, 1971 N.C. App. LEXIS 1352 (1971).

Inadequate Award of Damages. —

In breach of contract action against university, trial court erred in denying professor’s motion for judgment notwithstanding the verdict or for a new trial based upon a jury award of inadequate damages; the trial court’s failure to instruct the jury on whether the professor was ready, willing, and able to perform the contract meant that the jury did not decide that issue, which was critical to determining whether the professor was entitled to nominal damages or substantial damages after the jury found that the university breached the agreement. Munn v. N.C. State Univ., 173 N.C. App. 144, 617 S.E.2d 335, 2005 N.C. App. LEXIS 1931 (2005), rev'd, 360 N.C. 353 , 626 S.E.2d 270, 2006 N.C. LEXIS 10 (2006).

Entry of Judgment N.O.V. After Adjournment of Term. —

The legislature, in delineating the precise time periods of section (b) of this rule and G.S. 1A-1 , Rule 59(e), did not intend for these specific periods to be curtailed by the adjournment of the term of court at which judgment was rendered, as to attribute any such intent to the legislature would vitiate the purpose of both rules; thus a trial court may alter or amend a judgment pursuant to G.S. 1A-1 , Rule 59 and a trial court may enter judgment n.o.v. pursuant to this rule (including the alteration of a judgment entered upon such a verdict) after the adjournment of the term during which the judgment was entered. Housing, Inc. v. Weaver, 305 N.C. 428 , 290 S.E.2d 642, 1982 N.C. LEXIS 1336 (1982).

Grant of a motion for judgment n.o.v. Constitutes an adjudication on the merits of a case. Musgrave v. Mutual Sav. & Loan Ass'n, 8 N.C. App. 385, 174 S.E.2d 820, 1970 N.C. App. LEXIS 1574 (1970).

Motion to Be Decided as Question of Law. —

A motion to set a verdict aside and for a new trial pursuant to G.S. 1A-1 , Rule 59 is directed to the discretion of the trial judge, while a motion for judgment notwithstanding the verdict pursuant to this rule is to be decided as a question of law. Penley v. Penley, 314 N.C. 1 , 332 S.E.2d 51, 1985 N.C. LEXIS 1706 (1985).

Trial Judge to Rule on Alternative Motion for New Trial. —

Where defendant makes a motion for judgment notwithstanding the verdict and joins with this motion an alternative motion for a new trial, in granting the motion for judgment notwithstanding the verdict the trial judge should also rule on the alternative motion for a new trial. Hoots v. Calaway, 282 N.C. 477 , 193 S.E.2d 709, 1973 N.C. LEXIS 1101 (1973).

When a motion for judgment n.o.v. is joined with a motion for a new trial, it is the duty of the trial court to rule on both motions. Graves v. Walston, 302 N.C. 332 , 275 S.E.2d 485, 1981 N.C. LEXIS 1058 (1981); Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362 , 329 S.E.2d 333, 1985 N.C. LEXIS 1541 (1985).

Under G.S. 1A-1 , N.C. R. Civ. P. 50(c)(1), if a motion for a judgment notwithstanding the verdict is granted, the court shall also rule on the motion for new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial. Cox v. Steffes, 161 N.C. App. 237, 587 S.E.2d 908, 2003 N.C. App. LEXIS 2037 (2003).

It is the defendants’ obligation to ensure that they obtain a ruling on their motion for a conditional new trial; a party gaining judgment notwithstanding the verdict should also ask for a ruling pursuant to G.S. 1A-1 , N.C. R. Civ. P. 50(c)(1), on the motion for a new trial if he wishes to allege any error in the trial or to preserve any question other than the sufficiency of the evidence for appellate review. Cox v. Steffes, 161 N.C. App. 237, 587 S.E.2d 908, 2003 N.C. App. LEXIS 2037 (2003).

Healthcare providers’ alternative motion for a new trial under G.S. 1A-1 , N.C. R. Civ. P. 59, could not be considered on appeal as the healthcare providers failed to obtain a formal trial court ruling on their motion for a new trial under G.S. 1A-1 , N.C. R. Civ. P. 50(c)(1), after their motion for a judgment notwithstanding the verdict under Rule 50 was granted, and the healthcare providers did not make any cross-assignments of error as to the trial. Cox v. Steffes, 161 N.C. App. 237, 587 S.E.2d 908, 2003 N.C. App. LEXIS 2037 (2003).

Denial of a motion in the alternative for a new trial lies within the discretion of the trial judge, and an action of the trial judge as to a matter within his judicial discretion will not be disturbed unless a clear abuse of discretion is shown. Coppley v. Carter, 10 N.C. App. 512, 179 S.E.2d 118, 1971 N.C. App. LEXIS 1660 (1971).

The trial judge’s discretionary ruling either granting or denying a motion to set aside a verdict and order a new trial is strictly limited to the determination of whether the record affirmatively demonstrates a manifest abuse of discretion by the judge. Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362 , 329 S.E.2d 333, 1985 N.C. LEXIS 1541 (1985).

A party must appeal conditionally from an adverse ruling on an alternative motion for a new trial. Hoots v. Calaway, 282 N.C. 477 , 193 S.E.2d 709, 1973 N.C. LEXIS 1101 (1973).

Motion to Set Aside Verdict Addressed to Discretion of Trial Court. —

A motion to set aside the verdict as being contrary to the greater weight of the evidence is addressed to the discretion of the trial court. Anderson v. Smith, 29 N.C. App. 72, 223 S.E.2d 402, 1976 N.C. App. LEXIS 2379 (1976).

And Is Not Reviewable Absent Abuse. —

The motion to set aside the verdict as being against the greater weight of the evidence is directed to the sound discretion of the presiding judge, whose ruling is not reviewable on appeal in the absence of abuse of discretion. Nytco Leasing, Inc. v. Southeastern Motels, Inc., 40 N.C. App. 120, 252 S.E.2d 826, 1979 N.C. App. LEXIS 2614 (1979).

The trial court’s ruling on a motion to set aside the verdict as being contrary to the weight of the evidence will not be reviewed in the absence of a showing of abuse. Anderson v. Smith, 29 N.C. App. 72, 223 S.E.2d 402, 1976 N.C. App. LEXIS 2379 (1976).

Standard of Review. —

On appeal, the standard of review for a judgment notwithstanding the verdict is whether the evidence was sufficient to go to the jury. Cox v. Steffes, 161 N.C. App. 237, 587 S.E.2d 908, 2003 N.C. App. LEXIS 2037 (2003).

Scope of Review. —

A motion for judgment notwithstanding the verdict involves the same legal questions raised by the motion for directed verdict, and is therefore equally restricted as a basis for asserting error on appeal. Mobley v. Hill, 80 N.C. App. 79, 341 S.E.2d 46, 1986 N.C. App. LEXIS 2944 (1986).

Appellate review of the trial court’s ruling on a motion for judgment notwithstanding the verdict is the same as that for a motion for directed verdict, i.e., whether the evidence, taken as true and considered in the light most favorable to non-movant, is sufficient to take the case to the jury and to support a verdict for the non-movant. Streeter v. Cotton, 133 N.C. App. 80, 514 S.E.2d 539, 1999 N.C. App. LEXIS 338 (1999).

Exceptions to Denial of Directed Verdict Preserved by Motion for Judgment N.O.V. —

By proceeding after verdict under subsection (b)(1) of this rule with a motion for judgment notwithstanding the verdict, a party preserves for appellate review his exceptions to the denial of his motion for directed verdict made at the close of all the evidence. Woodard v. Marshall, 14 N.C. App. 67, 187 S.E.2d 430, 1972 N.C. App. LEXIS 2037 (1972).

Questions Other Than Sufficiency of Evidence Preserved by Motion for New Trial by Party Gaining Judgment N.O.V. —

A party gaining judgment notwithstanding the verdict should also ask for a ruling pursuant to subsection (c)(1) of this rule on the motion for a new trial if he wishes to allege any error in the trial or to preserve any question other than the sufficiency of the evidence for appellate review. Beal v. K.H. Stephenson Supply Co., 36 N.C. App. 505, 244 S.E.2d 463, 1978 N.C. App. LEXIS 2536 (1978).

Testimony of plaintiff’s witnesses must be accepted at face value by the appellate court in passing on a motion for a directed verdict. Rayfield v. Clark, 283 N.C. 362 , 196 S.E.2d 197, 1973 N.C. LEXIS 967 (1973).

But Not by the Trial Court. —

In passing upon a motion to set aside a verdict as being against the greater weight of the evidence, the trial judge is not required to take the testimony of any witness at face value; if at any time he is convinced that the jury has been misled by unreliable testimony into returning an erroneous verdict, his is the responsibility for awarding a new trial for that reason. Rayfield v. Clark, 283 N.C. 362 , 196 S.E.2d 197, 1973 N.C. LEXIS 967 (1973).

Subsection (b)(2) of this rule has no counterpart in FRCP, Rule 50(b). Hensley v. Ramsey, 283 N.C. 714 , 199 S.E.2d 1, 1973 N.C. LEXIS 1062 (1973).

Question presented to the reviewing court is whether the evidence, considered in the light most favorable to the plaintiff, was sufficient for submission to the jury. Meacham v. Montgomery County Bd. of Educ., 59 N.C. App. 381, 297 S.E.2d 192, 1982 N.C. App. LEXIS 3171 (1982).

When Appellate Court May Direct Entry of Judgment. —

Upon deciding that the trial court should have granted appellant’s motion for a directed verdict made at the close of all the evidence, the Court of Appeals may appropriately direct entry of judgment in accordance with the appellant’s motion, but only when the appellant also in apt time moved for judgment notwithstanding the verdict. Nichols v. C.J. Moss Real Estate, Inc., 10 N.C. App. 66, 177 S.E.2d 750, 1970 N.C. App. LEXIS 1188 (1970).

Where the defendant made no post-verdict motion and where the trial judge after verdict did not of his own motion consider whether a directed verdict should have been entered, the Supreme Court may not direct entry of judgment in accordance with the motion by reason of the express terms of subsection (b)(2) of this rule. Hensley v. Ramsey, 283 N.C. 714 , 199 S.E.2d 1, 1973 N.C. LEXIS 1062 (1973).

A motion for directed verdict is appropriate only to a case tried before a jury. In non-jury trials, a motion for involuntary dismissal under G.S. 1A-1 , Rule 41(b) provides a procedure whereby, at the close of the plaintiff ’s evidence, the judge can give judgment against the plaintiff, not only because his proof has failed to make out a case, but also on the basis of facts as the judge may determine them. Goodrich v. Rice, 75 N.C. App. 530, 331 S.E.2d 195, 1985 N.C. App. LEXIS 3715 (1985).

Reinstatement of Verdict upon Failure to Move for New Trial. —

Where a judgment entered for defendant notwithstanding the verdict was reversed, and defendant had not moved in the alternative for a new trial pursuant to subsection (c)(1) of this rule, it was ordered that the jury verdict be reinstated and that judgment be entered thereon. Snellings v. Roberts, 12 N.C. App. 476, 183 S.E.2d 872, 1971 N.C. App. LEXIS 1386 , cert. denied, 279 N.C. 727 , 184 S.E.2d 886, 1971 N.C. LEXIS 922 (1971).

Reinstatement of Verdict upon Reversal of Grant of New Trial. —

Where appellate court reverses grant of judgment n.o.v., and does nothing more, the new trial will proceed upon remand. But where the appellate court also reverses the grant of new trial, the judgment of the verdict winner must be reinstated. Dickinson v. Pake, 284 N.C. 576 , 201 S.E.2d 897, 1974 N.C. LEXIS 1290 (1974).

Reinstatement of Verdict on Reversal of Judgment N.O.V. —

Where plaintiff and third party defendant moved, alternatively to their motion for judgment notwithstanding the verdict, for a new trial, which motion was denied, and neither of them excepted to or brought forward as a cross-assignment of error the denial of the motion, on reversal of the judgment n.o.v. entered by the trial court, the verdict of the jury would be reinstated and judgment entered in accordance therewith. Allen v. Pullen, 82 N.C. App. 61, 345 S.E.2d 469, 1986 N.C. App. LEXIS 2408 (1986).

When the trial court fails to comply with G.S. 1A-1 , Rule 59 and this rule in ordering a new trial, the general course is to reverse and remand for reinstatement of the verdict. Barnett v. Security Ins. Co., 84 N.C. App. 376, 352 S.E.2d 855, 1987 N.C. App. LEXIS 2499 (1987), limited, Carter v. West Am. Ins. Co., 190 N.C. App. 532, 661 S.E.2d 264, 2008 N.C. App. LEXIS 1021 (2008).

In a personal injury case in which defendant was found negligent by the jury, defendant was not entitled to judgment notwithstanding the verdict unless plaintiff had failed as a matter of law to establish the elements of negligence, or unless the evidence established plaintiff’s contributory negligence so clearly that no other reasonable inference could be drawn. Moon v. Bostian Heights Volunteer Fire Dep't, 97 N.C. App. 110, 387 S.E.2d 225, 1990 N.C. App. LEXIS 33 (1990).

JNOV for the defendants’s was inappropriate on a breach of contract claim where the evidence contradicted the defendant’s claim that his performance under the sale of land contracts was excused, such that no breach occurred, because plaintiffs were not “ready, willing, and able to perform their part of the contract” and where the record reflected that defendant did not obtain required quitclaim deeds until seven months after the closing date, that he entered into subsequent sales contracts with third parties regarding the lots subject to the contracts with plaintiffs, and that he terminated their contracts by means of a letter. Poor v. Hill, 138 N.C. App. 19, 530 S.E.2d 838, 2000 N.C. App. LEXIS 540 (2000).

Timely Filing of Motions Tolls Time for Appeal. —

Under NCRAP Rule 3, timely filing of a motion for judgment notwithstanding the verdict or for a new trial pursuant to subsection (b) of this rule and G.S. 1A-1 Rule 59 tolls the period for filing and serving written notice of appeal in civil actions. The full time for appeal commences to run and is to be computed from the entry of the order granting or denying the motions under subsection (b) of this rule or G.S. 1A-1 Rule 59. Middleton v. Middleton, 98 N.C. App. 217, 390 S.E.2d 453, 1990 N.C. App. LEXIS 374 (1990).

But Written Motions Following Denial of Oral Motions Would Not Toll Time for Appeal. —

Plaintiffs, who entered their written notice of appeal within 10 days after the entry of a June 6 order denying their April 22 written motions for judgment notwithstanding the verdict and for a new trial, were not entitled to make these written motions or to a hearing on these motions, because they had previously made oral motions for judgment notwithstanding the verdict and for a new trial in open court on April 14, and were afforded an opportunity to be heard, which they declined. Their motions under section (b) of this rule and under G.S. 1A-1 , Rule 59 having been denied in open court at that time, plaintiffs were not entitled to file written motions requesting the same relief and thereby toll the period for filing written notice of appeal. Since the June 13 written notice of appeal was not filed within 10 days of entry of judgment, which by the terms of the judgment was April 14, their appeal was untimely. Middleton v. Middleton, 98 N.C. App. 217, 390 S.E.2d 453, 1990 N.C. App. LEXIS 374 (1990).

Failure to Present Underlying Judgment. —

Where, in notice of appeal, defendant designated only the order denying the motion for judgment n.o.v., but did not give notice of appeal from the judgment itself, the notice of appeal failed to properly present the underlying judgment for the court’s review. Boger v. Gatton, 123 N.C. App. 635, 473 S.E.2d 672, 1996 N.C. App. LEXIS 797 (1996).

Grant of Motions for Judgement N.O.V. And New Trial Inconsistent. —

The trial court’s grant of the plaintiff’s motion for judgment notwithstanding the verdict as well as plaintiff’s motion for a new trial was inconsistent, where the Judgement N.O.V. for the plaintiff after the jury returned a verdict for the defendant in a rear-end collision suit determined the defendant’s negligence as a matter of law, while the new trial reinstated the issue for a jury. Streeter v. Cotton, 133 N.C. App. 80, 514 S.E.2d 539, 1999 N.C. App. LEXIS 338 (1999).

Order which grants both a JNOV and a new trial is legally inconsistent and fails to conform to subsection (c)(1) of this rule, which requires that a new trial be granted if the JNOV is granted and thereafter vacated or reversed. Southern Furniture Hardware, Inc. v. Branch Banking & Trust Co., 136 N.C. App. 695, 526 S.E.2d 197, 2000 N.C. App. LEXIS 143 (2000).

Motion Denied Based on Agency. —

Trial court did not err in denying a motion for judgment notwithstanding the verdict in a medical malpractice action based on the death of the defendant surgeon’s patient on whom the surgeon had performed an operation to remove the patient’s gall bladder as the surgeon had created an apparent agency between himself and the surgeon who had assisted in the original surgery and in whose care the surgeon left the decedent when the surgeon went on vacation and the decedent and her family had justifiably relied on the representation of agency. Sweatt v. Wong, 145 N.C. App. 33, 549 S.E.2d 222, 2001 N.C. App. LEXIS 574 (2001).

Grant of Judgment N.O.V. Improper. —

Trial court erred in granting the healthcare providers’ motion for a judgment notwithstanding the verdict pursuant to G.S. 1A-1 , N.C. R. Civ. P. 50, as the trial court improperly refused to consider the testimony of a patient’s expert where: (1) the patient’s expert testified that the healthcare providers had failed to meet the standard of care in Level 2 hospitals, (2) the healthcare providers’ expert testified that the standard of care was the same across the nation, (3) both experts’ testimony regarding Level 2 hospitals was sufficient to establish that the patient’s expert’s knowledge of practices in Reading, Pennsylvania qualified him to testify as to the standard in communities similar to Fayetteville, (4) given the healthcare providers’ expert’s testimony, the patient’s expert’s testimony, which defense counsel characterized on cross-examination as testimony regarding the national standard, was sufficient to support the jury’s verdict under G.S. 90-21.12. Cox v. Steffes, 161 N.C. App. 237, 587 S.E.2d 908, 2003 N.C. App. LEXIS 2037 (2003).

Issue of whether an anesthesiology provider breached the applicable standard of care to a decedent was not conclusively established at trial, and thus the trial court erred in granting judgment N.O.V. and a new trial on the issue of causation and damages to the decedent’s estate, because the statement of the provider’s anesthesiologist involved in the case, to the effect that she did not comply with the applicable standard of care, was an evidential admission, not a judicial admission, as the anesthesiologist equivocated on whether she had breached the standard of care. Jones v. Durham Anesthesia Assocs., P.A., 185 N.C. App. 504, 648 S.E.2d 531, 2007 N.C. App. LEXIS 1806 (2007).

In a medical malpractice action, the grant of defendants’ motion for judgment notwithstanding the verdict under N.C. R. Civ. P. 50(b) was erroneous because plaintiffs offered competent evidence of proximate causation where three experts testified that the patient would have had a better outcome if treated earlier and an MRI should have been ordered during the patient’s first emergency room visit. Weaver v. Sheppa, 186 N.C. App. 412, 651 S.E.2d 395, 2007 N.C. App. LEXIS 2206 (2007), aff'd, 362 N.C. 341 , 661 S.E.2d 733, 2008 N.C. LEXIS 497 (2008).

It was error to grant the employer’s motion for judgment notwithstanding the verdict as to punitive damages because there was sufficient evidence of malice, willful and wanton conduct, and manager participation to support the jury’s punitive damages award to a terminated part-time department store employee based on, inter alia, the store manager’s threat to “mess up” the employee’s full-time job at a bank. Scarborough v. Dillard's Inc., 188 N.C. App. 430, 655 S.E.2d 875, 2008 N.C. App. LEXIS 226 (2008), rev'd, 363 N.C. 715 , 693 S.E.2d 640, 2009 N.C. LEXIS 1287 (2009).

Denial of JNOV Upheld. —

Where the parties did not stipulate to the issues of proximate cause and damages, the jury was not bound by the plaintiff’s proof regarding medical costs, but could accept or reject any testimony regarding plaintiff’s injuries, the reasonableness of her medical expenses, and the extent of her pain and suffering; thus, the trial court did not abuse its discretion in denying her motion for judgment notwithstanding the verdict. Blackmon v. Bumgardner, 135 N.C. App. 125, 519 S.E.2d 335, 1999 N.C. App. LEXIS 982 (1999).

The trial court properly denied defendant husband’s motions for directed verdict and judgment notwithstanding the verdict on issue of constructive abandonment based on the sufficiency of the evidence where the defendant could not have actually abandoned the plaintiff because he was forcibly removed from the marital home pursuant to an emergency protective order, but where the fact that defendant did not voluntarily leave the residence did not preclude a verdict in favor of plaintiff on the issue of constructive abandonment. Walker v. Walker, 143 N.C. App. 414, 546 S.E.2d 625, 2001 N.C. App. LEXIS 295 (2001).

Trial court properly denied one partner’s motion for judgment notwithstanding the verdict as the other partners presented sufficient evidence of the partner’s breach of a partnership agreement, breach of fiduciary duty, constructive fraud, and unfair and deceptive trade practices to withstand the motion. Compton v. Kirby, 157 N.C. App. 1, 577 S.E.2d 905, 2003 N.C. App. LEXIS 369 (2003).

In a product liability action stemming from a fire at a hosiery mill that was allegedly caused by faulty lighting made by the manufacturers, the trial court properly denied the manufacturers’ motion for a directed verdict or judgment notwithstanding the verdict because the evidence was adequate to meet the Dewitt test for proving a products liability case by circumstantial evidence and the parties’ sharp factual disagreement about the fire’s cause warranted submission of the case to the jury. Red Hill Hosiery Mill, Inc. v. Magnetek, Inc., 159 N.C. App. 135, 582 S.E.2d 632, 2003 N.C. App. LEXIS 1441 (2003).

Testimony of the supervisor in charge of making repairs to the home buyers’ house was sufficient to support the home buyers’ claim that the home seller breached an express warranty, particularly with respect to the degradation of the walls and floor systems; a trial court’s denial of the home sellers’ motions for directed verdict and motion for judgment notwithstanding the verdict in a case alleging a breach of an express warranty was affirmed. Coates v. Niblock Dev. Corp., 161 N.C. App. 515, 588 S.E.2d 492, 2003 N.C. App. LEXIS 2191 (2003).

Trial court properly denied a passenger’s motion for a judgment notwithstanding the verdict as the passenger failed to meet her heavy burden to show that one of the drivers involved in a car accident was negligent in causing the accident. Griffis v. Lazarovich, 161 N.C. App. 434, 588 S.E.2d 918, 2003 N.C. App. LEXIS 2200 (2003).

Trial court did not err in denying the one business partner’s motion to dismiss, for a directed verdict, or for judgment notwithstanding the verdict on the second business partner’s counterclaim alleging constructive fraud and breach of contract, as the evidence the second business partner introduced at trial showed that the parties were business partners, which was a fiduciary relationship as a matter of law, and evidence that the one business partner breached his fiduciary duty to the second business partner showed that the one business partner committed constructive fraud. Marketplace Antique Mall, Inc. v. Lewis, 163 N.C. App. 596, 594 S.E.2d 121, 2004 N.C. App. LEXIS 415 (2004).

Trial court properly denied employers’ motion for judgment notwithstanding the verdict because the employee proffered sufficient evidence to support his causes of action for breach of contract and violation of the North Carolina Wage and Hour Act, G.S. 95-25.1 et seq. The evidence offered by the employee was that: (1) the employers’ representative orally agreed to pay the employee an annual bonus as part of a contract; (2) the employers modified the employee’s bonus formula without his consent; and (3) the employers also failed to give the employee notice of the change in the bonus formula. Arndt v. First Union Nat'l Bank, 170 N.C. App. 518, 613 S.E.2d 274, 2005 N.C. App. LEXIS 1080 (2005).

In a negligence action stemming from a collision wherein plaintiff was driving a motorcycle and defendant was driving a truck, a trial court did not err in denying plaintiff’s motion for judgment notwithstanding the verdict, nor abuse its discretion in denying plaintiff’s motion for a new trial, because from the evidence presented, a jury could have concluded circumstances existed that would have reasonably put plaintiff on notice that he could not assume defendant would yield at the intersection at which their accident occurred; thus, it was proper for the jury to consider whether plaintiff was negligent for failing to reduce his speed, keep a proper lookout, or maintain control of his motorcycle such that it contributed to his injuries. Fisk v. Murphy, 212 N.C. App. 667, 713 S.E.2d 100, 2011 N.C. App. LEXIS 1203 (2011).

In a developer’s breach of contract action regarding the construction and sale of plasma centers to a buyer, a trial court correctly determined the statute of frauds, G.S. 22-2 , did not govern the parties’ contract because there was no reference in the agreement regarding the assignment of leases and the agreement plainly stated that no rights and duties were created other than those expressly stated in the agreement; the trial court did not err in denying the buyer’s motion for judgment notwithstanding the verdict, G.S. 1A-1 , N.C. R. Civ. P. 50. Plasma Ctrs. of Am., LLC v. Talecris Plasma Res., Inc., 222 N.C. App. 83, 731 S.E.2d 837, 2012 N.C. App. LEXIS 930 (2012).

Denial of JNOV Improper. —

Nursing home and related entities were entitled to a directed verdict as well as a judgment notwithstanding the verdict in an estate representative’s negligence suit for a decedent’s death because the representative’s experts testified about ha national standard of care, but they did not establish the standard of care applicable to the nursing home’s community. Hawkins v. SSC Hendersonville Operating Co., LLC, 202 N.C. App. 707, 690 S.E.2d 35, 2010 N.C. App. LEXIS 361 (2010), writ denied, 365 N.C. 87 , 706 S.E.2d 248, 2011 N.C. LEXIS 125 (2011).

Rule 51. Instructions to jury.

  1. Judge to explain law but give no opinion on facts. —  In charging the jury in any action governed by these rules, a judge shall not give an opinion as to whether or not a fact is fully or sufficiently proved and shall not be required to state, summarize or recapitulate the evidence, or to explain the application of the law to the evidence. If the judge undertakes to state the contentions of the parties, he shall give equal stress to the contentions of each party.
  2. Requests for special instructions. —  Requests for special instructions must be in writing, entitled in the cause, and signed by the counsel or party submitting them. Such requests for special instructions must be submitted to the judge before the judge’s charge to the jury is begun. The judge may, in his discretion, consider such requests regardless of the time they are made. Written requests for special instructions shall, after their submission to the judge, be filed with the clerk as a part of the record.
  3. Judge not to comment on verdict. —  The judge shall make no comment on any verdict in open court in the presence or hearing of any member of the jury panel; and if any judge shall make any comment as herein prohibited or shall praise or criticize any jury on account of its verdict, whether such praise, criticism or comment be made inadvertently or intentionally, such praise, criticism or comment by the judge shall for any party to any other action remaining to be tried constitute valid grounds as a matter of right for a continuance of any action to a time when all members of the jury panel are no longer serving. The provisions of this section shall not be applicable upon the hearing of motions for a new trial or for judgment notwithstanding the verdict.
  4. Final instructions to the jury. —  In civil cases subject to G.S. 90-21.11(2), the court shall reduce the oral instructions given to the jury to writing. Upon the jury retiring for deliberation, the court is encouraged to and may provide the jury a written copy of the oral instructions for the jury to take into the jury room during deliberation.

History. 1967, c. 954, s. 1; 1985, c. 537, s. 2; 2021-47, s. 1(a).

Comment

The effort here, except for minor changes, has been to carry forward the substance of the present law. The prohibition on comment by the judge has been retained. His duty to charge has been retained. The automatic exception to any errors in respect to the charge, formerly contained in § 1-206, subsection (c), has been retained in Rule 46.

Editor’s Note.

Session Laws 2021-47, s. 1(c), made subsection (d), as added by Session Laws 2021-47, s. 1(a), effective October 1, 2021, and applicable to actions filed on or after that date.

Session Laws 2021-47, s. 18, is a severability clause.

Effect of Amendments.

Session Laws 2021-47, s. 1(a), added subsection (d). For effective date and applicability, see editor’s note.

Legal Periodicals.

For comment on the North Carolina jury charge, present practice and future proposals, see 6 Wake Forest Intra. L. Rev. 459 (1970).

For survey of decisions under the North Carolina Rules of Civil Procedure, see 50 N.C.L. Rev. 729 (1972).

For article discussing North Carolina jury instruction practice, see 52 N.C.L. Rev. 719 (1974).

For note on judges’ remarks in the absence of a jury as a violation of former G.S. 1-180 , see 13 Wake Forest L. Rev. 259 (1977).

For survey of 1979 law on civil procedure, see 58 N.C.L. Rev. 1261 (1980).

For note on directed verdicts in favor of the party with the burden of proof, see 16 Wake Forest L. Rev. 607 (1980).

For article analyzing the 1983 amendments to Rules 6, 7, 11, 16, 26, 52, 53 and 67, FRCP, comparing these rules with North Carolina practice, and suggesting changes in certain state and federal rules, see 20 Wake Forest L. Rev. 819 (1984).

For article, “Rummaging Through a Wilderness of Verbiage: The Charge Conference, Jury Argument and Instructions,” see 8 Campbell L. Rev. 269 (1986).

For article, “Jury Instructions: A Persistent Failure to Communicate,” see 67 N.C.L. Rev. 77 (1988).

CASE NOTES

Analysis

I.In General.

Trial Court’s Duty to Explain the Law. —

Under G.S. 1A-1 , N.C. R. Civ. P. 51(a), when charging the jury in a civil case, it is the duty of the trial court to explain the law and to apply it to the evidence on the substantial issues of the action. Griffis v. Lazarovich, 161 N.C. App. 434, 588 S.E.2d 918, 2003 N.C. App. LEXIS 2200 (2003).

Appellate Review of Improper Remark. —

Where plaintiff alleges that he has been deprived of right to a fair trial by improper remarks in the hearing of the jury, court will first determine whether the trial judge’s remarks, in light of the circumstances under which they were made, were improper and then determine whether such remarks were prejudicial. Ward v. McDonald, 100 N.C. App. 359, 396 S.E.2d 337, 1990 N.C. App. LEXIS 978 (1990), cert. denied, 329 N.C. 505 , 407 S.E.2d 554, 1991 N.C. LEXIS 592 (1991).

Remark Regarding Need to Shorten Trial. —

Trial judge did not commit prejudicial error in remarking to jury about need to shorten length of trial, which was not a statement of opinion. Ward v. McDonald, 100 N.C. App. 359, 396 S.E.2d 337, 1990 N.C. App. LEXIS 978 (1990), cert. denied, 329 N.C. 505 , 407 S.E.2d 554, 1991 N.C. LEXIS 592 (1991).

II.Charge to the Jury
A.Generally

The purpose of instructing the jury is to clarify the issues, summarize the relevant evidence, and state the law applicable thereto. McNeill v. Durham County ABC Bd., 87 N.C. App. 50, 359 S.E.2d 500, 1987 N.C. App. LEXIS 2956 (1987), aff'd in part and rev'd in part, 322 N.C. 425 , 368 S.E.2d 619, 1988 N.C. LEXIS 362 (1988).

It is the duty of the trial judge, without any special requests, to instruct the jury on the law as it applies to the substantive features of the case arising on the evidence. Millis Constr. Co. v. Fairfield Sapphire Valley, Inc., 86 N.C. App. 506, 358 S.E.2d 566, 1987 N.C. App. LEXIS 2742 (1987).

Instruction as to Every Substantial Feature Required. —

Though the trial court is no longer required to explain the application of the law to the evidence, it remains the duty of the court to instruct the jury upon the law with respect to every substantial feature of the case. Mosley & Mosley Bldrs., Inc. v. Landin Ltd., 87 N.C. App. 438, 361 S.E.2d 608, 1987 N.C. App. LEXIS 3213 (1987), cert. dismissed, 322 N.C. 607 , 370 S.E.2d 416, 1988 N.C. LEXIS 457 (1988).

Duty of Judge Who Undertakes to Apply Law to Evidence. —

Although the trial judge is no longer required to apply the law to the evidence, if the judge undertakes to do so he must instruct completely and without omission. York v. Northern Hosp. Dist., 88 N.C. App. 183, 362 S.E.2d 859, 1987 N.C. App. LEXIS 3475 (1987).

Form and Number of Issues Submitted Are Within Discretion of Judge. —

While the judge must submit to the jury such issues raised by the pleadings and evidence as are necessary to fairly adjudicate the controversy at bar, the form and number of the issues submitted is within the sound discretion of the trial judge. McNeill v. Durham County ABC Bd., 87 N.C. App. 50, 359 S.E.2d 500, 1987 N.C. App. LEXIS 2956 (1987), aff'd in part and rev'd in part, 322 N.C. 425 , 368 S.E.2d 619, 1988 N.C. LEXIS 362 (1988).

Failure of the trial court to declare and explain the law with respect to a substantial feature of the case was prejudicial error, entitling defendants to a new trial. Mosley & Mosley Bldrs., Inc. v. Landin Ltd., 87 N.C. App. 438, 361 S.E.2d 608, 1987 N.C. App. LEXIS 3213 (1987), cert. dismissed, 322 N.C. 607 , 370 S.E.2d 416, 1988 N.C. LEXIS 457 (1988).

Remand for a new trial was necessary where the trial court failed to adequately declare and explain the law to the jury in its instructions as to a constructive fraud claim, and failed to submit to the jury issues which properly framed the essential factual questions. Keener Lumber Co. v. Perry, 149 N.C. App. 19, 560 S.E.2d 817, 2002 N.C. App. LEXIS 128 (2002).

Peremptory Instruction Properly Denied. —

Defendant’s evidence regarding the composition of the roadway, the absence of warning signs, the locking of the wheel, the car’s tendency to overturn, and evidence that he drove at or below the speed limit, all permitted more than the single inference that defendant was negligent; therefore, trial judge properly refused to give peremptory instruction on negligence. Hinnant v. Holland, 92 N.C. App. 142, 374 S.E.2d 152, 1988 N.C. App. LEXIS 1032 (1988).

In a personal injury action where plaintiff failed to allege permanent injuries in her pleadings and did not amend her complaint to include permanent injuries, the trial court did not err by allowing testimony that plaintiff ’s injuries were permanent, nor by instructing the jury on the issue of permanency; defendant’s objections were all general and failed to avail themselves of the opportunity to demonstrate prejudice or to obtain a continuance as provided by this rule. Smith v. Buckhram, 91 N.C. App. 355, 372 S.E.2d 90, 1988 N.C. App. LEXIS 879 (1988).

The absence of a jury instruction on spoliation of evidence entitled the plaintiff to a new trial on the issue of employer’s ratification of the conduct of employee in committing a battery upon plaintiff. McLain v. Taco Bell Corp., 137 N.C. App. 179, 527 S.E.2d 712, 2000 N.C. App. LEXIS 330 (2000).

Court improperly instructed the jury on the aggravation of plaintiff ’s pre-existing condition where the evidence showed no aggravation of a pre-existing condition. Smith v. Buckhram, 91 N.C. App. 355, 372 S.E.2d 90, 1988 N.C. App. LEXIS 879 (1988).

Denial of Requested Instruction Upheld. —

Trial court’s denial of plaintiffs’ request that the jury be instructed that collision furnished some evidence of negligence was not an abuse of discretion, since plaintiffs’ requested instruction amounted to an application of the law to the evidence, which is not required. Smith v. Bohlen, 95 N.C. App. 347, 382 S.E.2d 812, 1989 N.C. App. LEXIS 747 (1989), aff'd, 328 N.C. 564 , 402 S.E.2d 380, 1991 N.C. LEXIS 257 (1991).

Passenger did not meet her heavy burden to show that the jury was misled by the trial court’s jury instructions as the trial court properly instructed the jury on the applicable North Carolina law and was not required to submit the passenger’s proposed instruction which would have allowed the jury to presume negligence solely because an accident occurred; under North Carolina law, a defendant’s negligence will not be presumed from the mere happening of an accident, but, on the contrary, in the absence of evidence on the question, freedom from negligence will be presumed. Griffis v. Lazarovich, 161 N.C. App. 434, 588 S.E.2d 918, 2003 N.C. App. LEXIS 2200 (2003).

Trial court did not err by denying an accident victim’s requested specific wording in the jury instructions for the victim’s dram shop claim against a restaurant franchisee because the victim’s proposed special jury instruction would have required the court to state, summarize, or recapitulate the evidence and highlight specified evidence without the trial court giving equal stress to the parties’ evidence and contentions and would have improperly focused or preempted the jury’s attention. Dung Thang Trang v. L J Wings, Inc., 268 N.C. App. 136, 834 S.E.2d 679, 2019 N.C. App. LEXIS 843 (2019).

Charge to the Jury Upheld. —

In an employee’s causes of action against his employers for breach of contract and violation of the North Carolina Wage and Hour Act, G.S. 95-25.1 et seq., the trial court properly instructed the jury: (1) as to the existence of a contract; (2) that the employers were required to prove that the employee acquiesced to a change in his bonus formula; and (3) as to the spoliation of the evidence. Additionally, the trial court did not err by not instructing the jury as to estoppel because the trial court’s instructions to the jury, when viewed in their entirety, sufficiently presented the employers’ arguments to the jury. Arndt v. First Union Nat'l Bank, 170 N.C. App. 518, 613 S.E.2d 274, 2005 N.C. App. LEXIS 1080 (2005).

B.Decisions Under Prior Law

Editor’s Note. —

The cases cited below were decided prior to the 1985 amendment rewriting section (a) of this rule, which formerly provided that the judge should declare and explain the law arising on the evidence, but give no opinion on whether a fact had been proved.

Requirement of Former G.S. 1-180 Continued by This Rule. —

The requirement of this rule that the judge “shall declare and explain the law arising on the evidence given in the case” is a continuation of the requirement contained in former G.S. 1-180 . Terry v. Jim Walter Corp., 8 N.C. App. 637, 175 S.E.2d 354, 1970 N.C. App. LEXIS 1638 (1970).

Civil cases are governed by section (a) of this rule, which incorporates the substance of former G.S. 1-180 . Atkins v. Moye, 277 N.C. 179 , 176 S.E.2d 789, 1970 N.C. LEXIS 563 (1970).

The provisions of section (a) are identical to those of former G.S. 1-180 , which formerly governed the trial of civil cases as well as criminal cases. Little v. Poole, 11 N.C. App. 597, 182 S.E.2d 206, 1971 N.C. App. LEXIS 1596 (1971).

Former G.S. 1-180 is now embodied in substance within section (a) of this rule. Heath v. Swift Wings, Inc., 40 N.C. App. 158, 252 S.E.2d 526, 1979 N.C. App. LEXIS 2615 , cert. denied, 297 N.C. 453 , 256 S.E.2d 806 (1979).

Although the provisions of G.S. 1-180 have been repealed and are now embodied in subsection (a) of this rule, the law remains, for all practical purposes, unchanged. Consolidated Sys. v. Granville Steel Corp., 63 N.C. App. 485, 305 S.E.2d 57, 1983 N.C. App. LEXIS 3117 (1983).

This rule confers a substantial legal right, and imposes upon the trial judge a positive duty, so that his failure to charge on the substantial features of the case arising on the evidence is prejudicial error, even without a prayer for special instruction. Clay v. Garner, 16 N.C. App. 510, 192 S.E.2d 672, 1972 N.C. App. LEXIS 1749 (1972).

Not Dependent on Request for Special Instructions. —

This rule confers a substantial legal right, not dependent on a request for special instructions, and failure to charge on the material features of a case is prejudicial error. Horne v. Wall, 27 N.C. App. 373, 219 S.E.2d 288, 1975 N.C. App. LEXIS 1854 (1975), cert. denied, 289 N.C. 297 , 222 S.E.2d 697, 1976 N.C. LEXIS 1263 (1976).

The trial court has a duty, without a request for special instruction, to explain the law and apply it to the evidence on all substantial features of the case. The failure to do so constitutes prejudicial error and entitles the aggrieved party to a new trial. Stiles v. Charles M. Morgan Co., 64 N.C. App. 328, 307 S.E.2d 409, 1983 N.C. App. LEXIS 3283 (1983).

This rule requires the trial judge to perform two positive acts: (1) To declare and explain the law arising on the evidence presented in the case; and (2) to review such evidence to the extent necessary to explain the application of that law to the particular facts and circumstances of the case. Bodenheimer v. Bodenheimer, 17 N.C. App. 434, 194 S.E.2d 375, 1973 N.C. App. LEXIS 1376 , cert. denied, 283 N.C. 392 , 196 S.E.2d 274, 1973 N.C. LEXIS 977 (1973); Horne v. Wall, 27 N.C. App. 373, 219 S.E.2d 288, 1975 N.C. App. LEXIS 1854 (1975), cert. denied, 289 N.C. 297 , 222 S.E.2d 697, 1976 N.C. LEXIS 1263 (1976); Brown v. Scism, 50 N.C. App. 619, 274 S.E.2d 897, 1981 N.C. App. LEXIS 2161 (1981).

The chief purpose of a charge is to aid the jury to clearly understand the case and arrive at a correct verdict. Turner v. Turner, 9 N.C. App. 336, 176 S.E.2d 24, 1970 N.C. App. LEXIS 1353 (1970); Warren v. Parks, 31 N.C. App. 609, 230 S.E.2d 684, 1976 N.C. App. LEXIS 2075 (1976), cert. denied, 292 N.C. 269 , 233 S.E.2d 396, 1977 N.C. LEXIS 1089 (1977); Burns v. McElroy, 57 N.C. App. 299, 291 S.E.2d 278, 1982 N.C. App. LEXIS 2630 (1982).

And to Eliminate Irrelevant Matters. —

The purpose of the court’s charge is to eliminate irrelevant matters so that the jury may understand and appreciate the facts which determine the case. Brown v. Scism, 50 N.C. App. 619, 274 S.E.2d 897, 1981 N.C. App. LEXIS 2161 (1981).

In applying the law to the evidence the jury must be given guidance as to what facts, if found by them to be true, would justify them in answering the issues submitted to them in the affirmative or the negative. Broadnax v. Deloatch, 20 N.C. App. 430, 201 S.E.2d 525, 1974 N.C. App. LEXIS 2456 , cert. denied, 285 N.C. 85 , 203 S.E.2d 57, 1974 N.C. LEXIS 906 (1974).

Where the jury is given no guidance as to what facts, if found by them to be true, would justify them in answering the sole issue submitted to them either in the affirmative or the negative, the trial judge has failed to comply with the mandate of section (a) of this rule. American Credit Co. v. Brown, 10 N.C. App. 382, 178 S.E.2d 649, 1971 N.C. App. LEXIS 1640 (1971).

Judge Must Declare and Explain the Law Arising on the Evidence. —

It is incumbent upon the judge to declare and explain the law arising on the evidence as to all substantial features of the case, without any special prayer for instructions to that effect. Terry v. Jim Walter Corp., 8 N.C. App. 637, 175 S.E.2d 354, 1970 N.C. App. LEXIS 1638 (1970); Link v. Link, 9 N.C. App. 135, 175 S.E.2d 735, 1970 N.C. App. LEXIS 1298 (1970), rev'd, 278 N.C. 181 , 179 S.E.2d 697, 1971 N.C. LEXIS 957 (1971); Investment Properties of Asheville, Inc. v. Norburn, 281 N.C. 191 , 188 S.E.2d 342, 1972 N.C. LEXIS 1045 (1972); Warren v. Parks, 31 N.C. App. 609, 230 S.E.2d 684, 1976 N.C. App. LEXIS 2075 (1976), cert. denied, 292 N.C. 269 , 233 S.E.2d 396, 1977 N.C. LEXIS 1089 (1977); Penley v. Penley, 314 N.C. 1 , 332 S.E.2d 51, 1985 N.C. LEXIS 1706 (1985).

The trial court has a duty to explain the law and apply it to the evidence on all substantial features of the case. Failure to do so constitutes prejudicial error and entitles the aggrieved party to a new trial. Scher v. Antonucci, 77 N.C. App. 810, 336 S.E.2d 434, 1985 N.C. App. LEXIS 4385 (1985).

The trial court has wide discretion in presenting the issues to the jury, and no abuse of discretion will be found where the issues are sufficiently comprehensive to resolve all factual controversies and to enable the court to render judgment fully determining the cause. Murrow v. Daniels, 321 N.C. 494 , 364 S.E.2d 392, 1988 N.C. LEXIS 109 (1988) (decided under rule as it read prior to amendment).

A mere declaration of the law in general terms and a statement of the contentions of the parties is insufficient. Terry v. Jim Walter Corp., 8 N.C. App. 637, 175 S.E.2d 354, 1970 N.C. App. LEXIS 1638 (1970); Link v. Link, 9 N.C. App. 135, 175 S.E.2d 735, 1970 N.C. App. LEXIS 1298 (1970), rev'd, 278 N.C. 181 , 179 S.E.2d 697, 1971 N.C. LEXIS 957 (1971); Jones v. Bess, 26 N.C. App. 1, 214 S.E.2d 599, 1975 N.C. App. LEXIS 1955 (1975).

This rule imposes upon the trial judge the positive duty of declaring and explaining the law arising on the evidence as to all the substantial features of the case; a mere declaration of the law in general terms and a statement of the contentions of the parties is not sufficient to satisfy the requirements of this rule. Redding v. F.W. Woolworth Co., 14 N.C. App. 12, 187 S.E.2d 445, 1972 N.C. App. LEXIS 2026 (1972); Hunt v. Montgomery Ward & Co., 49 N.C. App. 642, 272 S.E.2d 357, 1980 N.C. App. LEXIS 3434 (1980).

Charge given by trial court that merely recapitulated the evidence, stated the parties’ contentions and recited certain general principles of contract law would not suffice. Coble v. Martin Fireproofing Ga., Inc., 25 N.C. App. 671, 214 S.E.2d 239, 1975 N.C. App. LEXIS 2365 (1975).

As Is a Charge Which Fails to Apply the Law to the Evidence. —

A charge which contains a general explanation of the law but fails to apply the law to the evidence given in the case then being tried is insufficient. Campbell v. Campbell, 18 N.C. App. 665, 197 S.E.2d 804, 1973 N.C. App. LEXIS 1973 (1973).

Judge’s duty is not to charge the jury by implication, but to declare and explain the law arising on the evidence given in the case. Harris v. Bridges, 59 N.C. App. 195, 296 S.E.2d 299, 1982 N.C. App. LEXIS 3077 (1982).

What Issues to Be Submitted to Jury. —

The judge must submit to the jury such issues as when answered by them will resolve all material controversies between the parties, as raised by the pleadings. Harrison v. McLear, 49 N.C. App. 121, 270 S.E.2d 577, 1980 N.C. App. LEXIS 3363 (1980); Davis v. Davis, 58 N.C. App. 25, 293 S.E.2d 268, 1982 N.C. App. LEXIS 2721 (1982).

The judge must bring into view the relations of the particular evidence adduced to the particular issues involved. This is what is meant by the expression that the judge must apply the facts to the law for the enlightenment of the jury. Link v. Link, 9 N.C. App. 135, 175 S.E.2d 735, 1970 N.C. App. LEXIS 1298 (1970), rev'd, 278 N.C. 181 , 179 S.E.2d 697, 1971 N.C. LEXIS 957 (1971).

Section (a) of this rule requires the judge to explain the law of the case, to point out the essentials to be proved on the one side or the other, and to bring into view the relations of the particular evidence adduced to the particular issues involved. Panhorst v. Panhorst, 277 N.C. 664 , 178 S.E.2d 387, 1971 N.C. LEXIS 1062 (1971); Redding v. F.W. Woolworth Co., 14 N.C. App. 12, 187 S.E.2d 445, 1972 N.C. App. LEXIS 2026 (1972); Howell v. Howell, 24 N.C. App. 127, 210 S.E.2d 216, 1974 N.C. App. LEXIS 1949 (1974).

In order for the trial court to discharge its duty under this rule, the court must give the jury a clear mandate as to what facts, for which there was support in the evidence, it would have to find in order to answer the issue either in the affirmative or in the negative. Deep Run Milling Co. v. Williams, 60 N.C. App. 160, 298 S.E.2d 205, 1982 N.C. App. LEXIS 3280 (1982).

The trial judge must explain and apply the law to the specific facts pertinent to the issue involved. Harrison v. McLear, 49 N.C. App. 121, 270 S.E.2d 577, 1980 N.C. App. LEXIS 3363 (1980); Davis v. Davis, 58 N.C. App. 25, 293 S.E.2d 268, 1982 N.C. App. LEXIS 2721 (1982).

And Relate the Law to the Variant Factual Situations Presented. —

When charging the jury in a civil action the trial judge shall declare and explain the law arising on the evidence. He must relate and apply the law to the variant factual situations presented by some reasonable view of the evidence. Superior Foods, Inc. v. Harris-Teeter Super Mkts., Inc., 288 N.C. 213 , 217 S.E.2d 566, 1975 N.C. LEXIS 895 (1975).

The trial judge is not required to review all of the evidence. Maynard v. Pigford, 17 N.C. App. 129, 193 S.E.2d 293, 1972 N.C. App. LEXIS 1588 (1972).

But he must summarize it sufficiently to permit him to explain the application of the law thereto. Maynard v. Pigford, 17 N.C. App. 129, 193 S.E.2d 293, 1972 N.C. App. LEXIS 1588 (1972).

The judge is not required to state the evidence except to the extent necessary to explain how the law applies to the evidence presented in the case being tried. Redding v. F.W. Woolworth Co., 14 N.C. App. 12, 187 S.E.2d 445, 1972 N.C. App. LEXIS 2026 (1972).

Summary of the material aspects of the evidence sufficient to bring into focus controlling legal principles is all that is required with respect to stating the evidence. Clay v. Garner, 16 N.C. App. 510, 192 S.E.2d 672, 1972 N.C. App. LEXIS 1749 (1972).

The judge is not required to declare and explain the law on a set of hypothetical facts. Terrell v. H. & N. Chevrolet Co., 11 N.C. App. 310, 181 S.E.2d 124, 1971 N.C. App. LEXIS 1511 (1971).

Trial court is not required to read technical statutory language to the jury. Tuttle v. Tuttle, 38 N.C. App. 651, 248 S.E.2d 896, 1978 N.C. App. LEXIS 2302 (1978), cert. denied, 296 N.C. 589 , 254 S.E.2d 32, 1979 N.C. LEXIS 1236 (1979).

Fact that some language of the complaint was used in declaring the law of the case is not error so long as the judge explains all the law arising from the evidence. Broadnax v. Deloatch, 20 N.C. App. 430, 201 S.E.2d 525, 1974 N.C. App. LEXIS 2456 , cert. denied, 285 N.C. 85 , 203 S.E.2d 57, 1974 N.C. LEXIS 906 (1974).

Where the trial court adequately instructs the jury as to the law on every material aspect of the case arising from the evidence and applies the law fairly to variant factual situations presented by the evidence, the charge is sufficient. Murrow v. Daniels, 321 N.C. 494 , 364 S.E.2d 392, 1988 N.C. LEXIS 109 (1988) (decided under rule as it read prior to amendment).

It is error for the trial court to charge the jury upon an abstract principle of law which is not presented by the allegations and evidence. Huggins v. Kye, 10 N.C. App. 221, 178 S.E.2d 127, 1970 N.C. App. LEXIS 1240 (1970).

Instructions on elements of damages are not proper if the evidence does not reveal a basis for such an award. Spears v. Service Distrib. Co., 27 N.C. App. 646, 219 S.E.2d 817, 1975 N.C. App. LEXIS 1932 (1975).

Failure to explain the law and apply it to the evidence on all substantial features of the case constitutes prejudicial error for which the aggrieved party is entitled to a new trial. Investment Properties of Asheville, Inc. v. Norburn, 281 N.C. 191 , 188 S.E.2d 342, 1972 N.C. LEXIS 1045 (1972); Clifford v. River Bend Plantation, Inc., 55 N.C. App. 514, 286 S.E.2d 352, 1982 N.C. App. LEXIS 2257 (1982).

Where the jury was left to determine for itself, without adequate explanation from the court, what law arose on the evidence in the case and how that law should be applied to the evidence, defendant was entitled to a new trial. Turner v. Turner, 9 N.C. App. 336, 176 S.E.2d 24, 1970 N.C. App. LEXIS 1353 (1970).

Although defendant’s trial counsel made no objection to the form of the issues which were submitted to the jury, defendant was entitled to have the issues decided by the jury under a charge from the court which correctly declared and explained the law arising on the evidence, and for errors in the charge there must be a new trial. Price v. Conley, 12 N.C. App. 636, 184 S.E.2d 405, 1971 N.C. App. LEXIS 1422 (1971).

The trial judge’s failure to charge the law on the substantial features of the case arising on the evidence is prejudicial error. Turner v. Turner, 9 N.C. App. 336, 176 S.E.2d 24, 1970 N.C. App. LEXIS 1353 (1970); Price v. Conley, 12 N.C. App. 636, 184 S.E.2d 405, 1971 N.C. App. LEXIS 1422 (1971); Clay v. Garner, 16 N.C. App. 510, 192 S.E.2d 672, 1972 N.C. App. LEXIS 1749 (1972).

As Does Failure to Explain the Law as Applied to Evidence Susceptible of Several Interpretations. —

When the evidence is susceptible of several interpretations, a failure to give instructions which declare and explain the law in its application to the several phases of the evidence is held for reversible error. Superior Foods, Inc. v. Harris-Teeter Super Mkts., Inc., 288 N.C. 213 , 217 S.E.2d 566, 1975 N.C. LEXIS 895 (1975); Williamson v. Vann, 42 N.C. App. 569, 257 S.E.2d 102, 1979 N.C. App. LEXIS 2849 (1979).

The jury charge must be considered contextually as a whole, and when so considered, if it presents the law of the case in such manner as to leave no reasonable cause to believe the jury was misled or misinformed, an exception that the instruction might have been better stated will not be sustained. Jones v. Satterfield Dev. Co., 16 N.C. App. 80, 191 S.E.2d 435, 1972 N.C. App. LEXIS 1645 , cert. denied, 282 N.C. 304 , 192 S.E.2d 194, 1972 N.C. LEXIS 940 (1972); Hanks v. Nationwide Mut. Fire Ins. Co., 47 N.C. App. 393, 267 S.E.2d 409, 1980 N.C. App. LEXIS 3146 (1980).

In reviewing the charge of a trial court, the Court of Appeals must read and consider the charge as a whole. When a charge presents the law fairly and clearly to the jury, it will afford no ground for reversing the judgment, though some of the expressions, when standing alone, might be regarded as erroneous. State v. Wade, 49 N.C. App. 257, 271 S.E.2d 77, 1980 N.C. App. LEXIS 3371 (1980), cert. denied, 315 N.C. 596 , 341 S.E.2d 37, 1986 N.C. LEXIS 1929 (1986).

But erroneous instructions on the burden of proof are not cured by contextual construction. Starkey Paint Co. v. Springfield Life Ins. Co., 24 N.C. App. 507, 211 S.E.2d 498, 1975 N.C. App. LEXIS 2414 (1975).

Conflicting instructions on a material aspect of the case must be held prejudicial error, since it cannot be determined that the jury was not influenced by the incorrect portion of the charge. Cross v. Beckwith, 16 N.C. App. 361, 192 S.E.2d 64, 1972 N.C. App. LEXIS 1705 (1972).

Conflicting instructions on the applicable law or on a substantive feature of the case, particularly on the burden of proof, entitle defendant to a new trial, since it must be assumed on appeal that the jury was influenced in coming to a verdict by that portion of the charge which was erroneous. State v. Jones, 20 N.C. App. 454, 201 S.E.2d 552, 1974 N.C. App. LEXIS 2464 (1974).

When there are conflicting instructions to the jury upon a material point, the one correct and the other incorrect, a new trial must be granted because it will not be assumed that the jurors possessed such discriminating knowledge of the law as would enable them to disregard the erroneous and to accept the correct statement of the law as their guide. Starkey Paint Co. v. Springfield Life Ins. Co., 24 N.C. App. 507, 211 S.E.2d 498, 1975 N.C. App. LEXIS 2414 (1975).

An instruction relating to a factual situation not properly supported by the evidence is erroneous. Superior Foods, Inc. v. Harris-Teeter Super Mkts., Inc., 288 N.C. 213 , 217 S.E.2d 566, 1975 N.C. LEXIS 895 (1975).

No Error in Failure to Instruct as to Contention Not Supported by Evidence. —

There being no evidence to support a finding of ratification, there was no error prejudicial to the defendant in the failure of the trial court to instruct the jury as to the defendant’s contention with respect thereto. Link v. Link, 278 N.C. 181 , 179 S.E.2d 697, 1971 N.C. LEXIS 957 (1971).

Submission of Defense. —

When a party contends that certain acts constitute a defense, the trial court must submit the issue to the jury with appropriate instructions if there is evidence which, when viewed in the light most favorable to the proponent, will support a reasonable inference of each essential element of the defense asserted. Plymouth Pallet Co. v. Wood, 51 N.C. App. 702, 277 S.E.2d 462, 1981 N.C. App. LEXIS 2288 (1981).

Specific Acts or Omissions Which Could Constitute Negligence or Contributory Negligence Must Be Stated. —

Under this section the trial court must relate to the jury the specific acts or omissions which, under the pleadings and evidence, could constitute negligence or contributory negligence. Everhart v. LeBrun, 52 N.C. App. 139, 277 S.E.2d 816, 1981 N.C. App. LEXIS 2307 (1981); Zach v. Surry-Yadkin Elec. Membership Corp., 57 N.C. App. 326, 291 S.E.2d 290, 1982 N.C. App. LEXIS 2653 (1982).

In a personal injury action arising out of a collision, it is error for the court to fail to instruct the jury as to what effect a finding of plaintiff’s intoxication at the time of the collision would have upon the issue of plaintiff’s contributory negligence. Atkins v. Moye, 277 N.C. 179 , 176 S.E.2d 789, 1970 N.C. LEXIS 563 (1970).

Where the judge failed to explain to the jury what bearing their findings as to the facts would have on the issue of defendant’s negligence and the instructions gave the jury unlimited authority to find the defendant generally negligent for any reason the evidence might suggest to them, there was error. Redding v. F.W. Woolworth Co., 14 N.C. App. 12, 187 S.E.2d 445, 1972 N.C. App. LEXIS 2026 (1972).

Where trial judge defined burden of proof, negligence, and proximate cause in general terms and then recapitulated the evidence and the contentions of the parties, and instructed as to the measure of damages, but failed to instruct the jury as to what facts if found by them to be true would constitute negligence, there was reversible error. Brady v. Smith, 18 N.C. App. 293, 196 S.E.2d 580, 1973 N.C. App. LEXIS 1840 (1973).

Where the instructions to the jury on the issue of defendant’s negligence consisted merely of a brief summary of the evidence, a statement of the issue, a statement on the burden of proof, and general definitions of negligence and proximate cause, and where the trial court failed to relate the principles of law set forth in its instructions to the evidence in this personal injury action, failed to specify the duties owed by defendant to plaintiff’s decedent and the acts or omissions by defendant established by the evidence from which the jury could find a breach of those duties, and failed to relate the contentions of negligence supported by the evidence, such failure was inherently prejudicial under section (a) of this rule. Hunt v. Montgomery Ward & Co., 49 N.C. App. 642, 272 S.E.2d 357, 1980 N.C. App. LEXIS 3434 (1980).

Where the court reviewed in detail evidence of plaintiff ’s injuries, the failure of the court to repeat such evidence in enunciating the rule for the measurement of damages for personal injury was not error. Love v. Hunt, 17 N.C. App. 673, 195 S.E.2d 135, 1973 N.C. App. LEXIS 1438 (1973).

By alleging the existence of a pertinent city ordinance, introducing it in evidence and presenting testimony tending to show its violation by defendants, plaintiffs made the ordinance a substantial feature of the case, thereby imposing on the trial judge a positive duty to give appropriate jury instructions with respect to the ordinance. Pharo v. Pearson, 28 N.C. App. 171, 220 S.E.2d 359, 1975 N.C. App. LEXIS 1703 (1975).

Where the question of whether time was of the essence was a substantial feature of a case, the trial judge was required, without a request, to declare and explain the law with respect thereto. Gelder & Assocs. v. Continental Ins. Co., 15 N.C. App. 686, 190 S.E.2d 674, 1972 N.C. App. LEXIS 2005 (1972).

Paraphrase of Law in Condemnation Action Held Insufficient. —

Where, in a highway condemnation action, plaintiff ’s witness, an expert real estate appraiser, testified that the value of defendant’s land was increased by the taking because a roadway fronting the property was paved, a paraphrase of the law of benefits contained in the trial court’s statement to the jury of the plaintiff ’s contentions was not adequate to satisfy the mandate of section (a) of this rule. North Carolina Bd. of Transp. v. Rand, 299 N.C. 476 , 263 S.E.2d 565, 1980 N.C. LEXIS 937 (1980).

Trial judge properly refused to submit instruction on “proper control” of automobile. See Dunn v. Herring, 75 N.C. App. 308, 330 S.E.2d 834, 1985 N.C. App. LEXIS 3615 , cert. denied, 314 N.C. 539 , 335 S.E.2d 16, 1985 N.C. LEXIS 2032 (1985).

Instruction for Following Too Closely. —

Where violation of G.S. 20-152(a) bore directly on the issue of defendant’s negligence, which was a substantial feature of the case, the court should have declared and explained the section in its charge to the jury, and should also have explained that violation of this section was negligence per se. It has this duty irrespective of plaintiff ’s request for special instructions. Scher v. Antonucci, 77 N.C. App. 810, 336 S.E.2d 434, 1985 N.C. App. LEXIS 4385 (1985).

Instruction on Permanent Injury. —

Where doctor testified that in his expert opinion plaintiff had an impairment rating to her neck of four percent (4%) as a result of her injury, an impairment rating to her “low” back of five percent (5%), and to her head (for headaches) of three percent (3%), resulting in a 12 percent (12%) impairment of her physical being, this evidence was sufficient to support an instruction on permanent injury. Wooten v. Warren ex rel. Gilmer, 117 N.C. App. 350, 451 S.E.2d 342, 1994 N.C. App. LEXIS 1268 (1994).

The credibility of the witnesses and conflicts in the evidence are for the jury, not the court. Atkins v. Moye, 277 N.C. 179 , 176 S.E.2d 789, 1970 N.C. LEXIS 563 (1970); Cutts v. Casey, 278 N.C. 390 , 180 S.E.2d 297, 1971 N.C. LEXIS 986 (1971).

Peremptory Instructions Not Abolished. —

The new Rules of Civil Procedure have not abolished peremptory instructions in proper cases. Terrell v. H. & N. Chevrolet Co., 11 N.C. App. 310, 181 S.E.2d 124, 1971 N.C. App. LEXIS 1511 (1971).

Peremptory instruction does not deprive the jury of right to reject evidence because of lack of credibility. Terrell v. H. & N. Chevrolet Co., 11 N.C. App. 310, 181 S.E.2d 124, 1971 N.C. App. LEXIS 1511 (1971).

When Peremptory Instruction May Be Given. —

When all the evidence offered suffices, if true, to establish the controverted fact, the court may give a peremptory instruction to the effect that if the jury finds the facts to be as all the evidence tends to show, it will answer the inquiry in an indicated manner. Defendant’s denial of an alleged fact raises an issue as to its existence even though he offers no evidence tending to contradict that offered by plaintiff. Terrell v. H. & N. Chevrolet Co., 11 N.C. App. 310, 181 S.E.2d 124, 1971 N.C. App. LEXIS 1511 (1971).

The correct form of a peremptory instruction is that the jury should answer the issue as specified if the jury should find from the greater weight of the evidence that the facts are as all the evidence tends to show. The court should also charge that if the jury does not so find they should answer the issue in the opposite manner. In other words, the court must leave it to the jury to decide the issue. Terrell v. H. & N. Chevrolet Co., 11 N.C. App. 310, 181 S.E.2d 124, 1971 N.C. App. LEXIS 1511 (1971).

Duty of Counsel to Point Out Misstatement of the Evidence. —

When the court’s statement of the evidence in condensed form does not correctly reflect the testimony of the witnesses in any particular respect, it is the duty of counsel to call attention thereto and request a correction. Clay v. Garner, 16 N.C. App. 510, 192 S.E.2d 672, 1972 N.C. App. LEXIS 1749 (1972).

When Inadvertent Misstatement of Evidence Is Reversible Error. —

An inadvertence by the court in recapitulating the evidence will not be grounds for reversible error unless it is called to the attention of the court in time for correction. Sims v. Virginia Homes Mfg. Corp., 32 N.C. App. 193, 231 S.E.2d 287, 1977 N.C. App. LEXIS 1881 (1977).

A broadside assignment of error to the charge as a whole is ineffective to bring up any portion of the charge for review. Investment Properties of Asheville, Inc. v. Allen, 281 N.C. 174 , 188 S.E.2d 441, 1972 N.C. LEXIS 1101 (1972).

Reversal Where Instruction Is Patently Erroneous. —

Although where there is no evidence in the record on appeal the trial court’s charge will be sustained, it is also true that where an instruction is patently or inherently erroneous to the prejudice of the appellant, the judgment will be reversed for new trial. Bodenheimer v. Bodenheimer, 17 N.C. App. 434, 194 S.E.2d 375, 1973 N.C. App. LEXIS 1376 , cert. denied, 283 N.C. 392 , 196 S.E.2d 274, 1973 N.C. LEXIS 977 (1973).

III.Contentions of the Parties

The trial court is not required to state the contentions of the parties, nor is it required that the court state the evidence or explain the application of the law thereto. York v. Northern Hosp. Dist., 88 N.C. App. 183, 362 S.E.2d 859, 1987 N.C. App. LEXIS 3475 (1987).

Contentions of the Parties Must Be Given Equal Stress. —

Section (a) of this rule requires that the judge give equal stress to the contentions of the various parties in recapitulating the evidence presented at the trial. He may not set forth one side’s evidence fully and in detail while briefly glancing over the evidence produced by the other party. Searcy v. Justice, 20 N.C. App. 559, 202 S.E.2d 314, 1974 N.C. App. LEXIS 2493 , cert. denied, 285 N.C. 235 , 204 S.E.2d 25, 1974 N.C. LEXIS 955 (1974).

The trial court is not required to state the contentions of the parties, but when it undertakes to state the contentions of one party upon a particular phase of the case, it is incumbent upon the court to give the opposing contentions of the adverse party upon the same aspect. Comer v. Cain, 8 N.C. App. 670, 175 S.E.2d 337, 1970 N.C. App. LEXIS 1645 (1970); Rector v. James, 41 N.C. App. 267, 254 S.E.2d 633, 1979 N.C. App. LEXIS 2437 (1979); Daniels v. Jones, 42 N.C. App. 555, 257 S.E.2d 120, 1979 N.C. App. LEXIS 2851 , cert. denied, 298 N.C. 567 , 261 S.E.2d 120, 1979 N.C. LEXIS 1629 (1979).

But Need Not Be Stated at Equal Length. —

It is not required that the statement of contentions of the parties as stated by the court be of equal length. Comer v. Cain, 8 N.C. App. 670, 175 S.E.2d 337, 1970 N.C. App. LEXIS 1645 (1970); Daniels v. Jones, 42 N.C. App. 555, 257 S.E.2d 120, 1979 N.C. App. LEXIS 2851 , cert. denied, 298 N.C. 567 , 261 S.E.2d 120, 1979 N.C. LEXIS 1629 (1979).

Nor Follow Any Precise Sequence. —

Just as the length of the statement of contentions does not have to be exactly equal, the order of stating the contentions of each party does not have to follow any precise sequence. Rector v. James, 41 N.C. App. 267, 254 S.E.2d 633, 1979 N.C. App. LEXIS 2437 (1979).

Contentions That Acts or Omissions Constitute Claims or Defenses. —

If a party contends that certain acts or omissions constitute a claim for relief or a defense against another, the trial court must submit the issue with appropriate instructions if there is evidence which, when viewed in the light most favorable to the proponent, will support a reasonable inference of each essential element of the claim or defense asserted. Cockrell v. Cromartie Transp. Co., 295 N.C. 444 , 245 S.E.2d 497, 1978 N.C. LEXIS 895 (1978).

Objections to the statement of contentions must ordinarily be brought to the attention of the court before verdict; otherwise they are deemed to be waived. Rector v. James, 41 N.C. App. 267, 254 S.E.2d 633, 1979 N.C. App. LEXIS 2437 (1979).

But exceptions to an expression of opinion within the context of the summary of the contentions may be raised on appeal. Heath v. Swift Wings, Inc., 40 N.C. App. 158, 252 S.E.2d 526, 1979 N.C. App. LEXIS 2615 , cert. denied, 297 N.C. 453 , 256 S.E.2d 806 (1979).

IV.Special Instructions

Duty to Request Greater Elaboration or Instructions on Subordinate Features. —

Where the court adequately charges the law on every material aspect of the case arising on the evidence and applies the law fairly to the various factual situations presented by the evidence, the charge is sufficient and will not be held error for failure of the court to give instructions on subordinate features of the case, since it is the duty of a party desiring instructions on a subordinate feature, or greater elaboration, to aptly tender a request therefor. Koutsis v. Waddel, 10 N.C. App. 731, 179 S.E.2d 797, 1971 N.C. App. LEXIS 1712 (1971).

It is the duty of the party desiring instructions on a subordinate feature of the case or greater elaboration on a particular point to aptly tender request for special instructions. Hanks v. Nationwide Mut. Fire Ins. Co., 47 N.C. App. 393, 267 S.E.2d 409, 1980 N.C. App. LEXIS 3146 (1980).

If a more thorough or more detailed charge is desired it is incumbent to request it. Prevette v. Bullis, 12 N.C. App. 552, 183 S.E.2d 810, 1971 N.C. App. LEXIS 1401 (1971).

When the court has sufficiently instructed the jury, if the instructions are not as full as a party desires, he should submit a request for special instructions. Broadnax v. Deloatch, 20 N.C. App. 430, 201 S.E.2d 525, 1974 N.C. App. LEXIS 2456 , cert. denied, 285 N.C. 85 , 203 S.E.2d 57, 1974 N.C. LEXIS 906 (1974).

Any party may make a written request for special jury instructions. Alston v. Monk, 92 N.C. App. 59, 373 S.E.2d 463, 1988 N.C. App. LEXIS 987 (1988).

Judge Has Discretion to Give or Refuse Instruction Not Signed or in Writing. —

In a medical malpractice action, the trial court did not abuse its discretion by failing to instruct the jury on certain proposed jury instructions as the defending doctor and medical center did not submit a written proposed instruction. Swink v. Weintraub, 195 N.C. App. 133, 672 S.E.2d 53, 2009 N.C. App. LEXIS 111 (2009), review denied, 363 N.C. 812 , 693 S.E.2d 144, N.C. LEXIS 78 (2010).

Objection to Issues Submitted Precluded on Appeal Where Not Raised Below. —

A party who is dissatisfied with the form of the issues or who desires an additional issue should raise the question at once, by objecting or by presenting the additional issue. If a party consents to the issues submitted, or does not object at the time or ask for a different or an additional issue, he cannot make the objection later on appeal. Hendrix v. All Am. Life & Cas. Co., 44 N.C. App. 464, 261 S.E.2d 270, 1980 N.C. App. LEXIS 2481 (1980).

Appellant did not properly preserve a challenge to a trial court’s refusal to give an explicit safe harbor instruction to a jury for purposes of appellate review because appellant did not submit an adequate written request for the delivery of the instruction for the trial court’s consideration. Although appellant attempted to clarify the nature of the request during the jury instruction conference, appellant’s efforts did not suffice to overcome the failure to submit an adequate written request for the trial court’s consideration. Piazza v. Kirkbride, 372 N.C. 137 , 827 S.E.2d 479, 2019 N.C. LEXIS 379 (2019).

Failure to Instruct on Subordinate Features Not Error Absent Request. —

Where the court has charged adequately on the material aspects of the case arising on the evidence and has fairly applied the law to the factual situation, the charge will not be held error for failure of the court to instruct on subordinate features absent a request. Hudson v. Hudson, 21 N.C. App. 412, 204 S.E.2d 697, 1974 N.C. App. LEXIS 1818 (1974).

Failure to Give Proper Specific Instruction Aptly Tendered to Error. —

When a party aptly tenders a written request for a specific instruction which is correct in itself and supported by the evidence, the failure of the court to give the instruction, at least in substance, is error. Faeber v. E.C.T. Corp., 16 N.C. App. 429, 192 S.E.2d 1 (1972); Property Shop, Inc. v. Mountain City Inv. Co., 56 N.C. App. 644, 290 S.E.2d 222 (1982); Millis Constr. Co. v. Fairfield Sapphire Valley, Inc., 86 N.C. App. 506, 358 S.E.2d 566 (1987); Williams v. Randolph, 94 N.C. App. 413, 380 S.E.2d 553, cert. denied, 325 N.C. 437 , 384 S.E.2d 547 (1989). In accord with the main volume. See Stimpson Hosiery Mills, Inc. v. Pam Trading Corp., 98 N.C. App. 543, 392 S.E.2d 128, 1990 N.C. App. LEXIS 437 , writ denied, 327 N.C. 144 , 393 S.E.2d 909, 1990 N.C. LEXIS 595 (1990).

Trial court committed error in refusing to give defendant’s jury instruction that stated that defendant had to know the age of the victims in order to be convicted of aiding and abetting statutory rape. Since that offense involved an element of knowledge, the instruction should have been given because it was both a correct statement of the law and supported by the evidence, which meant defendant was entitled to give the instruction pursuant to G.S. 1A-1-51, N.C. R. Civ. P. 51(b) and G.S. 1-181 . State v. Bowman, 188 N.C. App. 635, 656 S.E.2d 638, 2008 N.C. App. LEXIS 281 (2008).

Use of Exact Words Formulated by Litigant Not Required. —

A litigant is not entitled to have the trial judge instruct the jury in the exact words formulated by the litigant, it being sufficient if the pertinent and applicable instructions requested are given substantially in the charge. Anderson v. Smith, 29 N.C. App. 72, 223 S.E.2d 402, 1976 N.C. App. LEXIS 2379 (1976); Alston v. Monk, 92 N.C. App. 59, 373 S.E.2d 463, 1988 N.C. App. LEXIS 987 (1988); Williams v. Randolph, 94 N.C. App. 413, 380 S.E.2d 553, 1989 N.C. App. LEXIS 554 (1989).

Failure of Counsel to Sign Written Request Did Not Prevent Issue Preservation. —

A written request for jury instructions was sufficient to preserve the plaintiff’s objection to the instructions on appeal although it was not signed by plaintiff’s counsel as required by this rule. Kinsey v. Spann, 139 N.C. App. 370, 533 S.E.2d 487, 2000 N.C. App. LEXIS 904 (2000).

Once contributory negligence becomes a question for the jury, the “reasonable person” objective standard comes into play. The trial court’s refusal to give a special jury instruction requested under section (b) of this rule, phrased in terms of actual knowledge, the subjective standard, was proper. King v. Allred, 76 N.C. App. 427, 333 S.E.2d 758, 1985 N.C. App. LEXIS 3900 (1985).

Trial judge did not err in failing to charge on the jury’s right to consider the physical evidence, where the plaintiff had failed to submit a proposed instruction and had failed to submit her request to him in writing as required by section (b) of this rule. Hord v. Atkinson, 68 N.C. App. 346, 315 S.E.2d 339, 1984 N.C. App. LEXIS 3291 (1984).

Defendant was entitled to an instruction on accident but failed to show that he was prejudiced when it was not given where he presented evidence that child sustained injuries when he fell from a bed, possibly after being shoved by their dog, and that he simply placed the child onto the bed and then went to sleep next to him, which was not unlawful conduct, but where, in reaching its verdict convicting defendant of first-degree murder, the jury found that defendant had the specific intent to kill the child, and, necessarily, rejected the possibility that the killing was unintentional. State v. Moss, 139 N.C. App. 106, 532 S.E.2d 588, 2000 N.C. App. LEXIS 804 (2000).

Denial of Special Nuisance Instruction Was Proper. —

Pursuant to G.S. 1A-1 , N.C. R. Civ. P. 51(b), where neither the allegations of the complaint nor the evidence at trial supported liability under a theory of negligence in a suit against a developer for creating a private nuisance, the trial court properly declined to give a special instruction on nuisance that was requested by the developer, as the instruction essentially set forth a theory of contributory negligence. BNT Co. v. Baker Precythe Dev. Co., 151 N.C. App. 52, 564 S.E.2d 891, 2002 N.C. App. LEXIS 677 (2002).

Denial Proper. —

When defendant was prosecuted under G.S. 14-269.2 , the trial court was not required, under G.S. 1-181 and G.S. 1A-1 , Rule 51(b), to give defendant’s proffered special instruction on the defense of necessity, and did not err in instructing the jury that necessity was not a defense, as several alternatives were available to defendant, who was pursuing an armed fugitive into an elementary school, which did not require him to violate G.S. 14-269.2 . State v. Haskins, 160 N.C. App. 349, 585 S.E.2d 766, 2003 N.C. App. LEXIS 1792 (2003), overruled in part, State v. Huckelba, 240 N.C. App. 544, 771 S.E.2d 809, 2015 N.C. App. LEXIS 325 (2015).

As a coin shop owner’s requested jury instruction was an incorrect statement of law with respect to the defense of being a bona fide purchaser for value against a claim of conversion, the trial court did not err in refusing to give the instruction pursuant to G.S. 1-181 and N.C. R. Civ. P. 51(b); the defense, if it existed, only required that a defendant purchase the converted property for value, in good faith, without notice that the property had been converted. King v. Brooks, 224 N.C. App. 315, 736 S.E.2d 788, 2012 N.C. App. LEXIS 1442 (2012).

The plaintiff was entitled to a new trial where the court failed to give a special jury instruction regarding proximate concurrent causation in a homeowner’s insurance coverage determination suit; without it, the jury was not fully instructed in the law as they were not allowed to consider whether multiple factors combined to cause the damage to plaintiff’s floor. Erie Ins. Exch. v. Bledsoe, 141 N.C. App. 331, 540 S.E.2d 57, 2000 N.C. App. LEXIS 1304 (2000).

Failure to Properly Apply for Special Instructions Justified Refusal to Give Them. —

The defendant, a former employee who misappropriated the plaintiff’s cost information in order to underbid it, did not comply with the requirements of this section and, therefore, was not entitled to jury instructions with respect to the proof required for a finding of lost profits. Byrd's Lawn & Landscaping, Inc. v. Smith, 142 N.C. App. 371, 542 S.E.2d 689, 2001 N.C. App. LEXIS 99 (2001).

Trial court properly refused to give defendant’s requested special instruction on the defense of justification of possession of a firearm by a felon because the request was not in writing. State v. Craig, 167 N.C. App. 793, 606 S.E.2d 387, 2005 N.C. App. LEXIS 6 (2005).

No Basis for Instruction. —

Evidence did not support a conclusion that defendant, upon possessing the firearm, was under an unlawful and present threat of death or serious injury, as the record contained no evidence that he had been recently threatened, that the threats were credible, and that he was in mortal fear, he failed to establish any basis for an instruction on duress or necessity as a defense; the trial court did not err by denying counsel’s request for this instruction. State v. Edwards, 239 N.C. App. 391, 768 S.E.2d 619, 2015 N.C. App. LEXIS 70 (2015).

V.Opinion of the Judge

Trial judge may not convey to the jury his opinion of the facts to be proven in any case. Brown v. Scism, 50 N.C. App. 619, 274 S.E.2d 897, 1981 N.C. App. LEXIS 2161 (1981).

Subsection (a) of this Rule prohibits the trial judge from expressing an opinion on the weight to be given to particular evidence. Sherrod v. Nash Gen. Hosp., 126 N.C. App. 755, 487 S.E.2d 151, 1997 N.C. App. LEXIS 629 (1997), aff'd in part, rev'd, 348 N.C. 526 , 500 S.E.2d 708, 1998 N.C. LEXIS 328 (1998).

In Any Manner at Any Stage of Trial. —

While this rule refers to the judge’s charge, the admonition has always been construed to forbid the judge to convey to the jury in any manner at any stage of the trial his opinion on the facts in evidence. State Hwy. Comm'n v. Ferry, 19 N.C. App. 332, 198 S.E.2d 773, 1973 N.C. App. LEXIS 1645 (1973).

A trial judge is expressly forbidden to convey to the jury, in any manner, at any stage of the trial, his opinion as to whether a fact is fully or sufficiently proven. Worrell v. Hennis Credit Union, 12 N.C. App. 275, 182 S.E.2d 874, 1971 N.C. App. LEXIS 1344 (1971).

The prohibition provided by section (a) of this rule does not apply to the charge alone, but prohibits a trial judge from asking questions or making comments at any time during the trial which amount to an expression of an opinion as to what has or has not been shown by the testimony. Worrell v. Hennis Credit Union, 12 N.C. App. 275, 182 S.E.2d 874, 1971 N.C. App. LEXIS 1344 (1971); Saintsing v. Taylor, 57 N.C. App. 467, 291 S.E.2d 880, 1982 N.C. App. LEXIS 2681 (1982).

Expressions of opinion in the presence of a jury are prohibited, and understandably so, since most juries lack the training needed to consider only relevant and competent evidence without guidance. In contrast, in a trial without a jury, the fact finder is also a highly trained legal expert, and thus the evil addressed by the statute is less likely to exist. Consolidated Sys. v. Granville Steel Corp., 63 N.C. App. 485, 305 S.E.2d 57, 1983 N.C. App. LEXIS 3117 (1983).

The trial judge is prohibited from making comments at any time during the trial which amount to expressions of opinion as to what has or what has not been shown by the evidence. Russell v. Town of Morehead City, 90 N.C. App. 675, 370 S.E.2d 56, 1988 N.C. App. LEXIS 608 (1988).

Either Directly or by Implication. —

Under section (a) of this rule the trial judge may not express an opinion, either directly or by implication, in favor of any party at any stage of the trial. Searcy v. Justice, 20 N.C. App. 559, 202 S.E.2d 314, 1974 N.C. App. LEXIS 2493 , cert. denied, 285 N.C. 235 , 204 S.E.2d 25, 1974 N.C. LEXIS 955 (1974).

Whether prejudice resulted from trial judge’s remarks is to be determined from the circumstances under which the remarks were made and the probable meaning of the language of the judge to the jury. Merchants Distribs., Inc. v. Hutchinson, 16 N.C. App. 655, 193 S.E.2d 436, 1972 N.C. App. LEXIS 1802 (1972).

Probable Effect on Jury Determinative. —

The probable effect upon the jury, and not the motive of the judge, determines whether a party’s right to a fair trial has been impaired. In re Will of York, 18 N.C. App. 425, 197 S.E.2d 19, 1973 N.C. App. LEXIS 1891 , cert. denied, 283 N.C. 753 , 198 S.E.2d 729, 1973 N.C. LEXIS 1070 (1973).

The criterion for determining whether the trial judge deprived a litigant of his right to a fair trial by improper comments or remarks in the hearing of the jury is the probable effect upon the jury. Worrell v. Hennis Credit Union, 12 N.C. App. 275, 182 S.E.2d 874, 1971 N.C. App. LEXIS 1344 (1971); Saintsing v. Taylor, 57 N.C. App. 467, 291 S.E.2d 880, 1982 N.C. App. LEXIS 2681 (1982).

The criterion for judging any improper comments by the trial judge is their effect upon the jury. Brenner v. Little Red Sch. House, Ltd., 59 N.C. App. 68, 295 S.E.2d 607, 1982 N.C. App. LEXIS 2856 (1982).

Probable Effect of Judge’s Remarks to Be Considered Irrespective of Motive. —

To determine whether a party’s right to a fair trial has been impaired by the remarks of the trial judge, the Court of Appeals must examine the probable effect of the remarks upon the jury, irrespective of the motives of the trial judge. This test requires an examination of the circumstances under which the remarks were made and the probable meaning of the remarks to the jury. Russell v. Town of Morehead City, 90 N.C. App. 675, 370 S.E.2d 56, 1988 N.C. App. LEXIS 608 (1988).

In explaining legal principles the trial judge’s use of illustrations should be carefully guarded to avoid suggestions susceptible of inferences as to the facts beyond those intended. Terrell v. H. & N. Chevrolet Co., 11 N.C. App. 310, 181 S.E.2d 124, 1971 N.C. App. LEXIS 1511 (1971).

Where in his charge the court used the phrases “as I understand it” and “I think he meant” in referring to his own understanding of certain testimony, but cautioned the jury not to take the facts or evidence from the court but only from their own recollection of the evidence, the court was simply interpreting and summarizing the evidence in order to declare and explain the law arising thereon, as required by section (a) of this rule as it read prior to amendment in 1985. Slate v. Shelton, 20 N.C. App. 644, 202 S.E.2d 292, 1974 N.C. App. LEXIS 2515 (1974).

Remarks Discrediting Counsel. —

Remarks by the trial judge in effect threatening to find defendants’ counsel in contempt of court tended to discredit defendants’ counsel, and hence defendants’ cause, in the eyes of the jury, in violation of section (a) of this rule. Board of Transp. v. Wilder, 28 N.C. App. 105, 220 S.E.2d 183, 1975 N.C. App. LEXIS 1685 (1975).

Instruction as to Counsel’s Statements on Applicable Law. —

It was not error for the trial judge to charge the jury that “It is absolutely necessary that you take the law as I give it to you and not as you think it is or you might like it to be. What plaintiff ’s counsel and defendant’s counsel have told you is the law is not the law.” The fact that the charge mentioned both counsel eliminated any prejudice. Brenner v. Little Red Sch. House, Ltd., 59 N.C. App. 68, 295 S.E.2d 607, 1982 N.C. App. LEXIS 2856 (1982).

The trial judge must abstain from conduct or language which tends to discredit or prejudice a litigant or his cause with the jury. Worrell v. Hennis Credit Union, 12 N.C. App. 275, 182 S.E.2d 874, 1971 N.C. App. LEXIS 1344 (1971); Saintsing v. Taylor, 57 N.C. App. 467, 291 S.E.2d 880, 1982 N.C. App. LEXIS 2681 (1982).

Prejudice to Unsuccessful Party May Be Grounds for New Trial. —

Any remark by the presiding judge made in the presence of the jury that tends to prejudice the jury against the unsuccessful party may be grounds for a new trial. Russell v. Town of Morehead City, 90 N.C. App. 675, 370 S.E.2d 56, 1988 N.C. App. LEXIS 608 (1988).

Instruction “I will not attempt to recall all of the evidence, but only so much of it as the court deems is important when you come to consider your verdict,” was erroneous as an expression of opinion on the importance of the recapitulated evidence. Little v. Poole, 11 N.C. App. 597, 182 S.E.2d 206, 1971 N.C. App. LEXIS 1596 (1971).

Emphasis on Type of Witnesses Appearing for Plaintiff. —

Where, in the court’s charge to the jury in a condemnation case, emphasis was placed upon the type of witnesses appearing on behalf of the Board of Transportation, as contrasted to the laymen who testified on behalf of the landowners, the court erred. State Hwy. Comm'n v. Ferry, 19 N.C. App. 332, 198 S.E.2d 773, 1973 N.C. App. LEXIS 1645 (1973).

Expression of Opinion on Credibility of Witness. —

In the trial of plaintiff ’s action to recover damages for defendant’s alleged breach of contract in the design and manufacture of a wrapping machine and of defendant’s action against plaintiff to recover the balance due for the wrapping machine, trial court’s declaration in the presence of the jury that defendant’s president and chief witness was an expert in the field of machine design constituted an expression of opinion on the credibility of the witness in violation of this rule. Rannbury-Kobee Corp. v. Miller Mach. Co., 49 N.C. App. 413, 271 S.E.2d 554, 1980 N.C. App. LEXIS 3389 (1980).

Court’s Daily Prayer. —

Absent a showing of prejudice by appellants, it could not be concluded that the trial court’s daily prayer amounted to an impermissible expression of opinion in violation of subsection (a) of this Rule. Hill v. Cox, 108 N.C. App. 454, 424 S.E.2d 201, 1993 N.C. App. LEXIS 87 (1993).

Informal Remarks Held Not Reversible Error. —

Judge’s remarks to jury on the opening of court for the second and third days of trial, to the effect that jurors should “sit back, relax and stay tuned for the next portion of the trial,” may have been informal and even jocular but did not constitute reversible error. Lenins v. K-Mart Corp., 98 N.C. App. 590, 391 S.E.2d 843, 1990 N.C. App. LEXIS 442 (1990).

Remarks Not Reversible Error. —

While remarks made after the verdict was returned by the court were perhaps not appropriate under a strict reading of this rule, they did not constitute reversible error. Haymore v. Thew Shovel Co., 116 N.C. App. 40, 446 S.E.2d 865, 1994 N.C. App. LEXIS 859 (1994).

Expert Witness. —

Where the witness involved was not a party to the litigation and court’s declaration of him as an expert in no way touched upon any question which the jury had to decide, there was no prejudicial error by virtue of the trial court’s stating its ruling concerning such witness in the presence of the jury. In re Lee, 69 N.C. App. 277, 317 S.E.2d 75, 1984 N.C. App. LEXIS 3481 (1984).

Declaration That Defendant Is Expert. —

The trial court committed prejudicial error when it declared in the presence of the jury that the defendant was found by the court to be an expert in the field of general psychiatry, where his expertise was not simply a question of fact but one of the most critical questions to be decided by the jury, so that the trial court’s legal ruling improperly set forth a conclusion of law that the jury was duty-bound to accept. Sherrod v. Nash Gen. Hosp., 348 N.C. 526 , 500 S.E.2d 708, 1998 N.C. LEXIS 328 (1998).

Rule 52. Findings by the court.

  1. Findings. —
    1. In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment.
    2. Findings of fact and conclusions of law are necessary on decisions of any motion or order ex mero motu only when requested by a party and as provided by Rule 41(b). Similarly, findings of fact and conclusions of law are necessary on the granting or denying of a preliminary injunction or any other provisional remedy only when required by statute expressly relating to such remedy or requested by a party.
    3. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein.
  2. Amendment. —  Upon motion of a party made not later than 10 days after entry of judgment the court may amend its findings or make additional findings and may amend the judgment accordingly. The motion may be made with a motion for a new trial pursuant to Rule 59.
  3. Review on appeal. —  When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may be raised on appeal whether or not the party raising the question has made in the trial court an objection to such findings or has made a motion to amend them or a motion for judgment, or a request for specific findings.

History. 1967, c. 954, s. 1; 1969, c. 895, s. 12.

Comment

This rule largely follows prior law, incorporating little of the federal rule. Former § 1-185 called for written findings and conclusions of law “upon trial of an issue of fact by the court.” In respect to motions and provisional remedies, the Commission has been guided by the North Carolina case law. See Millhiser v. Balsley, 106 N.C. 433 , 11 S.E. 314 (1890); Whitehead v. Hale, 118 N.C. 601 , 24 S.E. 360 (1896). The reference to Rule 41(b) has to do with the situation when the trial judge is dismissing an action at the close of the plaintiff ’s evidence with the determination that the dismissal shall be on the merits. In this situation, both Rules 41 and 52 contemplate that the judge shall make written findings and conclusions.

OFFICIAL COMMENT

Comment to the 1969 amendment.

  1. The amendment to Rule 52(a) and the addition of subsections (1) and (2) to section (a) merely assign numbers to the paragraphs. The other change is a matter of grammar.

The amendment added subsection (3) which is new. It provides that when findings are necessary by the court, it is sufficient if the findings of fact and conclusions of law appear in the decision or memorandum. The main purpose here is to make it clear that no particular form is required, and it is sufficient if the findings of fact and conclusions of law are distinguishable.

Legal Periodicals.

For article on legislative changes to the new Rules of Civil Procedure, see 6 Wake Forest Intra. L. Rev. 267 (1970).

For article on administrative evidence rules, see 49 N.C.L. Rev. 635 (1971).

For survey of 1976 case law on civil procedure, see 55 N.C.L. Rev. 914 (1977).

For survey of 1978 law on civil procedure, see 57 N.C.L. Rev. 891 (1979).

For survey of 1979 law on civil procedure, see 58 N.C.L. Rev. 1261 (1980).

For article, “A Powerless Judiciary? The North Carolina Courts’ Perceptions of Review of Administrative Action,” see 12 N.C. Cent. L.J. 21 (1980).

For article analyzing the 1983 amendments to Rules 6, 7, 11, 16, 26, 52, 53 and 67, FRCP, comparing these rules with North Carolina practice, and suggesting changes in certain state and federal rules, see 20 Wake Forest L. Rev. 819 (1984).

For article, “Functus Officio: Authority of the Trial Court after Notice of Appeal,” see 81 N.C.L. Rev. 2331 (2003).

CASE NOTES

Analysis

I.In General

Applicability of Rule. —

G.S. 1A-1 , N.C. R. Civ. P. 52 was inapplicable in a proceeding regarding attorney’s fees because G.S. 6-19.1 prescribed the procedure to be followed for awarding attorney fees in the very specific setting before the courts. Early v. County of Durham, Dep't of Soc. Servs., 193 N.C. App. 334, 667 S.E.2d 512, 2008 N.C. App. LEXIS 1818 (2008).

This rule necessarily contemplates that facts be found before conclusions can be reached. Baker v. Baker, 102 N.C. App. 792, 404 S.E.2d 20, 1990 N.C. App. LEXIS 1295 (1990).

Where an order’s rationale is tainted by a process that violates this rule, a new trial of the issues is required. Baker v. Baker, 102 N.C. App. 792, 404 S.E.2d 20, 1990 N.C. App. LEXIS 1295 (1990).

In cases where the trial judge sits as the trier of facts, he is required to (1) find the facts on all issues joined in the pleadings; (2) declare the conclusions of law arising on the facts found; and (3) enter judgment accordingly. Gilbert Eng'g Co. v. City of Asheville, 74 N.C. App. 350, 328 S.E.2d 849, 1985 N.C. App. LEXIS 3544 (1985).

Issues Must Be Resolved by Trial Court Before Appellate Review. —

In a trial without a jury, it is the duty of the trial judge to resolve all issues raised by the pleadings and the evidence by making findings of fact and drawing therefrom conclusions of law upon which to base a final order or judgment. When all issues are not so resolved by the trial court, an appellate court has no option other than to vacate the order and remand the cause to the trial court for completion. Small v. Small, 107 N.C. App. 474, 420 S.E.2d 678, 1992 N.C. App. LEXIS 737 (1992).

Presumption Where Trial Court Is Not Required to Find Facts. —

When the trial court is not required to find facts and make conclusions of law and does not do so, it is presumed that the court on proper evidence found facts to support its judgment. Estrada v. Burnham, 316 N.C. 318 , 341 S.E.2d 538, 1986 N.C. LEXIS 2103 (1986).

Jurisdiction of Trial Court. —

The trial court is not divested of jurisdiction to hear and rule on a motion under section (b) of this rule, even though notice of appeal has been given. York v. Taylor, 79 N.C. App. 653, 339 S.E.2d 830, 1986 N.C. App. LEXIS 2109 (1986).

Where notice of appeal from default judgment for defendants with respect to plaintiff ’s claim and defendants’ counter-claim against plaintiff was filed at the same time as plaintiff ’s motion under section (b) of this rule for amended and additional findings of fact and his motion under G.S. 1A-1 , Rule 60(b) for relief from judgment, under the circumstances of the case the trial court had jurisdiction to rule on plaintiff’s motion under G.S. 1A-1 , Rule 60(b). York v. Taylor, 79 N.C. App. 653, 339 S.E.2d 830, 1986 N.C. App. LEXIS 2109 (1986).

Remedy for failure of court’s order to “direct the entry of an appropriate judgment” under subsection (a)(1) of this rule was not a new trial, but rather, a remand for entry of a proper judgment. Pitts v. Broyhill, 88 N.C. App. 651, 364 S.E.2d 738, 1988 N.C. App. LEXIS 196 (1988).

Requirement of Appropriately Detailed Findings. —

The requirement of appropriately detailed findings is designed to dispose of the issues raised by the pleadings and to allow the appellate courts to perform their proper function in the judicial system. Mashburn v. First Investors Corp., 102 N.C. App. 560, 402 S.E.2d 860, 1991 N.C. App. LEXIS 449 (1991).

Under this rule, the facts required to be found specially are those material and ultimate facts from which it can be determined whether the findings are supported by the evidence and whether they support the conclusions of law reached. Guilford County Planning & Dev. Dep't v. Simmons, 102 N.C. App. 325, 401 S.E.2d 659, 1991 N.C. App. LEXIS 300 (1991).

No Findings Necessary Where Not Requested By Party. —

Regarding a breach of contract action filed against an individual and his business entities, where there was no suggestion in the record that the individual asked for findings of fact or conclusions of law to be included in the trial court’s order on his motion to strike entry of default, pursuant to G.S. 1A-1 , Rule 52(a)(2), the trial court’s failure to do so was not reversible error. Granville Med. Ctr. v. Tipton, 160 N.C. App. 484, 586 S.E.2d 791, 2003 N.C. App. LEXIS 1826 (2003).

Trial court properly denied defendants’ N.C. R. Civ. P. 60(b) motion to set aside default judgment because defendants made no request for written findings of fact regarding the trial court’s order denying their post-trial motions but rather requested the trial court to amend its findings under G.S. 1A-1 , N.C. R. Civ. P. 52(b), and defendants could not make a Rule 52(b) request for amended findings of fact regarding a previous order applicable to a Rule 60(b) motion and subsequent order where there was no additional request for findings of fact; the trial court did not err in failing to make findings of fact and conclusions of law as to whether there was a showing of excusable neglect and meritorious defense because the issue of whether there was a showing of a meritorious defense was immaterial when there was sufficient evidence to support the trial court’s conclusion that defendants failed to establish excusable neglect. Monaghan, M.D. v. Schilling, MD, 197 N.C. App. 578, 677 S.E.2d 562, 2009 N.C. App. LEXIS 718 (2009).

Findings Held Insufficient. —

Where the trial court’s findings did not address the factual dispute with respect to either the necessity or the cost of “changes mandated” by the county’s application of more stringent fire and building code requirements than anticipated by the contract, the findings did not support the court’s conclusion that plaintiff contractor was entitled to recover damages of $36,000 from defendant owner. Mann Contrs., Inc. v. Flair with Goldsmith Consultants-II, Inc., 135 N.C. App. 772, 522 S.E.2d 118, 1999 N.C. App. LEXIS 1244 (1999).

Case remanded for additional findings of fact regarding the evidence where the trial court made no findings in connection with the direct costs expended by the plaintiff; and as a result, the appellate court was unable to determine whether or not the trial court properly considered the evidence of the plaintiff’s direct costs. RPR & Assocs. v. Univ. of N. Carolina-Chapel Hill, 153 N.C. App. 342, 570 S.E.2d 510, 2002 N.C. App. LEXIS 1191 (2002), cert. dismissed, 357 N.C. 166 , 579 S.E.2d 882, 2003 N.C. LEXIS 443 (2003).

Orders terminating a mother’s parental rights to the mother’s children were reversed because the trial court did not include adequate findings of fact in the orders, as required by G.S. 1A-1 , N.C. R. Civ. P. 52(a)(1), specifically finding how the facts established by the evidence required termination of the mother’s parental rights, as the orders (1) mainly quoted statutes without stating specific facts requiring termination of the mother’s parental rights, (2) did not state if reunification efforts were undertaken, how the mother failed to comply with efforts to address the mother’s problems, conditions leading to the children’s removal, or how the mother did not make progress addressing these conditions, (3) referred to the mother’s drug problems without giving details about the mother’s drug use or any rehabilitation efforts, and (4) included no facts about the agency’s case plan, the mother’s family or work history, the mother’s visitation with the children, or the mother’s housing situation, so the orders did not allow meaningful appellate review. In re T.P., 197 N.C. App. 723, 678 S.E.2d 781, 2009 N.C. App. LEXIS 1109 (2009).

In an owner’s action against joint tenants and their lender to quiet title to property, the trial court abused its discretion by denying a lender’s motion to reconsider under G.S. 1A-1 , N.C. R. Civ. P. 52(b) its order entering a default judgment against joint tenants because the underlying default judgment was based on erroneous findings of fact and a misapplication of law; the trial court stated that it reconsidered the pleadings of record and the lender’s brief but made no additional findings of fact or conclusions of law on which to base its denial of the motion to reconsider, and the trial court should have amended its findings, made additional findings, and amended its judgment because equity and justice required the trial court to allow the lender to defend its claim on the merits. Jackson v. Culbreth, 199 N.C. App. 531, 681 S.E.2d 813, 2009 N.C. App. LEXIS 1492 (2009).

Trial court’s orders were vacated because the trial court failed to make any findings of fact in its orders denying minors’ motions for domestic violence protective orders against their biological father’s wife; such a failure to make findings of fact prevented the court of appeals from conducting meaningful appellate review. D.C. v. D.C., 279 N.C. App. 371, 865 S.E.2d 889, 2021- NCCOA-493, 2021 N.C. App. LEXIS 524 (2021).

Court was unable to determine whether one finding of fact, which related to evidence that was in serious dispute during the termination hearing, consisted of a recitation of the testimony received at the termination hearing or actual factual determinations by the trial court; thus, the court disregarded this finding. In re D.T.H., 2021-NCSC-106, 378 N.C. 576 , 862 S.E.2d 651, 2021- NCSC-106, 2021 N.C. LEXIS 926 (2021).

Rescission Offer. —

Judgment that simply made the bare conclusion that an investment firm tendered a “valid” rescission offer and that, therefore, the investor was barred from bringing suit under the provisions of subdivision (g)(1) of G.S. 78A-56 did not rise to the level of separate findings of fact and conclusions of law; the judgment, therefore, did not comport with the requirements of G.S. 1A-1 , Rule 41(b) and subsection (a) of this rule. Mashburn v. First Investors Corp., 102 N.C. App. 560, 402 S.E.2d 860, 1991 N.C. App. LEXIS 449 (1991).

Adjudication and Disposition Order a Nullity. —

Since only a stipulation without any adjudication or rendering of the order, any action by the chief district court judge to cause a later prepared and unsigned draft order to be entered was ministerial; the written disposition portion of the order went beyond the retired judge’s oral recitations, and because rendering and entering judgment was more than a ministerial task, the chief district court judge had no authority to sign the adjudication and disposition orders, which were a nullity. In re R.P., 856 S.E.2d 868 (Mar. 16, 2021).

II.Findings and Conclusions, Generally.

Federal Interpretation of Rule May Be Used for Guidance. —

Subsection (a)(1) of this rule is similar to FRCP, Rule 52(a) and therefore the federal courts’ interpretations of the rule may be used for guidance. Harris v. North Carolina Farm Bureau Mut. Ins. Co., 91 N.C. App. 147, 370 S.E.2d 700, 1988 N.C. App. LEXIS 748 (1988).

Timeliness of Request. —

A request for findings and conclusions under subsection (a)(2) of this rule is untimely if made after the entry of a trial court’s order. Nobles v. First Carolina Communications, Inc., 108 N.C. App. 127, 423 S.E.2d 312, 1992 N.C. App. LEXIS 867 (1992).

In actions tried upon the facts without a jury, the court must make its own determination as to what pertinent facts are established by the evidence, rather than merely reciting what the evidence may tend to show. Lee v. Lee, 78 N.C. App. 632, 337 S.E.2d 690, 1985 N.C. App. LEXIS 4343 (1985).

Subsection (a)(1) of this rule requires, in nonjury cases, that the trial judge make specific findings of ultimate facts established by the evidence, state the conclusions of law thereon, and direct entry of the appropriate judgment. City of Statesville v. Roth, 77 N.C. App. 803, 336 S.E.2d 142, 1985 N.C. App. LEXIS 4374 (1985).

Under G.S. 1A-1-52(a)(2), a trial court was not required to make any specific findings of fact in its order allowing judgment in the absence of a motion or request; a trial court did not err in entering judgment despite the absence of specific findings of fact. Couch v. Bradley, 179 N.C. App. 852, 635 S.E.2d 492, 2006 N.C. App. LEXIS 2129 (2006).

It was no error to deny a mortgagor’s motion for findings and conclusions because the motion was untimely, as the motion was not made within 10 days after entry of judgment. Wilson v. SunTrust Bank, 257 N.C. App. 237, 809 S.E.2d 286, 2017 N.C. App. LEXIS 1053 (2017), cert. denied, 139 S. Ct. 2674, 204 L. Ed. 2d 1069, 2019 U.S. LEXIS 3810 (2019).

The trial judge becomes both judge and juror on waiver of jury trial. Beasley-Kelso Assocs. v. Tenney, 30 N.C. App. 708, 228 S.E.2d 620, 1976 N.C. App. LEXIS 2342 , cert. denied, 291 N.C. 323 , 230 S.E.2d 675, 1976 N.C. LEXIS 978 (1976); General Specialties Co. v. Nello L. Teer Co., 41 N.C. App. 273, 254 S.E.2d 658, 1979 N.C. App. LEXIS 2426 (1979).

And Must Consider and Weigh all Competent Evidence. —

When trial by jury is waived and issues of facts are tried by the court, the trial judge becomes both judge and juror, and it is his duty to consider and weigh all the competent evidence before him. Laughter v. Lambert, 11 N.C. App. 133, 180 S.E.2d 450, 1971 N.C. App. LEXIS 1465 (1971).

And Evaluate the Credibility of Witnesses. —

The trial judge passes upon the credibility of the witnesses, the weight to be given their testimony, and the reasonable inferences to be drawn therefrom. Laughter v. Lambert, 11 N.C. App. 133, 180 S.E.2d 450, 1971 N.C. App. LEXIS 1465 (1971); General Specialties Co. v. Nello L. Teer Co., 41 N.C. App. 273, 254 S.E.2d 658, 1979 N.C. App. LEXIS 2426 (1979).

Independent Determination by Trial Court. —

Trial court relied partly on evidence from prior proceedings and findings in earlier orders, which was proper; a trial court may not rely solely on prior court orders and reports but must receive some oral testimony and make an independent determination regarding the evidence presented, and here the trial court took judicial notice of the record and the findings of fact appear to be based at least in part on testimony provided at the hearing, which was sufficient to show that the trial court made an independent determination regarding the evidence presented. In re T.N.H., 372 N.C. 403 , 831 S.E.2d 54, 2019 N.C. LEXIS 788 (2019).

The trial judge determines which inferences shall be drawn and which shall be rejected if different inferences may be drawn from the evidence. Laughter v. Lambert, 11 N.C. App. 133, 180 S.E.2d 450, 1971 N.C. App. LEXIS 1465 (1971).

Findings Must Be Supported by Evidence Determinative of Issues. —

Section (a) of this rule requires that findings of fact be established by evidence, admissions, and stipulations determinative of the issues involved in the action. Hollerbach v. Hollerback, 90 N.C. App. 384, 368 S.E.2d 413, 1988 N.C. App. LEXIS 524 (1988).

Although a fact finder was not precluded from including evidentiary findings of fact in a decision, G.S. 1A-1-52(a) did require specific findings of the ultimate facts established by the evidence, admissions and stipulations which were determinative of the questions involved in the action and essential to support the conclusions of law reached. Overcash v. N.C. Dep't of Env't & Natural Res., 179 N.C. App. 697, 635 S.E.2d 442, 2006 N.C. App. LEXIS 2168 (2006).

Findings Held Supported by Evidence. —

Trial court’s findings that conveyances of property to church were not voluntary and were not done with the intent to defraud creditors was sufficiently supported by the evidence. Washington v. Mitchell, 146 N.C. App. 720, 553 S.E.2d 919, 2001 N.C. App. LEXIS 1074 (2001), cert. denied, 355 N.C. 223 , 560 S.E.2d 367, 2002 N.C. LEXIS 84 (2002).

Court’s findings of fact that a mother had demonstrated behavior inconsistent with caring for a child by running away from child placements, violating established curfews, and failing to develop a connection or demonstrate a willingness to provide any parenting skills to her oldest child that would have assisted her with the supervision and control of her second child were supported by competent evidence as required under G.S. 1A-1 , N.C. R. Civ. P. 52(a)(1), because the findings were based on testimony from two child placement workers, a child protective service investigator, and the mother. In re E.N.S., 164 N.C. App. 146, 595 S.E.2d 167, 2004 N.C. App. LEXIS 706 (2004).

In a custody matter, a mother’s claim that inadequate findings supported custody and visitation orders failed because (1) the mother identified no conclusion that was unsupported if findings were stricken, and (2) substantial evidence supported the findings. Cox v. Cox, 238 N.C. App. 22, 768 S.E.2d 308, 2014 N.C. App. LEXIS 1265 (2014).

Findings of Fact Sufficient. —

Ex parte domestic violence order of protection (DVPO) did not fail to include findings of fact when the trial court simply incorporated the allegations of the complaint into its order, rather than setting forth a separate statement of its factual findings, because while it was preferable for the trial court to set forth the specific facts that supported its order separately, instead of by reference to the complaint, the ex parte DVPO, read in conjunction with the complaint, provided sufficient information upon which the court of appeals could review the trial court’s decision to issue the ex parte DVPO; despite the absence of specific statutory language excluding ex parte DVPOs from the coverage of the findings and conclusions requirement of G.S. 1A-1 , N.C. R. Civ. P. 52, such orders need not contain findings and conclusions that fully satisfy the requirements of that provision. Hensey v. Hennessy, 201 N.C. App. 56, 685 S.E.2d 541, 2009 N.C. App. LEXIS 1844 (2009).

Former husband’s motion to modify alimony was properly denied because the trial court’s finding that his income had not substantially decreased was supported by evidence that his income went through normal variations and fluctuations and that his average annual income was more than his average income during the time period prior to the alimony order. Kelly v. Kelly, 228 N.C. App. 600, 747 S.E.2d 268, 2013 N.C. App. LEXIS 838 (2013).

Former husband’s motion to modify alimony was properly denied because the evidence supported the finding that he had continued meeting his financial obligations and had made substantial discretionary purchases and investments, as he made his alimony payments in full and in a timely manner, and an increase in his expenses was based on voluntary choices and expenditures. Kelly v. Kelly, 228 N.C. App. 600, 747 S.E.2d 268, 2013 N.C. App. LEXIS 838 (2013).

Superior court’s order allowing a foreclosure to proceed was reversed where G.S. 45-21.16(d1) (2013) required it to conduct a de novo hearing and not just a de novo review, as a result G.S. 1A-1 , N.C. R. Civ. P. 52(a), required it to make its own findings of fact as to each of the statutorily-required factors set forth in G.S. 45-21.16(d), and the superior court had not done so. In re Foreclosure of a Deed of Trust Executed by Garvey, 241 N.C. App. 260, 772 S.E.2d 747, 2015 N.C. App. LEXIS 452 (2015).

Trial court’s findings were not insufficient simply because they were similar, or even identical, to the wording of the juvenile petition, as the trial court’s findings were the result of its independent, reasoned decision based on the evidentiary facts before it. In re J.W., 241 N.C. App. 44, 772 S.E.2d 249, 2015 N.C. App. LEXIS 375 (2015).

Trial court, when it awarded one parent in North Carolina the primary physical care and custody of the parties’ minor child, properly awarded visitation privileges to the other parent, who was a citizen and resident of Canada and a missionary in Malawi, because the findings by the court demonstrated that the court considered the factors relevant to the child’s best interest, including the characteristics of the parties and the one parent’s concerns about the possible dangers to the child if the child were to travel to Malawi. Burger v. Smith, 243 N.C. App. 233, 776 S.E.2d 886, 2015 N.C. App. LEXIS 816 (2015).

Adequate findings supported an order requiring a husband to pay children’s private school tuition because (1) findings mandated by the Child Support Guidelines were not required, as the Child Support Guidelines did not apply, and (2) it was found that private school was part of the children’s accustomed standard of living, the parties were able to pay the tuition, and the parties had agreed to privately educate the children. Smith v. Smith, 247 N.C. App. 135, 786 S.E.2d 12, 2016 N.C. App. LEXIS 446 (2016).

Juvenile’s dispositional order did not err for not considering statutory factors because (1) G.S. 7B-2512 did not require findings on those factors, and (2) the court considered the factors, as finding a robbery with a dangerous weapon adjudication showed the crime’s seriousness was considered, findings of repeated probation violations showed a need to hold the juvenile accountable was considered, findings of the juvenile’s adjudication for armed robbery and school suspension for fighting showed public protection was considered, findings of how the juvenile violated probation showed degree of culpability was considered, and finding the juvenile’s failure to obtain treatment showed treatment needs were considered. In re D.E.P., 251 N.C. App. 752, 796 S.E.2d 509, 2017 N.C. App. LEXIS 50 (2017).

Trial court made sufficient findings in determining that the termination of respondent’s parental rights was in the child’s best interest, and thus the termination order was affirmed. In re T.N.H., 372 N.C. 403 , 831 S.E.2d 54, 2019 N.C. LEXIS 788 (2019).

Trial court’s findings of fact and conclusions of law demonstrated “due regard” to the factors required by subsection (c), and thus, it did not abuse its discretion in the calculation of a father’s child support obligation; the trial court did not abuse its discretion in determining it would not consider a bonus the mother received, and both parties’ estates were approximately the same, neither was taking distributions from investments, and neither would be required to deplete his or her assets. Kleoudis v. Kleoudis, 271 N.C. App. 35, 843 S.E.2d 277, 2020 N.C. App. LEXIS 295 (2020).

Findings Held Insufficient. —

Trial court’s findings in abuse and neglect case against mother which recited little more than a recitation of the allegations that the county social services department made against her and restated some testimony given at a related hearing were not proper “ultimate findings of fact,” and, thus, a remand of the case from the appellate court was required so that the proper findings could be made. In re O.W., 164 N.C. App. 699, 596 S.E.2d 851, 2004 N.C. App. LEXIS 971 (2004).

In the landlord-tenant case, the trial court did not violate G.S. 1A-1 , N.C. R. Civ. P. 52(a)(1) by failing to make certain findings of fact and conclusions of law; the trial court was only required to find the ultimate facts, and, as required, the trial court made detailed findings of ultimate fact and conclusions of law support its decision. Kroger Ltd. P'ship I v. Guastello, 177 N.C. App. 386, 628 S.E.2d 841, 2006 N.C. App. LEXIS 967 (2006).

By its own terms, G.S. 7B-1109(e) applies equally to instances in which the trial court adjudicates the existence or nonexistence of any of the circumstances set forth in G.S. 7B-1111 ; consequently, G.S. 7B-1109(e) places the same duty on the trial court to find the facts specially and state separately its conclusions of law thereon, regardless of whether the court is granting or denying a petition to terminate parental rights. In re K.R.C., 374 N.C. 849 , 845 S.E.2d 56, 2020 N.C. LEXIS 629 (2020).

Trial court’s evidentiary findings did not meet the requirements of G.S. 1A-1 , N.C. R. Civ. P. 52(a)(1), as applied to adjudicatory orders under G.S. 7B-1109(e) and G.S. 7B-1110(c), because the trial court found none of the ultimate facts required to support an adjudication of the existence or nonexistence of the circumstances in G.S. 7B-1111 . In re K.R.C., 374 N.C. 849 , 845 S.E.2d 56, 2020 N.C. LEXIS 629 (2020).

Findings of Fact and Conclusions of Law Essential to Decision Making Process. —

Under the rules, where a case is tried before a court without a jury, findings of fact and conclusions of law sufficient to support a judgment are essential parts of the decision-making process. Girard Trust Bank v. Easton, 12 N.C. App. 153, 182 S.E.2d 645, 1971 N.C. App. LEXIS 1309 , cert. denied, 279 N.C. 393 , 183 S.E.2d 245, 1971 N.C. LEXIS 812 (1971).

Force and Effect of Findings. —

Findings of fact by the court have the force and effect of a verdict by a jury. Broughton v. Broughton, 58 N.C. App. 778, 294 S.E.2d 772, 1982 N.C. App. LEXIS 2838 (1982).

Findings Required on Award of Permanent Alimony. —

Under subsection (a)(1) of this rule, findings of fact are required to support the amount of permanent alimony awarded by a trial judge. Quick v. Quick, 305 N.C. 446 , 290 S.E.2d 653, 1982 N.C. LEXIS 1335 (1982) (overruling statement in) Eudy v. Eudy, 288 N.C. 71 , 215 S.E.2d 782, 1975 N.C. LEXIS 883 (1975).

Failure to Make Proper Findings Concerning Cohabitation. —

Trial court erred in finding that a husband did not breach a separation agreement; trial court improperly found that the wife had cohabited pursuant to the terms of G.S. 50-16.9(b) , because the trial court failed to make adequate findings of fact as required by G.S. 1A-1 , Rule 52(a)(1), and therefore the trial court erred in finding that the husband was no longer obligated to pay alimony. Long v. Long, 160 N.C. App. 664, 588 S.E.2d 1, 2003 N.C. App. LEXIS 1925 (2003).

Under G.S. 1A-1 , Rule 60(b), the trial court is not required to make findings of fact, etc. unless requested to do so by a party. Nations v. Nations, 111 N.C. App. 211, 431 S.E.2d 852, 1993 N.C. App. LEXIS 713 (1993).

Appellate court declined to reverse a trial court’s decision to deny a motion for relief from judgment for excusable neglect based on a failure to make findings of fact because neither party made such a request. Brown v. Foremost Affiliated Ins. Servs., 158 N.C. App. 727, 582 S.E.2d 335, 2003 N.C. App. LEXIS 1222 (2003).

Duty of Judge to Find Facts and State Conclusions of Law Separately. —

Where the judge tries a case without a jury, it is his duty to find the facts specially and state separately his conclusions of law and thereby resolve all controversies between the parties raised by the pleadings and the evidence. Heating & Air Conditioning Assocs. v. Myerly, 29 N.C. App. 85, 223 S.E.2d 545, 1976 N.C. App. LEXIS 2381 , cert. denied, 290 N.C. 94 , 225 S.E.2d 323, 1976 N.C. LEXIS 1027 (1976); Rosenthal's Bootery, Inc. v. Shavitz, 48 N.C. App. 170, 268 S.E.2d 250, 1980 N.C. App. LEXIS 3207 (1980).

The mandate of subsection (a)(1) of this rule requires that the trial judge “find the facts specially”; and, in lieu of giving instructions to a jury relevant to issues arising upon the pleadings, that he “state separately” his conclusions of law. Hartley v. Ballou, 286 N.C. 51 , 209 S.E.2d 776, 1974 N.C. LEXIS 1178 (1974).

It is the duty of the trial judge to make findings of fact determinative of the issues raised by the pleadings and the evidence. English v. Holden Beach Realty Corp., 41 N.C. App. 1, 254 S.E.2d 223, 1979 N.C. App. LEXIS 2386 , cert. denied, 297 N.C. 609 , 257 S.E.2d 217, 1979 N.C. LEXIS 1493 (1979).

This rule governs findings by the court in nonjury proceedings. It requires the trial court in such proceedings to do three things: (1) find facts on all issues of fact joined on the pleadings, (2) declare conclusions of law arising on the facts found, and (3) enter judgment accordingly. This is because when a trial judge sits as both judge and juror, as he or she does in a nonjury proceeding, it is that judge’s duty to weigh and consider all competent evidence, and pass upon the credibility of the witnesses, the weight to be given their testimony and the reasonable inferences to be drawn therefrom. In re Whisnant, 71 N.C. App. 439, 322 S.E.2d 434, 1984 N.C. App. LEXIS 3850 (1984).

To comport with subsection (a)(1) of this rule, the trial court must make a specific statement of the facts on which the rights of the parties are to be determined, and those findings must be sufficiently specific to enable an appellate court to review the decision and test the correctness of the judgment. Chemical Realty Corp. v. Home Fed. Sav. & Loan Ass'n, 65 N.C. App. 242, 310 S.E.2d 33, 1983 N.C. App. LEXIS 3466 (1983), cert. denied, 469 U.S. 835, 105 S. Ct. 128, 83 L. Ed. 2d 69, 1984 U.S. LEXIS 3289 (1984).

When issues of fact are tried by the trial court, it must state its findings and conclusions separately. Hollerbach v. Hollerback, 90 N.C. App. 384, 368 S.E.2d 413, 1988 N.C. App. LEXIS 524 (1988).

At the close of all the evidence in a bench trial, the trial court must make findings of fact and state separate conclusions of law to assist the appellate court in understanding the basis for the trial court’s decision; a conclusion of law is a statement of the law arising on the specific facts of a case which determines the issues between the parties. In re Everette, 133 N.C. App. 84, 514 S.E.2d 523, 1999 N.C. App. LEXIS 344 (1999).

Trial court erred in issuing mixed findings of fact and conclusions of law in rendering a decision regarding a laborer’s North Carolina Retaliatory Discrimination Act claims; pursuant to the mandatory language of Rule 52(a)(1), the trial court should have stated its findings of fact separately from its conclusions of law. Pineda-Lopez v. N.C. Growers Ass'n, 151 N.C. App. 587, 566 S.E.2d 162, 2002 N.C. App. LEXIS 759 (2002).

Trial court’s issuance of one mixed finding of fact and conclusion of law regarding landowners’ adverse possession claim was not sufficient to comply with the civil procedure rules and provided an inadequate basis for the reviewing court to review that claim. DOT v. Byerly, 154 N.C. App. 454, 573 S.E.2d 522, 2002 N.C. App. LEXIS 1448 (2002).

Trial court erred in terminating a father’s parental rights based on abandonment because, while the trial court found that the father sent the mother a letter prior to her filing the petition, the finding neglected to indicate whether it occurred prior to or during the relevant six-month period, the father testified that he wrote the child multiple letters while in prison, but that the mother refused to provide him with contact information for herself or the child, the trial court’s findings did not address, in light of his incarceration, what other efforts the father could have been expected to make to contact the mother and the child, and the trial court’s order improperly mixed its factual findings with its conclusions of law. In re D.E.M., 257 N.C. App. 618, 810 S.E.2d 375, 2018 N.C. App. LEXIS 129 (2018).

So as to Render Them Distinguishable. —

The judge must state his findings of fact and conclusions of law separately. The judge complies with this requirement if he separates the findings and the conclusions in such a manner as to render them distinguishable, no matter how the separation is effected. Williams v. Pilot Life Ins. Co., 288 N.C. 338 , 218 S.E.2d 368, 1975 N.C. LEXIS 981 (1975).

This rule requiring that the findings of fact be stated separately from the conclusions of law is satisfied when the separation is made in such a manner as to render the findings of fact readily distinguishable from the conclusions of law. Jackson v. Collins, 9 N.C. App. 548, 176 S.E.2d 878, 1970 N.C. App. LEXIS 1402 (1970).

The judge complies with subsection (a)(1) of this rule if he separates the findings and conclusions in such a manner as to render them distinguishable, no matter how the separation is effected. Highway Church of Christ, Inc. v. Barber, 72 N.C. App. 481, 325 S.E.2d 305, 1985 N.C. App. LEXIS 3107 (1985).

Subsection (a)(1) of this rule requires only that the trial court’s findings of fact be distinguishable from its conclusions of law. Mitchell v. Lowery, 90 N.C. App. 177, 368 S.E.2d 7, 1988 N.C. App. LEXIS 443 (1988).

And to Enter Judgment Accordingly. —

In cases in which the trial court passes on the facts, the court is required to do three things in writing: (1) to find the facts on all issues of fact joined on the pleadings; (2) to declare the conclusions of law arising on the facts found; and (3) To enter judgment accordingly. Coggins v. City of Asheville, 278 N.C. 428 , 180 S.E.2d 149, 1971 N.C. LEXIS 987 (1971); Williams v. Williams, 13 N.C. App. 468, 186 S.E.2d 210, 1972 N.C. App. LEXIS 2265 (1972); Littlejohn v. Hamrick, 15 N.C. App. 461, 190 S.E.2d 299, 1972 N.C. App. LEXIS 1941 (1972); Luther v. Hauser, 24 N.C. App. 71, 210 S.E.2d 218, 1974 N.C. App. LEXIS 1930 (1974).

Where a jury trial is waived by the parties to a civil action, the judge who tries the case is required to do three things: (1) To find the facts on all issues of fact joined on the pleadings; (2) to declare the conclusions of law arising upon the facts found; and (3) to enter judgment accordingly. Williams v. Pilot Life Ins. Co., 288 N.C. 338 , 218 S.E.2d 368, 1975 N.C. LEXIS 981 (1975).

When trial by jury is waived and issues of facts are tried by the court, the court is required to find the facts specially and state separately its conclusions of law thereon and direct entry of the appropriate judgment. Laughter v. Lambert, 11 N.C. App. 133, 180 S.E.2d 450, 1971 N.C. App. LEXIS 1465 (1971); Conrad v. Jones, 31 N.C. App. 75, 228 S.E.2d 618, 1976 N.C. App. LEXIS 1906 (1976).

Trial judge has the duty to find facts, state separately his conclusions of law and enter judgment. General Specialties Co. v. Nello L. Teer Co., 41 N.C. App. 273, 254 S.E.2d 658, 1979 N.C. App. LEXIS 2426 (1979).

When a trial court took a best interests determination under advisement at the end of a termination hearing, the trial court abused its discretion in denying the mother’s motion to re-open the evidence because, at the time of the mother’s motion, the court had not yet made the best interests determination required to terminate the mother’s parental rights G.S. 7B-1109 and G.S. 7B-1110 ; the mother filed her motion on April 12, 2012, the trial court heard and orally denied the motion on April 17, 2012, and the order terminating parental rights was entered on April 18, 2012. In re B.S.O., 225 N.C. App. 541, 740 S.E.2d 483, 2013 N.C. App. LEXIS 173 (2013).

There are two kinds of facts, ultimate facts and evidentiary facts. Williams v. Pilot Life Ins. Co., 288 N.C. 338 , 218 S.E.2d 368, 1975 N.C. LEXIS 981 (1975).

Ultimate facts are the final facts required to establish plaintiff ’s cause of action or defendant’s defense. Williams v. Pilot Life Ins. Co., 288 N.C. 338 , 218 S.E.2d 368, 1975 N.C. LEXIS 981 (1975); Farmers Bank v. Michael T. Brown Distribs., Inc., 307 N.C. 342 , 298 S.E.2d 357, 1983 N.C. LEXIS 1083 (1983).

An ultimate fact is the final resulting effect which is reached by processes of logical reasoning from the evidentiary facts. Farmers Bank v. Michael T. Brown Distribs., Inc., 307 N.C. 342 , 298 S.E.2d 357, 1983 N.C. LEXIS 1083 (1983).

Ultimate facts are those found in that vaguely defined area lying between evidential facts on the one side and conclusions of law on the other. In consequence, the line of demarcation between ultimate facts and legal conclusions is not easily drawn. Farmers Bank v. Michael T. Brown Distribs., Inc., 307 N.C. 342 , 298 S.E.2d 357, 1983 N.C. LEXIS 1083 (1983).

An ultimate fact is the final resulting effect which is reached by processes of logical reasoning from the evidentiary facts. In re City of Durham Annexation Ordinance Numbered 5991 for Area A, 69 N.C. App. 77, 316 S.E.2d 649, 1984 N.C. App. LEXIS 3384 (1984).

Evidentiary facts are those subsidiary facts required to prove the ultimate facts. Williams v. Pilot Life Ins. Co., 288 N.C. 338 , 218 S.E.2d 368, 1975 N.C. LEXIS 981 (1975); Farmers Bank v. Michael T. Brown Distribs., Inc., 307 N.C. 342 , 298 S.E.2d 357, 1983 N.C. LEXIS 1083 (1983).

The trial judge is required to find and state the ultimate facts only. Williams v. Pilot Life Ins. Co., 288 N.C. 338 , 218 S.E.2d 368, 1975 N.C. LEXIS 981 (1975).

While section (a) of this rule does not require a recitation of the evidentiary and subsidiary facts required to prove the ultimate facts, it does require specific findings of the ultimate facts established by the evidence, admissions and stipulations which are determinative of the questions involved in the action and essential to support the conclusions of law reached. Quick v. Quick, 305 N.C. 446 , 290 S.E.2d 653, 1982 N.C. LEXIS 1335 (1982); Farmers Bank v. Michael T. Brown Distribs., Inc., 307 N.C. 342 , 298 S.E.2d 357, 1983 N.C. LEXIS 1083 (1983); Plott v. Plott, 313 N.C. 63 , 326 S.E.2d 863, 1985 N.C. LEXIS 1519 (1985).

The facts required to be specially found by this rule are those material and ultimate facts from which it can be determined whether the findings are supported by the evidence and whether they support the conclusions of law reached. Quick v. Quick, 305 N.C. 446 , 290 S.E.2d 653, 1982 N.C. LEXIS 1335 (1982).

Subsection (a)(1) of this rule does not require recitation of evidentiary facts, but it does require specific findings on the ultimate facts established by the evidence, admissions and stipulations which are determinative of the questions involved in the action and essential to support the conclusions of law reached. Chemical Realty Corp. v. Home Fed. Sav. & Loan Ass'n, 65 N.C. App. 242, 310 S.E.2d 33, 1983 N.C. App. LEXIS 3466 (1983), cert. denied, 469 U.S. 835, 105 S. Ct. 128, 83 L. Ed. 2d 69, 1984 U.S. LEXIS 3289 (1984).

A finding of such essential facts as may lay a basis for the decision is sufficient under section (a) of this rule. Fortis Corp. v. Northeast Forest Prods., 68 N.C. App. 752, 315 S.E.2d 537, 1984 N.C. App. LEXIS 3456 (1984).

The general rule is that in making findings of fact, the trial court is required only to make brief, pertinent and definite findings and conclusions about the matters in issue, but need not make a finding on every issue requested. Fortis Corp. v. Northeast Forest Prods., 68 N.C. App. 752, 315 S.E.2d 537, 1984 N.C. App. LEXIS 3456 (1984).

The facts required to be found are the ultimate facts established by the evidence which are determinative of the questions involved in the action and are essential to support the conclusions of law reached. Gilbert Eng'g Co. v. City of Asheville, 74 N.C. App. 350, 328 S.E.2d 849, 1985 N.C. App. LEXIS 3544 (1985).

In actions tried upon the facts without a jury, the trial court need not recite in its order every evidentiary fact presented at hearing, but must only make specific findings on the ultimate facts established by the evidence, admissions, and stipulations that are determinative of the questions raised in the action and essential to support the conclusions of law reached. Mitchell v. Lowery, 90 N.C. App. 177, 368 S.E.2d 7, 1988 N.C. App. LEXIS 443 (1988).

When findings are required, they must be made with sufficient specificity to allow meaningful appellate review. Andrews v. Peters, 318 N.C. 133 , 347 S.E.2d 409, 1986 N.C. LEXIS 2565 (1986).

A “conclusion of law” is the court’s statement of the law which is determinative of the matter at issue between the parties. Montgomery v. Montgomery, 32 N.C. App. 154, 231 S.E.2d 26, 1977 N.C. App. LEXIS 1873 (1977); Appalachian Poster Adv. Co. v. Harrington, 89 N.C. App. 476, 366 S.E.2d 705, 1988 N.C. App. LEXIS 258 (1988).

A conclusion of law is reached by an application of fixed rules of law. Farmers Bank v. Michael T. Brown Distribs., Inc., 307 N.C. 342 , 298 S.E.2d 357, 1983 N.C. LEXIS 1083 (1983).

A conclusion of law must be based on the facts found by the court and must be stated separately. Montgomery v. Montgomery, 32 N.C. App. 154, 231 S.E.2d 26, 1977 N.C. App. LEXIS 1873 (1977).

Declaratory judgment addressing the division of a decedent’s estate under a will was reversed, and the case was remanded, where the judgment made no fact findings as to the decedent’s intent or the circumstances attendant to the will, and thus contained insufficient findings of fact to support the trial court’s conclusions of law. Woodring v. Woodring, 164 N.C. App. 588, 596 S.E.2d 370, 2004 N.C. App. LEXIS 1000 (2004).

Trial court did not err by concluding that a Missouri divorce decree the decedent obtained from his first wife was valid, even though the first wife contested the adequacy of the service upon her, because the trial court’s findings of fact were supported by competent evidence, and those findings of fact in turn supported the conclusions of law; however, the trial court in its findings of fact stated that both of the decedent’s wives announced in open court that they voluntarily dismissed their claims, but the transcript confirmed that both wives dismissed only their claims against the mortuary. Wiseman Mortuary v. Burrell, 185 N.C. App. 693, 649 S.E.2d 439, 2007 N.C. App. LEXIS 1944 (2007).

What Conclusions Must Be Stated. —

The conclusions of law necessary to be stated are the conclusions which, under the facts found, are required by the law and from which the judgment is to result. Montgomery v. Montgomery, 32 N.C. App. 154, 231 S.E.2d 26, 1977 N.C. App. LEXIS 1873 (1977).

A bare conclusion unaccompanied by the supporting grounds for that conclusion does not comply with subsection (a)(1) of this rule. Appalachian Poster Adv. Co. v. Harrington, 89 N.C. App. 476, 366 S.E.2d 705, 1988 N.C. App. LEXIS 258 (1988).

Purpose of requiring findings of fact and conclusions of law is to allow meaningful review by the appellate courts. O'Neill v. Southern Nat'l Bank, 40 N.C. App. 227, 252 S.E.2d 231, 1979 N.C. App. LEXIS 2591 (1979).

Necessity for the finding of facts and the entry thereof, and for the drawing of conclusions of law from the facts, is to allow review by the appellate courts. Without such findings and conclusions, it cannot be determined whether or not the judge correctly found the facts or applied the law thereto. Jones v. Murdock, 20 N.C. App. 746, 203 S.E.2d 102, 1974 N.C. App. LEXIS 2543 (1974); Rosenthal's Bootery, Inc. v. Shavitz, 48 N.C. App. 170, 268 S.E.2d 250, 1980 N.C. App. LEXIS 3207 (1980).

Requirement of appropriate findings of fact and conclusions of law is not designed to encourage ritualistic recitations by the trial court. The requirement is designed to dispose of the issues raised by the pleadings and to allow the appellate courts to perform their proper function in the judicial system. Without such findings and conclusions, it cannot be determined whether or not the judge correctly found the facts or applied the law thereto. Montgomery v. Montgomery, 32 N.C. App. 154, 231 S.E.2d 26, 1977 N.C. App. LEXIS 1873 (1977).

A purpose of subsection (a)(1) of this rule is to assist the appellate courts in determining whether or not the trial court correctly found the facts and applied the law to them. O'Grady v. First Union Nat'l Bank, 35 N.C. App. 315, 241 S.E.2d 375, 1978 N.C. App. LEXIS 2964 , aff'd in part and rev'd in part, 296 N.C. 212 , 250 S.E.2d 587, 1978 N.C. LEXIS 935 (1978).

The requirement that facts be found specially is intended to provide a basis for appellate review. Poag v. Powell, 39 N.C. App. 363, 250 S.E.2d 93, 1979 N.C. App. LEXIS 2488 , cert. denied, 296 N.C. 736 , 254 S.E.2d 178, 1979 N.C. LEXIS 1279 (1979).

The requirement for appropriately detailed findings is not a mere formality or a rule of empty ritual; it is designed instead to dispose of the issues raised by the pleadings and to allow the appellate courts to perform their proper function in the judicial system. Coble v. Coble, 300 N.C. 708 , 268 S.E.2d 185, 1980 N.C. LEXIS 1123 (1980).

The purpose of the requirement that the court make findings of those specific facts which support its ultimate disposition of the case is to allow a reviewing court to determine from the record whether the judgment, and the legal conclusions which underlie it, represent a correct application of the law. Coble v. Coble, 300 N.C. 708 , 268 S.E.2d 185, 1980 N.C. LEXIS 1123 (1980); Farmers Bank v. Michael T. Brown Distribs., Inc., 307 N.C. 342 , 298 S.E.2d 357, 1983 N.C. LEXIS 1083 (1983).

Under this rule, the trial judge is required to find the facts specially and state separately his conclusions of law thereon. The purpose of this requirement is to allow a reviewing court to determine from the record whether the judgment and the legal conclusions which underlie it represent a correct application of the law. In re Jones, 62 N.C. App. 103, 302 S.E.2d 259, 1983 N.C. App. LEXIS 2801 (1983).

The purpose of detailed findings of specific fact is to allow a reviewing court to determine from the record whether the judgment and the underlying legal conclusions represent a correct application of the law. Waynick Constr., Inc. v. York, 70 N.C. App. 287, 319 S.E.2d 304, 1984 N.C. App. LEXIS 3642 (1984); Gilbert Eng'g Co. v. City of Asheville, 74 N.C. App. 350, 328 S.E.2d 849, 1985 N.C. App. LEXIS 3544 (1985).

The purpose for requiring conclusions of law to be stated separately is to enable the reviewing court to determine what law the court applied to the facts found. Waynick Constr., Inc. v. York, 70 N.C. App. 287, 319 S.E.2d 304, 1984 N.C. App. LEXIS 3642 (1984).

The requirement that where the trial judge sits as the trier of facts, he must find facts upon all issues raised by the pleadings and evidence and declare the conclusions of law arising on the facts found is designed to dispose of the issues raised and to permit a reviewing court to determine from the record whether the judgment and the legal conclusions which underlie it represent a correct application of the law. Wohlfahrt v. Schneider, 82 N.C. App. 69, 345 S.E.2d 448, 1986 N.C. App. LEXIS 2405 (1986).

Requirement for appropriately detailed findings is not a mere formality or a rule of empty ritual; it is designed instead “to dispose of the issues raised by the pleadings and to allow the appellate courts to perform their proper function in the judicial system.” Farmers Bank v. Michael T. Brown Distribs., Inc., 307 N.C. 342 , 298 S.E.2d 357, 1983 N.C. LEXIS 1083 (1983).

Purpose for requiring conclusions of law to be stated separately is to enable appellate courts to determine what law the trial court applied in directing the entry of judgment in favor of one of the parties. Hinson v. Jefferson, 287 N.C. 422 , 215 S.E.2d 102, 1975 N.C. LEXIS 1128 (1975).

This rule requires a judge presiding over a non-jury trial to: (1) make findings of fact, (2) state conclusions of law arising on the facts found, and (3) enter judgment accordingly; these requirements are not met when the presiding judge simply announces his decision in open court without ever reducing that decision to writing and filing it. In re Savage, 163 N.C. App. 195, 592 S.E.2d 610, 2004 N.C. App. LEXIS 296 (2004).

This rule does not require or contemplate that the court submit to itself issues of fact in the manner in which issues of fact are submitted to a jury. Hartley v. Ballou, 286 N.C. 51 , 209 S.E.2d 776, 1974 N.C. LEXIS 1178 (1974).

The posing and answering of issues by the court when it sits without a jury is not approved. Nor is the entry of a verdict by the trial court, sitting without a jury, based on issues of fact answered by the court. Gibson v. Jones, 7 N.C. App. 534, 173 S.E.2d 57, 1970 N.C. App. LEXIS 1729 (1970).

Findings Not Required If Not Requested. —

Trial court did not err in failing to enter findings of fact or conclusions of law in its orders denying motions to compel, as neither party asked for such findings or conclusions. Barringer v. Wake Forest Univ. Baptist Med. Ctr., 197 N.C. App. 238, 677 S.E.2d 465, 2009 N.C. App. LEXIS 673 (2009).

Discovery sanctions order was not an abuse of discretion due to a court’s failure to make findings of fact and conclusions of law because (1) no findings or conclusions were required if not requested, and (2) no findings or conclusions were requested. Burns v. Kingdom Impact Global Ministries, Inc., 251 N.C. App. 724, 797 S.E.2d 21, 2017 N.C. App. LEXIS 38 (2017).

When an action is tried upon the facts without a jury, there is no charge. Hartley v. Ballou, 286 N.C. 51 , 209 S.E.2d 776, 1974 N.C. LEXIS 1178 (1974).

Compliance with Subsection (a)(1) Held Sufficient. —

Trial judge, after denying defendant’s motion to dismiss, properly complied with the requirements of subsection (a)(1) of this rule by entering judgment in which the court found the facts specially. Higgins v. Builders & Fin., Inc., 20 N.C. App. 1, 200 S.E.2d 397, 1973 N.C. App. LEXIS 1457 (1973), cert. denied, 284 N.C. 616 , 201 S.E.2d 689, 1974 N.C. LEXIS 1296 (1974).

In the termination of parental rights proceeding, where the mother argued that the trial court erred by failing to make findings of fact but by simply reciting the testimony of witnesses at the hearing and making findings that were contradictory, the trial court did not violate G.S. 1A-1-52(a)(1); while the trial court included findings of fact that summarized the testimony, the trial court made the necessary findings of fact, as there was nothing impermissible about describing testimony as long as the trial court ultimately made its own findings resolving any material disputes. In re C.L.C., 171 N.C. App. 438, 615 S.E.2d 704, 2005 N.C. App. LEXIS 1316 (2005), aff'd, 360 N.C. 475 , 628 S.E.2d 760, 2006 N.C. LEXIS 37 (2006).

Compliance Held Insufficient. —

An action to enforce restrictive covenants would be remanded so that proper findings of fact could be entered based upon sufficient evidence where the record contained insufficient evidence to support all of the proper findings of fact, and the facts found did not support the conclusions of law and the judgment. Littlejohn v. Hamrick, 15 N.C. App. 461, 190 S.E.2d 299, 1972 N.C. App. LEXIS 1941 (1972).

Mere assertion that plaintiff is not entitled to the relief prayed for by her, without stating the grounds for such a bare legal conclusion, does not comply with the requirements of subsection (a)(1) of this rule. Hinson v. Jefferson, 287 N.C. 422 , 215 S.E.2d 102, 1975 N.C. LEXIS 1128 (1975).

Where no evidence was introduced, and the stipulations were insufficient to support all the necessary findings of fact, it was necessary that case be remanded so that proper findings of fact could be entered based upon sufficient evidence. Littlejohn v. Hamrick, 15 N.C. App. 461, 190 S.E.2d 299, 1972 N.C. App. LEXIS 1941 (1972).

Where deputy commissioner’s order that was modified and adopted by the full Industrial Commission was devoid of any findings of fact on the claims of liability and negligence, the opinion was vacated. Parker v. State DOT, 122 N.C. App. 279, 468 S.E.2d 589, 1996 N.C. App. LEXIS 250 (1996).

Findings of fact which were mainly only recitations of the evidence, and set forth, sometimes verbatim, the contents of letters exchanged between petitioner and respondent, did not reflect the “processes of logical reasoning” required by subsection (a)(1) of this rule. Appalachian Poster Adv. Co. v. Harrington, 89 N.C. App. 476, 366 S.E.2d 705, 1988 N.C. App. LEXIS 258 (1988).

Where, instead of stating separately his conclusions of law, the trial judge answered issues of negligence and contributory negligence, these answers were treated as the equivalent of stated conclusions of law (1) that plaintiff was damaged by the negligence of defendant, and (2) that plaintiff did not by his own negligence contribute to his own damage. Blackwell v. Butts, 278 N.C. 615 , 180 S.E.2d 835, 1971 N.C. LEXIS 1014 (1971).

Oral Statements on Issues Neither Findings Nor Verdict. —

Where, at the conclusion of the evidence in an action tried before the court without a jury, the trial judge orally indicated answers in favor of plaintiff to issues which had been prepared by counsel for defendant in anticipation of a jury trial, and instructed plaintiff ’s counsel to submit a proposed judgment containing appropriate findings of fact and conclusions of law, the issues and the court’s answers thereto constituted neither a verdict nor findings of fact and conclusions of law which would permit a substitute judge to proceed under Rule 63 to enter judgment in the case. Girard Trust Bank v. Easton, 12 N.C. App. 153, 182 S.E.2d 645, 1971 N.C. App. LEXIS 1309 , cert. denied, 279 N.C. 393 , 183 S.E.2d 245, 1971 N.C. LEXIS 812 (1971).

Findings on Discretionary Rulings. —

When requested, findings of fact and conclusions of law must be made even on rulings resting within the trial court’s discretion. Andrews v. Peters, 318 N.C. 133 , 347 S.E.2d 409, 1986 N.C. LEXIS 2565 (1986).

When a trial court denied a surety’s motion for relief from a bond forfeiture, the record did not support the surety’s claim, on appeal, that the trial court “ignored” evidence that the district attorney had agreed to extradite the fugitive as to whom the bond was forfeited because the trial court specifically found that the surety stated that the surety entered into an agreement with the district attorney whereby the district attorney would extradite the fugitive if the surety paid the associated costs, and that no payment was forthcoming from the surety to the district attorney, nor were other arrangements for extradition made. State v. Bakri, 186 N.C. App. 467, 651 S.E.2d 266, 2007 N.C. App. LEXIS 2187 (2007).

Findings on Setting Aside Verdict on Damages. —

Findings, when requested, should be made in support of the ultimate conclusion that the damages appear to have been given under the influence of passion or prejudice in order to facilitate meaningful appellate review of an order setting aside the verdict on damages. Andrews v. Peters, 318 N.C. 133 , 347 S.E.2d 409, 1986 N.C. LEXIS 2565 (1986).

Findings and Conclusions in Trial De Novo on Appeal From Small Claims Court. —

In a trial de novo on appeal to the district court from a small claims money judgment, the district court had the statutory authority under G.S. 7A-229 to decide the case on the pleadings and, since the informal procedures of the small claims court carried over to the appeal, the district court was not required to give the separate, detailed legal conclusions that were required by N.C. R. Civ. P. 52. Jones v. Ratley, 168 N.C. App. 126, 607 S.E.2d 38, 2005 N.C. App. LEXIS 147 , rev'd, 360 N.C. 50 , 619 S.E.2d 503, 2005 N.C. LEXIS 993 (2005).

Findings and Conclusions on Alimony Award. —

Because an alimony award is determined by a trial court without a jury, section (a) of this rule requires the trial court to find facts specially and state conclusions of law separately. Perkins v. Perkins, 85 N.C. App. 660, 355 S.E.2d 848, 1987 N.C. App. LEXIS 2639 (1987).

Findings and Conclusions Not Required for Child Consent Judgments. —

While this rule and G.S. 50-13.2 mandate findings of fact and conclusions when a court adjudicates child custody, child consent judgments need not contain such findings of fact and conclusions of law, and consenting parties waive their right to have the court adjudicate the merits of the case. Buckingham v. Buckingham, 134 N.C. App. 82, 516 S.E.2d 869, 1999 N.C. App. LEXIS 657 (1999).

Findings Not Required in Hearing on Attorney’s Fees. —

Trial court properly denied a member’s request for attorney’s fees in relation to an action seeking to inspect the business records of a club, as there was no statutory grounds for fees under G.S. 55-16-04 , a fee provision of the parties consent order could not authorize fees in the absence of statutory authority, and the trial court was not required by G.S. 1A-1 , N.C. R. Civ. P. 52(a)(1) to make findings of fact regarding the fee award. Carswell v. Hendersonville Country Club, Inc., 169 N.C. App. 227, 609 S.E.2d 460, 2005 N.C. App. LEXIS 538 (2005).

Trial court’s conclusions that statutory grounds existed for termination of parental rights were inadequate because they did not provide specific findings of facts established by the evidence, admissions, and stipulations. In re Anderson, 151 N.C. App. 94, 564 S.E.2d 599, 2002 N.C. App. LEXIS 657 (2002).

Findings of Fact Are Required if Father is to be Denied All Contact With His Daughter. —

Where the court merely recited the testimony of witnesses and did not make the required findings of fact, further findings of fact and a determination of the father’s parental fitness was needed if he was to be denied all contact with his daughter. Moore v. Moore, 160 N.C. App. 569, 587 S.E.2d 74, 2003 N.C. App. LEXIS 1827 (2003).

Findings of Fact Not Required in Zoning Appeal. —

As a trial court sat as an appellate court in an appeal of a decision by a zoning board of adjustment, it did not err in declining to amend and/or alter its order of affirmance in order to issue findings of fact and conclusions of law because civil procedure rules in that regard were not applicable. Myers Park Homeowners Ass'n v. City of Charlotte, 229 N.C. App. 204, 747 S.E.2d 338, 2013 N.C. App. LEXIS 877 (2013).

If no findings of fact are required, the findings which support the trial judge’s ruling are deemed implicit in the ruling. Donavant v. Hudspeth, 318 N.C. 1 , 347 S.E.2d 797, 1986 N.C. LEXIS 2571 (1986).

Findings of fact which resolve conflicts in the evidence are binding on appellate courts. Lane v. Honeycutt, 14 N.C. App. 436, 188 S.E.2d 604, 1972 N.C. App. LEXIS 2147 , cert. denied, 281 N.C. 622 , 190 S.E.2d 466, 1972 N.C. LEXIS 1127 (1972).

Trial court’s findings of fact are conclusive if they are supported by competent evidence, even though there may be evidence to the contrary. Heating & Air Conditioning Assocs. v. Myerly, 29 N.C. App. 85, 223 S.E.2d 545, 1976 N.C. App. LEXIS 2381 , cert. denied, 290 N.C. 94 , 225 S.E.2d 323, 1976 N.C. LEXIS 1027 (1976); Cox v. Cox, 33 N.C. App. 73, 234 S.E.2d 189, 1977 N.C. App. LEXIS 2101 (1977); Gilbert Eng'g Co. v. City of Asheville, 74 N.C. App. 350, 328 S.E.2d 849, 1985 N.C. App. LEXIS 3544 (1985); City of Statesville v. Roth, 77 N.C. App. 803, 336 S.E.2d 142, 1985 N.C. App. LEXIS 4374 (1985).

The trial court’s findings of fact are conclusive if supported by any competent evidence, and judgment supported by such findings will be affirmed, even though there is evidence contra, or even though some incompetent evidence may also have been admitted. Little v. Little, 9 N.C. App. 361, 176 S.E.2d 521, 1970 N.C. App. LEXIS 1359 (1970); Brooks v. Brooks, 12 N.C. App. 626, 184 S.E.2d 417, 1971 N.C. App. LEXIS 1420 (1971).

Where facts are found by the court, if supported by competent evidence, such facts are as conclusive on appeal as the verdict of a jury. Coggins v. City of Asheville, 278 N.C. 428 , 180 S.E.2d 149, 1971 N.C. LEXIS 987 (1971); Littlejohn v. Hamrick, 15 N.C. App. 461, 190 S.E.2d 299, 1972 N.C. App. LEXIS 1941 (1972).

When a jury trial is waived, the court’s findings of fact have the force and effect of a verdict by a jury and are conclusive on appeal if there is evidence to support them, even though the evidence might sustain findings to the contrary. Blackwell v. Butts, 278 N.C. 615 , 180 S.E.2d 835, 1971 N.C. LEXIS 1014 (1971); Laughter v. Lambert, 11 N.C. App. 133, 180 S.E.2d 450, 1971 N.C. App. LEXIS 1465 (1971); Lane v. Honeycutt, 14 N.C. App. 436, 188 S.E.2d 604, 1972 N.C. App. LEXIS 2147 , cert. denied, 281 N.C. 622 , 190 S.E.2d 466, 1972 N.C. LEXIS 1127 (1972); Rose v. Vulcan Materials Co., 282 N.C. 643 , 194 S.E.2d 521, 1973 N.C. LEXIS 1136 (1973); Beasley-Kelso Assocs. v. Tenney, 30 N.C. App. 708, 228 S.E.2d 620, 1976 N.C. App. LEXIS 2342 , cert. denied, 291 N.C. 323 , 230 S.E.2d 675, 1976 N.C. LEXIS 978 (1976); Wurlitzer Distrib. Corp. v. Schofield, 44 N.C. App. 520, 261 S.E.2d 688, 1980 N.C. App. LEXIS 2501 (1980); Fortis Corp. v. Northeast Forest Prods., 68 N.C. App. 752, 315 S.E.2d 537, 1984 N.C. App. LEXIS 3456 (1984).

If supported by competent evidence, findings of fact made by the trial judge sitting without a jury are conclusive upon review in an appellate court, the weight and credibility of the evidence being for the trial judge. Waters v. Humphrey, 33 N.C. App. 185, 234 S.E.2d 462, 1977 N.C. App. LEXIS 2123 , dismissed, 293 N.C. 163 , 236 S.E.2d 707, 1977 N.C. LEXIS 889 (1977).

Although the question of the sufficiency of the evidence to support the findings may be raised on appeal, the appellate courts are bound by the trial courts’ findings of fact where there is some evidence to support those findings, even though the evidence might sustain findings to the contrary. In re Montgomery, 311 N.C. 101 , 316 S.E.2d 246, 1984 N.C. LEXIS 1716 (1984).

The appellate courts are bound by the trial court’s findings of fact so long as there is some evidence to support those findings, even though the evidence could sustain findings to the contrary. Lyerly v. Malpass, 82 N.C. App. 224, 346 S.E.2d 254, 1986 N.C. App. LEXIS 2444 (1986).

And Will Not Be Disturbed. —

When the trial judge sits as the trier of facts, his judgment will not be disturbed on the theory that the evidence did not support his findings of fact if there be any evidence to support the judgment. Whitaker v. Earnhardt, 289 N.C. 260 , 221 S.E.2d 316, 1976 N.C. LEXIS 1249 (1976).

But Sufficiency of Evidence to Support Judge’s Findings May Be Questioned on Appeal. —

The question of the sufficiency of the evidence to support the trial court’s findings of fact may be raised on appeal. Little v. Little, 9 N.C. App. 361, 176 S.E.2d 521, 1970 N.C. App. LEXIS 1359 (1970); Wurlitzer Distrib. Corp. v. Schofield, 44 N.C. App. 520, 261 S.E.2d 688, 1980 N.C. App. LEXIS 2501 (1980).

Notice of appeal and exception to the entry of a judgment after denial of motions for dismissal and judgment presents the face of the record for review including the question of whether the facts found support the judgment and whether the judgment is regular in form. Whitaker v. Earnhardt, 289 N.C. 260 , 221 S.E.2d 316, 1976 N.C. LEXIS 1249 (1976).

Where plaintiffs have not assigned error to the judge’s findings, those findings are conclusive on appeal, and the Supreme Court is only required to determine whether the findings support the trial judge’s conclusions and the entry of judgment. Sharpe v. Park Newspapers of Lumberton, Inc., 317 N.C. 579 , 347 S.E.2d 25, 1986 N.C. LEXIS 2417 (1986).

And Erroneous Legal Conclusions May Be Shown. —

Although the presumption is that the court on proper evidence found facts to support its order, the record may clearly reveal that the court erroneously drew legal conclusions from these facts. H.V. Allen Co. v. Quip-Matic, Inc., 47 N.C. App. 40, 266 S.E.2d 768, 1980 N.C. App. LEXIS 2997 (1980).

In cases involving a higher evidentiary standard, the appellate court must review the evidence in order to determine whether the findings are supported by clear, cogent and convincing evidence and support the conclusions of law. In re Montgomery, 311 N.C. 101 , 316 S.E.2d 246, 1984 N.C. LEXIS 1716 (1984).

Failure to except to the court’s findings does not necessarily preclude appellate review on the question of whether the evidence supported the findings of fact, but appellant must assign error so as to outline his objections on appeal. Whitaker v. Earnhardt, 289 N.C. 260 , 221 S.E.2d 316, 1976 N.C. LEXIS 1249 (1976).

Judge’s Findings Are Conclusive in Action for Permanent Restraining Order. —

When the purpose of an action is a permanent restraining order, the trial court’s findings of fact are binding on appeal if supported by the evidence. Coggins v. City of Asheville, 278 N.C. 428 , 180 S.E.2d 149, 1971 N.C. LEXIS 987 (1971).

Trial judge’s findings of fact in custody orders are binding on the appellate courts if supported by competent evidence. Hassell v. Means, 42 N.C. App. 524, 257 S.E.2d 123, 1979 N.C. App. LEXIS 2850 (1979), cert. denied, 298 N.C. 568 , 261 S.E.2d 122, 1979 N.C. LEXIS 1634 (1979), cert. denied, 263 S.E.2d 782, 1980 N.C. LEXIS 1409 (N.C. 1980).

Where trial court failed to explicitly label findings of fact and conclusions of law, but sufficiently distinguished findings of fact from the conclusions of law so that the appellate court was able to determine how it applied the law to the facts, there was no prejudicial error. Freer v. Weinstein, 91 N.C. App. 138, 370 S.E.2d 860, 1988 N.C. App. LEXIS 745 (1988).

Findings and Conclusions Held Sufficiently Distinguishable. —

Where trial court adopted clerk’s very specific findings of fact and set forth its conclusions in a single paragraph, the court’s findings of fact were distinguishable from its conclusions of law for the purposes of this rule. In re Estate of Francis, 94 N.C. App. 744, 381 S.E.2d 484, 1989 N.C. App. LEXIS 647 (1989), rev'd, 327 N.C. 101 , 394 S.E.2d 150, 1990 N.C. LEXIS 580 (1990).

Bare Conclusions Insufficient. —

Although this rule requires that in all actions tried upon the facts without a jury, the court shall find the facts specially and state separately its conclusions of law, a bare conclusion such as the one in this case does not meet the requirements of subdivision (a)(1). Chapel Hill-Carrboro City Sch. Sys. v. Chavioux, 116 N.C. App. 131, 446 S.E.2d 612, 1994 N.C. App. LEXIS 855 (1994).

Finding of Ultimate Fact. —

Trial court’s finding that petitioner willfully refused without just cause or excuse to submit to a chemical analysis upon the request of the charging officer was an ultimate fact finding indicating that the trial court rejected all opposing inferences raised by petitioner’s evidence that the refusal was not willful or was excused, and as such, the court’s finding permitted adequate appellate review of the ultimate fact at issue. Tolbert v. Hiatt, 95 N.C. App. 380, 382 S.E.2d 453, 1989 N.C. App. LEXIS 774 (1989).

Order Setting Bond. —

Where order setting an injunction bond at $20,000 contained no findings of fact or conclusions of law relating to the amount of the bond, and facts were in dispute, remand was necessary for proper determination of the amount of the security bond. Iverson v. TM One, Inc., 92 N.C. App. 161, 374 S.E.2d 160, 1988 N.C. App. LEXIS 1014 (1988).

This rule does not require the manual drafting of judgment or oral dictation thereof. Johnson v. Johnson, 67 N.C. App. 250, 313 S.E.2d 162, 1984 N.C. App. LEXIS 3054 (1984).

Findings on De Novo Review of Final Agency Decision. —

Although a review of a final agency decision is de novo, the trial court is limited by G.S. 136-134.1 in the scope of its review. However, this does not circumvent the requirements of subsection (a)(1) of this rule. Thus, although G.S. 136-134.1 limits the scope of the findings of fact and conclusions of law which can be made, it does not limit the requirements for properly setting forth such findings and conclusions. Appalachian Poster Adv. Co. v. Harrington, 89 N.C. App. 476, 366 S.E.2d 705, 1988 N.C. App. LEXIS 258 (1988).

When the court’s conclusions of law are unsupported by determinative facts, the case must be remanded to the trial court for further findings. Curd v. Winecoff, 88 N.C. App. 720, 364 S.E.2d 730, 1988 N.C. App. LEXIS 199 (1988).

The findings recited by the Disciplinary Committee in its order were inadequate to support its conclusion that the defendant’s letter was threatening, because the Committee made no findings as to the exact nature of that threat nor as to the specific relationship between the defendant’s “threatening letter” and the administration of justice. Thus the Committee’s findings failed to conform to subdivision (a)(1) of this rule. North Carolina State Bar v. Beaman, 100 N.C. App. 677, 398 S.E.2d 68, 1990 N.C. App. LEXIS 1162 (1990).

Deletion of Finding Without Reconsidering Conclusion Prejudicial to Defendant. —

Where a judge initially found that defendant had committed adultery and then deleted that finding without reconsidering his conclusions, including the conclusion that plaintiff was entitled to permanent alimony, that process violated the sequence required by this rule to the prejudice of the defendant. Baker v. Baker, 102 N.C. App. 792, 404 S.E.2d 20, 1990 N.C. App. LEXIS 1295 (1990).

III.Findings and Conclusions on Grant or Denial of Motions, Preliminary Injunctions, etc.

Difference between this rule and the federal rule is that FRCP, Rule 52(a) specifically requires that in granting or refusing interlocutory injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. Pruitt v. Williams, 25 N.C. App. 376, 213 S.E.2d 369, 1975 N.C. App. LEXIS 2267 (1975).

Findings Not Required For Declaratory Judgment. —

Trial court properly entered a declaration pursuant to G.S. 1-253 that two house plans submitted by a builder to a homeowner’s association satisfied a restrictive covenant; the trial court was not required to make additional findings of fact pursuant to subdivision (a)(1) of this rule, and the covenant language allowed a minimum area requirement to be satisfied by rooms on multiple floors of the home. Cumberland Homes, Inc. v. Carolina Lakes Prop. Owners' Ass'n, 158 N.C. App. 518, 581 S.E.2d 94, 2003 N.C. App. LEXIS 1190 (2003).

Findings Not Required For Directed Verdict. —

Because a trial court issued a directed verdict in a case, pursuant to G.S. 1A-1-52, findings of fact and conclusions of law were neither necessary nor appropriate. Seven Seventeen HB Charlotte Corp. v. Shrine Bowl of the Carolinas, Inc., 182 N.C. App. 128, 641 S.E.2d 711, 2007 N.C. App. LEXIS 499 (2007).

Findings and Conclusions Generally Not Required on Motions Absent Request. —

If no request is made by the parties to a hearing on a motion, the trial judge is not required to find the facts upon which he bases his ruling, and in such case, it will be presumed that the judge, upon proper evidence, found facts sufficient to support his judgment. Allen v. Wachovia Bank & Trust Co., 35 N.C. App. 267, 241 S.E.2d 123, 1978 N.C. App. LEXIS 2941 (1978); Kolendo v. Kolendo, 36 N.C. App. 385, 243 S.E.2d 907, 1978 N.C. App. LEXIS 2490 (1978); Brown v. Brown, 47 N.C. App. 323, 267 S.E.2d 345, 1980 N.C. App. LEXIS 3090 (1980); City of Salisbury v. Kirk Realty Co., 48 N.C. App. 427, 268 S.E.2d 873, 1980 N.C. App. LEXIS 3235 (1980).

Where no request was made that the trial judge make findings to support the denial of its motion, it was presumed that the judge made the determination based upon proper evidence. House Healers Restorations, Inc. v. Ball, 112 N.C. App. 783, 437 S.E.2d 383, 1993 N.C. App. LEXIS 1259 (1993).

Trial court was not required to make findings of fact and conclusions of law explaining its judgment granting plaintiffs’ motion to disqualify defendant’s attorney because neither plaintiffs nor defendant asked it to make those findings and findings were not required by G.S. 1A-1 , Rule 41(b). Cunningham v. Sams, 2003 N.C. App. LEXIS 2038 (N.C. Ct. App. Nov. 18, 2003).

Where neither party requested the trial court to render findings of fact or conclusions of law in support of its decision on a motion to disqualify counsel, there was no merit to the client’s argument that the order should have been vacated for want of findings of fact. Robinson & Lawing, L.L.P. v. Sams, 161 N.C. App. 338, 587 S.E.2d 923, 2003 N.C. App. LEXIS 2056 (2003).

Where the record did not reveal any request by former wife that the trial court make findings of fact and conclusions of law, the former wife’s assignment of error asserting that the trial court failed to make those findings and conclusions in dismissing her action was overruled. Elliott v. Estate of Elliott, 163 N.C. App. 577, 596 S.E.2d 819, 2004 N.C. App. LEXIS 512 , cert. denied, 358 N.C. 731 , 601 S.E.2d 530, 2004 N.C. LEXIS 1011 (2004).

Trial court did not err by failing to make findings of fact that the costs that the court taxed upon an accident victim were reasonable and necessary because such findings of fact were not requested by either party. Vaden v. Dombrowski, 187 N.C. App. 433, 653 S.E.2d 543, 2007 N.C. App. LEXIS 2451 (2007).

Because there was no indication in the record that either party requested findings by the trial judge, it was proper that the trial court made no findings of fact when issuing the order denying defendant seller’s motion to dismiss. Baker v. Lanier Marine Liquidators, Inc., 187 N.C. App. 711, 654 S.E.2d 41, 2007 N.C. App. LEXIS 2571 (2007).

Defendant’s objection based on attorney-client privilege and work product immunity to a request for production of documents did not require the trial court to make findings of fact and conclusions of law as defendants did not request such findings or conclusions. K2 Asia Ventures v. Trota, 215 N.C. App. 443, 717 S.E.2d 1, 2011 N.C. App. LEXIS 1890 (2011).

Trial court was not required to make findings of fact or conclusions of law regarding a stepmother’s motion to stay because the stepmother made no request for specific findings of fact or conclusions of law as to her motion. In re Patron, 250 N.C. App. 375, 792 S.E.2d 853, 2016 N.C. App. LEXIS 1168 (2016).

Unless Required by Rule § 1A-1, 41(b). —

Under subsection (a)(2) of this rule, the trial judge need not make findings of fact and conclusions of law when making a decision on a motion unless they are requested by a party or required by G.S. 1A-1 , Rule 41(b). Fungaroli v. Fungaroli, 51 N.C. App. 363, 276 S.E.2d 521, 1981 N.C. App. LEXIS 2236 (1981).

On a motion to dismiss a defendant’s counterclaim under G.S. 1A-1 , Rule 41(b), where all the evidence is in, it is incumbent upon the judge to consider and weigh it all and render judgment on the merits of the claim and counterclaim in the form directed by section (a) of this rule. Helms v. Rea, 282 N.C. 610 , 194 S.E.2d 1, 1973 N.C. LEXIS 1133 (1973).

Trial court’s compliance with party’s motion under subsection (a)(2) of this rule is mandatory. Andrews v. Peters, 75 N.C. App. 252, 330 S.E.2d 638, 1985 N.C. App. LEXIS 3640 (1985), aff'd, 318 N.C. 133 , 347 S.E.2d 409, 1986 N.C. LEXIS 2565 (1986).

Discretion of Trial Judge Under Subsection (a)(2). —

Under subsection (a)(2) of this rule, it is left to the discretion of the trial judge whether to make a finding of fact on the decision of a motion if a party does not choose to compel a finding through the simple mechanism of so requesting. Watkins v. Hellings, 321 N.C. 78 , 361 S.E.2d 568, 1987 N.C. LEXIS 2491 (1987).

Discretion of Court. —

A court is not required to make findings of fact and conclusions of law when ruling on preliminary motions, but it has the discretion to do so; however, if a court does enter conclusions of law, they must be supported by adequate findings. Epps v. Duke Univ., Inc., 116 N.C. App. 305, 447 S.E.2d 444, 1994 N.C. App. LEXIS 894 (1994).

When Findings and Conclusions Are Required on Motion to Dismiss. —

The trial court is required to make findings of fact and conclusions of law on a motion to dismiss only when required by statute or requested by a party. Sherwood v. Sherwood, 29 N.C. App. 112, 223 S.E.2d 509, 1976 N.C. App. LEXIS 2387 (1976).

When a trial court in a bench trial grants a motion to dismiss under G.S. 1A-1-41(b), the judge must make detailed findings of fact and separate conclusions of law in accordance with G.S. 1A-1-52(a); the trial court’s findings of fact are conclusive on appeal if they are supported by competent evidence, even if there is evidence to the contrary. Hammonds v. Lumbee River Elec. Mbrshp. Corp., 178 N.C. App. 1, 631 S.E.2d 1, 2006 N.C. App. LEXIS 1301 (2006).

Trial court did not err by declining to draft findings of fact and conclusions of law explaining its decision to dismiss a former employee’s complaint pursuant to N.C.R. Civ. P. Rule 12(b)(6) because the trial court’s decision was based only on the employee’s pleadings under Rule 12(b)(6); because the court of appeals reviewed a dismissal for failure to state a claim de novo, it would have disregarded any findings of fact or conclusions of law drafted by the trial court. Helm v. Appalachian State Univ., 194 N.C. App. 239, 670 S.E.2d 571, 2008 N.C. App. LEXIS 2251 (2008), rev'd, 363 N.C. 366 , 677 S.E.2d 454, 2009 N.C. LEXIS 602 (2009).

Additional Findings of Fact Necessary. —

Given the defendant’s motion specifically asking for findings of fact and conclusions of law on the decision of the plaintiff ’s motion for a new trial, the insufficient findings of fact in the order granting the motion, and the conflicting evidence in the record, additional findings of fact were essential to provide the appellate court with a basis for a meaningful review. Andrews v. Peters, 75 N.C. App. 252, 330 S.E.2d 638, 1985 N.C. App. LEXIS 3640 (1985), aff'd, 318 N.C. 133 , 347 S.E.2d 409, 1986 N.C. LEXIS 2565 (1986).

In a hearing involving a motion for declaration of compliance, in which neither side requested findings of fact, the court did not have to find the facts specially. Horne v. Flack, 68 N.C. App. 749, 315 S.E.2d 539, 1984 N.C. App. LEXIS 3457 (1984).

Trial judge is not required to make findings and conclusions with respect to an interlocutory order that is not appealable, such as is the case with the denial of a motion to dismiss under G.S. 1A-1 , Rule 12(b)(6). O'Neill v. Southern Nat'l Bank, 40 N.C. App. 227, 252 S.E.2d 231, 1979 N.C. App. LEXIS 2591 (1979).

Nor on Denial or Issuance of Preliminary Injunction. —

There is no statute that requires the court to make findings of fact and conclusions of law in granting or denying a preliminary injunction under G.S. 1A-1 , Rule 65. Hence, absent a request by a party that the court make findings of fact and conclusions of law, the court is required to state only the reasons for its issuance. Pruitt v. Williams, 25 N.C. App. 376, 213 S.E.2d 369, 1975 N.C. App. LEXIS 2267 (1975).

It is not part of the function of the court on a motion for summary judgment to make findings of fact and conclusions of law, etc. Marshall v. Keaveny, 38 N.C. App. 644, 248 S.E.2d 750, 1978 N.C. App. LEXIS 2301 (1978).

A trial judge is not required to make finding of fact and conclusions of law in determining a motion for summary judgment, and if he does make some, they are disregarded on appeal. Mosley v. National Fin. Co., 36 N.C. App. 109, 243 S.E.2d 145, 1978 N.C. App. LEXIS 2413 , cert. denied, 295 N.C. 467 , 246 S.E.2d 9, 1978 N.C. LEXIS 908 (1978); White v. Town of Emerald Isle, 82 N.C. App. 392, 346 S.E.2d 176, 1986 N.C. App. LEXIS 2443 (1986).

The making of additional specific findings and separate conclusions on a motion for summary judgment is ill advised, since it would carry an unwarranted implication that a fact question was presented. Garrison v. Blakeney, 37 N.C. App. 73, 246 S.E.2d 144, 1978 N.C. App. LEXIS 2662 , cert. denied, 295 N.C. 646 , 248 S.E.2d 251, 1978 N.C. LEXIS 1084 (1978).

Subsection (a)(2) of this rule does not apply to the decision on a summary judgment motion, because if findings of fact are necessary to resolve an issue, summary judgment is improper. Stone v. Conder, 46 N.C. App. 190, 264 S.E.2d 760, 1980 N.C. App. LEXIS 2821 (1980).

In a trial court’s dismissal of a litigant’s action against a newspaper staff writer and related defendants by way of summary judgment, there was no error where the trial court did not enter findings of fact and conclusions of law but instead carefully and in detail stated the legal basis for each of its rulings. Broughton v. McClatchy Newspapers, Inc., 161 N.C. App. 20, 588 S.E.2d 20, 2003 N.C. App. LEXIS 1983 (2003).

Trial court fulfilled its obligations under N.C. R. Civ. P. 52(a)(1) when it made specific findings of fact that a bonding company’s efforts resulted in locating the defendant, but that the district attorney was ultimately responsible for returning the defendant to Union County. State v. Escobar, 187 N.C. App. 267, 652 S.E.2d 694, 2007 N.C. App. LEXIS 2324 (2007).

Trial court was not required under G.S. 1A-1 , N.C. R. Civ. P. 52(a) to make findings of fact in support of its summary judgment order, as Rule 52(a)(2) did not apply to a decision on a summary judgment motion because, if findings of fact were necessary to resolve an issue, summary judgment was improper. Cameron v. Bissette, 190 N.C. App. 614, 661 S.E.2d 32, 2008 N.C. App. LEXIS 1017 (2008).

No findings of fact were required from a trial court regarding a motion for summary judgment because none of the material facts were in dispute there was only a question of law. Cambridge Southport, LLC v. Southeast Brunswick Sanitary Dist., 218 N.C. App. 287, 721 S.E.2d 736, 2012 N.C. App. LEXIS 49 (2012).

But Findings and Conclusions Do Not Invalidate Summary Judgment. —

Subsection (a)(2) of this rule does not apply to the decision on a summary judgment motion, because if findings of fact are necessary to resolve an issue, summary judgment is improper. However, such findings and conclusions do not render a summary judgment void or voidable and may be helpful, if the facts are not at issue and support the judgment. Mosley v. National Fin. Co., 36 N.C. App. 109, 243 S.E.2d 145, 1978 N.C. App. LEXIS 2413 , cert. denied, 295 N.C. 467 , 246 S.E.2d 9, 1978 N.C. LEXIS 908 (1978); White v. Town of Emerald Isle, 82 N.C. App. 392, 346 S.E.2d 176, 1986 N.C. App. LEXIS 2443 (1986).

Consent Judgment. —

A consent judgment is merely a recital of the parties’ agreement and not an adjudication of rights. This type of judgment need not contain findings of fact and conclusions of law because the judge merely sanctions the agreement of the parties. In re Estate of Peebles, 118 N.C. App. 296, 454 S.E.2d 854, 1995 N.C. App. LEXIS 167 (1995).

Findings Not Required Under G.S. 1A-1 , Rule 37(c). —

G.S. 1A-1 , Rule 37(c), relating to expenses on failure to make admissions on discovery, does not require the trial court to make negative findings of fact with respect to the four exceptions therein, and where neither party made such a request of the trial judge, under this rule it would be presumed that the court on proper evidence found facts to support its judgment. Watkins v. Hellings, 321 N.C. 78 , 361 S.E.2d 568, 1987 N.C. LEXIS 2491 (1987).

In ruling on a motion for a new trial under G.S. 1A-1 , Rule 59(a), absent a specific request made pursuant to subsection (a)(2) of this rule, a trial court is not required to either state the reasons for its decision or make findings of fact showing those reasons. Strickland v. Jacobs, 88 N.C. App. 397, 363 S.E.2d 229, 1988 N.C. App. LEXIS 4 (1988).

When the trial court grants or denies a motion for a new trial without making findings of fact, appellate review is limited to determining whether the record indicates that the ruling amounts to a manifest abuse of discretion. Strickland v. Jacobs, 88 N.C. App. 397, 363 S.E.2d 229, 1988 N.C. App. LEXIS 4 (1988).

There may be cases where it would be helpful for the court to set out in summary judgment undisputed facts upon which judgment is based, but this procedure would rarely be helpful or necessary and should be used sparingly. When used, the court should be careful to note that it is stating the undisputed facts. They should not be referred to as findings. Garrison v. Blakeney, 37 N.C. App. 73, 246 S.E.2d 144, 1978 N.C. App. LEXIS 2662 , cert. denied, 295 N.C. 646 , 248 S.E.2d 251, 1978 N.C. LEXIS 1084 (1978).

Findings in Action Involving Temporary Restraining Order Not Binding on Review. —

In cases involving a temporary rather than a permanent restraining order, the court’s findings of fact are not binding on the appellate court, which may make its own findings. Coggins v. City of Asheville, 278 N.C. 428 , 180 S.E.2d 149, 1971 N.C. LEXIS 987 (1971).

Presumption Applicable When Findings and Conclusions Are Not Required. —

When the trial court is not required to find facts and make conclusions of law and does not do so, it is presumed that the court on proper evidence found facts to support its judgment. Sherwood v. Sherwood, 29 N.C. App. 112, 223 S.E.2d 509, 1976 N.C. App. LEXIS 2387 (1976); Hankins v. Somers, 39 N.C. App. 617, 251 S.E.2d 640, 1979 N.C. App. LEXIS 2537 , cert. denied, 297 N.C. 300 , 254 S.E.2d 920, 1979 N.C. LEXIS 1306 (1979); Fungaroli v. Fungaroli, 51 N.C. App. 363, 276 S.E.2d 521, 1981 N.C. App. LEXIS 2236 (1981).

Because a trial court’s order did not contain findings of fact, nor did either party request the same, it was presumed that the trial court found facts sufficient to support its order, and an appellate court’s role on appeal was to review the record for competent evidence to support the presumed findings. Padron v. Bentley Marine Grp., LLC, 262 N.C. App. 610, 822 S.E.2d 494, 2018 N.C. App. LEXIS 1158 (2018).

Specific Performance of Separation Agreement Properly Denied. —

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 N.C. App. LEXIS 335 (2013).

This rule does not apply in awarding alimony pendente lite. Peoples v. Peoples, 10 N.C. App. 402, 179 S.E.2d 138, 1971 N.C. App. LEXIS 1643 (1971).

And Findings of Fact Are Required upon Application for Alimony Pendente Lite. —

The provision of subsection (a)(2) of this rule that the trial judge is not required to make findings of fact unless requested to do so by a party does not abrogate the specific requirement of G.S. 50-16.8 , prior to the 1995 amendment, that the trial judge shall make findings of fact upon an application for alimony pendent lite, since the Rules of Civil Procedure are of general application and do not abrogate the requirements of a statute of more specificity. Hatcher v. Hatcher, 7 N.C. App. 562, 173 S.E.2d 33, 1970 N.C. App. LEXIS 1737 (1970).

While it is true that section (a) of this rule does not apply in proceedings to determine the amount of alimony pendent lite, the fact-finding requirements of G.S. 50-16.8 , prior to the 1995 amendment, are no less stringent than those required by section (a) of this rule. Quick v. Quick, 305 N.C. 446 , 290 S.E.2d 653, 1982 N.C. LEXIS 1335 (1982).

Findings Sufficient to Support Driver’s License Revocation. —

Although the evidence before a superior court was conflicting, the findings of fact 24 and 30 complied with G.S. 1A-1 , N.C. R. Civ. P. 52(a). and were the ultimate findings of fact required to support a conclusion that a driver’s refusal to submit to chemical analysis was willful as defined in G.S. 20-16.2 . The officers asserted that the driver was marked as a refusal after refusing the test because he was innocent, and he testified that he refused the test because his right to have a witness present was violated; however, the driver conceded through finding of fact 30 that he did not know whether or not his witness was present, and therefore did not know that his rights had been violated. Powers v. Tatum, 196 N.C. App. 639, 676 S.E.2d 89, 2009 N.C. App. LEXIS 527 (2009).

Court’s Decision Held Judgment on Merits Rather Than Dismissal. —

Although the court allowed defendant’s motion to dismiss, where it made findings of fact in its judgment as provided in this rule, and concluded and adjudged that plaintiffs were not entitled to recover anything from the defendants, the effect of the court’s action was to enter judgment on the merits rather than to dismiss the case. Gurtis v. City of Sanford, 18 N.C. App. 543, 197 S.E.2d 584, 1973 N.C. App. LEXIS 1932 (1973).

Additional Findings of Fact Necessary. —

Given the defendant’s motion specifically asking for findings of fact and conclusions of law on the decision of the plaintiff ’s motion for a new trial, the insufficient findings of fact in the order granting the motion, and the conflicting evidence in the record, additional findings of fact were essential to provide the appellate court with a basis for a meaningful review. Andrews v. Peters, 75 N.C. App. 252, 330 S.E.2d 638, 1985 N.C. App. LEXIS 3640 (1985), aff'd, 318 N.C. 133 , 347 S.E.2d 409, 1986 N.C. LEXIS 2565 (1986).

Motion for New Trial. —

Plaintiff’s motion for a new trial pursuant to G.S. 1A-1-59(a)(7) and (8) presented questions of law that received de novo review on appeal, and accordingly findings of fact and conclusions of law would not aid appellate review and thus were not required; because the trial court’s rulings under Rule 59(a)(5), (6), and (9) were evaluated for an abuse of discretion, however, findings of fact and conclusions of law were necessary to effectuate meaningful appellate review, and therefore the trial court erred in failing to make findings and conclusions as requested by plaintiff. N.C. Indus. Capital, LLC v. Clayton, 185 N.C. App. 356, 649 S.E.2d 14, 2007 N.C. App. LEXIS 1825 (2007).

Presumed Findings Supported Equitable Tolling of Statute of Limitations. —

Although the trial court did not state the reason for its order equitably tolling the statute of limitations for an employee’s Federal Employers’ Liability Act (FELA), 45 U.S.C.S. §§ 51-60 claim or make findings of fact, evidence supported the presumed findings needed for equitable tolling of the FELA statute of limitations while the suit was pending in North Carolina; the employee did not “sit on his rights,” but filed his FELA claim in Virginia within two years of when he was diagnosed with osteoarthritis caused by his job, promptly refiled his case following dismissal for improper venue, and did not seek a voluntary dismissal in response to an unsuccessful attempt to continue the case. Indeed, it was the railroad’s dismissal motions that delayed the resolution of the employee’s claim, the effect of railroad’s last minute dismissal motion in Virginia was to provide it with ammunition for a later summary judgment motion, and there was no indication that equitable tolling of the statute of limitations prejudiced the railroad. Carlisle v. CSX Transp., Inc., 193 N.C. App. 509, 668 S.E.2d 98, 2008 N.C. App. LEXIS 1977 (2008), cert. denied, 675 S.E.2d 39, 2009 N.C. LEXIS 667 (N.C. 2009).

Decision Properly Rested Solely Upon Declarations and Conclusions of Law. —

In an action filed by the North Carolina Department of Correction (now Division of Adult Correction of the Department of Public Safety), its secretary, and a warden, seeking an injunction prohibiting the North Caroline Medial Board from disciplining physicians for participating in an execution and a declaratory judgment delineating the parties’ rights with regards to executions, the trial court did not erroneously decide a question of fact or a mixed question of law and fact because the trial court’s order stated no findings of fact, and its decision did not determine or rest upon any disputed facts but solely upon declarations and conclusions of law. N.C. Dep't of Corr. v. N.C. Med. Bd., 363 N.C. 189 , 675 S.E.2d 641, 2009 N.C. LEXIS 349 (2009).

IV.Amendment

The primary purpose of section (b) of this rule is to enable the appellate court to obtain a correct understanding of the factual issues determined by the trial court. Parrish v. Cole, 38 N.C. App. 691, 248 S.E.2d 878, 1978 N.C. App. LEXIS 2308 (1978).

Section (b) of this rule mirrors FRCP, Rule 52(b); thus federal court decisions are pertinent. Parrish v. Cole, 38 N.C. App. 691, 248 S.E.2d 878, 1978 N.C. App. LEXIS 2308 (1978).

Section (b) Motion Not Barred by Notice of Appeal. —

Although the general rule has been that a timely notice of appeal removes jurisdiction from the trial court and places it in the appellate court, a notice of appeal will not bar a party from making a timely motion pursuant to section (b) of this rule. Parrish v. Cole, 38 N.C. App. 691, 248 S.E.2d 878, 1978 N.C. App. LEXIS 2308 (1978).

As Defendant Is Not Prejudiced Thereby. —

The rule that a timely motion under section (b) of this rule will be allowed despite a prior notice of appeal does not prejudice a defendant because he does not lose his right of appeal, as N.C.R.A.P., Rule 3(c), provides that a motion pursuant to section (b) of this rule tolls the 10-day period for notice of appeal. Parrish v. Cole, 38 N.C. App. 691, 248 S.E.2d 878, 1978 N.C. App. LEXIS 2308 (1978).

Section (b) Inapplicable to Interlocutory Orders. —

Section (b) of this rule concerns amendments to the findings and conclusions relating to a final judgment, and has no application with respect to interlocutory orders where findings and conclusions are neither made nor required. O'Neill v. Southern Nat'l Bank, 40 N.C. App. 227, 252 S.E.2d 231, 1979 N.C. App. LEXIS 2591 (1979).

Jurisdiction of Trial Court. —

The trial court is not divested of jurisdiction to hear and rule on a motion under section (b) of this rule, even though notice of appeal has been given. York v. Taylor, 79 N.C. App. 653, 339 S.E.2d 830, 1986 N.C. App. LEXIS 2109 (1986).

Where notice of appeal from default judgment for defendants with respect to plaintiff ’s claim and defendants’ counter-claim against plaintiff was filed at the same time as plaintiff’s motion under section (b) of this rule for amended and additional findings of fact and his Rule 60(b) motion for relief from judgment under G.S. 1A-1 , Rule 60(b), under the circumstances of the case the trial court had jurisdiction to rule on plaintiff’s motion under G.S. 1A-1 , Rule 60(b). York v. Taylor, 79 N.C. App. 653, 339 S.E.2d 830, 1986 N.C. App. LEXIS 2109 (1986).

Refusal to Consider Affidavit After Hearing on Motion to Amend. —

In action for modification of child custody and child support, the trial court did not abuse its discretion in refusing to consider the affidavit of the child, where the affidavit was offered after defendant’s motion to amend the judgment under section (b) of this section had been heard and without notice to plaintiff, and defendant sought only to amend the judgment based on the insufficiency of the evidence already offered and errors of law which occurred during trial under G.S. 1A-1 , Rule 59(a)(7) and (a)(8). Payne v. Payne, 91 N.C. App. 71, 370 S.E.2d 428, 1988 N.C. App. LEXIS 718 (1988).

Trial court did not err by denying a motion to amend the findings of fact, make additional findings of fact, and amend its order because the trial court made 27 findings of fact and 9 conclusions of law supporting the trial court’s determination that a landower did not dedicate a right-of-way to the public. DOT v. Elm Land Co., 163 N.C. App. 257, 593 S.E.2d 131, 2004 N.C. App. LEXIS 383 (2004).

V.Review on Appeal

Section (c) of this rule is nearly identical to FRCP, Rule 52(b), and the court may therefore turn to the federal courts’ interpretation of that rule for guidance. Whitaker v. Earnhardt, 289 N.C. 260 , 221 S.E.2d 316, 1976 N.C. LEXIS 1249 (1976).

Insufficient Notice of Appeal. —

Wife’s notice of cross-appeal of an amended equitable distribution order was insufficient because the wife did not designate a simultaneous order granting a husband’s G.S. 1A-1 , N.C. R. Civ. P. 52 and 59 motions, and no intent to appeal the latter order could be fairly inferred from her notice. Smith v. Smith, 247 N.C. App. 135, 786 S.E.2d 12, 2016 N.C. App. LEXIS 446 (2016).

Standard of Review. —

Where a trial court sitting without a jury makes findings of fact, the sufficiency of those facts to support the judgment may be raised on appeal. The standard of review for those findings is whether any competent evidence exists in the record to support them. Hollerbach v. Hollerback, 90 N.C. App. 384, 368 S.E.2d 413, 1988 N.C. App. LEXIS 524 (1988).

Findings of fact made pursuant to a G.S. 1A-1 , N.C. R. Civ. P. 52(a)(2) motion need only be sufficiently detailed to allow for meaningful appellate review, so when an appellate court examines a trial court’s decision concerning whether to award attorney’s fees, it requires more than mere recitation by the trial court that it has considered all the required factors. However, the trial court is not required to make detailed findings of fact as to each factor and it is required only to make the additional findings necessary to preserve its ruling on appeal. House v. Stone, 163 N.C. App. 520, 594 S.E.2d 130, 2004 N.C. App. LEXIS 507 (2004).

Review Without Excepting to Findings at Trial. —

Section (c) of this rule allows a party to seek appellate review on the question of whether the evidence supported the findings of fact without excepting at trial to the judge’s findings, but in the record on appeal it is incumbent upon appellant to assign error so as to outline his objections on appeal. Sharpe v. Park Newspapers of Lumberton, Inc., 317 N.C. 579 , 347 S.E.2d 25, 1986 N.C. LEXIS 2417 (1986).

Review Even Where Defendant Failed to Request Specific Findings. —

The court’s failure to make specific findings and any miscalculation in the findings were reviewable under this rule on appeal despite failure of defendant to request specific or different findings. Davis v. Taylor, 81 N.C. App. 42, 344 S.E.2d 19, 1986 N.C. App. LEXIS 2274 (1986).

Foreign judgment that the judgment creditor obtained in New York was entitled to a presumption that the judgment was entitled to full faith and credit, as the judgment creditor met its burden of showing that entitlement by filing a properly authenticated judgment; however, the general contractor timely moved for relief from the foreign judgment by raising the defense that the New York trial court that entered it did not have personal jurisdiction over the general contractor, and because the trial court did not make any findings of fact or conclusions of law regarding the motion to enforce the judgment, the conclusion that the foreign judgment was enforceable in North Carolina was not supported by competent evidence and the case had to be remanded to the trial court for further proceedings. Quantum Corp. Funding, Ltd. v. B.H. Bryan Bldg. Co., 175 N.C. App. 483, 623 S.E.2d 793, 2006 N.C. App. LEXIS 187 (2006).

Review of Dismissal of Annulment Complaint. —

Dismissal of husband’s annulment complaint was affirmed because appellate court was bound by trial court’s uncontested finding that the person who conducted the wife’s prior marriage ceremony was unauthorized to do so under former G.S. 51-1 ; from this, it followed that the husband failed to show that his marriage was bigamous. When the existence of a second marriage was established, it was presumed valid until the “attacking party” showed that it was invalid, and Ascertaining if the wife’s purported prior marriage was void or voidable was irrelevant to determining if the husband had met his burden of proof. Mussa v. Palmer-Mussa, 366 N.C. 185 , 731 S.E.2d 404, 2012 N.C. LEXIS 638 (2012).

Termination Order Entered by Non-Presiding Judge. —

Since the judge did not preside over the termination hearing, the first set of termination orders had never been properly entered and were a nullity; thus, the mother’s appeal did not divest the district court of authority to enter additional orders correcting the error, and since the trial court had the authority to enter the challenged orders and the mother had not advanced any other challenges to the validity of the orders, the orders were affirmed. In re C.M.C., 373 N.C. 24 , 832 S.E.2d 681, 2019 N.C. LEXIS 906 (2019).

Facts Justifying Reversal Not Found. —

Finding of the trial court that an attorney was negligent in failing to mail notices of a sale of land to all co-tenants who owned the land after the lawyer sold the land as a commissioner of the court in a partition action would not be reversed on appeal as sufficient evidence supported the findings. Goodson v. Goodson, 145 N.C. App. 356, 551 S.E.2d 200, 2001 N.C. App. LEXIS 656 (2001).

Findings Based on Misapprehension of Law. —

Trial court’s findings of fact were made under a misapprehension of the law pursuant to N.C. R. Civ. P. 52(a) where it only determined whether a builder failed to act in good faith and make a reasonable effort to obtain insurable title to property, such that a remand was necessitated in order to findings to be made under two potential termination sections of the parties’ agreement. 42 East, LLC v. D.R. Horton, Inc., 218 N.C. App. 503, 722 S.E.2d 1, 2012 N.C. App. LEXIS 201 (2012).

Findings Supported Unclean Hands Conclusion. —

Trial court’s findings were sufficient to conclude that plaintiff did not have unclean hands, as uncontested findings included the necessary facts essential to support this conclusion; trial court found that defendant did not contest plaintiff’s timesheets, so the trial court was not required to sua sponte delineate between paralegal services rendered and billings that constituted the unauthorized practice of law. Rodgers v. Law Office of Kenneth T. Davies, P.C., 278 N.C. App. 605, 860 S.E.2d 43, 2021- NCCOA-374, 2021 N.C. App. LEXIS 395 (2021).

Conclusory Findings Were Insufficient. —

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 N.C. App. LEXIS 1074 (2006).

Trial court’s findings of fact in an action, alleging breach of the duty of good faith and fair dealing that arose from a lot purchase agreement, were insufficient pursuant to N.C. R. Civ. P. 52(a) where it was unclear as to whether the parties had entered into a particular amendment to the agreement, and whether the “time of the essence” clause was accordingly waived. 42 East, LLC v. D.R. Horton, Inc., 218 N.C. App. 503, 722 S.E.2d 1, 2012 N.C. App. LEXIS 201 (2012).

Trial court’s findings of fact in an action, alleging breach of the duty of good faith and fair dealing that arose from a lot purchase agreement, were insufficient pursuant to N.C. R. Civ. P. 52(a) where it concluded that a builder did not properly terminate the agreement as allowed by the written documents, as such was only relevant to one of two potential means of termination; findings as to the other potential termination were required. 42 East, LLC v. D.R. Horton, Inc., 218 N.C. App. 503, 722 S.E.2d 1, 2012 N.C. App. LEXIS 201 (2012).

Insufficient findings supported an order to transfer an alimony proceeding because the court merely recited an allegation in an answer without making a finding that the allegation was a fact. Scheinert v. Scheinert, 260 N.C. App. 234, 818 S.E.2d 114, 2018 N.C. App. LEXIS 648 (2018).

Lack of Findings of Fact and Conclusions of Law Not Reversible Error. —

In landowners’ suit seeking a declaration that a real estate developer’s imposition of a lake access fee was contrary to law, the failure of a trial court at the conclusion of a bench trial to make specific and separately stated findings of fact and conclusions of law prior to dismissing the suit for failure to state a compensable claim, as required by G.S. 1A-1 , N.C. R. Civ. P. 52(a), was not reversible error because it did not preclude ascertaining the extent to which the decision had adequate evidentiary support or the extent to which the trial court properly applied the law to the facts. Bauman v. Woodlake Partners, LLC, 199 N.C. App. 441, 681 S.E.2d 819, 2009 N.C. App. LEXIS 1488 (2009).

Lack of Findings of Fact and Conclusions of Law Necessitated Remand. —

As a trial court order denying defendants’ motion to compel arbitration was facially defective because it contained no findings pursuant to N.C. R. Civ. P. 52 as to whether the parties had a valid agreement to arbitrate and, if so, whether the dispute between the parties fell within the substantive scope thereof, a remand was necessitated. Cornelius v. Lipscomb, 224 N.C. App. 14, 734 S.E.2d 870, 2012 N.C. App. LEXIS 1368 (2012).

Reversal and remand of a judgment by a trial court following a bench trial for the trial court to make findings of fact based on the evidence and to enter clear and specific conclusions of law based on the findings of fact was appropriate because the reviewing court found that the trial court failed to make findings of fact necessary to resolve conflicts in the evidence and support the conclusions of law. Carolina Mulching Co. v. Raleigh-Wilmington Investors II, LLC, 2021-NCSC-79, 378 N.C. 100 , 861 S.E.2d 496, 2021- NCSC-79, 2021 N.C. LEXIS 712 (2021).

VI.Decisions under Prior Law

Editor’s Note. —

The cases cited below were decided under former G.S. 1-184 and 1-185.

Guardian ad litem and his attorney may waive jury trial. Blades v. Spitzer, 252 N.C. 207 , 113 S.E.2d 315, 1960 N.C. LEXIS 417 (1960).

Waiver by Consent to Pay Additur. —

While it may be suggested that the practice of additur deprives a defendant of his constitutional right to a jury trial, guaranteed by N.C. Const., Art. I, § 19, the obvious answer is that the defendant can waive that right, which he does when he consents to pay the additur, since in this State the parties to a civil action have a right to waive a jury trial. Caudle v. Swanson, 248 N.C. 249 , 103 S.E.2d 357, 1958 N.C. LEXIS 486 (1958).

Waiver of trial by jury invests the trial judge with the dual capacity of judge and juror. Hodges v. Hodges, 257 N.C. 774 , 127 S.E.2d 567, 1962 N.C. LEXIS 611 (1962). See also, Knutton v. Cofield, 273 N.C. 355 , 160 S.E.2d 29, 1968 N.C. LEXIS 604 (1968).

Waiver of a jury trial invests the trial judge with the dual capacity of judge and juror, and it is his duty to weigh the evidence, find the facts, and upon the conflicting inferences of causation of plaintiff ’s injuries, to draw the inferences; the ultimate issue is for him. Taney v. Brown, 262 N.C. 438 , 137 S.E.2d 827, 1964 N.C. LEXIS 669 (1964).

Effect of submission to the judge is to invest him with the dual capacity of judge and juror. He is to hear the evidence and pass upon its competency and admissibility as judge, and determine its weight and sufficiency as juror. Everette v. D.O. Briggs Lumber Co., 250 N.C. 688 , 110 S.E.2d 288, 1959 N.C. LEXIS 483 (1959).

Order Determining Issue of Fact Held Improper Absent Waiver of Jury Trial. —

Where there was nothing in the record to indicate that petitioner and respondent waived their constitutional and statutory right to have the issue of fact joined on the pleadings tried by a jury, and there was no question of reference, judge had no authority to enter an order affirming the order of the assistant clerk of the superior court, which in effect was a determination by the judge of the issue of fact raised by the pleadings and a finding by him that money deposited in the office of the clerk of the superior court belonged to a decedent and that said money be distributed to the administrator c.t.a. of her last will and testament. In re Estate of Wallace, 267 N.C. 204 , 147 S.E.2d 922, 1966 N.C. LEXIS 1009 (1966).

The judge who tries an issue of fact is required to do three things: (1) To find the facts on the issue of fact submitted to him; (2) to declare the conclusions of law arising on the facts found by him; and (3) to adjudicate the rights of the parties accordingly. Woodard v. Mordecai, 234 N.C. 463 , 67 S.E.2d 639, 1951 N.C. LEXIS 503 (1951); Bradham v. Robinson, 236 N.C. 589 , 73 S.E.2d 555, 1952 N.C. LEXIS 615 (1952); Goldsboro v. Atlantic Coast Line R.R., 246 N.C. 101 , 97 S.E.2d 486, 1957 N.C. LEXIS 378 (1957); Morehead v. Harris, 255 N.C. 130 , 120 S.E.2d 425, 1961 N.C. LEXIS 549 (1961).

Where a jury trial is waived by the parties to a civil action, the judge who tries the case is required to do three things: (1) To find the facts on all issues of fact joined on the pleadings; (2) to declare the conclusions of law arising upon the facts found; and (3) to enter judgment accordingly. Watts v. Superintendent of Bldg. Inspection, 1 N.C. App. 292, 161 S.E.2d 210, 1968 N.C. App. LEXIS 1064 (1968).

It is the duty of the trial judge to consider and weigh all competent evidence before him. Knutton v. Cofield, 273 N.C. 355 , 160 S.E.2d 29, 1968 N.C. LEXIS 604 (1968).

When trial by jury is waived, it is the trial judge’s right and duty to consider and weigh all the competent evidence before him, giving to it such probative value as in his sound discretion and opinion it is entitled to. Hodges v. Hodges, 257 N.C. 774 , 127 S.E.2d 567, 1962 N.C. LEXIS 611 (1962).

And to Draw Reasonable Inferences. —

When a trial by jury is waived, and where different reasonable inferences can be drawn from the evidence, the determination of which reasonable inferences shall be drawn is for the trial judge. Hodges v. Hodges, 257 N.C. 774 , 127 S.E.2d 567, 1962 N.C. LEXIS 611 (1962).

The trial judge determines which inferences shall be drawn and which shall be rejected if different inferences may be drawn from the evidence. Knutton v. Cofield, 273 N.C. 355 , 160 S.E.2d 29, 1968 N.C. LEXIS 604 (1968).

The trial judge passes upon the credibility of the witnesses, the weight to be given their testimony, and the reasonable inferences to be drawn therefrom. Knutton v. Cofield, 273 N.C. 355 , 160 S.E.2d 29, 1968 N.C. LEXIS 604 (1968).

When trial by jury is waived, it is the trial judge’s province to determine the credibility of the witnesses, the weight to be attached to their testimony, and the inferences legitimately to be drawn therefrom, in exactly the same sense that a jury should do in the trial of a case. Hodges v. Hodges, 257 N.C. 774 , 127 S.E.2d 567, 1962 N.C. LEXIS 611 (1962).

There are two kinds of facts, ultimate facts and evidentiary facts. Watts v. Superintendent of Bldg. Inspection, 1 N.C. App. 292, 161 S.E.2d 210, 1968 N.C. App. LEXIS 1064 (1968).

Ultimate facts are the final facts required to establish the plaintiff ’s cause of action or the defendant’s defense. Watts v. Superintendent of Bldg. Inspection, 1 N.C. App. 292, 161 S.E.2d 210, 1968 N.C. App. LEXIS 1064 (1968).

Evidentiary facts are those subsidiary facts required to prove the ultimate facts. Watts v. Superintendent of Bldg. Inspection, 1 N.C. App. 292, 161 S.E.2d 210, 1968 N.C. App. LEXIS 1064 (1968).

The trial judge is required to find and state the ultimate facts only. Watts v. Superintendent of Bldg. Inspection, 1 N.C. App. 292, 161 S.E.2d 210, 1968 N.C. App. LEXIS 1064 (1968).

Ultimate facts are the final facts required to establish the plaintiff ’s cause of action or the defendant’s defense, while evidentiary facts are those subsidiary facts required to prove the ultimate facts. The trial judge is required to find and state the ultimate facts only. Woodard v. Mordecai, 234 N.C. 463 , 67 S.E.2d 639, 1951 N.C. LEXIS 503 (1951). See also, St. George v. Hanson, 239 N.C. 259 , 78 S.E.2d 885, 1954 N.C. LEXIS 600 (1954); Reid v. Johnston, 241 N.C. 201 , 85 S.E.2d 114, 1954 N.C. LEXIS 678 (1954).

The trial judge is required to find and state the ultimate facts only, and not the evidentiary or subsidiary facts required to prove the ultimate facts. Bridges v. Jackson, 255 N.C. 333 , 121 S.E.2d 542, 1961 N.C. LEXIS 583 (1961).

In a trial by the court under agreement of the parties, the court is required to find and state only the ultimate facts. McCallum v. Old Republic Life Ins. Co., 262 N.C. 375 , 137 S.E.2d 164, 1964 N.C. LEXIS 652 (1964).

Findings of Fact and Conclusions of Law to Be Stated Separately. —

When trial by jury is waived and issues of fact are tried by the court, the court is required to give its decision with its findings of fact and conclusions of law stated separately. Knutton v. Cofield, 273 N.C. 355 , 160 S.E.2d 29, 1968 N.C. LEXIS 604 (1968); Watts v. Superintendent of Bldg. Inspection, 1 N.C. App. 292, 161 S.E.2d 210, 1968 N.C. App. LEXIS 1064 (1968).

A judge of the superior court, in passing upon a mixed question of law and fact, should state the facts found and the conclusions of law separately. Foushee v. Pattershall, 67 N.C. 453 , 1872 N.C. LEXIS 269 (1872); Walker v. Walker, 204 N.C. 210 , 167 S.E. 818, 1933 N.C. LEXIS 360 (1933). See also, Harrison v. Brown, 222 N.C. 610 , 24 S.E.2d 470, 1943 N.C. LEXIS 387 (1943); Woodard v. Mordecai, 234 N.C. 463 , 67 S.E.2d 639, 1951 N.C. LEXIS 503 (1951); Bradham v. Robinson, 236 N.C. 589 , 73 S.E.2d 555, 1952 N.C. LEXIS 615 (1952).

Where the parties waive jury trial and agree to trial by the court, it is preferable that the court make separate findings of fact and conclusions of law rather than render a verdict on issues submitted to itself. Wynne v. Allen, 245 N.C. 421 , 96 S.E.2d 422, 1957 N.C. LEXIS 592 (1957).

In Such a Manner as to Render Them Distinguishable. —

The judge complies with the requirement that he state his findings of fact and conclusions of law separately if he separates the findings and the conclusions in such a manner as to render them distinguishable, no matter how the separation is effected. Woodard v. Mordecai, 234 N.C. 463 , 67 S.E.2d 639, 1951 N.C. LEXIS 503 (1951); Watts v. Superintendent of Bldg. Inspection, 1 N.C. App. 292, 161 S.E.2d 210, 1968 N.C. App. LEXIS 1064 (1968).

Judgment of Nonsuit as Sufficient Finding of Fact. —

Where a cause was heard by the court by consent, its written judgment granting defendant’s motion as of nonsuit was equivalent to a finding that all the evidence, considered in the light most favorable to plaintiffs, was insufficient to show facts entitling plaintiffs to recover on any issue raised by the pleadings, and was a sufficient finding of facts by the court. Home Real Estate Loan & Ins. Co. v. Town of Carolina Beach, 216 N.C. 778 , 7 S.E.2d 13, 1940 N.C. LEXIS 387 (1940); Goldsboro v. Atlantic Coast Line R.R., 246 N.C. 101 , 97 S.E.2d 486, 1957 N.C. LEXIS 378 (1957).

Compliance Sufficient. —

Where the court fully and completely set out the facts found by him and rendered judgment thereon, an exception that the court did not state his findings of fact and conclusions of law separately could not be sustained, since the judgment constituted the court’s conclusion of law on the facts found. Dailey v. Washington Nat'l Ins. Co., 208 N.C. 817 , 182 S.E. 332, 1935 N.C. LEXIS 140 (1935).

The decision of the judge in writing, with a separate statement of his findings of fact and conclusions of law, is sufficient. Eley v. Atlantic Coast Line R.R., 165 N.C. 78 , 80 S.E. 1064, 1914 N.C. LEXIS 221 (1914).

For case holding statements of facts found by court insufficient, see Jamison v. City of Charlotte, 239 N.C. 423 , 79 S.E.2d 797, 1954 N.C. LEXIS 370 (1954).

Where the court does nothing more than indicate from what source facts may be gleaned, this is not a sufficient compliance with the requirement that the court’s decision shall contain a statement of the facts found. Shore v. Norfolk Nat'l Bank of Commerce, 207 N.C. 798 , 178 S.E. 572, 1935 N.C. LEXIS 271 (1935).

Verdict on Issues Submitted by Court to Itself. —

Except in a small claim action, it is irregular for the court, in a trial by the court under agreement of the parties, to render a verdict on issues submitted to itself. Anderson v. Cashion, 265 N.C. 555 , 144 S.E.2d 583, 1965 N.C. LEXIS 1043 (1965).

Unless the action is a small claim, it is irregular for the court to render a verdict on issues submitted to itself. Sherrill v. Boyce, 265 N.C. 560 , 144 S.E.2d 596, 1965 N.C. LEXIS 1045 (1965).

Where jury trial is waived and the court acts both as judge and jury, it is irregular for the court to render a verdict on issues submitted to itself, but in the absence of objection and exception, a new trial will not be ordered for this cause if from the judgment it can be determined what the court found the ultimate facts to be and what the legal basis of the judgment was. Daniels v. Nationwide Mut. Ins. Co., 258 N.C. 660 , 129 S.E.2d 314, 1963 N.C. LEXIS 463 (1963).

Failure of judge to sign his findings of fact and incorporate them into the formal judgment rendered in the cause did not render judgment void where there was a substantial compliance with the statute. Bradham v. Robinson, 236 N.C. 589 , 73 S.E.2d 555, 1952 N.C. LEXIS 615 (1952).

Dictation of Findings to Court Reporter. —

Where the judge dictated his findings to the court reporter and caused the reporter to transcribe them, this amounted to a finding of the facts by the judge in writing. Bradham v. Robinson, 236 N.C. 589 , 73 S.E.2d 555, 1952 N.C. LEXIS 615 (1952).

As to trial of a case on an agreed statement of facts, see U Drive It Auto Co. v. Atlantic Fire Ins. Co., 239 N.C. 416 , 80 S.E.2d 35, 1954 N.C. LEXIS 381 (1954); Competitor Liaison Bureau of NASCAR, Inc. v. Midkiff, 246 N.C. 409 , 98 S.E.2d 468, 1957 N.C. LEXIS 442 (1957).

Court’s Findings of Fact Have the Effect of a Jury Verdict. —

Upon waiver of jury trial, the court’s findings of fact have the force and effect of a verdict by jury. State Trust Co. v. M & J Fin. Corp., 238 N.C. 478 , 78 S.E.2d 327, 1953 N.C. LEXIS 573 (1953); Textile Ins. Co. v. Lambeth, 250 N.C. 1 , 108 S.E.2d 36, 1959 N.C. LEXIS 440 (1959); Sherrill v. Boyce, 265 N.C. 560 , 144 S.E.2d 596, 1965 N.C. LEXIS 1045 (1965); Knutton v. Cofield, 273 N.C. 355 , 160 S.E.2d 29, 1968 N.C. LEXIS 604 (1968).

And Are Conclusive If Supported by Competent Evidence. —

Where the parties consent to trial by the court without a jury, the findings of the court are as conclusive as a verdict of the jury if supported by competent evidence. Poole v. Gentry, 229 N.C. 266 , 49 S.E.2d 464, 1948 N.C. LEXIS 464 (1948); Town of Burnsville v. Boone, 231 N.C. 577 , 58 S.E.2d 351, 1950 N.C. LEXIS 347 (1950); Goldsboro v. Atlantic Coast Line R.R., 246 N.C. 101 , 97 S.E.2d 486, 1957 N.C. LEXIS 378 (1957); Everette v. D.O. Briggs Lumber Co., 250 N.C. 688 , 110 S.E.2d 288, 1959 N.C. LEXIS 483 (1959).

When a trial by jury has been waived by the parties, the judge’s findings of fact are conclusive on appeal if there is evidence to support them. Yarborough v. Moore, 151 N.C. 116 , 65 S.E. 763, 1909 N.C. LEXIS 209 (1909); Eley v. Atlantic Coast Line R.R., 165 N.C. 78 , 80 S.E. 1064, 1914 N.C. LEXIS 221 (1914). See Fish v. Hanson, 223 N.C. 143 , 25 S.E.2d 461, 1943 N.C. LEXIS 223 (1943); State Trust Co. v. M & J Fin. Corp., 238 N.C. 478 , 78 S.E.2d 327, 1953 N.C. LEXIS 573 (1953); Priddy v. Kernersville Lumber Co., 258 N.C. 653 , 129 S.E.2d 256, 1963 N.C. LEXIS 455 (1963).

Findings of fact by the court are conclusive on appeal if there is evidence to support them, even though the evidence might sustain a finding to the contrary. Knutton v. Cofield, 273 N.C. 355 , 160 S.E.2d 29, 1968 N.C. LEXIS 604 (1968).

And Will Not Be Disturbed on Appeal. —

Findings of fact by the court, when a jury trial has been waived by consent, will not be disturbed on appeal, if based upon competent evidence. Fish v. Hanson, 223 N.C. 143 , 25 S.E.2d 461, 1943 N.C. LEXIS 223 (1943); Turnage Co. v. Morton, 240 N.C. 94 , 81 S.E.2d 135, 1954 N.C. LEXIS 640 (1954); Reid v. Johnston, 241 N.C. 201 , 85 S.E.2d 114, 1954 N.C. LEXIS 678 (1954).

Presumption That Findings Are Supported by Competent Evidence. —

Where the parties waive a jury trial and there are no exceptions to the findings of fact by the judge, it will be presumed that they are supported by competent evidence, and they will be binding on appeal. Tanner v. Ervin, 250 N.C. 602 , 109 S.E.2d 460, 1959 N.C. LEXIS 473 (1959), cert. denied, 361 U.S. 948, 80 S. Ct. 401, 4 L. Ed. 2d 381, 1960 U.S. LEXIS 1727 (1960).

What Question Presented on Exception to Judgment Only. —

An exception to a judgment rendered in a trial by the court, without exception to the evidence or the court’s findings of fact, presents the sole question of whether the facts found support the judgment. Best v. Garris, 211 N.C. 305 , 190 S.E. 221, 1937 N.C. LEXIS 76 (1937).

Question on Appeal of Judgment of Nonsuit. —

Where, upon waiver of jury trial, the court made no specific findings of fact, but entered judgment of involuntary nonsuit, the only question presented was whether the evidence, taken in the light most favorable to plaintiff, would support findings of fact upon which plaintiff could recover. Shearin v. Lloyd, 246 N.C. 363 , 98 S.E.2d 508, 1957 N.C. LEXIS 464 (1957); DeBruhl v. L. Harvey & Son Co., 250 N.C. 161 , 108 S.E.2d 469, 1959 N.C. LEXIS 642 (1959); Oldham & Worth, Inc. v. Bratton, 263 N.C. 307 , 139 S.E.2d 653, 1965 N.C. LEXIS 1280 (1965).

Affirmation of Judgment on Failure to Except. —

Where the court simply responded formally to the issues and directed judgment, to which no exception was taken, and no assignment of error was made, the judgment would be affirmed. Parks v. Davis, 98 N.C. 481 , 4 S.E. 202, 1887 N.C. LEXIS 309 (1887).

Rule 53. Referees.

  1. Kinds of reference. —
    1. By Consent. —  Any or all of the issues in an action may be referred upon the written consent of the parties except in actions to annul a marriage, actions for divorce, actions for divorce from bed and board, actions for alimony without the divorce or actions in which a ground of annulment or divorce is in issue.
    2. Compulsory. —  Where the parties do not consent to a reference, the court may, upon the application of any party or on its own motion, order a reference in the following cases:
      1. Where the trial of an issue requires the examination of a long or complicated account; in which case the referee may be directed to hear and decide the whole issue, or to report upon any specific question of fact involved therein.
      2. Where the taking of an account is necessary for the information of the court before judgment, or for carrying a judgment or order into effect.
      3. Where the case involves a complicated question of boundary, or requires a personal view of the premises.
      4. Where a question of fact arises outside the pleadings, upon motion or otherwise, at any stage of the action.
  2. Jury trial. —
    1. Where the reference is by consent, the parties waive the right to have any of the issues within the scope of the reference passed on by a jury.
    2. A compulsory reference does not deprive any party of his right to a trial by jury, which right he may preserve by
      1. Objecting to the order of compulsory reference at the time it is made, and
      2. By filing specific exceptions to particular findings of fact made by the referee within 30 days after the referee files his report with the clerk of the court in which the action is pending, and
      3. By formulating appropriate issues based upon the exceptions taken and demanding a jury trial upon such issues. Such issues shall be tendered at the same time the exceptions to the referee’s report are filed. If there is a trial by jury upon any issue referred, the trial shall be only upon the evidence taken before the referee.
  3. Appointment. —  The parties may agree in writing upon one or more persons not exceeding three, and a reference shall be ordered to such person or persons in appropriate cases. If the parties do not agree, the court shall appoint one or more referees, not exceeding three, but no person shall be appointed referee to whom all parties in the action object.
  4. Compensation. —  The compensation to be allowed a referee shall be fixed by the court and charged in the bill of costs. After appointment of a referee, the court may from time to time order advancements by one or more of the parties of sums to be applied to the referee’s compensation. Such advancements may be apportioned between the parties in such manner as the court sees fit. Advancements so made shall be taken into account in the final fixing of costs and such adjustments made as the court then deems proper.
  5. Powers. —  The order of reference to the referee may specify or limit his powers and may direct him to report only upon particular issues or to do or perform particular acts or to receive and report evidence only and may fix the time and place for beginning and closing the hearings and for the filing of the referee’s report. Subject to the specifications and limitations stated in the order, every referee has power to administer oaths in any proceeding before him, and has generally the power vested in a referee by law. The referee shall have the same power to grant adjournments and to allow amendments to pleadings and to the summons as the judge and upon the same terms and with like effect. The referee shall have the same power as the judge to preserve order and punish all violations thereof, to compel the attendance of witnesses before him by attachment, and to punish them as for contempt for nonattendance or for refusal to be sworn or to testify. The parties may procure the attendance of witnesses before the referee by the issuance and service of subpoenas as provided in Rule 45.
  6. Proceedings. —
    1. Meetings. —  When a reference is made, the clerk shall forthwith furnish the referee with a copy of the order of reference. Upon receipt thereof unless the order of reference otherwise provides, the referee shall forthwith set a time and place for the first meeting of the parties or their attorneys to be held within 20 days after the date of the order of reference and shall notify the parties or their attorneys. It is the duty of the referee to proceed with all reasonable diligence. Any party, on notice to all other parties and the referee, may apply to the court for an order requiring the referee to expedite the proceedings and to make his report. If a party fails to appear at the time and place appointed, the referee may proceed ex parte, or, in his discretion, may adjourn the proceedings to a future day, giving notice to the absent party of the adjournment.
    2. Statement of Accounts. —  When matters of accounting are in issue before the referee, he may prescribe the form in which the accounts shall be submitted and in any proper case may require or receive in evidence a statement by a certified public accountant or other qualified accountant who is called as a witness. Upon objection of a party to any of the items thus submitted or upon a showing that the form of statement is insufficient, the referee may require a different form of statement to be furnished, or the accounts of specific items thereof to be proved by oral examination of the accounting parties or upon written interrogatories or in such other manner as he directs.
    3. Testimony Reduced to Writing. —  The testimony of all witnesses must be reduced to writing by the referee, or by someone acting under his direction and shall be filed in the cause and constitute a part of the record.
  7. Report. —
    1. Contents and Filing. —  The referee shall prepare a report upon the matters submitted to him by the order of reference and shall include therein his decision on all matters so submitted. If required to make findings of fact and conclusions of law, he shall set them forth separately in the report. He shall file the report with the clerk of the court in which the action is pending and unless otherwise directed by the order of reference, shall file with it a transcript of the proceedings and of the evidence and the original exhibits. Before filing his report a referee may submit a draft thereof to counsel for all parties for the purpose of receiving their suggestions. The clerk shall forthwith mail to all parties notice of the filing.
    2. Exceptions and Review. —  All or any part of the report may be excepted to by any party within 30 days from the filing of the report. Thereafter, and upon 10 days’ notice to the other parties, any party may apply to the judge for action on the report. The judge after hearing may adopt, modify or reject the report in whole or in part, render judgment, or may remand the proceedings to the referee with instructions. No judgment may be rendered on any reference except by the judge.

History. 1967, c. 954, s. 1; 1969, c. 895, s. 13.

Comment

Generally, the rules leave the reference practice as it was. But some changes are made.

Section (a). — The Commission has included all of the grounds for compulsory reference found in former § 1-189 except that providing for reference in actions “of which the courts of equity . . . had exclusive jurisdiction” prior to 1868.

Section (b). — In keeping with prior practice, the rule affirms the right of jury trial in compulsory reference cases. It goes further, and spells out, as former §§ 1-188 to 1-195 did not, just how the right of jury trial is to be preserved. The method of preserving jury trial is essentially the same as that required by the case law. See Bartlett v. Hopkins, 235 N.C. 165 , 69 S.E.2d 236 (1952).

Section (c). — This section essentially makes no change.

Section (d). — The Commission thought it would be useful to include, as former §§ 1-188 to 1-195 did not, some details in respect to the compensation of referees.

Section (e). — The first sentence specifying the allowable flexibility in the order of reference is new. So far as the powers of the referee are concerned, they remain essentially unchanged except as enlarged by section (f).

Section (f). — Former §§ 1-188 to 1-195 contained no equivalent to subsection (2) but the Commission believes the new authority will be useful.

Section (g). — Here, for purposes of clarity, the rules goes into more detail than did former §§ 1-188 to 1-195 but the main outlines of the prior practice are retained.

OFFICIAL COMMENT

Comment to the 1969 amendment.

Section (a). — Rule 53(a) previously provided that all issues in an action may be referred upon the written consent of the parties except in actions to annul a marriage, and actions for divorce and separation.

There being no such action as an “action for divorce and separation,” this ground has been deleted. The 1969 amendment added to the list: actions for divorce, actions for divorce from bed and board, actions for alimony without the divorce or actions in which a ground of annulment or divorce is in issue. This language now conforms to previous rules concerning reference in domestic relations cases.

Legal Periodicals.

For article on legislative changes to the new Rules of Civil Procedure, see 6 Wake Forest Intra. L. Rev. 267 (1970).

For article on administrative evidence rules, see 49 N.C.L. Rev. 635 (1971).

For survey of 1982 family law, see 61 N.C.L. Rev. 1155 (1983).

For article analyzing the 1983 amendments to Rules 6, 7, 11, 16, 26, 52, 53 and 67, FRCP, comparing these rules with North Carolina practice, and suggesting changes in certain state and federal rules, see 20 Wake Forest L. Rev. 819 (1984).

For note, “Rent-A-Judges and the Cost of Selling Justice,” see 44 Duke L.J. 166.

CASE NOTES

Analysis

I.In General

The word “may,” as used in section (a) of this rule, connotes permissive and not mandatory power in the court to grant a reference. Green Hi-Win Farm, Inc. v. Neal, 83 N.C. App. 201, 349 S.E.2d 614, 1986 N.C. App. LEXIS 2682 (1986).

To Whom Reference Is “Compulsory”. —

Once a court orders a reference, whether upon application by any party or on its own motion, it is “compulsory” only as to the parties to the processioning action. Green Hi-Win Farm, Inc. v. Neal, 83 N.C. App. 201, 349 S.E.2d 614, 1986 N.C. App. LEXIS 2682 (1986).

The ordering of a reference is within the sound discretion of the court. Livermon v. Bridgett, 77 N.C. App. 533, 335 S.E.2d 753, 1985 N.C. App. LEXIS 4168 (1985).

The ordering or refusal to order a compulsory reference is a matter within the discretion of the trial judge. Vick v. Vick, 80 N.C. App. 697, 343 S.E.2d 245, 1986 N.C. App. LEXIS 2233 , writ denied, 317 N.C. 341 , 346 S.E.2d 149, 1986 N.C. LEXIS 2361 (1986).

Ordering Reference in Boundary Dispute Case. —

Where the pleadings showed a potentially complicated boundary dispute in which one side claimed the boundaries were not as stated in the deeds but were marked by known and visible boundaries on the ground, and a view of the premises would, therefore, be helpful, there was no abuse of discretion by the trial court in ordering the reference. Livermon v. Bridgett, 77 N.C. App. 533, 335 S.E.2d 753, 1985 N.C. App. LEXIS 4168 (1985).

Reference in Adverse Possession Case. —

Possessor was not prejudiced by the trial court’s compulsory reference of the adverse possession case pursuant to G.S. 1A-1 , N.C. R. Civ. P. 53(a)(2); on appeal of the referee’s decision, the trial court made an independent assessment of the evidence that was presented to the referee. Dockery v. Hocutt, 153 N.C. App. 744, 571 S.E.2d 81, 2002 N.C. App. LEXIS 1267 (2002), aff'd in part, modified, 357 N.C. 210 , 581 S.E.2d 431, 2003 N.C. LEXIS 596 (2003).

Trial court’s reference of an adverse possession matter was not error because it could be said that the matter involved a complicated boundary question or require a personal view, as the irregularly shaped disputed parcel was surrounded by no less than 12 discrete lots, and the location of known and visible lines and boundaries marking the land adversely possessed was the complicated question of boundary required by subdivision (a)(2)(c) of this rule as a basis for reference. Dockery v. Hocutt, 357 N.C. 210 , 581 S.E.2d 431, 2003 N.C. LEXIS 596 (2003).

The duty and powers of the referee are not inherent but are determined by the order of the judge. Godwin v. Clark, Godwin, Harris & Li, 40 N.C. App. 710, 253 S.E.2d 598, 1979 N.C. App. LEXIS 2340 (1979).

Generally, the powers of a referee are governed by the order of reference. Davis v. Davis, 58 N.C. App. 25, 293 S.E.2d 268, 1982 N.C. App. LEXIS 2721 (1982).

The referee has authority to resolve issues not contained in the pleadings at any stage of the action. Fauchette v. Zimmerman, 79 N.C. App. 265, 338 S.E.2d 804, 1986 N.C. App. LEXIS 2047 (1986).

Referee Not Required to Conduct Hearings, etc. —

This rule does not require that the referee conduct hearings, examine witnesses under oath, admit exhibits into evidence, prepare a record, make definite findings of fact or conduct an audit before making the valuation. Godwin v. Clark, Godwin, Harris & Li, 40 N.C. App. 710, 253 S.E.2d 598, 1979 N.C. App. LEXIS 2340 (1979).

Consent Generally Necessary to Vacate Reference by Consent. —

Once a reference has been ordered with the consent of both parties, the trial court may not revoke it absent the consent of all parties. Reeves v. Musgrove, 39 N.C. App. 43, 249 S.E.2d 455, 1978 N.C. App. LEXIS 2336 (1978).

Either party has a right to have the order carried into effect and complied with by a full report of the referee, and further action by the court can only be had upon such report. Reeves v. Musgrove, 39 N.C. App. 43, 249 S.E.2d 455, 1978 N.C. App. LEXIS 2336 (1978).

Trial of Issues on Failure of Report to Determine Them. —

If the issues are presented to the referee, but his report does not determine them, the trial court may properly choose not to again submit the issues to a referee. It then becomes incumbent upon the trial court to try these issues. Reeves v. Musgrove, 39 N.C. App. 43, 249 S.E.2d 455, 1978 N.C. App. LEXIS 2336 (1978).

Where the trial of an issue requires the examination of a complicated account the trial court may, upon its own motion, order a reference. Porter Bros. v. Jones, 11 N.C. App. 215, 181 S.E.2d 177, 1971 N.C. App. LEXIS 1498 (1971).

What Constitutes a “Long Account”. —

There is no statutory or judicial definition of a long account. It is clear, however, that the exact words of the statute do not characterize a case for compulsory reference, and that a long account does not restrict the reference to an action on an account. Synco, Inc. v. Headen, 47 N.C. App. 109, 266 S.E.2d 715, 1980 N.C. App. LEXIS 3000 (1980).

The referee in a compulsory reference is required to file a transcript of the evidence with his report, and the referee’s notes summarizing the testimony of the witnesses in the hearing before him are not a proper substitute for the transcript of the evidence. Synco, Inc. v. Headen, 47 N.C. App. 109, 266 S.E.2d 715, 1980 N.C. App. LEXIS 3000 (1980).

The parties were entitled to have all appropriate issues determined by the jury upon the report of the referee with the transcript of the evidence, unless the parties agreed that the report would be accompanied by the referee’s notes without a transcript of the evidence. Synco, Inc. v. Headen, 47 N.C. App. 109, 266 S.E.2d 715, 1980 N.C. App. LEXIS 3000 (1980).

Costs of Transcript. —

It is the duty of the referee in a compulsory reference, with the assistance of the trial court if needed, to have the reporter who recorded the hearing testimony submit a copy or copies of the transcript of evidence at the hearing, and any controversy as to the cost of the transcript was not a private matter between the parties to the action but was a question for determination by the referee and the trial court. Synco, Inc. v. Headen, 47 N.C. App. 109, 266 S.E.2d 715, 1980 N.C. App. LEXIS 3000 (1980).

In the absence of exceptions to the factual findings of a referee, such findings are conclusive, and where no exceptions are filed, the case is to be determined upon the facts as found by the referee. State ex rel. Gilchrist v. Hurley, 48 N.C. App. 433, 269 S.E.2d 646, 1980 N.C. App. LEXIS 3284 (1980); State ex rel. Gilchrist v. Cogdill, 74 N.C. App. 133, 327 S.E.2d 647, 1985 N.C. App. LEXIS 3394 (1985).

Review of Referee’s Findings and Conclusions. —

The unambiguous wording of subsection (g)(2) of this rule reveals the options available to a judge with respect to a report filed after a hearing; there is nothing in the plain language thereof which could infer a mandatory review of the referee’s findings of fact and conclusions of law. However, when exceptions are taken to a referee’s findings of fact and law, it is the duty of the judge to consider the evidence and give his own opinion and conclusion, both upon the facts and the law. Quate v. Caudle, 95 N.C. App. 80, 381 S.E.2d 842, 1989 N.C. App. LEXIS 665 (1989).

Where court affirmed in part and modified in part the referee’s report, the modification clearly established that the presiding judge made a review of the referee’s findings pursuant to subsection (g)(2) of this rule; therefore, defendant’s argument to the contrary was without merit. Quate v. Caudle, 95 N.C. App. 80, 381 S.E.2d 842, 1989 N.C. App. LEXIS 665 (1989).

Trial court, by ordering a referee’s report to be entered into judgment, clearly signaled its opinion and conclusion that, based on the evidence presented, the report was the appropriate resolution for a boundary dispute. It did not have to give a separate opinion and conclusion to the report, and it was not obligated to make its own findings of fact in its order upholding the referee’s report. Lawson v. Lawson, 236 N.C. App. 576, 763 S.E.2d 570, 2014 N.C. App. LEXIS 1039 (2014).

Neither the North Carolina Rule of Civil Procedure, nor the reference order mandated that a referee conduct an accounting process in the manner that the objectors argued was required. Accordingly, the objectors did not demonstrate legal error with regard to the trial court’s appointment of the referee, the court’s articulation of the scope of the referee’s duties, the manner in which the referee carried out those duties, or the trial court’s adoption of the referee’s report. Boughman v. Brewer, 254 N.C. App. 706, 803 S.E.2d 433, 2017 N.C. App. LEXIS 613 (2017).

Two-hour hearing on defendant’s exception to the referee’s report plus the language in the trial court’s order demonstrated that the trial court thoughtfully considered defendants’ exceptions and did not perfunctorily place a stamp of approval on the referee’s labor. Bullock v. Tucker, 262 N.C. App. 511, 822 S.E.2d 654, 2018 N.C. App. LEXIS 1181 (2018).

Review Not Required. —

In their written exception to the referee’s report, defendants failed to except to any particular factual finding or legal conclusion made by the referee, and instead, they excepted to the referee’s report in its entirety; the only relevant exception defendants took to the referee’s finding that they now challenged on appeal concerned one finding, and as no other relevant exceptions were made to the referee’s findings, they were binding and the trial court was not required to review them. Bullock v. Tucker, 262 N.C. App. 511, 822 S.E.2d 654, 2018 N.C. App. LEXIS 1181 (2018).

Arguments Before Trial Court. —

In a contract action, when the matter was referred to a referee, the trial court erred, under G.S. 1A-1 , N.C. R. Civ. P. 53(g)(2), when, in considering the referee’s report, it did not consider the evidence submitted to the referee and, instead, relied on the parties’ arguments before the trial court. Gaynor v. Melvin, 155 N.C. App. 618, 573 S.E.2d 763, 2002 N.C. App. LEXIS 1586 (2002).

Only Judge Has Authority to Enter Judgment upon Reference. —

Where the referee made findings of fact and conclusions of law and purported to enter a judgment against defendant, and the superior court judge confirmed the referee’s report but did not enter a judgment on the approved findings and conclusions, the cause would be remanded to the superior court for entry of a proper judgment, since only the judge, and not the referee, has authority to enter judgment upon a reference. Rouse v. Wheeler, 17 N.C. App. 422, 194 S.E.2d 555, 1973 N.C. App. LEXIS 1373 (1973).

Adoption of Referee’s Report. —

In the context of a compulsory reference under subdivision (g)(2) of this rule, a trial court cannot adopt in full a referee’s report containing findings of fact requiring assessment of witnesses’ credibility, however, the trial court must evaluate the evidence to determine if, taken in the light most favorable to the party demanding jury trial, the evidence is sufficient to support that party’s claim, and, if the evidence is insufficient as a matter of law to support the party’s claim, the trial court may modify the report by striking the offending findings of fact and making its own conclusions, adopt the report in part exclusive of those findings of fact and make its own conclusions, or reject the report and then enter judgment. Dockery v. Hocutt, 357 N.C. 210 , 581 S.E.2d 431, 2003 N.C. LEXIS 596 (2003).

When an appellate court finds a referee’s report to be faulty and remands the case, the trial court may again order a reference or make its own findings. Reeves v. Musgrove, 39 N.C. App. 43, 249 S.E.2d 455, 1978 N.C. App. LEXIS 2336 (1978).

Remand for Entry of Judgment. —

Trial court’s order adopting the referee’s report was affirmed, but remand was necessary so the trial court could enter a proper judgment concordant with that report. Bullock v. Tucker, 262 N.C. App. 511, 822 S.E.2d 654, 2018 N.C. App. LEXIS 1181 (2018).

II.Jury Trial

A compulsory reference does not deprive one of the right to trial by jury. —

Resort Dev. Co. v. Phillips, 9 N.C. App. 158, 175 S.E.2d 782, 1970 N.C. App. LEXIS 1302 (1970), aff'd in part and rev'd in part, 278 N.C. 69 , 178 S.E.2d 813, 1971 N.C. LEXIS 940 (1971).

A compulsory reference, under provisions of former G.S. 1-189, did not deprive either party of his constitutional right to a trial by jury of the issues of fact arising on the pleadings, but such trial was only upon the written evidence taken before the referee. Resort Dev. Co. v. Phillips, 278 N.C. 69 , 178 S.E.2d 813, 1971 N.C. LEXIS 940 (1971).

Subsection (b)(2) of this rule provides that a reference does not deprive a party of a jury trial and sets out the steps to be followed to preserve the right. Porter Bros. v. Jones, 11 N.C. App. 215, 181 S.E.2d 177, 1971 N.C. App. LEXIS 1498 (1971).

Test to Determine Demand for Jury Trial. —

Following a compulsory reference, the test to determine a demand for jury trial is the same as that for a motion for directed verdict pursuant to G.S. 1A-1 , Rule 50. Dockery v. Hocutt, 357 N.C. 210 , 581 S.E.2d 431, 2003 N.C. LEXIS 596 (2003).

Preservation of Right to Jury Trial. —

When the referee’s report is adverse to a party, that party may preserve his right to jury trial pursuant to section (b) of this rule. Fauchette v. Zimmerman, 79 N.C. App. 265, 338 S.E.2d 804, 1986 N.C. App. LEXIS 2047 (1986).

Waiver of Right to Jury Trial. —

In a contract action, an employee waived his right to a jury trial when the matter was referred to a referee and the employee did not object to the order of reference, under G.S. 1A-1 , N.C. R. Civ. P. 53(b)(2). Gaynor v. Melvin, 155 N.C. App. 618, 573 S.E.2d 763, 2002 N.C. App. LEXIS 1586 (2002).

Members of a dissolved law firm did not preserve their right to have a jury decide any matters determined by the referee as because at no point between the issuance of the reference order and the filing of the referee’s report did the members formally object to the scope of the reference order or the process by which the referee was conducting the accounting. The first time the members raised any such objections on the record was in their exceptions and objections regarding the report of the special master. Boughman v. Brewer, 254 N.C. App. 706, 803 S.E.2d 433, 2017 N.C. App. LEXIS 613 (2017).

Right to Jury Trial Only If Evidence Raises Fact Issue. —

Although when a court orders a compulsory reference, a party preserves his right to trial by complying with the procedural steps outlined in this rule, the party is entitled to trial by jury only if the evidence before the referee was sufficient to raise an issue of fact. Fauchette v. Zimmerman, 79 N.C. App. 265, 338 S.E.2d 804, 1986 N.C. App. LEXIS 2047 (1986).

General issue of material fact was raised as to various issues of property owners’ adverse possession claim against their neighbors, such that a trial court’s confirmation of the referee’s report was error under N.C .R. Civ. P. 53(b)(2); rather, the neighbors preserved their rights to a jury trial. Rushing v. Aldridge, 214 N.C. App. 23, 713 S.E.2d 566, 2011 N.C. App. LEXIS 1639 (2011).

Only Evidence Taken Before Referee to be Used in Jury Trial. —

Subdivision (b)(2)(c) provides that if there is a trial by jury upon any issue referred, the trial will be only upon the evidence taken before the referee, so, when a trial court reviews a referee’s order, the claimant has been put to the full burden of proof; and the trial court had before it all the testimony, including cross-examination, not merely a forecast of the evidence, and, given the limitation imposed by subdivision (b)(2)(c), the trial court, in ruling on a party’s demand for jury trial following a compulsory reference, is in a position analogous to that of a trial judge in ruling on a motion for directed verdict pursuant to G.S. 1A-1 , Rule 50 at the close of all evidence. Dockery v. Hocutt, 357 N.C. 210 , 581 S.E.2d 431, 2003 N.C. LEXIS 596 (2003).

Right to Jury Trial in Quiet Title Action. —

In an action to quiet title to 48.7 acres of land, where evidence taken by referee raised factual issues regarding the respective parties’ actual possession of the disputed land, which issues were material to a resolution of the case, it was for the jury to decide, under proper instructions, whether the acts shown by the evidence constituted open, notorious and adverse possession. Federal Paper Bd. Co. v. Hartsfield, 87 N.C. App. 667, 362 S.E.2d 169, 1987 N.C. App. LEXIS 3312 (1987).

Failure to Formulate Appropriate Issues Based on Exceptions as Waiver of Jury Trial. —

Having failed to formulate appropriate issues based upon the exceptions taken, defendants waived their right to jury trial. Porter Bros. v. Jones, 11 N.C. App. 215, 181 S.E.2d 177, 1971 N.C. App. LEXIS 1498 (1971).

Defendants did not waive their right to jury trial on the true boundary line between the lands of the parties by failing to make exceptions to specified findings of fact by the referee where exceptions which defendants did make were sufficient to give plaintiff notice and to present the issue in dispute to the court. Mathias v. Brumsey, 27 N.C. App. 558, 219 S.E.2d 646, 1975 N.C. App. LEXIS 1901 (1975), cert. denied, 289 N.C. 140 , 220 S.E.2d 798, 1976 N.C. LEXIS 1226 (1976).

III.Decisions under Prior Law
A.In General

Editor’s Note. —

The cases cited below were decided under former G.S. 1-188 through 1-190, 1-192 and 1-195.

Effect on Common-Law Arbitration. —

The provisions of the Code of Civil Procedure did not repeal the common-law practice of reference to arbitrators. Keener v. Goodson, 89 N.C. 273 , 1883 N.C. LEXIS 231 (1883).

When Order of Reference Permitted. —

No order of reference, either by consent or otherwise, should be permitted by the court until the pleadings are in and the parties are at issue. Crew v. Thompson, 266 N.C. 476 , 146 S.E.2d 471, 1966 N.C. LEXIS 1370 (1966).

Reference Does Not Deprive Court of Jurisdiction. —

Sending a case to be tried by a referee does not deprive the court of its jurisdiction, and it can make any and all necessary orders therein pending trial before the referee. McNeill v. Lawton, 97 N.C. 16 , 1 S.E. 493, 1887 N.C. LEXIS 100 (1887).

A referee has no inherent or original powers and can only do those things expressly enumerated, and such as he is authorized to do by the court which sends him the case. Jones v. Beaman, 117 N.C. 259 , 23 S.E. 248, 1895 N.C. LEXIS 56 (1895).

Referee May Allow Amendments and Make New Parties. —

The authority of the referee to allow amendments to pleadings and to make new parties was expressly given by former G.S. 1-192. Sheffield v. Alexander, 194 N.C. 744 , 140 S.E. 726, 1927 N.C. LEXIS 201 (1927) (citing) Koonce v. Pelletier, 115 N.C. 233 , 20 S.E. 391, 1894 N.C. LEXIS 219 (1894); Blanton v. Bostic, 126 N.C. 418 , 35 S.E. 1035, 1900 N.C. LEXIS 257 (1900); Rosenbacher & Bro. v. Martin, 170 N.C. 236 , 86 S.E. 785, 1915 N.C. LEXIS 378 (1915).

A referee has power to admit new parties to an action. Perkins v. Berry, 103 N.C. 131 , 9 S.E. 621, 1889 N.C. LEXIS 85 (1889).

But May Not Allow Filing of Answer Absent Consent. —

While a referee may allow amendments to pleadings, he is not authorized to allow a defendant who has not previously done so to file an answer, except by consent. Jones v. Beaman, 117 N.C. 259 , 23 S.E. 248, 1895 N.C. LEXIS 56 (1895).

Notice Held Ineffective to Bring Surety into Court. —

A notice issued by a referee and served upon a surety on an administrator’s bond to appear before him, no order having been made to make such surety a party, was not a legal process effective to bring him into court. Koonce v. Pelletier, 115 N.C. 233 , 20 S.E. 391, 1894 N.C. LEXIS 219 (1894).

To review the action of the referee in permitting amendments to pleadings and the making of new parties, and to contend successfully on appeal that there was a misjoinder of parties and causes of action, it is required that the appellant should have excepted in apt time and have preserved his exceptions or they will not be considered on appeal. Sheffield v. Alexander, 194 N.C. 744 , 140 S.E. 726, 1927 N.C. LEXIS 201 (1927).

Power to Enforce Rulings. —

The referee has power to enforce obedience to the rulings on the trial of the issues before him, just as the court would have upon the trial before it. LaFontaine v. Southern Underwriters Ass'n, 83 N.C. 132 , 1880 N.C. LEXIS 30 (1880).

What May Be Referred by Consent. —

All or any of the issues in an action may be referred by consent of the parties. Lusk v. Clayton, 70 N.C. 184 , 1874 N.C. LEXIS 193 (1874).

No Appeal from Decision as to Issues Referred by Consent. —

Upon a consent reference to try a cause, the question as to whether all the issues raised by the pleadings are to be considered depends upon the extent of the agreement of the parties, and the finding of the trial court is conclusive. Barrett v. Henry, 85 N.C. 321 , 1881 N.C. LEXIS 262 (1881).

Judge May Disregard Agreement to Refer. —

The trial judge, in the exercise of a sound discretion, may disregard the agreement of parties that a reference shall be made. J. L. Roper Lumber Co. v. Elizabeth City Lumber Co., 137 N.C. 431 , 49 S.E. 946, 1905 N.C. LEXIS 190 (1905).

Order of reference by consent entered of record is a sufficient compliance with the requirement that the consent be in writing. And when entered it must stand until a full report is made. White v. Utley, 86 N.C. 415 , 1882 N.C. LEXIS 217 (1882).

The referee selected by the parties must remain in the discharge of his duties, unless with like consent another is substituted in his place, until the order has been fully executed and the final report made. Perry v. Tupper, 77 N.C. 413 , 1877 N.C. LEXIS 113 (1877).

Setting Aside of Report Does Not Revoke Reference. —

When for cause the referee’s report is set aside, the order of reference is not thereby revoked; it continues, and a second trial may be had before the same referee, although a party may not consent to such a second trial. Flemming v. Roberts, 77 N.C. 415 , 1877 N.C. LEXIS 114 (1877).

Consent Generally Necessary to Vacate Reference by Consent. —

Where an action is once referred, the order of reference cannot be annulled except by the consent of all parties. Morisey v. Swinson, 104 N.C. 555 , 10 S.E. 754, 1889 N.C. LEXIS 236 (1889); Keystone Driller Co. v. Worth, 117 N.C. 515 , 23 S.E. 427, 1895 N.C. LEXIS 109 (1895).

When the parties agree upon a reference, the consent continues until the order is complied with by a full report, and the judge cannot revoke it without the consent of both parties. Coburn v. Roanoke Land & Timber Corp., 257 N.C. 222 , 125 S.E.2d 593, 1962 N.C. LEXIS 588 (1962).

Unless a sufficient cause therefor is made to appear. Patrick v. Richmond & D.R.R., 101 N.C. 602 , 8 S.E. 172, 1888 N.C. LEXIS 104 (1888).

Motion for Compulsory Reference Must Be Timely. —

A motion for a compulsory reference should be made in an action before the jury has been empaneled, or the rights of a party thereto will be considered as waived. Peyton v. Hamilton-Brown Shoe Co., 167 N.C. 250 , 167 N.C. 280 , 83 S.E. 487, 1914 N.C. LEXIS 104 (1914).

It is not error to refuse a compulsory reference, when the motion to refer is not made until after the close of the evidence. Hughes v. Boone, 102 N.C. 137 , 9 S.E. 286, 1889 N.C. LEXIS 25 (1889).

The right of a party to move for compulsory reference is waived unless made before the jury has been empaneled, but the rule does not apply where reference is ordered by the court of its own motion. Shute v. Fisher, 270 N.C. 247 , 154 S.E.2d 75, 1967 N.C. LEXIS 1332 (1967).

The court has discretionary power to grant or refuse a compulsory reference, and while movant has the right to insist that the judge exercise his discretionary power and act on the motion, he has no legal right to demand that the court direct a reference. Veazey v. City of Durham, 231 N.C. 354 , 57 S.E.2d 375, 1950 N.C. LEXIS 459 (1950).

Order of Reference Not to Be Set Aside Without Good Cause. —

Once the order of reference is made, and particularly after the report has been filed, it cannot be set aside except for good and sufficient cause assigned and made to appear to the court. Coburn v. Roanoke Land & Timber Corp., 257 N.C. 222 , 125 S.E.2d 593, 1962 N.C. LEXIS 588 (1962).

In order for one superior court judge to set aside an order of compulsory reference entered by another, the motion would have to go to the validity and regularity of the proceeding or some subsequent change of circumstances affecting the status of the case. Coburn v. Roanoke Land & Timber Corp., 257 N.C. 222 , 125 S.E.2d 593, 1962 N.C. LEXIS 588 (1962).

Even when a report is set aside for cause, the order of reference is not thereby revoked; it continues. Coburn v. Roanoke Land & Timber Corp., 257 N.C. 222 , 125 S.E.2d 593, 1962 N.C. LEXIS 588 (1962).

Court Held Without Authority to Set Aside Order of Reference. —

Where the trial judge ordered a compulsory reference upon the ground that the complaint stated a long and involved account, and no exception was taken to the order by either party, the court was without authority to set aside the order of reference and submit the case to the jury when upon his rulings the referee committed error in excluding certain evidence materially bearing upon the controversy. American Trust Co. v. Jenkins, 196 N.C. 428 , 146 S.E. 68, 1929 N.C. LEXIS 2 (1929).

Reference of Both Fact and Law Issues. —

Under the provisions of former G.S. 1-172, judge was authorized to order a compulsory reference as to all of the issues, both of fact and of law. Resort Dev. Co. v. Phillips, 3 N.C. App. 295, 164 S.E.2d 516, 1968 N.C. App. LEXIS 849 (1968).

Reference on All Issues Precedes Adjudication of Liability. —

A compulsory reference to hear and determine all matters in controversy precedes any adjudication by the court of the liability of the parties. Governor ex rel. Trustees v. Lassiter, 83 N.C. 38 , 1880 N.C. LEXIS 10 (1880).

But Complete Defense Should Be Decided First. Sloan v. McMahon, 85 N.C. 296 , 1881 N.C. LEXIS 257 (1881); Commissioners of Iredell County v. White, 123 N.C. 534 , 31 S.E. 670, 1898 N.C. LEXIS 99 (1898); Bank of Tarboro v. Fidelity & Deposit Co., 126 N.C. 320 , 35 S.E. 588, 1900 N.C. LEXIS 237 (1900); Reynolds v. Morton, 205 N.C. 491 , 171 S.E. 781, 1933 N.C. LEXIS 599 (1933); Graves v. Pritchett, 207 N.C. 518 , 177 S.E. 641, 1935 N.C. LEXIS 192 (1935); Grimes v. County of Beaufort, 218 N.C. 164 , 10 S.E.2d 640, 1940 N.C. LEXIS 112 (1940); Grady v. Parker, 230 N.C. 166 , 52 S.E.2d 273, 1949 N.C. LEXIS 582 (1949).

Incomplete Defense Does Not Bar Reference. —

A party to an action may not successfully object to a compulsory reference when the same is allowed by statute and the complaint states a good cause of action and no complete plea in bar to the entire cause is set up by him. Murchison Nat'l Bank v. McCormick, 192 N.C. 42 , 133 S.E. 183, 1926 N.C. LEXIS 218 (1926).

Compulsory Reference Improvidently Entered Where Complete Bar Alleged. —

Where a suit to set aside a deed to lands, an action for possession, and a petition for dower were consolidated, an allegation of the wife’s adultery was in bar of the wife’s right, and whether the compulsory order of reference was treated as one of consolidation and reference of the consolidated action or as a reference of each action and proceeding under one form, it was improvidently entered. Lee v. Thornton, 176 N.C. 208 , 97 S.E. 23, 1918 N.C. LEXIS 221 (1918).

Waiver of Challenge to Order of Reference Entered Before Plea in Bar Passed On. —

Defendants, by not excepting to the order of compulsory reference when made and by proceeding with trial before the referee, did not preserve the right to challenge the order upon the ground that it should not have been entered before an alleged plea of accord and satisfaction had been passed on, or any other plea in bar they may have alleged. Farmers Coop. Exch. v. Scott, 260 N.C. 81 , 132 S.E.2d 161, 1963 N.C. LEXIS 644 (1963).

Compulsory Reference of One Cause of Action. —

Although where several causes of action arising out of the same transaction or series of transactions are properly joined in the complaint, the court may not ordinarily order that one of them be referred to a referee, court’s order of compulsory reference of one cause of action would be upheld where it appeared that the action involved a long account and that the controversy was so involved that it could not be readily presented to a jury, former G.S. 1-189 being liberally construed to afford the salutary procedure therein provided. Fry v. Pomona Mills, Inc., 206 N.C. 768 , 175 S.E. 156, 1934 N.C. LEXIS 308 (1934).

Direction of Mistrial and Ordering of Reference Upheld. —

Where, in an action to impeach a former decree, it appeared that alleged expenditures for the benefit of a ward should be ascertained before final judgment, it was held not to be error in the court to direct a mistrial and order a reference. Sutton v. Schonwald, 80 N.C. 20 , 1879 N.C. LEXIS 12 (1879).

Action on Administration Bond. —

A plea in an answer to a complaint on an administration bond of “performance of the condition of the bond by payment to the next of kin” was good in substance, and an issue taken upon it could be the subject of a compulsory reference. Flack v. Dawson, 69 N.C. 42 , 1873 N.C. LEXIS 168 (1873).

Suit by Creditor Against Executor. —

In an action by a creditor against an executor, where the defendant denied the debt and also denied that he had assets, the issue as to the debt would be tried in the ordinary way; and if the debt was established, a reference would be had to ascertain the amount of the debts and their several classes, and upon the coming in of the report a judgment would be entered in favor of all the creditors who had proved their debts for such part of the fund as they might be entitled to. Heilig v. Foard, 64 N.C. 710 , 1870 N.C. LEXIS 232 (1870).

Suit on Confessed Judgment. —

A compulsory reference could not be ordered by the court in a suit on a judgment confessed by the defendants as executors before the Civil War, where the only matters of defense were payments made by them in Confederate currency during the war and alleged counterclaims for notes due from the plaintiffs to them as executors. Hall v. Craige, 65 N.C. 51 , 1871 N.C. LEXIS 15 (1871).

Location of Dividing Line. —

A compulsory reference may be ordered by the trial judge in an action involving the true location of a dividing line between the owners of adjoining lands, in an action of trespass and the wrongful cutting of timber, where the location of the line is complicated or requires a personal view of the premises. Waller v. Dudley, 194 N.C. 139 , 138 S.E. 595, 1927 N.C. LEXIS 33 (1927).

A case involving a complicated question of boundary which required a personal view of the premises was a proper case for a compulsory reference. Coburn v. Roanoke Land & Timber Corp., 257 N.C. 222 , 125 S.E.2d 593, 1962 N.C. LEXIS 588 (1962).

Processioning Proceeding. —

A controversy by stipulation of the parties that boundary only was involved became, in effect, a processioning proceeding and was properly referred. Harrill v. Taylor, 247 N.C. 748 , 102 S.E.2d 223, 1958 N.C. LEXIS 310 (1958).

Contract for Rent. —

Where the question involved in an action was the amount of rent due under a contract placing the rental at not less than a certain monthly sum, with obligation of the lessee to pay more in accordance with what other tenants were paying in the locality for other stores, etc., of the same rental value, the question to be determined by the jury did not require a view of the premises entitling the party requesting it to a compulsory reference. Kearns v. Huff, 191 N.C. 593 , 132 S.E. 566, 1926 N.C. LEXIS 130 (1926).

Action on Conditional Sales Contract. —

In an action to recover a specified sum and interest alleged to be due and owing to plaintiff as the holder in due course of a conditional sales contract alleged to have been executed and delivered by defendant, in which action no equitable relief was sought, the lower court had no power to authorize a compulsory reference. Coin Mach. Acceptance Corp. v. Pillman, 235 N.C. 295 , 69 S.E.2d 563, 1952 N.C. LEXIS 385 (1952).

Suit to Sell Corporation Assets. —

Where a stockholder sued to compel corporation to sell certain lands and distribute the proceeds among the stockholders, and the corporation claimed that such lands should have been included in a conveyance previously made by it to another corporation but that they were omitted by mistake, the action was a proper case for a reference. Pinchback v. Bessemer Mining & Mfg. Co., 137 N.C. 171 , 49 S.E. 106, 1904 N.C. LEXIS 342 (1904).

Action in ejectment in which defendants pleaded statutes of limitation was not subject to compulsory reference. Williams v. Robertson, 233 N.C. 309 , 63 S.E.2d 632, 1951 N.C. LEXIS 584 (1951).

The taking of an account must be necessary, and the accounting taken should have some direct relation to the ultimate disposition of the case. Harrell v. Harrell, 253 N.C. 758 , 117 S.E.2d 728, 1961 N.C. LEXIS 434 (1961).

What constitutes a “long account” must be determined upon the facts of each particular case, it not being necessary that the action be for an accounting, but sufficient if a long account is directly and not merely collaterally involved in the action. Fry v. Pomona Mills, Inc., 206 N.C. 768 , 175 S.E. 156, 1934 N.C. LEXIS 308 (1934).

There is no statutory or judicial definition of a “long account,” but a correct conclusion as to whether an account was “long” would depend upon the facts and circumstances of a given case. Dayton Rubber Mfg. Co. v. Horn, 203 N.C. 732 , 167 S.E. 42, 1932 N.C. LEXIS 89 (1932).

Examination of Long Account Required. —

Where the verdict of the jury established that plaintiff was entitled to commissions on the gross receipts of defendant store and a bonus on the increase of the total gross receipts over those of the same period of the preceding year, as extra compensation under his contract of employment, ascertainment of the amount required an examination of a long account, and the court was empowered to order a compulsory reference to determine such amount. Parker v. Helms, 231 N.C. 334 , 56 S.E.2d 659, 1949 N.C. LEXIS 529 (1949).

Long Account Not Involved. —

A compulsory reference was not authorized on the ground that the trial required the examination of long accounts in an action instituted to recover on a promissory note or an account where the receipt of each and every payment alleged to have been made thereon was admitted. Where numerous payments on an indebtedness have been made, the case involves only a matter of computation of figures and has none of the elements of a long account with charges and discharges, as contemplated in the statute. Commercial Fin. Co. v. Culler, 236 N.C. 758 , 73 S.E.2d 780, 1953 N.C. LEXIS 533 (1953). See also, Coin Mach. Acceptance Corp. v. Pillman, 235 N.C. 295 , 69 S.E.2d 563, 1952 N.C. LEXIS 385 (1952).

Judgment Not Disturbed for Failure to Refer Long Account. —

Where controversy involved the taking of a long account, it should have been referred, but where it was otherwise tried, without error or prejudice to the appellant, the judgment of the trial court would not be disturbed. Ragland v. Lassiter-Ragland, Inc., 174 N.C. 579 , 94 S.E. 100, 1917 N.C. LEXIS 148 (1917).

Appointment of Referee by Court. —

Where the parties fail to agree upon a referee, the court may appoint a referee, and such appointment will not be disturbed when only one of the parties objects. Shute v. Fisher, 270 N.C. 247 , 154 S.E.2d 75, 1967 N.C. LEXIS 1332 (1967).

Referee Cannot Be Appointed to Attend and Determine Rights at Meeting. —

It is not contemplated that a referee be appointed to attend a meeting, such as the annual meeting of the members of an association, and there make determinations relating to the respective rights of contesting parties during the progress of such meeting. Crew v. Thompson, 266 N.C. 476 , 146 S.E.2d 471, 1966 N.C. LEXIS 1370 (1966).

When Nonsuit Allowed. —

A plaintiff may take a nonsuit while the case is pending before a referee, if the case is one in which he is entitled to do so. McNeill v. Lawton, 97 N.C. 16 , 1 S.E. 493, 1887 N.C. LEXIS 100 (1887).

In cases purely equitable in nature, if a reference for an account has been ordered and a report made, the plaintiff will not be allowed to take judgment of nonsuit. Boyle v. Stallings, 140 N.C. 524 , 53 S.E. 346, 1906 N.C. LEXIS 38 (1906).

Referee’s Duty to State Findings and Conclusions. —

It is the duty of a referee to state positively and definitely all the facts constituting the grounds of action or defense, and not to leave to inference what is the precise fact intended to be found. Conclusions of law and fact must be stated separately; otherwise the appellate court cannot review the referee’s conclusions of law, and the report of the referee will be set aside as being defective. State ex rel. Klutts v. McKenzie, 65 N.C. 102 , 1871 N.C. LEXIS 32 (1871); Earp v. Richardson, 75 N.C. 84 , 1876 N.C. LEXIS 210 (1876).

The referee should ordinarily enter his rulings on each objection to the evidence taken before him; but where the exceptions are very numerous and relate to a single ground of objection, it is a sufficient compliance with this rule if the referee incorporates in his report a general statement of his rulings sufficient to give the parties and the reviewing judge full opportunity to consider the referee’s rulings on and findings from the evidence reported. Pack v. Katzin, 215 N.C. 233 , 1 S.E.2d 566, 1939 N.C. LEXIS 237 (1939).

Remedy for Failure of Referee to Send Up Evidence. —

Fact that the referee has not reported all the evidence is not a ground of exception. If all the evidence is not sent up, the remedy of the prejudiced party is by application to the judge for an order directing the referee to send up that which has been omitted. Perkins v. Berry, 103 N.C. 131 , 9 S.E. 621, 1889 N.C. LEXIS 85 (1889).

It is error for the judge to pass upon exceptions to an unfinished report. White v. Utley, 86 N.C. 415 , 1882 N.C. LEXIS 217 (1882).

Additional Matters Incorporated in Report Held Not Prejudicial. —

The fact that the referee, in an action to determine title to land, in addition to entering findings of fact, conclusions of law and his decision, also incorporated in his report an analysis of the statement of contentions of the parties, a summary of the evidence relating to each contention, and his view of the law, was not prejudicial. McCormick v. Smith, 246 N.C. 425 , 98 S.E.2d 448, 1957 N.C. LEXIS 710 (1957).

The referee’s findings of fact and conclusions of law are not competent as evidence on trial of the issue raised by exceptions to the report. Cherry v. Andrews, 231 N.C. 261 , 56 S.E.2d 703, 1949 N.C. LEXIS 538 (1949).

When Findings of Referee Are Conclusive. —

On a reference without objection, the findings of the referee, when approved by the trial court, are conclusive on appeal, unless there is no evidence to support them or some error of law has been committed in the hearing of the cause. Williamson v. Spivey, 224 N.C. 311 , 30 S.E.2d 46, 1944 N.C. LEXIS 358 (1944).

The findings of fact by a referee, adopted by the trial judge, are conclusive. Joyner v. Stancil, 108 N.C. 153 , 12 S.E. 912, 1891 N.C. LEXIS 27 (1891). See also, Battle v. Mayo, 102 N.C. 413 , 9 S.E. 384, 1889 N.C. LEXIS 47 (1889).

The findings of fact of the referee, approved by the judge, are conclusive on appeal if there is any competent evidence to support them. Morpul, Inc. v. Mayo Knitting Mill, 265 N.C. 257 , 143 S.E.2d 707, 1965 N.C. LEXIS 964 (1965).

On a consent reference, findings of fact made by a referee, in the absence of exceptions thereto, are conclusive on the hearings in the superior court as they are on appeal to the Supreme Court. The findings to which no exceptions are entered become in effect facts agreed. Keith v. Silvia, 233 N.C. 328 , 64 S.E.2d 178, 1951 N.C. LEXIS 606 (1951).

The findings of fact reported by a referee are presumed to be right unless shown to be wrong. If there is no evidence to support them, they will not be sustained. Green v. Jones, 78 N.C. 265 , 1878 N.C. LEXIS 210 (1878).

Where reference is by consent, the referee’s report has the effect of a special verdict. Battle v. Mayo, 102 N.C. 413 , 9 S.E. 384, 1889 N.C. LEXIS 47 (1889).

Subject, however, to the right of either party, on notice, to move the court to review his report, to set it aside, to modify it or to confirm it. Barrett v. Henry, 85 N.C. 321 , 1881 N.C. LEXIS 262 (1881).

A party moving for a reference to report the facts is not bound by the findings of the report as if a special verdict, and he is entitled to except to the report of the referee. Hardaway Contracting Co. v. Western Carolina Power Co., 195 N.C. 649 , 143 S.E. 241, 1928 N.C. LEXIS 171 (1928).

Continuance of the case and allowance of time to file exceptions to the referee’s report are matters within the discretion of the court. White v. Price, 237 N.C. 347 , 75 S.E.2d 244, 1953 N.C. LEXIS 657 (1953).

Purpose of Exceptions Where Reference Is by Consent. —

If the reference is by consent, the purpose of the exceptions is to bring the controversy into focus for the trial judge, who, in the exercise of his supervisory power may affirm, amend, modify, set aside, make additional findings, and confirm, in whole or in part, or disaffirm the report of a referee. This he may do, however, only in passing upon exceptions, for in the absence of exceptions to the factual findings of a referee, such findings are conclusive, and where no exceptions are filed, the case is to be determined upon the facts as found by the referee. Coburn v. Roanoke Land & Timber Corp., 257 N.C. 222 , 125 S.E.2d 593, 1962 N.C. LEXIS 588 (1962).

The judge cannot affirm the report of the referee prior to the time for filing exceptions where there has been no waiver of the right to file them. Coburn v. Roanoke Land & Timber Corp., 257 N.C. 222 , 125 S.E.2d 593, 1962 N.C. LEXIS 588 (1962).

Supervisory power of the trial judge over the referee’s report is broad and comprehensive. Dumas v. Morrison, 175 N.C. 431 , 95 S.E. 775, 1918 N.C. LEXIS 89 (1918).

In the exercise of its power the trial judge may recommit the report for the correction of errors and irregularities, or for more definite statement of facts or conclusions of law, and such order recommitting the report for such purpose is not appealable. Mills v. Apex Ins. & Realty Co., 196 N.C. 223 , 145 S.E. 26, 1928 N.C. LEXIS 323 (1928) (citing) State ex rel. Commissioners v. Magnin, 85 N.C. 114 , 1881 N.C. LEXIS 216 (1881); Lutz v. Cline, 89 N.C. 186 , 1883 N.C. LEXIS 211 (1883); State ex rel. Robertson v. Jackson, 183 N.C. 695 , 110 S.E. 593, 1922 N.C. LEXIS 347 (1922); Coleman v. McCullough, 190 N.C. 590 , 130 S.E. 508, 1925 N.C. LEXIS 130 (1925); Carolina Mineral Co. v. Young, 211 N.C. 387 , 190 S.E. 520, 1937 N.C. LEXIS 98 (1937).

Reference to Another Referee After Filing of Report Not Authorized. —

Where a compulsory reference is made, and a report is filed containing findings of fact and conclusions of law, the trial judge may not refer the case to another referee with partial approval thereof for action upon the unapproved parts. Mills v. Apex Ins. & Realty Co., 196 N.C. 223 , 145 S.E. 26, 1928 N.C. LEXIS 323 (1928).

The judge, in his discretion, may set aside a reference after the report is filed and proceed to try the case. Cummings v. Swepson, 124 N.C. 579 , 32 S.E. 966, 1899 N.C. LEXIS 97 (1899).

The decision of the judge in revising the report of a referee is available as to questions of law, but not as to the findings of fact. Vaughan v. Lewellyn, 94 N.C. 472 , 1886 N.C. LEXIS 85 (1886).

Judge has a wide latitude of discretion over the report of a referee, with power to review, modify, confirm in whole or in part, or set aside the report. Keith v. Silvia, 236 N.C. 293 , 72 S.E.2d 686, 1952 N.C. LEXIS 542 (1952).

The report of the referee is under the control of the court, and the power of review is a broad one, as the court may set aside, modify, or confirm it in whole or in part. Terrell v. Terrell, 271 N.C. 95 , 155 S.E.2d 511, 1967 N.C. LEXIS 1161 (1967).

When an action came on to be heard on exceptions to a referee’s report, the judge of the superior court had authority to affirm in whole or in part, amend, modify, or set aside the report of the referee, or he could make additional findings of fact and enter judgment on the report as amended by him. Hall v. City of Fayetteville, 248 N.C. 474 , 103 S.E.2d 815, 1958 N.C. LEXIS 525 (1958).

The superior court, on exceptions taken to the referee’s report, may affirm, set aside, make additional findings, modify, or disaffirm the report. Wallace v. Benner, 200 N.C. 124 , 156 S.E. 795, 1931 N.C. LEXIS 270 (1931).

Upon appeal in a consent reference, the superior court has the power to confirm the findings of the referee in whole or in part, to set aside the findings in whole or part and to substitute other findings supported by the evidence. Ramsey v. Nebel, 226 N.C. 590 , 39 S.E.2d 616, 1946 N.C. LEXIS 284 (1946).

But the judge does not have the power ex mero motu to vacate a report upon which no attack had been made by any of the parties; the authority must be exercised, if at all, in an orderly manner in accord with recognized rules of procedure. Coburn v. Roanoke Land & Timber Corp., 257 N.C. 222 , 125 S.E.2d 593, 1962 N.C. LEXIS 588 (1962).

Duty of Judge When Exceptions Are Taken to Referee’s Report. —

When exceptions are taken to a referee’s findings of fact and law, it is the duty of the judge to consider the evidence and give his own opinion and conclusion, both upon the facts and the law. He is not permitted to do this in a perfunctory way, but he must deliberate and decide as in other cases, using his own faculties in ascertaining the truth, and forming his judgment as to fact and law. This is required not only as a check upon the referee and a safeguard against any possible error on his part, but because he cannot review the referee’s findings in any other way. Terrell v. Terrell, 271 N.C. 95 , 155 S.E.2d 511, 1967 N.C. LEXIS 1161 (1967).

Filing of Exceptions Not Precluded by Motion for Voluntary Nonsuit. —

Motion by plaintiff for voluntary nonsuit before the referee appointed to hear the cause did not preclude her from filing exceptions to the referee’s report. Crowley v. McDougald, 241 N.C. 404 , 85 S.E.2d 377, 1955 N.C. LEXIS 379 (1955).

Where a motion to remove the referee was made prior to the time his report was filed, and an appeal was taken from the granting of the motion, the superior court, upon the certification of the decision of the Supreme Court reversing the judgment, had discretionary power to allow the filing of exceptions to the report, even though the report was filed prior to the hearing of the motion for removal. Keith v. Silvia, 236 N.C. 293 , 72 S.E.2d 686, 1952 N.C. LEXIS 542 (1952).

Premature Entry of Judgment. —

Where the record disclosed that judgment confirming the report of a referee was entered at a term of court convening before the expiration of the 30-day period for filing exceptions, and the record disclosed no waiver of the right to file exceptions at any time during the 30-day period, the premature entry of judgment of confirmation was error appearing on the face of the record. Crowley v. McDougald, 241 N.C. 404 , 85 S.E.2d 377, 1955 N.C. LEXIS 379 (1955).

Appeal Held Premature. —

Where the jury found that a partnership existed, an appeal from the order of reference before judgment upon the report thereon was premature and had to be dismissed. The defendant should have noted his exception and upon the coming in of the report and exceptions thereto should have brought up his appeal from the final judgment. Leroy v. Saliba, 182 N.C. 757 , 108 S.E. 303, 1921 N.C. LEXIS 319 (1921).

There is no ground for exception on appeal unless the judge’s action is not supported by sufficient evidence, or error has been committed in receiving or rejecting testimony upon which it is based. Caudell v. Blair, 254 N.C. 438 , 119 S.E.2d 172, 1961 N.C. LEXIS 460 (1961).

Exceptions to the Action of the Trial Court. —

Where an appeal is taken from the action of the trial court in passing upon exceptions to the report of a referee, exceptions should be taken and stated in the record to the rulings of the court which it is sought to have reviewed, and the case ought not to be sent to the appellate court to be heard only on the exceptions taken to the ruling of the referee. Traders' Nat'l Bank v. Lawrence Mfg. Co., 96 N.C. 298 , 3 S.E. 363, 1887 N.C. LEXIS 54 (1887).

No Appeal Available from Order Recommitting Report. —

Where the court orders a compulsory reference, an appeal does not lie from an order recommitting the report of the referee for the correction of errors and irregularities. State ex rel. Comm'rs v. Magnin, 85 N.C. 114 , 1881 N.C. LEXIS 216 (1881).

The findings of fact of a referee approved by the trial judge cannot be reviewed upon appeal if supported by any competent evidence. Cummings v. Swepson, 124 N.C. 579 , 32 S.E. 966, 1899 N.C. LEXIS 97 (1899); Anderson v. McRae, 211 N.C. 197 , 189 S.E. 639, 1937 N.C. LEXIS 38 (1937); Dent v. English Mica Co., 212 N.C. 241 , 193 S.E. 165, 1937 N.C. LEXIS 282 (1937); Holder v. Home Mtg. Co., 214 N.C. 128 , 198 S.E. 589, 1938 N.C. LEXIS 283 (1938).

The appellate court has no power to review the conclusions of fact as found by the referee and sustained by the judge, unless it appears that such findings have no evidence to support them. Boyle v. Stallings, 140 N.C. 524 , 53 S.E. 346, 1906 N.C. LEXIS 38 (1906); Lindsay v. Brawley, 226 N.C. 468 , 38 S.E.2d 528, 1946 N.C. LEXIS 247 (1946).

Court’s Action Not Ordinarily Disturbed on Appeal. —

Upon the filing of the report of the referee in a consent reference, as well as in a compulsory one, the trial court has the power to affirm, amend, modify, set aside, make additional findings and confirm, in whole or in part, or disaffirm the report of the referee, and where the court has made additional findings and there is evidence to sustain them, the action of the court will be given the effect of a verdict of a jury and will not ordinarily be disturbed on appeal. Thigpen v. Farmers' Banking & Trust Co., 203 N.C. 291 , 165 S.E. 720, 1932 N.C. LEXIS 383 (1932).

Absent Abuse. —

The court retains the cause and its jurisdiction in every case of reference, with power to review and reverse the conclusions of law of the referee, and a discretion to modify or set aside the report, and its ruling in the latter respect is not reviewable unless it appears that such discretion has been abused. Cummings v. Swepson, 124 N.C. 579 , 32 S.E. 966, 1899 N.C. LEXIS 97 (1899).

B.Jury Trial

Reference by consent is a waiver of the right of trial by jury. Green v. Castlebury, 70 N.C. 20 , 1874 N.C. LEXIS 157 (1874); In re Parker, 209 N.C. 693 , 184 S.E. 532, 1936 N.C. LEXIS 320 (1936), limited, In re West, 212 N.C. 189 , 193 S.E. 134, 1937 N.C. LEXIS 264 (1937); Anderson v. McRae, 211 N.C. 197 , 189 S.E. 639, 1937 N.C. LEXIS 38 (1937).

But Jury Trial Is Not Waived by Compulsory Reference. —

By a compulsory reference the parties waive nothing, and are still entitled to a trial by jury on the issues as if no reference had been made. Green v. Castlebury, 70 N.C. 20 , 1874 N.C. LEXIS 157 (1874); State ex rel. Carr v. Askew, 94 N.C. 194 , 1886 N.C. LEXIS 36 (1886).

Compulsory reference does not deprive a party of the right to trial by jury. Resort Dev. Co. v. Phillips, 3 N.C. App. 295, 164 S.E.2d 516, 1968 N.C. App. LEXIS 849 (1968).

A compulsory reference does not deprive either party of his constitutional right to a trial by jury of the issues of fact arising on the pleadings, but such trial is only upon the written evidence taken before the referee. And the report of the referee, consisting of his findings of fact and conclusions of law, is incompetent as evidence before the jury. Moore v. Whitley, 234 N.C. 150 , 66 S.E.2d 785, 1951 N.C. LEXIS 432 (1951). See also, Solon Lodge No. 9 Knights of Phythias Co. v. Ionic Lodge Free Ancient & Accepted Masons No. 72 Co., 245 N.C. 281 , 95 S.E.2d 921, 1957 N.C. LEXIS 570 (1957).

And Either Party May Demand Jury Trial of the Issues. —

In a case of a compulsory reference either party may, at some stage of the proceedings to be determined by the court, demand a trial by jury of the issues arising in the report of the referee. State ex rel. Armfield v. Brown, 70 N.C. 27 , 1874 N.C. LEXIS 158 (1874).

Where a reference is by consent, the parties waive the right to have any of the issues of fact passed on by a jury. Where the reference is compulsory, either party has the right to have all issues of fact which arise on the pleadings submitted to a jury, but not the questions of fact which arise on exceptions to the findings of fact by the referee. State ex rel. Armfield v. Brown, 70 N.C. 27 , 1874 N.C. LEXIS 158 (1874); State ex rel. Carr v. Askew, 94 N.C. 194 , 1886 N.C. LEXIS 36 (1886).

Unless He Waives Such Right. —

While a compulsory reference does not deprive either party of his constitutional right to trial by jury on the issues of fact arising on the pleadings, such right is waived by failure to follow the appropriate procedure. Simmons v. Lee, 230 N.C. 216 , 53 S.E.2d 79, 1949 N.C. LEXIS 626 (1949).

A party to a compulsory reference waives his right to a jury trial by failing to take the proper steps to save it. Bartlett v. Hopkins, 235 N.C. 165 , 69 S.E.2d 236, 1952 N.C. LEXIS 367 (1952).

In order to preserve the right to trial by jury in a compulsory reference, a party must object to the order of reference at the time it is made, file exceptions to particular findings of fact made by the referee, tender appropriate issues based on the facts pointed out by the exceptions and raised by the pleadings, and demand a jury trial on each of the issues thus tendered. Booker v. Highlands, 198 N.C. 282 , 151 S.E. 635, 1930 N.C. LEXIS 324 (1930); Marshville Cotton Mills v. Maslin, 200 N.C. 328 , 156 S.E. 484, 1931 N.C. LEXIS 317 (1931); Simmons v. Lee, 230 N.C. 216 , 53 S.E.2d 79, 1949 N.C. LEXIS 626 (1949); Better Home Furn. Co. v. Baron, 243 N.C. 502 , 91 S.E.2d 236, 1956 N.C. LEXIS 376 (1956).

In order to preserve his right to a jury trial in a compulsory reference where the referee’s report is adverse to him, a party must comply with each of the following procedural requirements: 1) He must object to the order of compulsory reference at the time it is made; 2) he must file specific exceptions to particular findings of fact made by the referee within 30 days after the referee delivers his report to the clerk of the court in which the action is pending; 3) he must formulate appropriate issues of fact raised by the pleadings and based on the facts pointed out in his exceptions, and tender such issues with his exceptions to the referee’s report; and 4) he must set forth in his exceptions to the referee’s report a definite demand for a jury trial on each issue so tendered. Bartlett v. Hopkins, 235 N.C. 165 , 69 S.E.2d 236, 1952 N.C. LEXIS 367 (1952).

A party duly and aptly excepting to an order of reference, and also to the admissions of evidence before the referee, and submitting issues, secures his right thereby to a trial by jury upon the issues presented by him. Brown v. Buchanan, 194 N.C. 675 , 140 S.E. 749, 1927 N.C. LEXIS 176 (1927).

By objecting to the order of compulsory reference when entered, and by filing in apt time exceptions to particular findings of fact made by the referee, tendering issues and demanding a jury trial on each issue tendered, defendants complied with procedural requirements to preserve their right to a jury trial. Farmers Coop. Exch. v. Scott, 260 N.C. 81 , 132 S.E.2d 161, 1963 N.C. LEXIS 644 (1963).

Where a party objects to a compulsory reference, makes proper exceptions to the findings of fact and conclusions of law of the referee, and tenders the issue of title raised by the pleadings, he has preserved his right to trial by jury. Moore v. Whitley, 234 N.C. 150 , 66 S.E.2d 785, 1951 N.C. LEXIS 432 (1951).

By excepting to an order of court referring to a long account between the parties as determinative, a party may preserve his right to a trial by jury upon the evidence thus taken, unless he waives his right during the progress of the reference; and while an issue determinative of the action should first be tried before a reference is ordered, a party excepting to the order may not successfully insist thereon when the issue is to be determined solely by the reference. Green Sea Lumber Co. v. Pemberton, 188 N.C. 532 , 125 S.E. 119, 1924 N.C. LEXIS 118 (1924).

In case of a compulsory reference a litigant can renew his demand for a jury trial by excepting to the report of the referee and pointing out the findings so excepted to as a basis for the issues. State ex rel. Wilson v. Featherstone, 120 N.C. 446 , 27 S.E. 124, 1897 N.C. LEXIS 99 (1897).

An exception to the report of a referee must be specific. Battle v. Mayo, 102 N.C. 413 , 9 S.E. 384, 1889 N.C. LEXIS 47 (1889).

An exception to the admission of evidence by a referee which is not specific, but is vague and indefinite in form, will not be considered. Perkins v. Berry, 103 N.C. 131 , 9 S.E. 621, 1889 N.C. LEXIS 85 (1889).

Exceptions to a referee’s report made the basis of a demand for a trial by jury should be explicit enough for the opposing party to see clearly what the issue will be, so as to prepare to meet it with his evidence. State ex rel. Wilson v. Featherstone, 120 N.C. 446 , 27 S.E. 124, 1897 N.C. LEXIS 99 (1897).

An exception, “The plaintiff excepts to such rulings adverse to it and appeals,” is too general to be considered. Commissioners v. Erwin, 140 N.C. 193 , 52 S.E. 785, 1905 N.C. LEXIS 29 (1905).

Controverted Facts Should Be Designated by Timely Exceptions. —

To avail himself of the right to jury trial a litigant should, by exceptions made in apt time, distinctly designate the controverted facts that he demands shall thus be determined. Yelverton v. Coley, 101 N.C. 248 , 7 S.E. 672, 1888 N.C. LEXIS 42 (1888).

Where a case is one properly subject to a compulsory reference, a party excepting to the order of reference is not entitled to have issues tendered upon the hearing of exceptions to the referee’s report submitted to the jury when the issues do not arise upon the exceptions. Atlantic Joint Stock Land Bank v. Fisher, 206 N.C. 412 , 173 S.E. 907, 1934 N.C. LEXIS 195 (1934).

Failure to object to an order of reference at the time it is made is a waiver of the right to a trial by jury. Belvin v. Raleigh Paper Co., 123 N.C. 138 , 31 S.E. 655, 1898 N.C. LEXIS 35 (1898).

As Is Failure to Except to Referee’s Findings. —

The right to trial by jury in civil cases may be waived, and in reference cases the failure to except to the findings of the referee or properly to preserve the right to jury trial has been uniformly held to constitute a waiver. Chesson v. Kieckhefer Container Co., 223 N.C. 378 , 26 S.E.2d 904, 1943 N.C. LEXIS 276 (1943).

With Sufficient Specificity. —

Although a party has his objection to a compulsory reference entered in apt time, he may waive his right to a trial by jury by failing to assert it definitely and specifically in each exception to the referee’s report. Keystone Driller Co. v. Worth, 117 N.C. 515 , 23 S.E. 427, 1895 N.C. LEXIS 109 (1895).

Waiver by Failure to Demand Jury Trial in Excepting to Referee’s Report. —

Where a party makes no demand in his exceptions to the referee’s report for a jury trial on the issues tendered by him, he waives his constitutional right to have a jury determine the controverted issues of fact. Bartlett v. Hopkins, 235 N.C. 165 , 69 S.E.2d 236, 1952 N.C. LEXIS 367 (1952).

When Exception to Refusal of Jury Trial Untenable. —

Even though a party to a compulsory reference by proper exceptions and tender of issues preserves his right to jury trial upon the written evidence taken before the referee, if such evidence is insufficient to raise issues of fact, exception to the refusal of a jury trial is untenable. Nantahala Power & Light Co. v. Horton, 249 N.C. 300 , 106 S.E.2d 461, 1959 N.C. LEXIS 443 (1959).

Purpose of Reference and Exceptions Where Right to Jury Trial Is Reserved. —

When the reference is compulsory and the parties have reserved their rights to a jury trial, the practical purpose of the reference and exceptions is to develop and specifically delimit the issues to be determined by a jury. Coburn v. Roanoke Land & Timber Corp., 257 N.C. 222 , 125 S.E.2d 593, 1962 N.C. LEXIS 588 (1962).

Trial judge must act upon the report even in a compulsory reference where right to jury trial has been preserved. Coburn v. Roanoke Land & Timber Corp., 257 N.C. 222 , 125 S.E.2d 593, 1962 N.C. LEXIS 588 (1962).

Submission of Issues to Jury in Passing on Exceptions. —

It is not the duty of a judge, in passing on exceptions to a referee’s report, to decide all questions of fact without a jury, but on the contrary, if the facts depend upon doubtful and conflicting testimony, he may cause issues to be framed and submitted to a jury for information. Maxwell v. Maxwell, 67 N.C. 383 , 1872 N.C. LEXIS 255 (1872).

Article 7. Judgment.

Rule 54. Judgments.

  1. Definition. —  A judgment is either interlocutory or the final determination of the rights of the parties.
  2. Judgment upon multiple claims or involving multiple parties. —  When more than one claim for relief is presented in an action, whether as a claim, counterclaim, crossclaim, or third-party claim, or when multiple parties are involved, the court may enter a final judgment as to one or more but fewer than all of the claims or parties only if there is no just reason for delay and it is so determined in the judgment. Such judgment shall then be subject to review by appeal or as otherwise provided by these rules or other statutes. In the absence of entry of such a final judgment, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and shall not then be subject to review either by appeal or otherwise except as expressly provided by these rules or other statutes. Similarly, in the absence of entry of such a final judgment, any order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
  3. Demand for judgment. —  A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.

History. 1967, c. 954, s. 1.

Comment

Section (a). — This section carries forward the definition of a judgment formerly contained in § 1-208.

Section (b). — These rules, with their liberalized provisions for expanding the size of a lawsuit, make it highly desirable in the multi-party and multi-claim lawsuit that there be provision for expediting appeals, in certain instances, from rulings terminating the litigation in respect to fewer than all the parties or all the claims. Otherwise, it may well be, if the aggrieved party must delay his appeal until all parties and claims have been disposed of, that the delay will be intolerable. On the other hand, there may be cases which should be presented in their entirety to the appellate court even at the price of delaying one party or another.

In considering this section, it should be remembered that § 1-277 was left intact except as it is modified by this section. In other words, appeals will continue to lie only when a “party aggrieved” has been deprived of a “substantial right,” or from a final judgment. The modification here is that when there is no just reason for delay and when there is an express determination to that effect, the unit to which the finality concept shall be applied is by this rule made a smaller one. Thus, if two claims are presented to the trial court and one of them is the subject of a disputed ruling, an appeal will lie if the ruling would have been appealable in an action involving that claim alone and if the judge makes the requisite determination.

Conversely, in the absence of a determination by the trial judge, it is clear that there can be no appellate review irrespective of the nature of the ruling of the trial court, unless elsewhere expressly authorized. Section 1-277 is not such an express authorization. Thus, it will be seen that in the absence of a determination by the trial judge, a lawyer can safely delay in prosecuting his appeal. When there is such a determination, the situation will not be as clear. There must be in addition either a final judgment or a ruling affecting a “substantial right” for an appeal to lie. When these conditions obtain has not heretofore been altogether clear, and will not be under these rules. The only course of safety will be to press for review.

Section (c). — This section is a restatement of prior law.

Legal Periodicals.

For article on the general scope and philosophy of the new rules, see 5 Wake Forest Intra. L. Rev. 1 (1969).

For note discussing trial court discretion under section (b) of this rule, see 54 N.C.L. Rev. 1265 (1976).

For survey of 1976 case law on civil procedure, see 55 N.C.L. Rev. 914 (1977).

For survey of 1977 law on civil procedure, see 56 N.C.L. Rev. 874 (1978).

For survey of 1978 law on civil procedure, see 57 N.C.L. Rev. 891 (1979).

For survey of 1979 law on civil procedure, see 58 N.C.L. Rev. 1261 (1980).

For survey of 1980 law on civil procedure, see 59 N.C.L. Rev. 1062 (1981).

For survey of 1982 law on civil procedure, see 61 N.C.L. Rev. 991 (1983).

For survey of 1982 law on torts, see 61 N.C.L. Rev. 1225 (1983).

For article, “The Substantial Right Doctrine and Interlocutory Appeals,” see 17 Campbell L. Rev. 71 (1995).

For article, “Functus Officio: Authority of the Trial Court after Notice of Appeal,” see 81 N.C.L. Rev. 2331 (2003).

CASE NOTES

Analysis

I.In General

Purpose. —

The purpose of subsection (c) is to provide plaintiff with whatever relief is supported by the complaint’s factual allegations and proof at trial. Holloway v. Wachovia Bank & Trust Co., 339 N.C. 338 , 452 S.E.2d 233, 1994 N.C. LEXIS 728 (1994).

This Section Did Not Overrule Nuckles. —

To the extent that Ingle v. Allen suggests that N.C. State Highway Comm’n v. Nuckles was overruled by the enactment of Rule 54 of the North Carolina Rules of Civil Procedure, Ingle and its progeny are hereby overruled. DOT v. Rowe, 351 N.C. 172 , 521 S.E.2d 707, 1999 N.C. LEXIS 1250 (1999).

Final Judgment Defined. —

A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court. Hinson v. Hinson, 17 N.C. App. 505, 195 S.E.2d 98, 1973 N.C. App. LEXIS 1393 (1973); Godley Auction Co. v. Myers, 40 N.C. App. 570, 253 S.E.2d 362, 1979 N.C. App. LEXIS 2281 (1979); Bailey v. Gooding, 301 N.C. 205 , 270 S.E.2d 431, 1980 N.C. LEXIS 1159 (1980); Cunningham v. Brown, 51 N.C. App. 264, 276 S.E.2d 718, 1981 N.C. App. LEXIS 2226 (1981); Beam v. Morrow, 77 N.C. App. 800, 336 S.E.2d 106, 1985 N.C. App. LEXIS 4384 (1985).

Under G.S. 1A-1 , N.C. R. Civ. P. 54(a), a judgment is either interlocutory or a final determination of the rights of the parties, and a final judgment is one which disposes of the cause as to all parties, leaving nothing to be judicially determined between them in the trial court; generally, there is no right of immediate appeal from interlocutory orders and judgments. State v. Sanchez, 175 N.C. App. 214, 623 S.E.2d 780, 2005 N.C. App. LEXIS 2705 (2005).

Failure to Certify. —

Although a trial court’s entry of summary judgment in favor of a real estate transferee failed to dispose of the cause as to all the parties, and the trial court did not certify the order under N.C. R. Civ. P. 54(b), since the interlocutory order concerned title to the real estate, it involved substantial rights adversely affected and was appealable. Watson v. Millers Creek Lumber Co., 178 N.C. App. 552, 631 S.E.2d 839, 2006 N.C. App. LEXIS 1563 (2006).

Three orders entered by a trial court that were not certified pursuant to G.S. 1A-1 , N.C. R. Civ. P. 54(b) were immediately appealable. The trial court’s finding that the production of biodiesel by a farmer on farm premises for agricultural purposes was a bona fide farm use and exempt from county zoning ordinances rendered a challenge of the rezoning of the applicant’s property moot; a substantial right was affected and would have worked an injury to plaintiffs if not corrected before an appeal from the final judgment. N. Iredell Neighbors for Rural Life v. Iredell County, 196 N.C. App. 68, 674 S.E.2d 436, 2009 N.C. App. LEXIS 370 (2009).

Where a second lawsuit was dismissed because plaintiff had not paid the costs of dismissing a prior voluntarily dismissed suit within the mandatory 30 day time period, a trial court did not abuse its discretion in declining to certify this issue under G.S. 1A-1 , N.C. R. Civ. P. 54(b). Welch v. Lumpkin, 199 N.C. App. 593, 681 S.E.2d 850, 2009 N.C. App. LEXIS 1504 (2009).

In a case bifurcated pursuant to N.C. R. Civ. P. 42(b) as to liability and damages, an interlocutory judgment on liability was nonappealable where it was not certified as immediately appealable pursuant to N.C. N.C. R. Civ. P. 54(b). Land v. Land, 201 N.C. App. 672, 687 S.E.2d 511, 2010 N.C. App. LEXIS 39 (2010).

In an action for unfair and deceptive trade practices, plaintiff’s appeal from a trial court order partially granting defendants’ motions to dismiss and partially denying her request for class certification was dismissed as the appeal had not been certified for immediate review under G.S. 1A-1 , N.C. R. Civ. P. 54(b), and plaintiff did not demonstrate that denial of interlocutory review would deprive her of a substantial right. Hamilton v. Mortgage Info. Servs., 212 N.C. App. 73, 711 S.E.2d 185, 2011 N.C. App. LEXIS 957 (2011).

Husband’s appeal of an award of alimony was improper when the trial court expressly reserved the issue of attorney’s fees because (1) the order appealed from was interlocutory, (2) the trial court did not certify the order for an immediate appeal, under G.S. 1A-1 , N.C. R. Civ. P. 54(b), and (3) the husband did not assert that the order affected a substantial right. Duncan v. Duncan, 223 N.C. App. 15, 732 S.E.2d 390, 2012 N.C. App. LEXIS 1132 (2012), rev'd, 366 N.C. 544 , 742 S.E.2d 799, 2013 N.C. LEXIS 495 (2013).

Insured could not appeal from an order denying its motion for summary judgment as to the insurer’s duty to defend, as that order was interlocutory and did not involve a substantial right, and the trial court did not certify the matter for appeal. Paradigm Consultants, Ltd. v. Builders Mut. Ins. Co., 228 N.C. App. 314, 745 S.E.2d 69, 2013 N.C. App. LEXIS 767 (2013).

Trial court’s order was interlocutory because it did not dispose of the case as to one shareholder, and the trial court did not certify in the judgment that there was no just reason for delay of the appeal under the rule. Larsen v. Black Diamond French Truffles, Inc., 241 N.C. App. 74, 772 S.E.2d 93, 2015 N.C. App. LEXIS 380 (2015).

Appellate court lacked jurisdiction to consider a wife’s appeal of the trial court’s order of absolute divorce because the order was interlocutory inasmuch as the equitable distribution claim and motion for establishment of child support were still pending before the trial court, the trial court not certify the matter for appellate review, the wife did not show a deprivation of a substantial right, the order on appeal does not fall within the types of orders set forth by statute, and the wife did not request a suspension of the Rules. Bezzek v. Bezzek, 264 N.C. App. 1, 824 S.E.2d 865, 2019 N.C. App. LEXIS 121 (2019).

Stand-Alone Certification Ineffective As to Summary Judgment Order. —

In a case involving partial summary judgment, the trial court simply could amend the initial order by entering a new order with the same substantive language as the initial order but with the additional Rule 54(b) certification language added, and then the aggrieved party can appeal that new order; in this case, the stand-alone Rule 54(b) certification was ineffective and did not confer appellate jurisdiction over the challenged summary judgment order. Doe v. City of Charlotte, 273 N.C. App. 10, 848 S.E.2d 1, 2020 N.C. App. LEXIS 611 (2020).

A trial court cannot confer appeal status under subsection (b) by denominating its decision a “final judgment” if its ruling is not indeed such a judgment; the trial court’s order denying insurance company’s motion for summary judgment did not constitute a “final” judgment and was therefore not appealable. Cagle v. Teachy, 111 N.C. App. 244, 431 S.E.2d 801, 1993 N.C. App. LEXIS 718 (1993).

The denial of a motion for summary judgment is not a final judgment and is generally not immediately appealable even if the trial court has attempted to certify it for appeal under subsection (b). Knighten v. Barnhill Contracting Co., 122 N.C. App. 109, 468 S.E.2d 564, 1996 N.C. App. LEXIS 196 (1996).

Partial Summary Judgment Not a Final Judgment. —

Notwithstanding the trial court’s certification of the matter for immediate review under G.S. 1A-1 , R. Civ. P. 54(b), the partial grant of summary judgment in a defamation action brought against a labor union and its representative neither constituted a final judgment nor affected a substantial right because the trial judge’s order of partial summary judgment essentially left in tact the union members’ defamation allegations based on the statement by the union representative that they “stood by” while the non-union member was hired. Priest v. Sobeck, 153 N.C. App. 662, 571 S.E.2d 75, 2002 N.C. App. LEXIS 1269 (2002), rev'd, 357 N.C. 159 , 579 S.E.2d 250, 2003 N.C. LEXIS 431 (2003).

Despite certification under G.S. 1A-1 , N.C. R. Civ. P. 54(b), tenant was unable to appeal a partial summary judgment ruling in its declaratory judgment suit regarding its duty to pay overage rent and the landlord’s duty to mitigate damages because the order was not a final judgment since it did not resolve all of the issues between the parties. Tands, Inc. v. Coastal Plains Realty, Inc., 201 N.C. App. 139, 686 S.E.2d 164, 2009 N.C. App. LEXIS 1867 (2009).

Voluntary Dismissal by Plaintiff After Grant of Partial Summary Judgment by Defendant. —

Because defendants were granted partial summary judgment as to plaintiffs’ personal injury claims, dismissal of plaintiffs’ appeal was not warranted, as the appeal from the entry of partial summary judgment was no longer interlocutory following plaintiffs’ voluntary dismissal of their remaining claims. Curl v. Am. Multimedia, Inc., 187 N.C. App. 649, 654 S.E.2d 76, 2007 N.C. App. LEXIS 2558 (2007).

Finality. —

This rule indicates that finality with respect to parties and claims is a key aspect of a judgment as it relates to its entry and appealability. Stachlowski v. Stach, 328 N.C. 276 , 401 S.E.2d 638, 1991 N.C. LEXIS 186 (1991).

The importance of finality to the timing of entry of judgment is apparent more from the interrelationship between this rule and G.S. 1A-1 , Rule 58 than from the express language of Rule 58 itself. The principal concern regarding finality is that all matters for determination be resolved. Stachlowski v. Stach, 328 N.C. 276 , 401 S.E.2d 638, 1991 N.C. LEXIS 186 (1991).

State administrative agency’s appeal was not interlocutory because the appellate court’s decision was to be the final disposition in the matter. Early v. County of Durham, Dep't of Soc. Servs., 193 N.C. App. 334, 667 S.E.2d 512, 2008 N.C. App. LEXIS 1818 (2008).

Requirements of Rule. —

This rule imposes three requirements on the court sitting as finder of fact: it must (1) find the facts on all issues joining the pleadings; (2) declare the conclusions of law arising from the facts found; and (3) enter judgment accordingly. Stachlowski v. Stach, 328 N.C. 276 , 401 S.E.2d 638, 1991 N.C. LEXIS 186 (1991).

Substantive Versus Procedural Challenges. —

The right to immediate appellate review under the substantial right doctrine applies only to a substantive, rather than a merely procedural, jurisdictional challenge; thus, defendants who were neither named in motion requesting nor order granting an extension of the statute of limitations and were not served with notice of that extension could not immediately appeal, and the trial court’s certification under subsection (b) of this rule was made in error. Howze v. Hughs, 134 N.C. App. 493, 518 S.E.2d 198, 1999 N.C. App. LEXIS 799 (1999).

Interlocutory Order Defined. —

An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy. Hinson v. Hinson, 17 N.C. App. 505, 195 S.E.2d 98, 1973 N.C. App. LEXIS 1393 (1973); Godley Auction Co. v. Myers, 40 N.C. App. 570, 253 S.E.2d 362, 1979 N.C. App. LEXIS 2281 (1979); Bailey v. Gooding, 301 N.C. 205 , 270 S.E.2d 431, 1980 N.C. LEXIS 1159 (1980); Cunningham v. Brown, 51 N.C. App. 264, 276 S.E.2d 718, 1981 N.C. App. LEXIS 2226 (1981).

Order requiring party to take actions “pending further orders of this court,” was an interlocutory order, since it was made during the pendency of the action and did not dispose of the case in a final manner. Transtector Sys. v. Electric Supply, Inc., 113 N.C. App. 148, 437 S.E.2d 699, 1993 N.C. App. LEXIS 1296 (1993).

Trial court’s order granting a partial new trial and its judgment fixing the issue of liability were interlocutory and they were not appealable under G.S. 1A-1 , Rule 54(b), G.S. 1-277(a) , or G.S. 7A-27(d), where the exceptions allowed by the trial court did not certify either the order granting a partial new trial or the underlying judgment for immediate review, and where defendant failed to argue why the order and judgment appealed affected a substantial right. Loy v. Martin, 144 N.C. App. 414, 547 S.E.2d 843, 2001 N.C. App. LEXIS 424 (2001).

Immediate Appeal from Interlocutory Orders Is Improper. —

Appeal of an order denying certification of an interlocutory order was dismissed as an immediate appeal was not one of the proper methods for appealing an interlocutory order. Van Engen v. Que Scientific, Inc., 151 N.C. App. 683, 567 S.E.2d 179, 2002 N.C. App. LEXIS 871 (2002).

Blanket general objection based on the attorney/client privilege, the work product doctrine, or any other applicable privilege or doctrine did not satisfy G.S. 1A-1 , N.C. R. Civ. P. 34 as blanket general objections purporting to assert attorney-client privilege or work product immunity to all of the opposing parties’ discovery requests were inadequate to effect their intended purpose and did not establish a substantial right to an immediate appeal. K2 Asia Ventures v. Trota, 215 N.C. App. 443, 717 S.E.2d 1, 2011 N.C. App. LEXIS 1890 (2011).

Expert witness could not appeal an order allowing the witness’s deposition because (1) the order was interlocutory, (2) the witness did not allege a substantial right that would be jeopardized absent immediate appeal, and (3) the witness’s that the witness’s rights might be implicated if certain fact scenarios occurred in the future did not present a ripe controversy. In re Accutane Litig., 233 N.C. App. 319, 758 S.E.2d 13, 2014 N.C. App. LEXIS 319 (2014).

Ruling on interlocutory nature of appeals is properly a matter for the appellate division, not the trial court. Since this often requires consideration of the merits, motions to dismiss appeals as being interlocutory should properly be filed after the record on appeal is filed in the appellate court. Estrada v. Jaques, 70 N.C. App. 627, 321 S.E.2d 240, 1984 N.C. App. LEXIS 3880 (1984), limited, Osburn v. Danek Med., Inc., 135 N.C. App. 234, 520 S.E.2d 88, 1999 N.C. App. LEXIS 1045 (1999).

The appellate division possesses sufficient authority to dispose of interlocutory appeals which do not affect a substantial right by dismissal. It has express authority to do so on motion of the parties if the appeal is frivolous or taken solely for purposes of delay. Or it may exercise its general authority in response to motions filed under the general motions provision. Or the appellate division may dismiss upon its own motion as part of its general duty to apply the laws governing the right to appeal. Estrada v. Jaques, 70 N.C. App. 627, 321 S.E.2d 240, 1984 N.C. App. LEXIS 3880 (1984), limited, Osburn v. Danek Med., Inc., 135 N.C. App. 234, 520 S.E.2d 88, 1999 N.C. App. LEXIS 1045 (1999).

Party Seeking Reconsideration. —

In a case involving partial summary judgment, the party seeking reconsideration can move for that relief under N.C. R. Civ. P. 54(b). Doe v. City of Charlotte, 273 N.C. App. 10, 848 S.E.2d 1, 2020 N.C. App. LEXIS 611 (2020).

Where the physical well being of a child was at issue, an interlocutory custody order was subject to appeal. McConnell v. McConnell, 151 N.C. App. 622, 566 S.E.2d 801, 2002 N.C. App. LEXIS 879 (2002).

Appeal Where Question of Attorney’s Fees is Reserved. —

Once a trial court entered judgment awarding alimony to a wife, but reserving the question of attorney’s fees, the judgment was final and appealable; the husband was not required to obtain certification for review pursuant to N.C. R. Civ. P. 54. Duncan v. Duncan, 366 N.C. 544 , 742 S.E.2d 799, 2013 N.C. LEXIS 495 (2013).

Appeal Dismissed as Interlocutory. —

Appellate court dismissed an insurer’s appeal as interlocutory where the trial court’s order merely disposed of one of the various defenses, not a claim, raised by the insurer in its answer to a complaint. Yordy v. N.C. Farm Bureau Mut. Ins. Co., 149 N.C. App. 230, 560 S.E.2d 384, 2002 N.C. App. LEXIS 126 (2002).

Court of appeals held that where a trial court dismissed a company’s contract claims, but stayed the tort claims: (1) this was an interlocutory order; (2) there was no certification; and (3) the company failed to show a substantial right at stake on appeal; the court of appeals dismissed the appeal as interlocutory. Mitsubishi Elec. & Elecs. USA, Inc. v. Duke Power Co., 155 N.C. App. 555, 573 S.E.2d 742, 2002 N.C. App. LEXIS 1602 (2002).

Court of appeals found that deciding if operating video games in arcade was a substantial right was not necessary where a trial court’s denial of a preliminary injunction did not strip the operators of a substantial right and the operators’ appeal was interlocutory. Bessemer City Express, Inc. v. City of Kings Mt., 155 N.C. App. 637, 573 S.E.2d 712, 2002 N.C. App. LEXIS 1605 (2002).

In an action by car purchasers against car dealerships and manufacturers for negligence and unfair and deceptive trade practices, an appeal from a trial court’s pre-trial orders was dismissed as interlocutory and not affecting a substantial right. Alexander v. DaimlerChrysler Corp., 158 N.C. App. 637, 582 S.E.2d 57, 2003 N.C. App. LEXIS 1220 (2003).

Because a trial court’s order on a motion in limine was interlocutory and was not immediately appealable, the court dismissed the appeal even though the trial court had certified the issue for appeal under G.S. 1A-1-54(b); that certification could not bind the court to review a non-appealable interlocutory order. DOT v. Olinger, 172 N.C. App. 848, 616 S.E.2d 672, 2005 N.C. App. LEXIS 1807 (2005).

Because the trial court did not rule on the merits of an employee’s claim for unemployment benefits, but found that the Employment Security Commission’s (now Division of Employment Security (DES) of the Department of Commerce) order did not address all of the relevant issues raised by the record, and the findings were incomplete and failed to set out the sequence of events regarding the timing and notification of the employee’s discharge, the order was clearly interlocutory; hence, without evidence that the employee’s substantial rights were affected, or that any criteria for an immediate appeal was required, the employee’s appeal was dismissed. Reeves v. Yellow Transp., Inc., 170 N.C. App. 610, 613 S.E.2d 350, 2005 N.C. App. LEXIS 1076 (2005).

Order allowing estates to amend their complaint in medical malpractice suit was not immediately appealable where issues of hospital’s claimed loss of substantial rights were not brought before the trial court, and no substantial right was lost by failure to allow immediate review; 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 N.C. App. LEXIS 2717 (2005).

Where the trial court did not certify the order denying construction company’s motion to dismiss an action brought by homeowners association as immediately appealable pursuant to G.S. 1A-1 , Rule 54, and the construction company did not appear to be deprived of any substantial right which could not be protected by timely appeal from the ultimate disposition of the controversy on its merits, the appeal was dismissed. Pineville Forest Homeowners Ass'n v. Portrait Homes Constr. Co., 175 N.C. App. 380, 623 S.E.2d 620, 2006 N.C. App. LEXIS 71 (2006).

Interlocutory appeal that was not certified under G.S. 1A-1-54(b) was dismissed because the state arts school and its dean did not establish that they possessed a substantial right warranting immediate review of their interlocutory appeal. McClennahan v. N.C. Sch. of the Arts, 177 N.C. App. 806, 630 S.E.2d 197, 2006 N.C. App. LEXIS 1175 (2006).

Because a G.S. 136-108 hearing did not finally resolve all issues, and because the department of transportation (DOT) failed to identify what right was at issue or why any substantial right would be jeopardized without immediate review of the trial court’s order, its appeal of a finding of inverse condemnation under G.S. 136-111 was dismissed as interlocutory under G.S. 1A-1 , Rule 54(a). Wilfong v. N.C. DOT, 194 N.C. App. 816, 670 S.E.2d 331, 2009 N.C. App. LEXIS 31 (2009).

Dismissal of an appeal was required because the order modifying a father’s child support obligation was interlocutory, pursuant to G.S. 1A-1 , N.C. R. Civ. P. 54(a), as it did not dispose of the case; as part of the trial court’s order, the parties were each given 20 days to submit affidavits specifying relevant golf-related expenses incurred, in order for the trial court to correctly apportion each parent’s contribution. Plomaritis v. Plomaritis, 200 N.C. App. 426, 684 S.E.2d 702, 2009 N.C. App. LEXIS 1676 (2009).

Appeal by an administrator of a decedent’s estate and a guardian ad litem of orders granting a county sewer district and an engineering company summary judgment was dismissed because the administrator and guardian appealed two interlocutory orders and failed to advance any argument that the orders deprived them of a substantial right that would be lost without immediate appellate review; because there was no N.C. R. Civ. P. 54(b) certification, the administrator and guardian had to show a substantial right, but nowhere in their brief did they recognize that the orders appealed from were interlocutory, and nowhere in their brief did they assert that the orders deprived them of a substantial right that would be lost without immediate appellate review. Waddell v. Metro. Sewerage Dist., 201 N.C. App. 586, 687 S.E.2d 502, 2009 N.C. App. LEXIS 2323 (2009).

Father’s appeal of temporary custody order was dismissed because, inter alia, the trial court did not determine all issues, and the temporary custody order contained no G.S. 1A-1 , N.C. R. Civ. P. 54(b). Sood v. Sood, 222 N.C. App. 807, 732 S.E.2d 603, 2012 N.C. App. LEXIS 1102 , cert. denied, 2012 N.C. LEXIS 1136 (N.C. Dec. 12, 2012), cert. denied, 366 N.C. 417 , 735 S.E.2d 336, 2012 N.C. LEXIS 1135 (2012), cert. denied, 2012 N.C. LEXIS 1139 (N.C. Dec. 12, 2012).

Appeal from a trial court’s order denying a motion to dismiss a complaint, under N.C. R. Civ. P. 12(b)(7), for failure to join a necessary party was premature because it was interlocutory in nature, under G.S. 1A-1 , N.C. R. Civ. P. 54(b), and because the appellants failed to show, pursuant to G.S. 1-277(a) and G.S. 7A-27(d)(1), that a substantial right would have been affected absent immediate disposition of the matter. Builders Mut. Ins. Co. v. Meeting St. Builders, LLC, 222 N.C. App. 647, 736 S.E.2d 197, 2012 N.C. App. LEXIS 1079 (2012).

Because an appeal from a trial court’s order reversing the board of adjustment’s grant of a special-use permit was interlocutory, and appellant failed to show that a substantial right would be lost absent appeal, the appeal was subject to dismissal. Coates v. Durham Cty., 266 N.C. App. 271, 831 S.E.2d 392, 2019 N.C. App. LEXIS 609 (2019).

Plaintiff in Unfair Trade Practices action had no right of immediate appeal from an interlocutory order dismissing her claim for treble damages. Simmons v. C.W. Myers Trading Post, Inc., 68 N.C. App. 511, 315 S.E.2d 75, 1984 N.C. App. LEXIS 3308 , cert. denied, 312 N.C. 85 , 321 S.E.2d 898, 1984 N.C. LEXIS 2179 (1984).

Interlocutory Order Concerning Sovereign Immunity. —

Appeal of interlocutory order warranted immediate appellate review where state Department of Transportation asserted that sovereign immunity barred condemned landowners’ affirmative defenses and counterclaims. DOT v. Blue, 147 N.C. App. 596, 556 S.E.2d 609, 2001 N.C. App. LEXIS 1235 (2001).

When individual taxpayers sued the state for a tax refund on behalf of themselves and others similarly situated, and the trial court certified a class of taxpayers, the interlocutory certification order was immediately appealable under G.S. 1A-1-54(a) because, inter alia: (1) the substantial rights the state sought to protect through immediate appellate review were the preservation of sovereign immunity and the protection of the fiscal stability of the state; and, (2) the state said these rights would be adversely affected if an immediate appeal was not allowed, including potential injury to the state’s inability to avoid a budget exigency. Dunn v. State, 179 N.C. App. 753, 635 S.E.2d 604, 2006 N.C. App. LEXIS 2163 (2006).

In a contractor’s third-party complaint against a city, the denial of the city’s dismissal motion under N.C. R. Civ. P. 12(b)(6) was immediately appealable where it was certified pursuant to N.C. R. Civ. P. 54(b), and the issue of whether the third-party complaint was barred by governmental immunity affected substantial rights of the city; the scope of review was limited to the one certified issue. Town of Sandy Creek v. East Coast Contr. Inc, 224 N.C. App. 537, 736 S.E.2d 793, 2012 N.C. App. LEXIS 1445 (2012), superseded, 226 N.C. App. 576, 741 S.E.2d 673, 2013 N.C. App. LEXIS 384 (2013).

When Summary Judgment Is Immediately Appealable. —

Where dismissal of an appeal of a summary judgment could result in two different trials on the same issues, thereby creating the possibility of inconsistent verdicts, a substantial right is prejudiced and the summary judgment is immediately appealable. Taylor v. Brinkman, 108 N.C. App. 767, 425 S.E.2d 429, 1993 N.C. App. LEXIS 181 (1993).

There are two avenues by which a party may immediately appeal an interlocutory order of judgment. First, if the order or judgment is final as to some but not all of the claims or parties, and the trial court certifies the case for appeal pursuant to this rule an immediate appeal may lie. Second, an appeal is permitted under G.S. 1-277(a) and 7A-27(d)(1) if the trial court’s decision deprives the appellant of a substantial right which would be lost absent immediate review. Tinch v. Video Indus. Servs., Inc., 124 N.C. App. 391, 477 S.E.2d 193, 1996 N.C. App. LEXIS 1058 (1996), cert. denied, 483 S.E.2d 718, 1997 N.C. LEXIS 129 (N.C. 1997), rev'd, 347 N.C. 380 , 493 S.E.2d 426, 1997 N.C. LEXIS 828 (1997).

There are two avenues by which an interlocutory judgment or order can be immediately appealed. First, if the order is final as to some but not all of the claims or parties and the trial court certifies there is no just reason to delay the appeal, and second, an interlocutory order can be immediately appealed under G.S. 1-277(a) and 7A-27(d)(1) if the trial court’s decision deprives the appellant of a substantial right which would be lost absent immediate review. Bartlett v. Jacobs, 124 N.C. App. 521, 477 S.E.2d 693, 1996 N.C. App. LEXIS 1158 (1996); Romig v. Jefferson-Pilot Life Ins. Co., 132 N.C. App. 682, 513 S.E.2d 598, 1999 N.C. App. LEXIS 285 (1999), cert. denied, 350 N.C. 836 , 539 S.E.2d 294, 1999 N.C. LEXIS 992 (1999), aff'd, 351 N.C. 349 , 524 S.E.2d 804, 2000 N.C. LEXIS 131 (2000).

Interlocutory order was immediately appealable due to the following: (1) the order from which plaintiff appealed was final as to plaintiff’s claims since the trial court entered summary judgment in favor of defendants and dismissed plaintiff’s complaint with prejudice; and (2) the trial court certified that there was no reason to delay plaintiff’s appeal. Currin & Currin Constr., Inc. v. Lingerfelt, 158 N.C. App. 711, 582 S.E.2d 321, 2003 N.C. App. LEXIS 1228 (2003).

Even though the court of appeals was not bound by a trial court’s certification of partners’ appeal of an order granting a widow’s motion for summary judgment as immediately appealable, the court of appeals reviewed the interlocutory appeal in its discretion because there was no just reason for delay, and its review would avoid piece-meal litigation. Wiggs v. Peedin, 194 N.C. App. 481, 669 S.E.2d 844, 2008 N.C. App. LEXIS 2243 (2008).

In a dispute between an insurer and an insured, an appellate court properly considered the insurer’s appeal of a trial court’s judgment granting the insured partial summary judgment as to one of the insured’s counterclaims against the insurer because (1) the trial court’s order substantially determines the action in favor of the insured, and (2) the trial court certified the order for immediate appeal, under G.S. 1A-1 , N.C. R. Civ. P. 54(b). N.C. Farm Bureau Mut. Ins. Co. v. Sadler, 204 N.C. App. 145, 693 S.E.2d 266, 2010 N.C. App. LEXIS 834 (2010), rev'd, 365 N.C. 178 , 711 S.E.2d 114, 2011 N.C. LEXIS 383 (2011).

Interlocutory Discovery Order With Sanctions Appealable. —

Order imposing sanctions for discovery violations and ordering the production of documents was an interlocutory order that was appealable because of the portion of the order that imposed sanctions pursuant to G.S. 1A-1 , Rule 37(b). Such an appeal tests the validity of both the discovery order and the sanctions imposed. In re Pedestrian Walkway Failure, 173 N.C. App. 254, 618 S.E.2d 796, 2005 N.C. App. LEXIS 2022 (2005).

Relief under section (c) of this rule is always proper when it does not operate to the substantial prejudice of the opposing party. Such relief should, therefore, be denied when the relief demanded was not suggested or illuminated by the pleadings nor justified by the evidence adduced at trial. North Carolina Nat'l Bank v. Carter, 71 N.C. App. 118, 322 S.E.2d 180, 1984 N.C. App. LEXIS 3823 (1984).

The order of an appellate court dismissing an appeal upon denying a petition for review is not a judgment; it is not a ruling on the merits of the rights or obligations of the parties, but is purely procedural in nature. Hunter v. City of Asheville, 80 N.C. App. 325, 341 S.E.2d 743, 1986 N.C. App. LEXIS 2167 (1986).

The effective date of an annexation ordinance was July 11, 1983, the date the judgment of the Court of Appeals holding the ordinance to be valid was certified, and not December 6, 1983, the date of the Supreme Court’s order dismissing plaintiffs’ appeal and denying discretionary review of the judgment of the Court of Appeals, as the final judgment in the annexation case was the judgment of the Court of Appeals. Hunter v. City of Asheville, 80 N.C. App. 325, 341 S.E.2d 743, 1986 N.C. App. LEXIS 2167 (1986).

Alternative Method to Appeal Interlocutory Orders. —

An interlocutory order not appealable under subsection (b) may nevertheless be appealed pursuant to G.S. 1-277 and G.S. 7A-27(d) of the Rules of Civil Procedure which permit an appeal of an interlocutory order which (1) affects a substantial right, or (2) in effect determines the action and prevents a judgment from which appeal might be taken, or (3) discontinues the action, or (4) grants or refuses a new trial. Dalton Moran Shook, Inc. v. Pitt Dev. Co., 113 N.C. App. 707, 440 S.E.2d 585, 1994 N.C. App. LEXIS 209 (1994).

Review of Interlocutory Order by Writ of Certiorari. —

Court denied an estate administrator’s motion to dismiss the healthcare providers’ appeal from a denial of their motion to dismiss a wrongful death complaint because, even if the notice of appeal was untimely filed, the healthcare providers petitioned for a writ of certiorari that was granted. Reid v. Cole, 187 N.C. App. 299, 653 S.E.2d 164, 2007 N.C. App. LEXIS 2321 (2007).

Questions Affecting Title to Property Immediately Reviewable. —

Possible existence of an easement, the basis upon which a trial court ordered joinder of individual unit owners in a townhome development, was a question affecting title, and thus the trial court’s joinder order in a suit seeking a condemnation of a homeowners’ association’s common area was subject to immediate review. N.C. DOT v. Stagecoach Vill., 360 N.C. 46 , 619 S.E.2d 495, 2005 N.C. LEXIS 996 (2005).

North Carolina Department of Transportation’s (NCDOT) appeal of an interlocutory procedural order in an inverse condemnation action was dismissed because NCDOT showed no deprivation of a substantial right, as NCDOT had no such right unless and until NCDOT filed a map or plat identifying property to be condemned. Beroth Oil Co. v. N.C. DOT, 256 N.C. App. 401, 808 S.E.2d 488, 2017 N.C. App. LEXIS 986 (2017).

Substantial Right. —

Court addressed plaintiffs’ appeal, which was not certified pursuant to subsection (b) of this rule, finding that plaintiffs had a substantial right to have the liability of all defendants determined in one proceeding. Camp v. Leonard, 133 N.C. App. 554, 515 S.E.2d 909, 1999 N.C. App. LEXIS 618 (1999).

Where insured homeowners were awarded a partial summary judgment as to the replacement cash value of their severely damaged home by the trial court, which was a reversal of the insurance appraiser’s determination that the actual cash value applied as the appropriate damage award, a substantial right of the insurer was affected allowing an appeal of that interlocutory order pursuant to G.S. 1-277 . Gilbert v. N.C. Farm Bureau Mut. Ins. Cos., 155 N.C. App. 400, 574 S.E.2d 115, 2002 N.C. App. LEXIS 1608 (2002), aff'd, 357 N.C. 244 , 580 S.E.2d 691, 2003 N.C. LEXIS 600 (2003).

Where an order did not resolve the parties’ claims for equitable distribution and attorney’s fees and did not rule on wife’s claim for alimony, the appeal was interlocutory and, as nothing affected a substantial right, immediate appeal was improper and dismissed. Evans v. Evans, 158 N.C. App. 533, 581 S.E.2d 464, 2003 N.C. App. LEXIS 1177 (2003).

Although a substantial right was affected and immediately appealable under G.S. 1A-1 , Rule 54(b), where undue delay or prejudice would have resulted, a trial court did not abuse its discretion in denying a custodian’s G.S. 1A-1 , Rule 15(a) motion to add two defendants to a complaint. Carter v. Rockingham County Bd. of Educ., 158 N.C. App. 687, 582 S.E.2d 69, 2003 N.C. App. LEXIS 1279 (2003).

Interlocutory appeal of the denial of defendants’ motion for summary judgment in a constructive trust action was allowed; the basis of the motion for summary judgment was that res judicata barred the constructive trust action and in such a case, the failure to allow an appeal might affect a substantial right in that the possibility existed that without an immediate appeal, they would be required to twice defend against the same claim by plaintiffs. Tiber Holding Corp. v. DiLoreto, 170 N.C. App. 662, 613 S.E.2d 346, 2005 N.C. App. LEXIS 1081 (2005).

Because a corporation asserted that ordered documents were protected from discovery under G.S. 90-21.22A, and that assertion was not frivolous or insubstantial, the discovery order compelling production of the documents affected a substantial right and the appeal fell under an exception to the rule that there was no right to appeal from an interlocutory order. Windman v. Britthaven, Inc., 173 N.C. App. 630, 619 S.E.2d 522, 2005 N.C. App. LEXIS 2113 (2005).

Denial of non-owners’ motion to dismiss a declaratory judgment action relating to easement rights was interlocutory and not subject to appeal because the non-owners’ claim that, after the trial court determined the parties’ rights, a future tribunal in a hypothetical future proceeding might have ruled differently did not create possibility of inconsistent verdicts on same fact issue but merely a reflection of the fact that one’s rights in a given situation were often determined by reference to more than one statute, rule, or other legal source of rights. Newcomb v. County of Carteret, 183 N.C. App. 142, 643 S.E.2d 669, 2007 N.C. App. LEXIS 832 (2007).

In a consumer’s suit against a manufacturer and a repair company for carbon monoxide poisoning from a home gas heater, although a ruling granting summary judgment in favor of the manufacturer and denying summary judgment for the company was an interlocutory order, appeal of the ruling was proper under G.S. 1A-1-54(b) because it affected the substantial rights of both the consumer and the company. Edmondson v. Macclesfield L-P Gas Co., 182 N.C. App. 381, 642 S.E.2d 265, 2007 N.C. App. LEXIS 693 (2007).

Though there was no G.S. 1A-1-54(b) certification in the record before the court, an anesthesiology provider was entitled to pursue an appeal from the trial court’s order granting judgment N.O.V. and a new trial to a decedent’s estate in the estate’s wrongful death suit against the provider because the trial court’s order deprived the provider of a substantial right that would be lost if the court dismissed the appeal; the provider had already gone through one trial on the issue of liability and damages and was now being forced to undergo a second trial on the same issues, and thus the trial court’s order was immediately appealable. Jones v. Durham Anesthesia Assocs., P.A., 185 N.C. App. 504, 648 S.E.2d 531, 2007 N.C. App. LEXIS 1806 (2007).

Because the trial court did not certify a judgment pursuant to G.S. 1A-1-54(b), the appellate court had to first determine whether an appeal following the granting of a motion to dismiss affected a substantial right to determine whether the plaintiff’s appeal was interlocutory and whether it was properly before the appellate court; the court found that the appeal was properly before the court because it affected a substantial right as the plaintiff faced the possibility of having to undergo two trials on the same issue. State ex rel. Cooper v. Ridgeway Brands Mfg., LLC, 184 N.C. App. 613, 646 S.E.2d 790, 2007 N.C. App. LEXIS 1613 (2007), aff'd in part and rev'd in part, 362 N.C. 431 , 666 S.E.2d 107, 2008 N.C. LEXIS 687 (2008).

Although the trial court’s judgments denying the former employee and former employer’s motions for partial summary judgment were interlocutory orders pursuant to G.S. 1A-1 , N.C. R. Civ. P, 54(b), the parties could immediately appeal those rulings. Since the appeals arose out of the same common facts surrounding the former employer’s termination of the employment of the former employer, an immediate appeal was necessary to preserve the substantial right of avoiding the possibility of multiple trials on the same issue and in fostering the interests of judicial economy. Panos v. Timco Engine Ctr., Inc., 197 N.C. App. 510, 677 S.E.2d 868, 2009 N.C. App. LEXIS 743 (2009).

Appellants were not entitled to immediate review of an order requiring them to appear for depositions during jurisdictional discovery based on its alleged violation of G.S. 1A-1-30(b)(1) because interlocutory discovery orders were generally not appealable, and appellants presented nothing beyond their allegation of a violation of Rule 30(b)(1) to indicate a substantial right that would be irreparably harmed absent immediate appeal; violation of appellants’ Rule 30(b)(1) “right” was not immediately appealable based on the potentially burdensome travel costs that appellants could incur by complying with the order because the time and money likely to be expended by appellants as a result of the order could not be more burdensome than the time and money expended in litigating an entire trial, and avoiding the time and expense of a trial was not a substantial right justifying immediate appeal. K2 Asia Ventures v. Trota, 209 N.C. App. 716, 708 S.E.2d 106, 2011 N.C. App. LEXIS 313 (2011).

Order setting the location of deposition was not immediately appealable because while orders on motions for change of venue based on improper venue affect a substantial right and are immediately appealable, the same right is not affected when a party is forced to litigate in an improper venue as when a party is forced to appear for a deposition in an “improper” location; any similarity between the two rights is completely overshadowed by the difference in magnitude of the burden on those rights: a decision setting venue covers the duration of the judicial process while a decision setting the location of a deposition covers only the much shorter duration of the depositions. K2 Asia Ventures v. Trota, 209 N.C. App. 716, 708 S.E.2d 106, 2011 N.C. App. LEXIS 313 (2011).

Order requiring appellants to appear for depositions during jurisdictional discovery was not immediately appealable because the order did not burden appellants’ substantial right to due process since appellants voluntarily submitted the jurisdictional issue to the North Carolina General Court of Justice, and consequently appellants ultimately were bound by the North Carolina courts’ determination of personal jurisdiction and immediately were bound to abide by those legal rules governing the procedure to be followed in reaching that determination, including the North Carolina Rules of Civil Procedure; because appellants voluntarily submitted to North Carolina jurisdiction to decide the issue of personal jurisdiction in the action, they were bound to participate in what jurisdictional discovery the trial court orders, and appellants’ implicit agreement to abide by the legal rules and presumptions of the North Carolina court system necessarily included the agreement to abide by the rules governing appeal of interlocutory orders. K2 Asia Ventures v. Trota, 209 N.C. App. 716, 708 S.E.2d 106, 2011 N.C. App. LEXIS 313 (2011).

Orders of the trial court that allegedly violate discovery rules, or other rules of civil procedure, are rarely appropriate for immediate appeal; while a rule of civil procedure may grant a party certain “rights,” not every violation of those “rights” is immediately appealable because the mere fact of a violation of a rule of civil procedure, without more, is insufficient to warrant immediate appeal. K2 Asia Ventures v. Trota, 209 N.C. App. 716, 708 S.E.2d 106, 2011 N.C. App. LEXIS 313 (2011).

In order to accept this interlocutory appeal, defendants had to show that the order deprived defendants of a substantial right, but their principal brief was insufficient to establish grounds for appellate review, as there was no statement of any grounds for appellate review included; defendants could not use their reply brief to independently establish grounds for appellate review, and because defendants did not make their burden, their appeal was dismissed. Larsen v. Black Diamond French Truffles, Inc., 241 N.C. App. 74, 772 S.E.2d 93, 2015 N.C. App. LEXIS 380 (2015).

Executor’s attempt to bring an equitable subrogation claim against a beneficiary for the first time on appeal pursuant to G.S. 1A-1 , N.C. R. Civ. P. 54(c) was rejected, as the executor’s reliance on said rule was misplaced. Horry v. Woodbury, 189 N.C. App. 669, 659 S.E.2d 88, 2008 N.C. App. LEXIS 706 (2008), rev'd, 363 N.C. 7 , 673 S.E.2d 127, 2009 N.C. LEXIS 112 (2009).

Trial court’s denial of a motion to enforce a settlement did not resolve the underlying personal injury claim, and the order of denial was therefore interlocutory; since the trial court did not certify that there was no just reason to delay the appeal, and the denial did not affect a substantial right, there was no right to an immediate appeal since an appeal of the denial was still allowed once there was a final judgment. Milton v. Thompson, 170 N.C. App. 176, 611 S.E.2d 474, 2005 N.C. App. LEXIS 903 (2005).

Interlocutory Denial of Motion to Dismiss Reviewed Pursuant to Writ of Certiorari. —

Motion to dismiss an interlocutory appeal of the denial of healthcare providers’ motion to dismiss an administrator’s wrongful death complaint was denied because the healthcare providers’ petition for a writ of certiorari was granted. Reid v. Cole, 187 N.C. App. 261, 652 S.E.2d 718, 2007 N.C. App. LEXIS 2355 (2007).

Interlocutory Order Held Reviewable. —

Trial court’s interlocutory order, denying a motion for summary judgment filed by defendants, was reviewable on appeal under G.S. 1A-1 , N.C. R. Civ. P. 54(b), as the constitutional defenses in a defamation case affected defendants’ substantial right and were immediately appealable on the merits. Boyce & Isley, PLLC v. Cooper, 211 N.C. App. 469, 710 S.E.2d 309, 2011 N.C. App. LEXIS 830 (2011), cert. denied, 566 U.S. 987, 132 S. Ct. 2378, 182 L. Ed. 2d 1018, 2012 U.S. LEXIS 3447 (2012).

In a lawsuit against diocese defendants in which plaintiff alleged that a priest sexually assaulted him on multiple occasions and the trial court granted in part and denied in part the diocese defendants motion to dismiss, the diocese defendants contended that the claims asserted against them would require a civil court to delve into issues concerning the church’s religious doctrine, practices, and canonical law, which the diocese defendants contended was prohibited by the First Amendment; consequently, the appellate court concluded that it had jurisdiction over the diocese defendants’ interlocutory appeal and proceeded to address the merits of their arguments. Doe v. Diocese of Raleigh, 242 N.C. App. 42, 776 S.E.2d 29, 2015 N.C. App. LEXIS 580 (2015).

Remedy Awarded Was Improper. —

Trial court erred in declaring an easement across a lot in favor of the owners’ association where neither party requested such relief in the action for adverse possession of an adjacent parcel of land, the predecessor still had access to a reserved area containing the disputed parcel at the time of the lot’s conveyance from the common grantor, and there was nothing in the record disclosing an inability to access the parcel through the reserved area at that time. Cole v. Bonaparte's Retreat Prop. Owners' Ass'n, 259 N.C. App. 27, 815 S.E.2d 403, 2018 N.C. App. LEXIS 389 (2018).

Attorneys’ Fees Award Improper. —

Award of attorneys’ fees pursuant to the North Carolina Motor Vehicle Repair Act was reversed because a driver’s case against a collision repair shop was not tried under the Act, and the jury was neither given instructions on nor asked to render a verdict on any cause of action related to the Act; the driver brought his case without reference to, or reliance upon, the Act, and neither his pleadings nor his evidence gave any indication he was relying on the Act to remedy his loss. Ridley v. Wendel, 251 N.C. App. 452, 795 S.E.2d 807, 2016 N.C. App. LEXIS 1360 (2016).

II.Judgment on Multiple Claims or Involving Multiple Parties.

For history and background of section (b) of this rule, see Oestreicher v. American Nat'l Stores, Inc., 290 N.C. 118 , 225 S.E.2d 797, 1976 N.C. LEXIS 1047 (1976).

There is a significant difference between section (b) of this rule and FRCP, Rule 54(b), as there is no exception in the federal rule for a right to appeal under “other statutes.” Oestreicher v. American Nat'l Stores, Inc., 290 N.C. 118 , 225 S.E.2d 797, 1976 N.C. LEXIS 1047 (1976).

This rule should be seen as a companion to other rules of procedure permitting liberal joinder of claims and parties, particularly G.S. 1A-1 , Rules 13, 14 and 17 through 24. Tridyn Indus., Inc. v. American Mut. Ins. Co., 296 N.C. 486 , 251 S.E.2d 443, 1979 N.C. LEXIS 1188 (1979).

Need for section (b) of this rule arose from increased opportunity for liberal joinder of claims and parties which the new Rules of Civil Procedure provided. Arnold v. Howard, 24 N.C. App. 255, 210 S.E.2d 492, 1974 N.C. App. LEXIS 1972 (1974).

One of the purposes of this rule is to minimize fragmentary appeals. Wachovia Realty Invs. v. Housing, Inc., 28 N.C. App. 385, 221 S.E.2d 381, 1976 N.C. App. LEXIS 2703 (1976), rev'd, 292 N.C. 93 , 232 S.E.2d 667, 1977 N.C. LEXIS 1045 (1977).

The reason for G.S. 1-277 , 7A-27 and this rule is to prevent fragmentary, premature and unnecessary appeals, by permitting the trial divisions to have done with a case fully and finally before it is presented to the appellate division. Blue Ridge Sportcycle Co. v. Schroader, 53 N.C. App. 354, 280 S.E.2d 799, 1981 N.C. App. LEXIS 2607 (1981).

Section (b) of this rule modifies the traditional notion that a case could not be appealed until the trial court had finally and entirely disposed of it all. Tridyn Indus., Inc. v. American Mut. Ins. Co., 296 N.C. 486 , 251 S.E.2d 443, 1979 N.C. LEXIS 1188 (1979).

The limitation under section (b) of this rule on appealability is not applicable where other statutes expressly provide otherwise. Oestreicher v. American Nat'l Stores, Inc., 290 N.C. 118 , 225 S.E.2d 797, 1976 N.C. LEXIS 1047 (1976).

“Other Statutes” Refers Particularly to G.S. 1-277 and G.S. 7A-27(d). —

Section (b) of this rule, where it refers to “other statutes,” is speaking in particular of G.S. 1-277 and 7A-27(d). Oestreicher v. American Nat'l Stores, Inc., 290 N.C. 118 , 225 S.E.2d 797, 1976 N.C. LEXIS 1047 (1976).

The General Assembly in section (b) of this rule used the words “as expressly provided by these rules or other statutes” in order to avoid any conflict between section (b) and G.S. 1-277(a) and 7A-27(d). Oestreicher v. American Nat'l Stores, Inc., 290 N.C. 118 , 225 S.E.2d 797, 1976 N.C. LEXIS 1047 (1976).

The addition of the language “except as expressly provided by these rules or other statutes” in section (b) of this rule was clearly intended to except from the prohibition of review of nonfinal partial adjudications those orders or judgments which by virtue of G.S. 1-277 and 7A-27(d) are reviewable despite their interlocutory nature. Newton v. Standard Fire Ins. Co., 291 N.C. 105 , 229 S.E.2d 297, 1976 N.C. LEXIS 937 (1976).

The “other statutes” referred to by subsection (b) of this rule are G.S. 1-227 and G.S. 7A-27(d), which allow an immediate appeal from a judicial determination which deprives appellant of a substantial right which he would lose if the ruling is not reviewed on appeal before final judgment. Beam v. Morrow, 77 N.C. App. 800, 336 S.E.2d 106, 1985 N.C. App. LEXIS 4384 (1985).

Section (b) of this rule and G.S. 7A-27(c) do not absolutely bar appeals from other than final judgments. Estrada v. Jaques, 70 N.C. App. 627, 321 S.E.2d 240, 1984 N.C. App. LEXIS 3880 (1984), limited, Osburn v. Danek Med., Inc., 135 N.C. App. 234, 520 S.E.2d 88, 1999 N.C. App. LEXIS 1045 (1999).

Right of Appeal Under G.S. 1-277 and G.S. 7A-27(d) Not Restricted by Section (b) Requirements. —

The 1967 General Assembly did not restrict the right of appeal provided by G.S. 1-277 and 7A-27(d) by engrafting the requirements of section (b) of this rule upon them. Oestreicher v. American Nat'l Stores, Inc., 290 N.C. 118 , 225 S.E.2d 797, 1976 N.C. LEXIS 1047 (1976).

Where a party has a statutory right of appeal pursuant to G.S. 1-277 or 7A-27, even from an interlocutory order, section (b) of this rule will never bar appeal, even though the order appealed from fails to find “no just reason for delay.” Nasco Equip. Co. v. Mason, 291 N.C. 145 , 229 S.E.2d 278, 1976 N.C. LEXIS 941 (1976).

Section (b) of this rule cannot limit an appellant’s right to appeal when the decree is appealable under other statutory provisions, namely G.S. 1-277 and 7A-27(d). Tridyn Indus., Inc. v. American Mut. Ins. Co., 296 N.C. 486 , 251 S.E.2d 443, 1979 N.C. LEXIS 1188 (1979); Bacon v. Leatherwood, 52 N.C. App. 587, 279 S.E.2d 86, 1981 N.C. App. LEXIS 2457 (1981).

The Right to Appeal Is Available Through Two Channels. —

This rule allows appeal if there has been a final judgment as to all of the claims and parties, or if the specific action of the trial court from which appeal is taken is final and the trial judge expressly determines that there is no just reason for delaying the appeal. The second channel to an appeal is by way of G.S. 1-277 or 7A-27; an appeal will be permitted under these statutes if a substantial right would be affected by not allowing appeal before final judgment. Brown v. Brown, 77 N.C. App. 206, 334 S.E.2d 506, 1985 N.C. App. LEXIS 4030 (1985).

An interlocutory order can be immediately appealed under this rule if the order is final as to some but not all of the claims or if the trial court’s decision deprives the appellant of a substantial right which would be lost absent immediate review. First Atl. Mgt. Corp. v. Dunlea Realty Co., 131 N.C. App. 242, 507 S.E.2d 56, 1998 N.C. App. LEXIS 1321 (1998).

An appeal of right from an interlocutory order lies: (1) where the order represents a final judgment as to one or more but fewer than all of the claims or parties and the trial court certifies in the judgment that there is no just reason to delay the appeal; and (2) where delaying the appeal will irreparably impair a substantial right of the party. Hudson-Cole Dev. Corp. v. Beemer, 132 N.C. App. 341, 511 S.E.2d 309, 1999 N.C. App. LEXIS 117 (1999).

Determination of Fundamental Claim Immediately Appealable. —

By ordering a former employee to assign a patent, the trial court effectively decided ownership of the patented process, and where this determination was fundamental to the disposition of the remaining claims, grant of summary judgment on the ownership claim was immediately appealable as affecting a substantial right. Liggett Group, Inc. v. Sunas, 113 N.C. App. 19, 437 S.E.2d 674, 1993 N.C. App. LEXIS 1310 (1993).

Appeal Is Permitted Where a Substantial Right Would Be Affected. —

Where the right to appeal is conferred by statute, i.e., where a substantial right of the parties would be affected if immediate appeal were not permitted under G.S. 1-277 or 7A-27, the judgment is appealable whether it is final or interlocutory in nature. Equitable Leasing Corp. v. Myers, 46 N.C. App. 162, 265 S.E.2d 240, 1980 N.C. App. LEXIS 2811 , dismissed, Leasing Corp. v. Myers, 301 N.C. 92 , 1980 N.C. LEXIS 1271 (1980).

To the extent that judgments as to one or more but fewer than all parties are determined by the appellate courts of this State to affect a “substantial right” of one of the litigants under G.S. 1-277 and 7A-27(d), the procedure for trial court certification of such judgments as appealable, established in section (b) of this rule, is bypassed, and the appellate court is substituted as the true dispatcher of appeals. Equitable Leasing Corp. v. Myers, 46 N.C. App. 162, 265 S.E.2d 240, 1980 N.C. App. LEXIS 2811 , dismissed, Leasing Corp. v. Myers, 301 N.C. 92 , 1980 N.C. LEXIS 1271 (1980).

Actions by the trial court, if not final or if final but not properly certified by the trial judge pursuant to section (b) of this rule, are nonetheless immediately appealable if the denial of an immediate appeal would affect a substantial right and work an injury to the appellant. Harris v. DePencier, 52 N.C. App. 161, 278 S.E.2d 759, 1981 N.C. App. LEXIS 2311 (1981).

Orders which are technically interlocutory may properly be appealed, regardless of lack of certification under section (b) of this rule, if they affect a substantial right. Estrada v. Jaques, 70 N.C. App. 627, 321 S.E.2d 240, 1984 N.C. App. LEXIS 3880 (1984), limited, Osburn v. Danek Med., Inc., 135 N.C. App. 234, 520 S.E.2d 88, 1999 N.C. App. LEXIS 1045 (1999).

No hard and fast rules exist for determining which appeals affect a substantial right. Rather, such decisions usually require consideration of the facts of the particular case. Estrada v. Jaques, 70 N.C. App. 627, 321 S.E.2d 240, 1984 N.C. App. LEXIS 3880 (1984), limited, Osburn v. Danek Med., Inc., 135 N.C. App. 234, 520 S.E.2d 88, 1999 N.C. App. LEXIS 1045 (1999).

Where a distinct possibility of inconsistent verdicts in separate trials had arisen, and the trial court’s order allowing summary judgment therefore affected a substantial right, the denial of which would work an injury to the plaintiff if not corrected before an appeal from a final judgment, plaintiff’s appeal was properly before the Court of Appeals. Perry v. Aycock, 68 N.C. App. 705, 315 S.E.2d 791, 1984 N.C. App. LEXIS 3426 (1984).

Orders which are technically interlocutory may properly be appealed, regardless of lack of certification under section (b) of this rule, if they affect a substantial right. Estrada v. Jaques, 70 N.C. App. 627, 321 S.E.2d 240, 1984 N.C. App. LEXIS 3880 (1984), limited, Osburn v. Danek Med., Inc., 135 N.C. App. 234, 520 S.E.2d 88, 1999 N.C. App. LEXIS 1045 (1999).

Summary judgement orders affected a substantial right and were immediately appealable because there was a potential for inconsistent verdicts. Coastal Plains Utils., Inc. v. New Hanover County, 166 N.C. App. 333, 601 S.E.2d 915, 2004 N.C. App. LEXIS 1745 (2004).

Where a trial court granted plaintiff summary judgment as to liability on a criminal conversation claim, and granted defendant summary judgment as to an alienation of affections claim, though no final judgment was entered as to the issue of damages for the criminal conversation claim, nor was certification granted under G.S. 1A-1 , N.C. R. Civ. P. 54(b) as to the alienation of affections claim, the appeal affected a substantial right that would be lost absent immediate review, because the elements of damages were so closely related that they did not support separate awards for each tort. McCutchen v. McCutchen, 170 N.C. App. 1, 612 S.E.2d 162, 2005 N.C. App. LEXIS 904 (2005), aff'd in part and rev'd in part, 360 N.C. 280 , 624 S.E.2d 620, 2006 N.C. LEXIS 2 (2006).

While an order granting summary judgment was interlocutory, it was appealable because the cause of action for criminal conversation, which was still before the trial court, was so connected with the claim for alienation of affections that only one issue of damages should be submitted to the jury, and thus, a substantial right was at stake to have the same jury hear the wife’s two claims. McCutchen v. McCutchen, 360 N.C. 280 , 624 S.E.2d 620, 2006 N.C. LEXIS 2 (2006).

Appellate jurisdiction existed to review a trial court’s interlocutory order under G.S. 1A-1-54(b) because the administratrix sufficiently demonstrated the existence of a substantial right that would have been lost if the appellate court waited to review the trial court’s denial of the administratrix’s defenses of res judicata and collateral estoppel until after a final judgment. Gregory v. Penland, 179 N.C. App. 505, 634 S.E.2d 625, 2006 N.C. App. LEXIS 1981 (2006).

Even though an order dismissing a backseat passenger as a defendant in a negligence action did not contain a certification under G.S. 1A-1-54(b) that there was no just reason for delay for the entry of final judgment, the order was reviewable under G.S. 1-277 because all of the claims of negligence arose from the same accident and the order of dismissal affected plaintiffs’ substantial right to have their claims of joint and concurrent negligence heard in a single proceeding. Harris v. DaimlerChrysler Corp., 180 N.C. App. 551, 638 S.E.2d 260, 2006 N.C. App. LEXIS 2500 (2006).

Under circumstances in which a patient’s suit alleged multiple, overlapping acts of medical malpractice resulting in harm, it was best that one jury hear the case to avoid inconsistent verdicts; accordingly, a summary judgment in favor of a radiologist affected a substantial right and the appeal from the summary judgment was considered, despite the fact that the summary judgment was granted as to one but not all of the defendants and the trial court did not certify that there was “no just reason for delay.” Burgess v. Campbell, 182 N.C. App. 480, 642 S.E.2d 478, 2007 N.C. App. LEXIS 692 (2007).

Trial court’s partial summary judgment order that two insurers were obligated to defend an insured in an underlying litigation was immediately appealable under G.S. 1-277 and 7A-27(d) and G.S. 1-1 , N.C. R. Civ. P. 54(b) because the judgment affected a substantial right that might have been lost absent an immediate appeal. Harleysville Mut. Ins. Co. v. Buzz Off Insect Shield L.L.C., 190 N.C. App. 28, 664 S.E.2d 317, 2008 N.C. App. LEXIS 873 (2008), rev'd in part, 364 N.C. 1 , 692 S.E.2d 605, 2010 N.C. LEXIS 344 (2010).

Order denying a taxpayer’s motion to dismiss an administrative summons requesting documents was appealable because it was an intermediate order that involved the merits and affected the final judgment in that if the motion had been granted, the trial court would not have issued the order to comply with the summons. Even if the appeal was not from a final judgment, the appeal of a discovery order asserting a statutory or a common-law privilege affected a substantial right. In re Summons Issued to Ernst & Young, LLP, 191 N.C. App. 668, 663 S.E.2d 921, 2008 N.C. App. LEXIS 1472 (2008), modified, aff'd in part, 363 N.C. 612 , 684 S.E.2d 151, 2009 N.C. LEXIS 897 (2009).

Plaintiff’s appeal affected a substantial right and was properly before the court of appeals because each of plaintiff’s causes of action was based upon injuries suffered as a result of the same underlying conduct; since the basis of the claims was the same conduct, the claims necessarily involved overlapping factual issues, and plaintiff’s damages resulting from his various causes of action were connected and intertwined to such a degree that they had to be determined by a single jury. Carsanaro v. Colvin, 215 N.C. App. 455, 716 S.E.2d 40, 2011 N.C. App. LEXIS 1877 (2011).

Where the same factual issues would be present in both trials and a successful appeal of the order here could subject the parties to inconsistent verdicts, an order affected a substantial right and was subject to immediate review. Babb v. Hoskins, 223 N.C. App. 103, 733 S.E.2d 881, 2012 N.C. App. LEXIS 1184 (2012).

Summary judgment in a medical malpractice case for a physician, who was one party sued, could be appealed, despite a trial court’s failure to certify that there was no just reason for delay, because the judgment affected a substantial right, since the same factual issues applied to each defendant, creating a risk of inconsistent verdicts. Hawkins v. Emergency Med. Physicians of Craven Cnty., PLLC, 240 N.C. App. 337, 770 S.E.2d 159, 2015 N.C. App. LEXIS 372 (2015).

While the order was a final judgment as to one or more but fewer than all of the claims or parties, the trial court did not certify the order for immediate appellate review, but by virtue of the substantial right doctrine, plaintiff provided an alternative basis to appeal the interlocutory order; dDismissing the appeal and allowing plaintiff to prosecute the same claims in different forums created the possibility of inconsistent verdicts. Schwarz v. St. Jude Med., Inc., 254 N.C. App. 747, 802 S.E.2d 783, 2017 N.C. App. LEXIS 615 (2017).

Trial court’s order did not contain a certification under the rule, but the appeal was proper because plaintiff demonstrated a substantial right that would be lost absent an immediate appeal; a sufficient overlap existed between plaintiff’s surviving claim for wrongful discharge and her First Amendment claim that was dismissed, such that there existed a possibility of inconsistent verdicts absent immediate appeal. Holland v. Harrison, 254 N.C. App. 636, 804 S.E.2d 205, 2017 N.C. App. LEXIS 627 (2017).

Because no order was certified as appropriate for immediate appeal, to establish appellate jurisdiction, the insured and insurer bore the burden of demonstrating how each order affected a substantial right and would work injury if not corrected before final judgment. Radiator Specialty Co. v. Arrowood Indem. Co., 253 N.C. App. 508, 800 S.E.2d 452, 2017 N.C. App. LEXIS 389 (2017), dismissed, 274 N.C. App. 510, 850 S.E.2d 624, 2020 N.C. App. LEXIS 850 (2020).

Family asserted a substantial right to have the liability of all defendants be determined in one proceeding because the same factual issues applied to all claims against the property owner and the tenants, and two trials could bring about inconsistent verdicts relating to the family’s damages. Curlee v. Johnson, 270 N.C. App. 657, 842 S.E.2d 604, 2020 N.C. App. LEXIS 257 (2020), aff'd, 377 N.C. 97 , 856 S.E.2d 478, 2021- NCSC-32, 2021 N.C. LEXIS 328 (2021).

In determining the appealability of interlocutory orders a substantial right is a right which will be lost or irremediably adversely affected if the order is not reviewable before the final judgment. Jenkins v. Maintenance, Inc., 76 N.C. App. 110, 332 S.E.2d 90, 1985 N.C. App. LEXIS 3729 (1985).

Burden of Proof on Appellant. —

Where defendant presented neither argument nor citation to show the appeals court that it had the right to appeal trial court’s interlocutory order, it was not the duty of the court to construct arguments for or find support for defendant’s right to appeal; instead, the defendant had the burden of showing the appeals court that the order deprived the defendant of a substantial right. Russell v. State Farm Ins. Co., 136 N.C. App. 798, 526 S.E.2d 494, 2000 N.C. App. LEXIS 152 (2000).

Interlocutory summary judgments in favor of third-party and fourth-party defendants in a negligence action were appealable as to the question of negligence, which presented common factual issues with the remaining claim of plaintiff against defendant, but not as to the issue of indemnity, which did not. Britt v. American Hoist & Derrick Co., 97 N.C. App. 442, 388 S.E.2d 613, 1990 N.C. App. LEXIS 138 (1990).

Trial judge’s order that denial of immediate appeal would affect substantial right of plaintiffs was tantamount to certification that there was no just reason for delay, and accordingly the appeal was effectively certified and was therefore properly before the Court of Appeals. Smock v. Brantley, 76 N.C. App. 73, 331 S.E.2d 714, 1985 N.C. App. LEXIS 3818 (1985).

Limitation on Substantial Right Exception to Certification. —

The “substantial right” exception to certification under section (b) of this rule has been limited by the court to those situations where the substance of an appealing party’s claim or defense would be reduced, or where the appealing party would incur some other direct injury, if the appeal were not heard prior to entry of a final judgment disposing of all of the claims of all of the parties. Nichols v. State Employees' Credit Union, 46 N.C. App. 294, 264 S.E.2d 793, 1980 N.C. App. LEXIS 2795 (1980).

Finding That Ruling Affects Substantial Right Not Enough. —

Court’s ruling on a separation/property settlement agreement did not dispose of plaintiff’s claims for equitable distribution and alimony, but only disposed of defendant’s plea in bar to those claims; the court’s ruling was thus interlocutory, and although the court’s order stated that its ruling affected a substantial right and was a proper subject of immediate appeal, the court’s order could not be certified as a final appealable order under section (b) of this rule. Garris v. Garris, 92 N.C. App. 467, 374 S.E.2d 638, 1988 N.C. App. LEXIS 1077 (1988).

Section (b) of this rule does not purport to define a final judgment. It simply provides for (1) the entry of such a judgment as to fewer than all of the claims in a multiple claim or multiple party lawsuit, and (2) a procedure whereby such final judgments on one or more but fewer than all of the claims or parties are immediately appealable. Tridyn Indus., Inc. v. American Mut. Ins. Co., 296 N.C. 486 , 251 S.E.2d 443, 1979 N.C. LEXIS 1188 (1979).

Determining Whether Appeal Lies Absent Statutory Right Thereto. —

Where there is no statutory right to appeal, the question is whether the judgment is in effect final as to all of the claims and parties. If so, the judgment is immediately appealable. If not, the next question must be whether the specific action of the trial court from which appeal is taken is final or interlocutory. If the court’s action is interlocutory, no appeal will lie whether or not certified for appeal by the trial court. If the action is final as to fewer than all claims or the rights and liabilities of fewer than all parties, but has not been certified for appeal by the trial court under section (b) of this rule, no appeal will lie. On the other hand, an appeal from such a final judgment or order will be allowed if it is properly certified under the rule. Equitable Leasing Corp. v. Myers, 46 N.C. App. 162, 265 S.E.2d 240, 1980 N.C. App. LEXIS 2811 , dismissed, Leasing Corp. v. Myers, 301 N.C. 92 , 1980 N.C. LEXIS 1271 (1980).

Section (b) of this rule establishes the trial court as the “dispatcher” of appeals to the appellate division. Green v. Duke Power Co., 50 N.C. App. 646, 274 S.E.2d 889, 1981 N.C. App. LEXIS 2166 (1981), aff'd, 305 N.C. 603 , 290 S.E.2d 593, 1982 N.C. LEXIS 1346 (1982). See also, Arnold v. Howard, 24 N.C. App. 255, 210 S.E.2d 492, 1974 N.C. App. LEXIS 1972 (1974).

Finding of No Just Reason for Delay as Certification That Judgment Is Final and Appealable. —

By making the express determination in a judgment adjudicating fewer than all the claims or the rights and liabilities of fewer than all the parties that there is “no just reason for delay,” the trial judge in effect certifies that the judgment is a final judgment under section (b) of this rule and subject to immediate appeal. Arnold v. Howard, 24 N.C. App. 255, 210 S.E.2d 492, 1974 N.C. App. LEXIS 1972 (1974); Raynor v. Mutual of Omaha, 24 N.C. App. 573, 211 S.E.2d 458, 1975 N.C. App. LEXIS 2436 (1975).

In a wrongful death action against a city and a railroad arising from a motorist’s death after being struck by a train at a railroad crossing, the appellate court had jurisdiction to hear an appeal from the trial court’s grant of the city’s summary judgment motion where the trial court certified, under Rule 54(b), that there was no just reason for delay in the entry of a final judgment dismissing the claims against the city. Wilkerson v. Norfolk S. Ry. Co., 151 N.C. App. 332, 566 S.E.2d 104, 2002 N.C. App. LEXIS 744 (2002).

When a patient sued a pharmacy for negligence, breach of implied warranties, liability under G.S. 99B-6 , and to pierce the pharmacy’s corporate veil and hold its president liable, and the warranty claim and claim to pierce the corporate veil were dismissed, and the trial court orally certified that there was no just reason to delay an appeal of the dismissal when there was no written order in the appellate record reflecting the trial court’s oral certification, the patient’s interlocutory appeal of the dismissal was reviewed for whether the patient would lose a substantial right absent an immediate appeal. Rauch v. Urgent Care Pharm., Inc., 178 N.C. App. 510, 632 S.E.2d 211, 2006 N.C. App. LEXIS 1566 (2006).

When temporary state employees sued the state for employing the employees more than 12 months, contrary to N.C. Admin. Code 1C.0405(a), an appellate court had jurisdiction to hear the employees’ appeal of the dismissal of the employees’ breach of contract claim because: (1) the trial court certified the trial court’s order as final for purposes of appeal; and (2) a determination of the amount of an attorneys’ fee award was a collateral issue. Sanders v. State Pers. Comm'n, 236 N.C. App. 94, 762 S.E.2d 850, 2014 N.C. App. LEXIS 967 (2014).

Court of appeals possessed jurisdiction over the appeal of an order granting a motion to dismiss because the trial court certified that there was no just reason for delay of entry as to the final judgment of two claims asserted in the complaint and entered final judgment on those claims, thee trial court’s order served as an adjudication of two of the claims asserted in the amended complaint. Feltman v. City of Wilson, 238 N.C. App. 246, 767 S.E.2d 615, 2014 N.C. App. LEXIS 1350 (2014).

Court of appeals accorded deference to the trial court’s certification that there was no just reason for delay because the case presented an unusual procedural issue due to the prior appeal and competing filings of both parties on remand; in addition, the underlying claim was the landowner’s claim for just compensation, despite the fact that the city filed the action. City of Charlotte v. Univ. Fin. Props., LLC, 260 N.C. App. 135, 818 S.E.2d 116, 2018 N.C. App. LEXIS 634 (2018), aff'd, 373 N.C. 325 , 837 S.E.2d 870, 2020 N.C. LEXIS 92 (2020).

Trial judge cannot by denominating a decree a “final judgment” make it immediately appealable if it is not such a judgment. Tridyn Indus., Inc. v. American Mut. Ins. Co., 296 N.C. 486 , 251 S.E.2d 443, 1979 N.C. LEXIS 1188 (1979).

Certification under this rule by the trial court is reviewable by the appellate court because the trial court’s denomination of its decree as a final judgment does not make it so. First Atl. Mgt. Corp. v. Dunlea Realty Co., 131 N.C. App. 242, 507 S.E.2d 56, 1998 N.C. App. LEXIS 1321 (1998).

Appeal of the denial of the motion to compel discovery and the order quashing the subpoena of the decedent’s former attorney was interlocutory and could not be appealed pursuant to subsection (b) of this rule, despite the fact that the issue was certified for appeal; an order denying a motion to compel was clearly not a final judgment and certification was therefore inappropriate. In re Will of Johnston, 157 N.C. App. 258, 578 S.E.2d 635, 2003 N.C. App. LEXIS 642 , aff'd, 357 N.C. 569 , 597 S.E.2d 670, 2003 N.C. LEXIS 1270 (2003).

Signing of Appeal Entry Not Sufficient. —

The signing of an appeal entry by the trial court cannot, in and of itself, be held to satisfy the affirmative act of certification required by section (b) of this rule. Equitable Leasing Corp. v. Myers, 46 N.C. App. 162, 265 S.E.2d 240, 1980 N.C. App. LEXIS 2811 , dismissed, Leasing Corp. v. Myers, 301 N.C. 92 , 1980 N.C. LEXIS 1271 (1980); Pasour v. Pierce, 46 N.C. App. 636, 265 S.E.2d 652, 1980 N.C. App. LEXIS 2876 (1980).

Appeal from Judgment Adjudicating Fewer Than All Claims, Rights or Liabilities. —

An appeal is subject to dismissal when the judgment from which the appeal is taken purportedly adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties and the trial court does not find that there was “no just reason for delay.” Equitable Leasing Corp. v. Kingsmen Prods., Inc., 27 N.C. App. 661, 220 S.E.2d 95, 1975 N.C. App. LEXIS 1937 (1975).

Attempted appeal from an order dismissing fewer than all of plaintiffs’ claims is premature where the trial court did not find that there was no just reason for delay. Mozingo v. North Carolina Nat'l Bank, 27 N.C. App. 196, 218 S.E.2d 506, 1975 N.C. App. LEXIS 1793 (1975).

Although the defendants’ appeal was from an order which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties, and was thus premature, the Court of Appeals chose to exercise its discretion to pass on the merits of the defendants’ appeal. International Harvester Credit Corp. v. Bowman, 69 N.C. App. 217, 316 S.E.2d 619, 1984 N.C. App. LEXIS 3392 (1984).

The fact that plaintiff waived her right to appeal the order granting summary judgment to one of three defendants in no way affected her statutory right to appeal from the final judgment, since although she could have appealed the entry of summary judgment as to that defendant, she was not required to do so. Ingle v. Allen, 71 N.C. App. 20, 321 S.E.2d 588, 1984 N.C. App. LEXIS 3819 (1984), overruled in part, DOT v. Rowe, 351 N.C. 172 , 521 S.E.2d 707, 1999 N.C. LEXIS 1250 (1999).

Under section (b) of this rule, in the absence of a determination by the trial judge that there is no just reason for delay, there can be no appellate review of an order which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties. Thompson v. Newman, 74 N.C. App. 597, 328 S.E.2d 597, 1985 N.C. App. LEXIS 3496 (1985).

Entry of summary judgment for fewer than all defendants was not a final judgment and was not immediately appealable as no substantial right was involved and the trial court did not certify the appeal under subdivision (b) of this rule. Long v. Giles, 123 N.C. App. 150, 472 S.E.2d 374, 1996 N.C. App. LEXIS 578 (1996).

Appellate court, on its own motion, dismissed a wife’s interlocutory appeal from a divorce from bed and board because the trial court judgment did not determine remaining contested custody and support matters. Washington v. Washington, 148 N.C. App. 206, 557 S.E.2d 648, 2001 N.C. App. LEXIS 1291 (2001).

In contractor’s breach of contract action against the state, the trial court properly made a finding of fact and conclusion of law, under G.S. 1A-1 , N.C. R. Civ. P. 54(b), that its grant of the state’s summary judgment motion was final as to the contractor’s claims against the state and certified that there was no just reason for delay, even though counterclaims and third-party claims had not been adjudicated. N.C. Monroe Constr. Co. v. State, 155 N.C. App. 320, 574 S.E.2d 482, 2002 N.C. App. LEXIS 1612 (2002).

Appeal of a judgment setting aside an execution sale of certain real property was interlocutory because, while the record contained an entry of default as to the property’s owners, it did not contain a default judgment against them, and no claims against the materialman whose lien resulted in the execution sale were addressed; thus, the record did not establish that all claims against all parties had been resolved, and an appeal was not permissible because the trial court did not certify its order for immediate interlocutory appeal under G.S. 1A-1 , N.C. R. Civ. P. 54, nor was it shown that a substantial right was at issue. Beneficial Mortg. Co. v. Peterson, 163 N.C. App. 73, 592 S.E.2d 724, 2004 N.C. App. LEXIS 292 (2004).

As the trial court granted summary judgment only to a town, not the other defendants, and did not certify the court’s order under N.C. R. Civ. P. 54(b), and plaintiff did not voluntarily dismiss her claims against the other defendants or argue that her appeal affected a substantial right, she was not entitled to appeal the trial court’s interlocutory order under G.S. 7A-27(b) . Hyatt v. Town of Lake Lure, 191 N.C. App. 386, 663 S.E.2d 320, 2008 N.C. App. LEXIS 1322 (2008).

Rule cannot be used to create appellate jurisdiction based on certification language that is not contained in the body of the judgment itself from which appeal is being sought. Branch Banking & Trust Co. v. Peacock Farm, Inc., 241 N.C. App. 213, 772 S.E.2d 495, 2015 N.C. App. LEXIS 451 , aff'd, 368 N.C. 478 , 780 S.E.2d 553, 2015 N.C. LEXIS 1253 (2015).

Counterclaim had not been resolved and the trial court has not relinquished jurisdiction, and thus the appeal was interlocutory; plaintiff’s brief failed to contain the requisite statement of the grounds for appellate review, the order contained no certification under the rule, and the briefs failed to make any argument as to why the order affected a substantial right, and thus the appeal was dismissed for lack of subject matter jurisdiction. Krause v. Rk Motors, 252 N.C. App. 135, 797 S.E.2d 335, 2017 N.C. App. LEXIS 138 (2017), dismissed in part, 260 N.C. App. 354, 815 S.E.2d 752, 2018 N.C. App. LEXIS 631 (2018).

Order was final regarding one, but fewer than all claims raised by plaintiff against defendant, and the trial court properly certified the order for immediate appellate review; plaintiff’s appeal was thus reviewed on the merits. Friday Invs., LLC v. Bally Total Fitness of the Mid-Atl., Inc., 254 N.C. App. 618, 803 S.E.2d 233, 2017 N.C. App. LEXIS 632 (2017).

Finding of No Reason for Delay Not Enough. —

While the trial judge found that there was no reason for delay in obtaining appellate review, a trial judge cannot by denominating his decree a “final judgment” make it immediately appealable under section (b) of this rule if it is not such a judgment. A finding that there is no just reason for delay under section (b) is not enough. The judgment must also be final. Pelican Watch v. United States Fire Ins. Co., 90 N.C. App. 140, 367 S.E.2d 351, 1988 N.C. App. LEXIS 382 (1988), rev'd, 323 N.C. 700 , 375 S.E.2d 161, 1989 N.C. LEXIS 2 (1989).

A judgment which creates the possibility of inconsistent verdicts on the same issue in different trials affects a substantial right. New Bern Assocs. v. Celotex Corp., 87 N.C. App. 65, 359 S.E.2d 481, 1987 N.C. App. LEXIS 2960 (1987).

When a trial court dismissed claims of some automobile passengers against the automobile’s driver, the dismissal was immediately appealable because the judgment affected a substantial right as there was a possibility of inconsistent verdicts, since, after a trial on the sole remaining claim, the dismissed claims could be reinstated, resulting in a second trial presenting the same factual issues. Mosqueda v. Mosqueda, 218 N.C. App. 142, 721 S.E.2d 755, 2012 N.C. App. LEXIS 74 (2012).

Avoiding separate trials of different issues does not qualify as a substantial right, but preventing separate trials of the same factual issues does constitute a substantial right. Hudson-Cole Dev. Corp. v. Beemer, 132 N.C. App. 341, 511 S.E.2d 309, 1999 N.C. App. LEXIS 117 (1999).

Factors for Immediate Appealability of Judgment. —

In order for a judgment in a multiple claim or multiple party action to be immediately appealable, the judgment must be (1) in effect final as to one or more of the claims or parties; and (2) certified for appeal by the trial judge. If the judgment is final as to one or more of the claims or parties but has not been certified for appeal by the trial court, no appeal will lie unless an immediate appeal is authorized by some other rule or statute, such as G.S. 1-277 or G.S. 7A-27 . North Carolina R.R. v. City of Charlotte, 112 N.C. App. 762, 437 S.E.2d 393, 1993 N.C. App. LEXIS 1249 (1993), cert. denied, 515 U.S. 1130, 115 S. Ct. 2554, 132 L. Ed. 2d 808, 1995 U.S. LEXIS 3935 (1995).

Orders Subject to Change. —

Because orders were not certified, they were subject to change until entry of a final judgment. Radiator Specialty Co. v. Arrowood Indem. Co., 253 N.C. App. 508, 800 S.E.2d 452, 2017 N.C. App. LEXIS 389 (2017), dismissed, 274 N.C. App. 510, 850 S.E.2d 624, 2020 N.C. App. LEXIS 850 (2020).

Judgment Held Appealable. —

Trial court’s judgment dismissing plaintiffs’ claims of punitive damages against all defendants and dismissing claims against former law partners for the acts of individual defendant in his capacity as executor of decedent’s estate was immediately appealable, as plaintiffs had a substantial right to have all of their claims for relief tried at the same time before the same judge and jury. Shelton v. Fairley, 86 N.C. App. 147, 356 S.E.2d 917, 1987 N.C. App. LEXIS 2683 (1987).

Where a bank, as third-party defendant, not only had an opportunity to participate in, but in fact did fully participate in the determination of third-party plaintiff’s liability, and was bound by the judgment in favor of plaintiff entered against defendants as third-party plaintiffs, since the bank was bound by a judgment which affected its substantial rights, it was clearly an aggrieved party within the meaning of G.S. 1-271 . Barker v. Agee, 326 N.C. 470 , 389 S.E.2d 803, 1990 N.C. LEXIS 155 (1990).

A partial summary judgment was appealable under this section, where the trial court granted summary judgment as to the plaintiff’s claim for unfair and deceptive trade practices and certified that there was no “just reason for delay in entering this order or the appeal therefrom.” DKH Corp. v. Rankin-Patterson Oil Co., 348 N.C. 583 , 500 S.E.2d 666, 1998 N.C. LEXIS 322 (1998).

Order of partial summary judgment on the issue of whether an insurer has a duty to defend a defendant in an underlying action, affects a substantial right that might be lost absent immediate appeal. Lambe Realty Inv., Inc. v. Allstate Ins. Co., 137 N.C. App. 1, 527 S.E.2d 328, 2000 N.C. App. LEXIS 261 (2000).

Case was not dismissed because the employee’s appeal was from a final judgment and was not interlocutory; the employee voluntarily dismissed the remaining claims as part of a settlement agreement. Tarrant v. Freeway Foods of Greensboro, Inc., 163 N.C. App. 504, 593 S.E.2d 808, 2004 N.C. App. LEXIS 409 (2004).

Dismissal of a partner’s claims against an attorney under G.S. 1A-1 , N.C. R. Civ. P. 12(b)(6) as the statute of limitations had passed was immediately appealable. Carlisle v. Keith, 169 N.C. App. 674, 614 S.E.2d 542, 2005 N.C. App. LEXIS 800 (2005).

Because the appeal was final as to the appealing defendants, and the trial court certified the appeal, the appellate court was required to review plaintiff’s appeal on the merits. James River Equip., Inc v. Tharpe's Excavating, Inc., 179 N.C. App. 336, 634 S.E.2d 548, 2006 N.C. App. LEXIS 1897 (2006).

In a business dispute involving asserted allegations of breach of a non-competition agreement and other claims, given the prolonged procedural history of the case, the number of claims and counterclaims, and the same set of operative facts underlying the entire case, an appellate court agreed with the trial court’s determination that the claims that had been dismissed and those that remained were factually and legally intertwined such that proceeding to trial could have resulted in verdicts inconsistent with the earlier dismissals. Therefore, the trial court properly certified the case to the appellate court under N.C. R. Civ. P. 54(b). Kinesis Adver., Inc. v. Hill, 187 N.C. App. 1, 652 S.E.2d 284, 2007 N.C. App. LEXIS 2251 (2007).

Trial court’s order dismissing only some of a client’s claims against an attorney was not interlocutory, and the client’s appeal of the order was properly before the court of appeals because the client voluntarily dismissed all of the claims that survived the trial court’s order; therefore, the client’s claims were no longer interlocutory, and any rationale for dismissing the appeal as interlocutory failed. Goodman v. Holmes & McLaurin, 192 N.C. App. 467, 665 S.E.2d 526, 2008 N.C. App. LEXIS 1622 (2008).

In estate administrators’ suit alleging breaches of fiduciary duties by a nephew and a bank with respect to one of the decedent’s certain bank accounts, review of a summary judgment ruling with respect to whether the account included a right of survivorship was appropriate under G.S. 1A-1 , N.C. R. Civ. P. 54(b) because numerous remaining claims and counterclaims were dependent on the survivorship issue. Albert v. Cowart, 200 N.C. App. 57, 682 S.E.2d 773, 2009 N.C. App. LEXIS 1561 (2009).

Since a business court’s ruling did not finally dispose of all of plaintiffs’ claims and defendants’ counterclaims, both plaintiffs’ appeal and defendants’ cross appeal were interlocutory; however, the court chose to review the interlocutory appeals as there was no just reason for delay and as doing so would avoid piecemeal litigation given the multiple interrelated claims and counterclaims brought forth by the parties. Mitchell, Brewer, Richardson, Adams, Burge & Boughman, PLLC v. Brewer, 209 N.C. App. 369, 705 S.E.2d 757, 2011 N.C. App. LEXIS 194 (2011).

Court of appeals reviewed residents’ interlocutory appeal of an order dismissing their complaint against a city pursuant to N.C. R. Civ. P. 12(b)(1) and (b)(6) because the trial court’s stated basis for the dismissal was that the doctrine of governmental immunity applied to the residents’ allegations against the city, and the city had not waived its governmental immunity; those grounds were sufficient to warrant immediate appellate review. Williams v. Devere Constr. Co., 215 N.C. App. 135, 716 S.E.2d 21, 2011 N.C. App. LEXIS 1749 (2011).

Because each order was a final judgment on one or more but fewer than all of the claims in each case, and because the trial court appropriately certified each order for appeal, the court of appeals had jurisdiction to hear the appeals. Vue-Charlotte, LLC v. Sherman, 217 N.C. App. 384, 2011 N.C. App. LEXIS 2429 (2011).

Plaintiffs appeal of the trial court’s order granting defendants’ motion to dismiss was properly before the court of appeals because the order was in effect a final judgment as to those defendants, and the trial court certified in the order dismissing them that there was no just reason for delay in appeal. Washington v. Cline, 233 N.C. App. 412, 761 S.E.2d 650, 2014 N.C. App. LEXIS 303 (2014).

Trial court’s order granting partial summary judgment was interlocutory as it did not dispose of all the claims asserted by the parties; however, the trial court noted that its order constituted a final judgment as to the cross-claims for indemnification and certified the order for immediate appeal, and thus the court had jurisdiction over the appeal. Malone v. Barnette, 241 N.C. App. 274, 772 S.E.2d 256, 2015 N.C. App. LEXIS 447 (2015).

Judgments Held Nonappealable. —

Where judgment adjudicated the rights and liabilities of fewer than all the parties and contained no determination by the trial judge that there was no just reason for delay, and although the claims of the respective defendants against each other did not seem to affect the plaintiff ’s rights, the judgment was interlocutory and not appealable. Nytco Leasing, Inc. v. Dan-Cleve Corp., 25 N.C. App. 18, 212 S.E.2d 41, 1975 N.C. App. LEXIS 2159 (1975).

Where order dismissing plaintiffs’ claim against defendants and dismissing by consent counterclaim of defendants against plaintiffs adjudicated fewer than all the claims of all the parties and did not contain a determination by the trial judge that there was no just reason for delay in entering such order, the order was interlocutory and not appealable. Durham v. Creech, 25 N.C. App. 721, 214 S.E.2d 612, 1975 N.C. App. LEXIS 2384 (1975).

Judgment dismissing plaintiff’s claim, which adjudicated the rights and liabilities of fewer than all the parties and expressly retained jurisdiction for the purpose of adjudication with respect to defendants’ counterclaim without providing “no just reason for delay,” was interlocutory and not appealable. Rorie v. Blackwelder, 26 N.C. App. 195, 215 S.E.2d 397, 1975 N.C. App. LEXIS 2005 , cert. denied, 288 N.C. 243 , 217 S.E.2d 666, 1975 N.C. LEXIS 923 (1975).

Where summary judgment dismissing the action as to two defendants adjudicated the rights and liabilities of fewer than all the parties and contained no determination by the trial judge that there was no just reason for delay, it was not a final judgment and therefore not appealable. Beach & Adams Bldrs., Inc. v. Felton, 27 N.C. App. 334, 219 S.E.2d 287, 1975 N.C. App. LEXIS 1838 (1975). But see Oestreicher v. American Nat'l Stores, Inc., 290 N.C. 118 , 225 S.E.2d 797, 1976 N.C. LEXIS 1047 (1976).

Partial summary judgment orders, which established the negligence of defendant-administrator’s decedent and the absence of contributory negligence or assumption of risk on the part of plaintiff, had the effect of fixing liability and retaining the cause for determination solely on the issue of damages, and were not immediately appealable, despite the trial court’s recital that this was a final judgment and that there was no just reason for delay. Schuch v. Hoke, 82 N.C. App. 445, 346 S.E.2d 313, 1986 N.C. App. LEXIS 2433 (1986).

There were no factual issues common to the claims determined by summary judgments or the claims remaining, so that no substantial right was affected and plaintiff was not entitled to interlocutory appeal of summary judgments, since plaintiff did not present identical factual issues creating the possibility of two trials on the same issue. Jarrell v. Coastal Emergency Servs. of Carolinas, Inc., 121 N.C. App. 198, 464 S.E.2d 720, 1995 N.C. App. LEXIS 1037 (1995).

The denial of defendant’s motion for stay did not dispose of any of the claims or parties, the trial court did not certify the case for immediate appeal under this rule, and defendants did not show that the trial court’s decision deprived them of a substantial right which would be lost absent immediate review. Howerton v. Grace Hosp., 124 N.C. App. 199, 476 S.E.2d 440, 1996 N.C. App. LEXIS 992 (1996).

Trial court’s order for partial summary judgment in favor of plaintiff employee, who sued for payment of a commission, as to defendant employer’s four counterclaims—wrongful attachment, negligence, breach of contract, and breach of fiduciary duty—was interlocutory where no overlapping factual issues existed between plaintiff’s complaint and defendant’s counterclaims, and the order appealed from did not deprive defendant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits. Murphy v. Coastal Physician Group, Inc., 139 N.C. App. 290, 533 S.E.2d 817, 2000 N.C. App. LEXIS 893 (2000).

Defendant-husband’s appeal from an equitable distribution order that explicitly left open the related issue of alimony was interlocutory in nature; no substantial right of defendant’s would be lost without immediate review. Embler v. Embler, 143 N.C. App. 162, 545 S.E.2d 259, 2001 N.C. App. LEXIS 225 (2001).

Interlocutory order was not immediately appealable, in part, because the trial court did not certify the appeal pursuant to G.S. 1A-1 , N.C. R. Civ. P. 54(b). Myers v. Mutton, 155 N.C. App. 213, 574 S.E.2d 73, 2002 N.C. App. LEXIS 1576 (2002), writ denied, 356 N.C. 674 , 577 S.E.2d 298, 2003 N.C. LEXIS 59 (2003).

Corporation’s appeal was dismissed as interlocutory in that it concerned only one claim against one defendant in a suit involving multiple claims against multiple defendants; the trial court’s off-hand comment that “the way to get rid of what (the court had) done (was) to appeal” did not meet the “no just reason for delay” certification requirements of G.S. 1A-1 , N.C. R. Civ. P. 54(b) and was not binding on the appellate court. White v. Carver, 175 N.C. App. 136, 622 S.E.2d 718, 2005 N.C. App. LEXIS 2744 (2005).

Corporation’s interlocutory appeal was dismissed as: (1) its claim that an order subjected every action taken by the corporation since its inception to legal challenge did not identify a substantial right for purposes of the substantial right exception, (2) the identification of any substantial right would be speculative as the order required the corporation to hold an organizational meeting, in which the executor was to be appointed a director and allowed to participate and provided that the claims against the corporation were to be dismissed upon organization of the corporation, and the corporation appealed before conducting the organizational meeting, and (3) that the parties “did not like each other” did not require that the appeal be entertained under the substantial right exception. White v. Carver, 175 N.C. App. 136, 622 S.E.2d 718, 2005 N.C. App. LEXIS 2744 (2005).

In personal injury plaintiffs’ action against an intoxicated driver who caused a traffic accident by driving a van across a highway median, and against a company that owned the van and against the occupants of a house who allegedly negligently entrusted the van to the driver, the company and the occupants were dismissed with prejudice following summary judgment in their favor; plaintiffs then entered a consent order dismissing, without prejudice, their remaining claims against the driver, thereby resolving all claims against all remaining defendants. The summary judgment order was not a final appealable order and the consent order against the driver did not render the dismissal order resulting from that summary judgment a final judgment as contemplated by G.S. 1A-1 , N.C. R. Civ. P. 54; the court dismissed plaintiffs appeal of that dismissal order on the reasoning that G.S. 1A-1 , N.C. R. Civ. P. 41(a)(1), allowed plaintiffs to take one voluntary dismissal against the driver without finally resolving the claims against the driver, so there was no final judgment that would allow an appeal of the summary judgment in favor of the company and the occupants. Hill v. West, 177 N.C. App. 132, 627 S.E.2d 662, 2006 N.C. App. LEXIS 692 (2006).

Appeal of a trial court’s denial of clients’ G.S. 1A-1 , N.C. R. Civ. P. 60(b) motion for relief from judgment in a collateral matter was dismissed as interlocutory because the order did not dispose of the entire case and was thus interlocutory, but the trial court’s order did not contain an G.S. 1A-1 , N.C. R. Civ. P. 54 certification and the clients failed to address (1) why there was no just reason to delay the appeal, or (2) what substantial right would have been lost absent an immediate appeal; further, the appeal was a transparent attempt to re-litigate prior orders from several trial courts, prior opinions of the appellate court, and an order denying the clients’ previous petition for discretionary review by the Supreme Court of North Carolina, and the same theory posited by the clients in the case sub judice already had been vetted and held to be unpersuasive and incorrect. The lawyers were thus entitled to sanctions pursuant to N.C. R. App. P. 34(c). Pigg v. Massagee, 196 N.C. App. 348, 674 S.E.2d 686, 2009 N.C. App. LEXIS 356 (2009), cert. denied, 365 N.C. 207 , 710 S.E.2d 34, 2011 N.C. LEXIS 487 (2011).

Judgment awarding a wife permanent alimony was nonappealable because, inasmuch as the wife’s claim for attorney’s fees had not been disposed of by the trial court, the order was interlocutory, the order had not been certified by the trial court pursuant to G.S. 1A-1 , N.C. R. Civ. P. 54(b), and the husband did not identify any substantial right that might have been lost without immediate appeal, as required by N.C. R. App. P. 28(b)(4). Webb v. Webb, 196 N.C. App. 770, 677 S.E.2d 462, 2009 N.C. App. LEXIS 518 (2009).

Trial court did not enter a final judgment as to fewer than all of the claims or parties in an action; therefore the trial court’s certification of its denial of a motion to dismiss had no effect. Meherrin Indian Tribe v. Lewis, 197 N.C. App. 380, 677 S.E.2d 203, 2009 N.C. App. LEXIS 661 (2009).

Buyer’s appeal of summary judgment in favor of some, but not all, of owners in the buyer’s suit seeking, inter alia, specific performance of an alleged real estate contract was dismissed because there was no G.S. 1A-1 , N.C. R. Civ. P. 54(b) certification, and the summary judgment did not affect a substantial right of the buyer; even assuming arguendo that there had been actual or apparent authority to sell the property to the buyer, the specific performance claim would have failed because the property was subject to existing and contingent life estates, and remaindermen, but no special proceeding pursuant to G.S. 41-11 was brought as was required. Further, one of the remaindermen was a minor child, and minors could not have been compelled to specifically perform a contract as long as they remained under 18. FMB, Inc. v. Creech, 198 N.C. App. 177, 679 S.E.2d 410, 2009 N.C. App. LEXIS 1105 (2009).

In a libel and slander case in which a trial court granted in part and denied in part an N.C. R. Civ. P. 12(b)(6) motion, and five police officers appealed, the appeal was interlocutory. Although the facts involved in the claims remaining before the trial court might overlap with the facts involved in the claims that had been dismissed, the officers failed to show that they will be prejudiced by the possibility of inconsistent verdicts in two separate proceedings; accordingly, they had failed to establish that a substantial right would be lost unless the trial court’s order was immediately reviewed. Nguyen v. Taylor, 200 N.C. App. 387, 684 S.E.2d 470, 2009 N.C. App. LEXIS 1680 (2009).

Trial court, in its amended summary judgment order, lacked authority to add a certification relating to an issue in apparent reliance on its authority to correct clerical errors under G.S. 1A-1-60(a) because the amended summary judgment order did not simply correct a clerical error in the original summary judgment order, but instead worked a substantive modification to the initial summary judgment order; however, the appellate court treated the record and briefs as a petition for the issuance of a writ of certiorari pursuant to N.C. R. App. P. 21(a)(1) and granted the petition because it was advantageous for the court to consider the issues involved and expedited the ultimate disposition of the case. Newcomb v. County of Carteret, 207 N.C. App. 527, 701 S.E.2d 325, 2010 N.C. App. LEXIS 2011 (2010).

When a homeowners’ association sued a manufacturer for product liability and a trial court ordered the association to return documents to the manufacturer that were inadvertently released to the association in discovery, a trial court could not certify the order for immediate appeal because the order was not a final judgment as to any party or any claim. Harbour Point Homeowners' Ass'n v. DJF Enters., 206 N.C. App. 152, 697 S.E.2d 439, 2010 N.C. App. LEXIS 1435 (2010).

Guarantor’s appeal was dismissed for lack of jurisdiction because the trial court’s order purporting to certify for immediate appeal its judgment granting a lender’s motion for summary judgment failed to confer jurisdiction upon the court of appeals to review the summary judgment order; the guarantor failed to argue in his brief that he would be deprived of a substantial right absent an immediate appeal, and the summary judgment order did not contain a certification. Branch Banking & Trust Co. v. Peacock Farm, Inc., 241 N.C. App. 213, 772 S.E.2d 495, 2015 N.C. App. LEXIS 451 , aff'd, 368 N.C. 478 , 780 S.E.2d 553, 2015 N.C. LEXIS 1253 (2015).

Appellate court lacked jurisdiction to hear an appeal by an underinsured motorist insurer because the trial court’s order on cross-motions for summary judgment was an interlocutory order, as pending issues remained in the case, and the order did not contain a certification for appeal. Moreover, although the insurer was permitted, but was not required, to participate in the proceedings as an unnamed underinsured motorist carrier, the insurer failed to show a substantial right, which would have been lost absent immediate appellate review. Peterson v. Dillman, 245 N.C. App. 239, 782 S.E.2d 362, 2016 N.C. App. LEXIS 131 (2016).

Because an administratrix’s appeal was interlocutory the court of appeals dismissed the appeal; the trial court did not include a certification in the summary judgment order, and the administratrix failed to establish a substantial right that would be lost if her interlocutory appeal was dismissed. Parmley v. Barrow, 253 N.C. App. 741, 801 S.E.2d 386, 2017 N.C. App. LEXIS 432 (2017).

Certification Appropriate. —

Although defendants’ counterclaims and third-party claims remained pending, plaintiffs’ appeal was properly before the appeals court based on the trial court’s G.S. 1A-1 , N.C. R. Civ. P. 54(b) certification because the trial court entered final judgment as to plaintiff’s claims and found that there was no just reason for delaying the appeal. RD&J Props. v. Lauralea-Dilton Enters., LLC, 165 N.C. App. 737, 600 S.E.2d 492, 2004 N.C. App. LEXIS 1517 (2004).

Certification Not Appropriate. —

Where only the issue of damages remained, no final judgment had been made and no substantial right was affected, the appellate court found the trial court’s certification ineffective and saw no impediment to the trial court’s sorting out various claims and affirmative defenses intertwined with the damages issue. CBP Resources, Inc. v. Mountaire Farms of N.C. Inc., 134 N.C. App. 169, 517 S.E.2d 151, 1999 N.C. App. LEXIS 674 (1999).

Denial of summary judgment in case where the only appellate issues were whether plaintiff’s action was barred by a general release and whether plaintiff could compel defendant to participate as a named defendant was not a final judgment and therefore was not properly certified under this rule. Anderson v. Atlantic Cas. Ins. Co., 134 N.C. App. 724, 518 S.E.2d 786, 1999 N.C. App. LEXIS 896 (1999).

Trial court correctly refrained from certifying a prescriptive easement issue for immediate review, pursuant to G.S. 1A-1-54(b), given that a refusal to grant summary judgment was not, as a general proposition, a final judgment with respect to a particular claim or party. Newcomb v. County of Carteret, 207 N.C. App. 527, 701 S.E.2d 325, 2010 N.C. App. LEXIS 2011 (2010).

Wife could not appeal an order granting a husband’s motion to vacate a judgment of absolute divorce to allow the husband to assert an equitable distribution claim because, inter alia, G.S. 1A-1 , N.C. R. Civ. P. 54(b) did not apply to allow a trial court to certify the order as appealable, since the order did not determine a claim. Campbell v. Campbell, 237 N.C. App. 1, 764 S.E.2d 630, 2014 N.C. App. LEXIS 1103 (2014).

Order Denying Release of Escrow Funds Held Not Appealable. —

The effect of an order denying the release of the funds held in escrow under G.S. 58-36-25 was temporary and not permanent where the Commissioner’s order only determined that the funds are not to be released now, and did not purport to determine who is entitled to the money; for these reasons, an appeal of the order was interlocutory and was not immediately appealable under either this rule or G.S. 1-277 and 7A-27(d). State ex rel. Comm'r of Ins. v. North Carolina Rate Bureau, 102 N.C. App. 809, 403 S.E.2d 597, 1991 N.C. App. LEXIS 487 (1991).

Final Custody Order Under Uniform Deployed Parents Custody And Visitation Act. —

Order on appeal was a final order addressing all issues raised under the Uniform Deployed Parents Custody and Visitation Act, and those issues were independent of the underlying custody claims, so it was otherwise a final order, but for the other pending claims in the same action, and the appellate court had jurisdiction to review it. Roybal v. Raulli, 266 N.C. App. 318, 832 S.E.2d 202, 2019 N.C. App. LEXIS 625 (2019).

Application of Section (b) in Case Involving Only Two Parties. —

In a case involving only two parties it is important in applying section (b) of this rule to distinguish the true multiple claim case from the case in which only a single claim based on a single factual occurrence is asserted but in which various kinds of remedies may be sought. Tridyn Indus., Inc. v. American Mut. Ins. Co., 296 N.C. 486 , 251 S.E.2d 443, 1979 N.C. LEXIS 1188 (1979).

While a default judgment on a cross-claim may be reviewed immediately under G.S. 1-277 , it is not a “final judgment” until all claims made in the action are adjudicated, unless the court makes findings pursuant to section (b) of this rule that there is no just reason for delay and that the severed claim should be granted final judgment. American Imports, Inc. v. G.E. Employees W. Region Fed. Credit Union, 37 N.C. App. 121, 245 S.E.2d 798, 1978 N.C. App. LEXIS 2667 (1978).

Joinder and restraining orders are in the nature of interlocutory orders, and are generally nonappealable unless some substantial right will be affected if the appeal is not immediately perfected. Guy v. Guy, 27 N.C. App. 343, 219 S.E.2d 291, 1975 N.C. App. LEXIS 1847 (1975).

Grant of Summary Judgment Appealable Where Substantial Right Affected. —

There is a right of appeal under G.S. 1-277 from an order granting summary judgment, notwithstanding the failure to meet the requirements for appeal under section (b) of this rule, where a substantial right is affected. Jones v. Clark, 36 N.C. App. 327, 244 S.E.2d 183, 1978 N.C. App. LEXIS 2475 (1978).

Where summary judgment is allowed for fewer than all the defendants and the judgment does not contain a certification pursuant to section (b) of this rule that there is no just reason for delay, a plaintiff’s appeal will be premature unless the order allowing summary judgment affects a substantial right. Clevenger v. Pride Trimble Corp., 96 N.C. App. 631, 386 S.E.2d 594, 1989 N.C. App. LEXIS 1103 (1989).

Trial court did not err in entering summary judgment against defendant on the ground that not all defendants were in default because final judgment against defendant did not adjudicate any rights between plaintiffs and the answering defendants. Bodie Island Beach Club Ass'n v. Wray, 215 N.C. App. 283, 716 S.E.2d 67, 2011 N.C. App. LEXIS 1887 (2011).

Entry of summary judgment for a monetary sum against one of two defendants affected a “substantial right” of that defendant, and such judgment was therefore immediately appealable under G.S. 1-277 and 7A-27, notwithstanding the absence of an express determination by the trial judge that there was “no just reason for delay.” Equitable Leasing Corp. v. Myers, 46 N.C. App. 162, 265 S.E.2d 240, 1980 N.C. App. LEXIS 2811 , dismissed, Leasing Corp. v. Myers, 301 N.C. 92 , 1980 N.C. LEXIS 1271 (1980).

Entry of Summary Judgment on Two of Three Claims. —

Where plaintiff ’s complaint alleged three causes of action, namely, breach of contract, punitive damages based on continuing fraud involved in the breach of contract, and anticipatory breach of contract, and defendant’s summary judgment motion was allowed regarding plaintiff ’s claims for relief for punitive damages and for anticipatory breach of contract, but overruled as to breach of contract, plaintiff had a “substantial right” to have all three cases tried at the same time by the same judge and jury if the causes were not subject to summary judgment, and hence his appeal of the summary judgment should not have been dismissed. Oestreicher v. American Nat'l Stores, Inc., 290 N.C. 118 , 225 S.E.2d 797, 1976 N.C. LEXIS 1047 (1976).

Denial of Summary Judgment Only Appealable If Substantial Right Affected. —

Denial of summary judgment is interlocutory in nature and not appealable under G.S. 1-277 and 7A-27 unless a substantial right of one of the parties would be affected if the appeal were not heard prior to final judgment. Equitable Leasing Corp. v. Myers, 46 N.C. App. 162, 265 S.E.2d 240, 1980 N.C. App. LEXIS 2811 , dismissed, Leasing Corp. v. Myers, 301 N.C. 92 , 1980 N.C. LEXIS 1271 (1980).

Fact that the trial court makes the finding required under section (b) of this rule before a final judgment can be entered, i.e., that there is no just reason for delay of entry of a final judgment, does not make the denial of summary judgment immediately appealable, because it is not a final judgment. Lamb v. Wedgewood S. Corp., 308 N.C. 419 , 302 S.E.2d 868, 1983 N.C. LEXIS 1213 (1983).

The denial of a motion for summary judgment is not a final judgment, and is generally not immediately appealable, even if the trial court has attempted to certify it for appeal under subsection (b) of this rule. Henderson v. LeBauer, 101 N.C. App. 255, 399 S.E.2d 142, 1991 N.C. App. LEXIS 27 (1991).

Under circumstances in which a patient sued a doctor and other defendants, alleging improper access and exposure of her medical records, and only the complaint against the doctor was dismissed and claims remained against the other defendants, although the trial court made no certification, the claim against the doctor was factually similar to the claims against the other defendants, and the dismissal of the claim against doctor raised the possibility of inconsistent verdicts in later proceedings; the appellate court therefore reviewed the dismissal of the claim against the doctor under the substantial right exception to the general rule prohibiting interlocutory appeals. Acosta v. Byrum, 180 N.C. App. 562, 638 S.E.2d 246, 2006 N.C. App. LEXIS 2503 (2006).

Partial Summary Judgment was not appealable under section (b) of this rule, even if the court’s finding that third party defendant was entitled to appeal the judgment to the Court of Appeals constituted a finding that there was no just reason for delay, since the judgment was not final as to any of the parties. Cook v. Export Leaf Tobacco Co., 47 N.C. App. 187, 266 S.E.2d 754, 1980 N.C. App. LEXIS 3008 (1980).

In an action challenging a self-help repossession, the trial court properly certified its partial summary judgment finding in the creditor’s favor on the debtor’s claims of wrongful conversion and/or repossession and declining to find the relevant statute unconstitutional, as final, under G.S. 1A-1 , Rule 54(b). Giles v. First Va. Credit Servs., 149 N.C. App. 89, 560 S.E.2d 557, 2002 N.C. App. LEXIS 127 (2002).

In an action seeking to quiet title to property which the plaintiffs, the original owners, alleged was secured by two of the defendants by fraud or by mutual mistake and conveyed to the other defendant, the current owner, by general warranty deed, summary judgment in favor of the current owner precluded the plaintiffs from obtaining reformation of the deed and reconveyance of the property, thereby affecting a substantial right; and, therefore, the interlocutory order was appealable. Jenkins v. Maintenance, Inc., 76 N.C. App. 110, 332 S.E.2d 90, 1985 N.C. App. LEXIS 3729 (1985).

In action by discharged employee seeking to recover accumulated vacation leave, “substantial right” of the plaintiff was affected by the granting of summary judgment for the defendant, so that the order granting the motion for summary judgment was appealable, despite the defendant’s pending counterclaim for wrongful conversion of company funds, and despite the absence of a determination by the trial judge under section (b) of this rule that “there was no just reason for delay.” Narron v. Hardee's Food Sys., 75 N.C. App. 579, 331 S.E.2d 205, 1985 N.C. App. LEXIS 3718 (1985).

Dismissal of One Claim. —

Appellate court could properly consider employees’ appeal of the trial court’s dismissal of one of their claims, even though other claims remained unresolved, as there was a final determination as to that claim, and the trial court certified, under G.S. 1A-1 , Rule 54(b), that there was no just reason to delay the appeal. Alford v. Catalytica Pharms., Inc., 150 N.C. App. 489, 564 S.E.2d 267, 2002 N.C. App. LEXIS 587 (2002), rev'd, 356 N.C. 654 , 577 S.E.2d 293, 2003 N.C. LEXIS 31 (2003).

Judgment dismissing plaintiff’s punitive damage claim against defendant was immediately appealable, as plaintiff had a substantial right to have all of her claims for relief tried at the same time before the same judge and jury. Byrne v. Bordeaux, 85 N.C. App. 262, 354 S.E.2d 277, 1987 N.C. App. LEXIS 2564 (1987).

Dismissal of One Defendant. —

Dismissal of Count II of plaintiff’s amended complaint, resulting in dismissal of plaintiff’s claim against defendant professional corporation, affected her substantial right to have determined in a single proceeding the issues of whether she had been damaged by the actions of one, some or all of the defendants, especially since her claims against all of them arose upon the same series of transactions. Therefore, her appeal therefrom was not premature. Fox v. Wilson, 85 N.C. App. 292, 354 S.E.2d 737, 1987 N.C. App. LEXIS 2591 (1987).

Property owner was not entitled to appeal an order in a real estate action because the trial court’s grant of the property purchaser’s N.C. R. Civ. P. 12(b)(6) motion to dismiss was not a final judgment as to all parties to the litigation, and the trial court did not certify that there was no just reason for delay, pursuant to N.C. R. Civ. P. 54(b). Pentecostal Pilgrims & Strangers Corp. v. Connor, 202 N.C. App. 128, 688 S.E.2d 81, 2010 N.C. App. LEXIS 92 (2010).

Order Dismissing Complaint Against City. —

Plaintiff ’s appeal from trial court’s order dismissing complaint against defendant city was premature, where the granting of the city’s motion to dismiss disposed of the rights and liabilities of fewer than all the parties, and nowhere in the trial court’s order did it certify that there was no just reason for delay. Pasour v. Pierce, 46 N.C. App. 636, 265 S.E.2d 652, 1980 N.C. App. LEXIS 2876 (1980).

Decedent’s nieces and nephews did not forfeit their right to appeal a consent judgment by not taking an immediate appeal of an interlocutory order granting motions to dismiss filed by a personal representative and entities because the nieces and nephews gave timely notice of appeal after entry of the final consent judgment; order dismissing the entities did not resolve all claims or all rights and liabilities of all parties and was not a final order under G.S. 1A-1-54(b). Stanford v. Paris, 364 N.C. 306 , 698 S.E.2d 37, 2010 N.C. LEXIS 581 (2010).

Order denying defendant’s motion to dismiss plaintiff ’s claim for punitive damages is not immediately appealable. Williams v. East Coast Sales, Inc., 50 N.C. App. 565, 274 S.E.2d 276, 1981 N.C. App. LEXIS 2134 (1981).

Damages Awarded Were Not Different in Kind. —

Allegations of an airline group’s amended third-party complaint against an aviation services company, admitted as a result of the company’s default, established fraud in the inducement by the company as to the original aircraft lease and additional fraud with respect to the most favored nation pricing term. Therefore, the damages awarded by the trial court were not different in kind from those alleged in the amended third-party complaint. Tradewinds Airlines, Inc. v. C-S Aviation Servs., 222 N.C. App. 834, 733 S.E.2d 162, 2012 N.C. App. LEXIS 1104 (2012).

Judgment of absolute divorce upon a counterclaim to an action for alimony without divorce, rendered prior to final determination of all the issues, was interlocutory and subject to the provisions of section (b) of this rule for purposes of determining its finality. Hamilton v. Hamilton, 36 N.C. App. 755, 245 S.E.2d 399, 1978 N.C. App. LEXIS 2621 (1978), aff'd, 296 N.C. 574 , 251 S.E.2d 441, 1979 N.C. LEXIS 1201 (1979).

Orders for child support which are entered in conjunction with orders awarding alimony pendente lite are not appealable until entry of a final order on the plaintiff’s claim for permanent alimony. To hold otherwise would allow appeal from an order which adjudicates fewer than all claims in violation of this rule. Fliehr v. Fliehr, 56 N.C. App. 465, 289 S.E.2d 105, 1982 N.C. App. LEXIS 2419 (1982).

Staying Enforcement of Judgment. —

G.S. 1A-1 , Rule 62(g) allows the trial court, after it has ordered a final judgment as to one or more but fewer than all parties under the conditions stated in section (b) of this rule, to stay enforcement of the judgment until the entering of a subsequent judgment or judgments and to prescribe such conditions as are necessary to prevent any harm that might result to a party if the trial court should decide not to certify judgment for immediate appeal. Equitable Leasing Corp. v. Myers, 46 N.C. App. 162, 265 S.E.2d 240, 1980 N.C. App. LEXIS 2811 , dismissed, Leasing Corp. v. Myers, 301 N.C. 92 , 1980 N.C. LEXIS 1271 (1980).

Denial of Substantial Right Not Shown. —

Trial court’s denial of local boards’ motion for attorneys’ fees was not reviewable as an interlocutory order because trial court’s G.S. 1A-1 , N.C. R. Civ. P. 54(b) certification stating that, inter alia, that the interlocutory denial of the motion for attorneys’ fees was an ancillary matter and did not affect the on-going proceedings in the case appeared to have been the exact opposite of what was necessary to establish a substantial right; further, the denial of attorneys’ fees for the benefit of a party who was ill-equipped to pay such fees did not affect a substantial right justifying immediate appeal. Nevertheless, the appellate court elected to invoke its N.C. R. App. P. 2 power to hear this appeal notwithstanding the fact that the order was interlocutory. Hoke County Bd. of Educ. v. State, 198 N.C. App. 274, 679 S.E.2d 512, 2009 N.C. App. LEXIS 1178 (2009).

Trial court’s order setting aside a consent judgment was not immediately appealable because the order was interlocutory since it contemplated further proceedings at the trial level on the issue of just compensation, and the order did not affect a substantial right; the trial court did not certify the order setting aside the consent judgment for immediate appellate review. N.C. DOT v. Laxmi Hotels of Spring Lake, Inc., 259 N.C. App. 610, 817 S.E.2d 62, 2018 N.C. App. LEXIS 506 (2018).

Award of Costs Proper. —

Judgment awarding defendants costs after a partial summary judgment was entered for defendants on a negligent infliction of emotional distress claim was affirmed as under G.S. 1A-1 , N.C. R. Civ. P. 54(b), a summary judgment on less than all of the claims or parties that had not been certified as final did not terminate the action as to any of the parties; since plaintiffs failed to obtain a certificate of finality and the trial court had the authority to revise or reverse the interlocutory order, defendants remained parties subject to costs under G.S. 6-1 . Green v. Kearny, 225 N.C. App. 281, 739 S.E.2d 156, 2013 N.C. App. LEXIS 140 , aff'd, 367 N.C. 113 , 748 S.E.2d 143, 2013 N.C. LEXIS 992 (2013).

Award of Costs Did Not Violate Public Policy. —

Judgment awarding defendants costs after a partial summary judgment was entered for defendants on a negligent infliction of emotional distress claim was affirmed as the North Carolina legislature had adopted statutory language in G.S. 1A-1 , N.C. R. Civ. P. 54(b) providing that plaintiffs who had unsuccessfully defended a partial summary judgment motion disposing of less than all of the claims or parties remained parties in the action absent a certificate of finality, there was no basis for concluding that the judgment taxing costs on plaintiffs had any adverse public policy ramifications. Green v. Kearny, 225 N.C. App. 281, 739 S.E.2d 156, 2013 N.C. App. LEXIS 140 , aff'd, 367 N.C. 113 , 748 S.E.2d 143, 2013 N.C. LEXIS 992 (2013).

III.Decisions under Prior Law

Editor’s Note. —

The cases cited below were decided under former G.S. 1-208 .

What Is a Judgment. —

In its ordinary acceptation, a judgment is the conclusion of the law or facts admitted or in some way established. Sedbury v. Southern Express Co., 164 N.C. 363 , 79 S.E. 286, 1913 N.C. LEXIS 62 (1913).

Judgments are the solemn determinations of judges upon subjects submitted to them, and the proceedings are recorded for the purpose of perpetuating them. They are the foundation of legal repose. Williams v. Woodhouse, 14 N.C. 257 , 1831 N.C. LEXIS 107 (1831).

Judgments are considered as contracts to distinguish a cause of action thereon from one ex delicto. Moore v. Nowell, 94 N.C. 265 , 1886 N.C. LEXIS 49 (1886).

But Are Not Contracts for Purposes of Impairment of Contract Clause. —

While judgments are sometimes spoken of as contracts, they are not in reality contracts, and are never so considered in reference to the clause in the federal Constitution which forbids that contracts should be impaired by state legislation. Mottu v. Davis, 151 N.C. 237 , 65 S.E. 969, 1909 N.C. LEXIS 239 (1909).

Final Judgment Defined. —

A judgment is final which decides the case upon its merits without reservation for other and future directions of the court. Flemming v. Roberts, 84 N.C. 532 , 1881 N.C. LEXIS 120 (1881); Sanders v. May, 173 N.C. 47 , 91 S.E. 526, 1917 N.C. LEXIS 233 (1917); Russ v. Woodard, 232 N.C. 36 , 59 S.E.2d 351, 1950 N.C. LEXIS 405 (1950).

A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court. Veazey v. City of Durham, 231 N.C. 357 , 57 S.E.2d 377, 1950 N.C. LEXIS 460 (1950).

Interlocutory Order Defined. —

An interlocutory order is one made during the pendency of an action, which does not dispose of the case but leaves it for further action by the trial court in order to settle and determine the entire controversy. Veazey v. City of Durham, 231 N.C. 357 , 57 S.E.2d 377, 1950 N.C. LEXIS 460 (1950).

A judgment is interlocutory when subject to change by the court, during the pendency of the action, to meet the exigencies of the case. Skidmore v. Austin, 261 N.C. 713 , 136 S.E.2d 99, 1964 N.C. LEXIS 578 (1964).

An interlocutory order or decree is provisional or preliminary only. It does not determine the issues joined in the suit, but merely directs some further proceedings preparatory to the final decree. Johnson v. Robertson, 171 N.C. 194 , 88 S.E. 231, 1916 N.C. LEXIS 46 (1916); Russ v. Woodard, 232 N.C. 36 , 59 S.E.2d 351, 1950 N.C. LEXIS 405 (1950).

And Remains in Court’s Control. —

An interlocutory order remains in the control of and in the breast of the court, and upon good cause shown it may be amended, modified, changed, or rescinded, as the court may think proper. Maxwell v. Blair, 95 N.C. 317 , 1886 N.C. LEXIS 264 (1886).

An interlocutory order or judgment differs from a final judgment in that an interlocutory order or judgment is subject to change by the court during the pendency of the action to meet the exigencies of the case. Russ v. Woodard, 232 N.C. 36 , 59 S.E.2d 351, 1950 N.C. LEXIS 405 (1950).

Every judgment should and must have the sanction of the court, except in the case of consent judgments, and those must be entered with its knowledge and permission. Branch v. Walker, 92 N.C. 87 , 1885 N.C. LEXIS 158 (1885).

A judgment may grant to the defendant any affirmative relief to which he may be entitled. Hutchinson v. Smith, 68 N.C. 354 , 1873 N.C. LEXIS 94 (1873).

Judgments to Determine All the Rights of the Parties. —

Since the gist of a judgment is the final determination of the rights of the parties to an action, courts are required to recognize both the legal and equitable rights of the parties, and to frame their judgments so as to determine all the rights of the parties, equitable as well as legal. Lee v. Pearce, 68 N.C. 76 , 1873 N.C. LEXIS 18 (1873); Hutchinson v. Smith, 68 N.C. 354 , 1873 N.C. LEXIS 94 (1873); McCown v. Sims, 69 N.C. 159 , 1873 N.C. LEXIS 206 (1873).

It is not proper to enter a partial judgment on the pleadings for part of a litigant’s claim, leaving controverted issues of fact relating to other parts of such claim open for subsequent trial. Erickson v. Starling, 235 N.C. 643 , 71 S.E.2d 384, 1952 N.C. LEXIS 477 (1952).

Rule 55. Default.

  1. Entry. —  When a party against whom a judgment for affirmative relief is sought has failed to plead or is otherwise subject to default judgment as provided by these rules or by statute and that fact is made to appear by affidavit, motion of attorney for the plaintiff, or otherwise, the clerk shall enter his default.
  2. Judgment. —  Judgment by default may be entered as follows:
    1. By the Clerk. —  When the plaintiff’s claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the plaintiff and upon affidavit of the amount due shall enter judgment for that amount and costs against the defendant, if the defendant has been defaulted for failure to appear and if the defendant is not an infant or incompetent person. A verified pleading may be used in lieu of an affidavit when the pleading contains information sufficient to determine or compute the sum certain.In all cases wherein, pursuant to this rule, the clerk enters judgment by default upon a claim for debt which is secured by any pledge, mortgage, deed of trust or other contractual security in respect of which foreclosure may be had, or upon a claim to enforce a lien for unpaid taxes or assessments under G.S. 105-414, the clerk may likewise make all further orders required to consummate foreclosure in accordance with the procedure provided in Article 29A of Chapter 1 of the General Statutes, entitled “Judicial Sales.”
    2. By the Judge. —
      1. In all other cases the party entitled to a judgment by default shall apply to the judge therefor; but no judgment by default shall be entered against an infant or incompetent person unless represented in the action by a guardian ad litem or other such representative who has appeared therein. If the party against whom judgment by default is sought has appeared in the action, that party (or, if appearing by representative, the representative) shall be served with written notice of the application for judgment at least three days prior to the hearing on such application. If, in order to enable the judge to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to take an investigation of any other matter, the judge may conduct such hearings or order such references as the judge deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by the Constitution or by any statute of North Carolina. If the plaintiff seeks to establish paternity under Article 3 of Chapter 49 of the General Statutes and the defendant fails to appear, the judge shall enter judgment by default.
      2. A motion for judgment by default may be decided by the court without a hearing if:
        1. The motion specifically provides that the court will decide the motion for judgment by default without a hearing if the party against whom judgment is sought fails to serve a written response, stating the grounds for opposing the motion, within 30 days of service of the motion; and
        2. The party against whom judgment is sought fails to serve the response in accordance with this sub-subdivision.
  3. Service by publication. —  When service of the summons has been made by published notice, no judgment shall be entered on default until the plaintiff shall have filed a bond, approved by the court, conditioned to abide such order as the court may make touching the restitution of any property collected or obtained by virtue of the judgment in case a defense is thereafter permitted and sustained; provided, that in actions involving the title to real estate or to foreclose mortgages thereon or in actions in which the State of North Carolina or a county or municipality thereof is the plaintiff such bond shall not be required.
  4. Setting aside default. —  For good cause shown the court may set aside an entry of default, and, if a judgment by default has been entered, the judge may set it aside in accordance with Rule 60(b).
  5. Plaintiffs, counterclaimants, cross claimants. —  The provisions of this rule apply whether the party entitled to the judgment by default is a plaintiff, a third-party plaintiff, or a party who has pleaded a crossclaim or counterclaim. In all cases a judgment by default is subject to the limitations of Rule 54(c).
  6. Judgment against the State of North Carolina. —  No judgment by default shall be entered against the State of North Carolina or an officer in his official capacity or agency thereof unless the claimant establishes his claim or right to relief by evidence.

History. 1967, c. 954, s. 1; 1971, cc. 542, 1101; 1977, c. 675; 1991, c. 278, s. 1; 1993 (Reg. Sess., 1994), c. 733, s. 3; 1999-187, s. 1.

Comment

The State statutes presented a hodgepodge. Although former § 1-211 purported by its literal terms to give an exclusive listing of all the cases in which judgment by default final might be given, there were various other authorizations for such judgments scattered throughout the procedural and substantive sections. Section 1-212 then purportedly rounded out the scheme by providing that in all other cases “except those mentioned in § 1-211,” judgment by default and inquiry might be given. This was obviously in literal conflict with all sections other than former § 1-211 which specifically authorized judgment by default final.

Although failure to file appropriate responsive pleading to a claim for affirmative relief is the usual basis for default judgment, other grounds appear: e.g. failure to file required bonds (former § 1-211(4) and § 1-525), failure to comply with pretrial discovery orders (former §§ 1-568.19, 8-89), and filing of “frivolous” pleadings (former § 1-219).

By § 1-209, clerks of superior court were authorized to enter all judgments by default authorized generally by § 1-209, and former §§ 1-211 and 1-213. This jurisdiction given clerks is concurrent with that of the superior court judge. Moody v. Howell, 229 N.C. 198 , 49 S.E.2d 233 (1948). But some of the other scattered statutes authorizing judgments by default apparently contemplate that in the specific situations dealt with only the judge may enter judgment (e.g. § 1-525). Where the concurrent jurisdiction existed however, the appellate jurisdiction of the superior court judge as to the clerk’s entry of judgment was retained (former § 1-220).

Although not made plain in the statutes, it has been held that though there is a “right” to a judgment upon default, the court may always in the exercise of its discretion allow time to answer when motion for judgment by default is made. Kruger v. Bank of Commerce, 123 N.C. 16 , 31 S.E. 270 (1898). And of course, such judgments, as others, may be set aside after entry either by the clerk who entered them (former § 1-220), or by any appropriate judge for the usual reasons, i.e., excusable neglect, mistake, surprise, etc.

The main infirmities in the prior North Carolina practice as codified were thought to be (1) a general lack of symmetry and orderliness in the style and pattern of the various statutes, and (2) as a matter of substance, too much power and too much readiness in clerks to enter judgments which may thereafter be hard to set aside.

Accordingly, it was felt that federal Rule 55, with some few modifications to accommodate certain actions found in state practice and not in federal should be adopted, partially supplanting certain of the statutes which dealt with default judgments.

The federal rule approach actually contemplates a two-stage approach to judgment by default: The entry of default by the clerk; and thereafter the entry of judgment by default. Federal Rule 55(b)(1) provides that the clerk may only enter judgments by default in a very limited context, when (a) the claim is for a sum certain or for a computable sum, and (b) the default is for want of appearance, and (c) the defaulting party is neither an infant nor incompetent. This approach of limiting the clerk’s power to the purely ministerial functions of (a) making entry of default in all cases, and (b) entering judgment itself in only this very limited context is felt to be wise.

The basic federal scheme continues by providing in 55(b)(2) that in all other cases than the very limited area spelled out in 55(b)(1), judgment itself may only be entered by the judge. Thus, in all cases where (a) the claim is not for a sum certain or computable, or (b) the defaulting party has appeared, or (c) the defaulting party is an infant or incompetent, only the judge may actually enter judgment. And except where the defaulting party has made no appearance, he must be given notice, and the entry of the judgment is in all instances in the discretion of the judge. It is believed that deliberately pointing up the discretionary nature of this power to enter judgment by default at this stage is wise, and will result in an overall saving of time by prompting full inquiry into the matter at the pre-entry stage rather than, as under prior practice, having discretion in the matter exercised usually after judgment has already been entered.

Note next that the delineation between judges’ and clerks’ power is not the delineation between judgments by “default final” and those by “default and inquiry.” This distinction indeed is not retained in literal terms in the federal rule pattern. Obviously those very limited judgments within the power of the clerk to enter are judgments by default final. But the judge may enter either type under 55(b)(2). Instead of using this terminology, however, the rule as presented approaches the matter pragmatically by providing that when in order to enter final judgment something further must be done after entry of default, e.g. when an account must be taken or a jury trial had on an issue of damages or any other, the judge orders that done which is necessary. Thus, there is no intermediate judgment by “default and inquiry,” but an entry of default in all cases and a final judgment by default entered only after everything required to its entry has been done. The same conceptions were involved in former § 1-212.

Section (c). — The Commission here attempted to take abundant precaution to protect the nonappearing defendant.

Section (d). — This section provides for setting aside default entries and judgments by default and ties the basis therefor into Rule 60(b) providing generally for setting aside judgments. Former § 1-220 and existing case law expressed this conception so that this involves no real change.

Section (e). — This section makes it plain that the general provisions of the rule apply as well to defendants and third-party plaintiffs as to plaintiffs seeking affirmative relief. This conception was expressed less artfully in former § 1-213 as to defendants and North Carolina actually had no express provision for default judgments in favor of third-party plaintiffs, or crossclaims. This is necessary now particularly in view of the third-party practice liberalization provided in other rules.

Section (f). — This section seems to be self-explanatory.

Editor’s Note.

G.S. 105-414, referred to in subdivision (b)(1) of this rule, was repealed by Session Laws 1971, c. 806, s. 3.

G.S. 1-212, referred to in the Comment above, has been repealed. For general information regarding the official comments to the North Carolina Rules of Civil Procedure, see the Editor’s Note under the heading for this Chapter.

Legal Periodicals.

For article on defending the low-income tenant in North Carolina, see 2 N.C. Cent. L.J. 21 (1970).

For article on modern statutory approaches to service of process outside the State, see 49 N.C.L. Rev. 235 (1971).

For survey of 1977 law on civil procedure, see 56 N.C.L. Rev. 874 (1978).

For survey of 1980 law on civil procedure, see 59 N.C.L. Rev. 1043 (1981).

For note on default not constituting an admission of facts for purposes of summary judgment, see 17 Wake Forest L. Rev. 49 (1981).

For survey of 1981 law on civil procedure, see 60 N.C.L. Rev. 1214 (1982).

For article on default judgments and motions to set aside, see 18 Wake Forest L. Rev. 683 (1982).

CASE NOTES

Analysis

I.In General

This rule appears to be a counterpart of FRCP, Rule 55. Rawleigh, Moses & Co. v. Capital City Furn., Inc., 9 N.C. App. 640, 177 S.E.2d 332, 1970 N.C. App. LEXIS 1426 (1970); Harris v. Carter, 33 N.C. App. 179, 234 S.E.2d 472, 1977 N.C. App. LEXIS 2122 (1977).

This rule has no application where plaintiff does not proceed under it after defendant fails to file his answer within the required time, but allows the case to be regularly scheduled for trial. Whitaker v. Whitaker, 16 N.C. App. 432, 192 S.E.2d 80, 1972 N.C. App. LEXIS 1730 (1972).

Plaintiffs Not Entitled to Default Judgment in Declaratory Judgment Action. —

In an action for a declaratory judgment, failure of defendants to file an answer to the complaint or to answer interrogatories did not entitle plaintiffs to a judgment against such defendants based on plaintiffs’ conclusions and contentions as to the construction of the instrument in question, since the rights of the parties had to be determined by a proper construction of the instrument. Baxter v. Jones, 14 N.C. App. 296, 188 S.E.2d 622, 1972 N.C. App. LEXIS 2123 , cert. denied, 281 N.C. 621 , 190 S.E.2d 465, 1972 N.C. LEXIS 1119 (1972).

This rule has no applicability to the entering of final judgments in condemnation proceedings. Board of Transp. v. Williams, 31 N.C. App. 125, 229 S.E.2d 37, 1976 N.C. App. LEXIS 1920 (1976).

Entry of default is to be distinguished from a judgment by default. Whaley v. Rhodes, 10 N.C. App. 109, 177 S.E.2d 735, 1970 N.C. App. LEXIS 1198 (1970); Hubbard v. Lumley, 17 N.C. App. 649, 195 S.E.2d 330, 1973 N.C. App. LEXIS 1433 (1973); Miller v. Miller, 24 N.C. App. 319, 210 S.E.2d 438, 1974 N.C. App. LEXIS 1993 (1974).

Effect of Appearance of Defendant on Right to Notice. —

Defendant’s appearance in an action is of no significance in determining whether he is entitled to notice of plaintiff’s motion for any entry of default under section (a) of this rule. It is only in reference to entry of a default judgment, under section (b) of this rule, that a party’s appearance entitles him to notice. G & M Sales of E.N.C., Inc. v. Brown, 64 N.C. App. 592, 307 S.E.2d 593, 1983 N.C. App. LEXIS 3330 (1983).

Service of the answer is both a “pleading” and an “appearance” for the purpose of this rule. Quaker Furn. House, Inc. v. Ball, 31 N.C. App. 140, 228 S.E.2d 475, 1976 N.C. App. LEXIS 1925 (1976).

A party may appear without pleading. Taylor v. Triangle Porsche-Audi, Inc., 27 N.C. App. 711, 220 S.E.2d 806, 1975 N.C. App. LEXIS 1952 (1975), cert. denied, 289 N.C. 619 , 223 S.E.2d 396, 1976 N.C. LEXIS 1369 (1976).

Negotiations Between Parties as Appearance. —

Negotiations between parties after institution of an action may constitute an appearance. Taylor v. Triangle Porsche-Audi, Inc., 27 N.C. App. 711, 220 S.E.2d 806, 1975 N.C. App. LEXIS 1952 (1975), cert. denied, 289 N.C. 619 , 223 S.E.2d 396, 1976 N.C. LEXIS 1369 (1976); Webb v. James, 46 N.C. App. 551, 265 S.E.2d 642, 1980 N.C. App. LEXIS 2858 (1980).

Letter as Appearance. —

A letter sent by defendant to plaintiff ’s attorney and to the clerk of court, acknowledging plaintiff ’s complaint and setting out reasons for denial of plaintiff ’s claim, constituted an “appearance” for the purposes of this rule. Peebles v. Moore, 48 N.C. App. 497, 269 S.E.2d 694, 1980 N.C. App. LEXIS 3259 (1980), modified, aff'd, 302 N.C. 351 , 275 S.E.2d 833, 1981 N.C. LEXIS 1048 (1981).

A motion to intervene after the entry of default against the defendant, his liability to the plaintiff being conclusively established, the extent of liability never being in issue, was untimely. State Employee's Credit Union, Inc. v. Gentry, 75 N.C. App. 260, 330 S.E.2d 645, 1985 N.C. App. LEXIS 3638 (1985).

Where a complaint alleges a joint claim against more than one defendant, default judgment pursuant to this rule should not be entered against a defaulting defendant until all defendants have defaulted; if one or more defendants do not default, generally entry of default judgment should await an adjudication as to the liability of the non-defaulting defendants. Leonard v. Pugh, 86 N.C. App. 207, 356 S.E.2d 812, 1987 N.C. App. LEXIS 2685 (1987).

Hearing on Punitive Damages Following Default. —

Due process concerns demand that a party who is defaulted for failure to answer interrogatories be afforded an opportunity to be heard on the question of punitive damages. Hunter v. Spaulding, 97 N.C. App. 372, 388 S.E.2d 630, 1990 N.C. App. LEXIS 139 (1990).

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 this rule. Eden's Gate, Ltd. v. Leeper, 121 N.C. App. 171, 464 S.E.2d 696, 1995 N.C. App. LEXIS 1047 (1995).

Attack of Default Judgment on Appeal. —

When, in a wrongful death case, a court dismissed a challenge to subject-matter jurisdiction brought months after entry of a default judgment against an employer, dismissing the challenge asserting workers’ compensation exclusivity deprived the court of jurisdiction, on equitable estoppel and laches grounds, the court erred because: (1) the court’s subject-matter jurisdiction could be contested at any time; (2) subject-matter jurisdiction was independent of the parties’ conduct, making equitable estoppel and laches inapplicable; (3) the court made no required findings and conclusions regarding jurisdiction after the employer legitimately challenged the court’s jurisdiction; and (4) the two-year workers’ compensation claim filing requirement did not necessarily bar any untimely claim as the employer’s fault caused the delay. Burgess v. Smith, 260 N.C. App. 504, 818 S.E.2d 164, 2018 N.C. App. LEXIS 753 (2018).

II.Entry of Default

The “entry of default” has been characterized as a ministerial duty. Whaley v. Rhodes, 10 N.C. App. 109, 177 S.E.2d 735, 1970 N.C. App. LEXIS 1198 (1970); Miller v. Miller, 24 N.C. App. 319, 210 S.E.2d 438, 1974 N.C. App. LEXIS 1993 (1974).

Interlocutory Entry of Default. —

Where the trial court in its findings of fact referred to petitioner’s “Motion for Entry of Default” and concluded that “the Clerk shall sign and file the Entry of Default, if not already signed and filed,” and where the trial court then set for hearing a determination as to the money and property taken, damages caused, and “all other things” taken, the order entered by the trial court was not a final order or final judgment but was an interlocutory entry of default and not subject to appellate review. Duncan v. Duncan, 102 N.C. App. 107, 401 S.E.2d 398, 1991 N.C. App. LEXIS 203 (1991).

Entry of default is only an interlocutory act looking toward subsequent entry of final judgment by default and is more in the nature of a formal matter. Whaley v. Rhodes, 10 N.C. App. 109, 177 S.E.2d 735, 1970 N.C. App. LEXIS 1198 (1970); Crotts v. Camel Pawn Shop, Inc., 16 N.C. App. 392, 192 S.E.2d 55, 1972 N.C. App. LEXIS 1714 , cert. denied, 282 N.C. 425 , 192 S.E.2d 835, 1972 N.C. LEXIS 974 (1972); Hubbard v. Lumley, 17 N.C. App. 649, 195 S.E.2d 330, 1973 N.C. App. LEXIS 1433 (1973); First-Citizens Bank & Trust Co. v. R & G Constr. Co., 24 N.C. App. 131, 210 S.E.2d 97, 1974 N.C. App. LEXIS 1951 (1974); Battle v. Clanton, 27 N.C. App. 616, 220 S.E.2d 97, 1975 N.C. App. LEXIS 1925 (1975), cert. denied, 289 N.C. 613 , 223 S.E.2d 391, 1976 N.C. LEXIS 1338 (1976).

Generally, there is first an interlocutory entry of default, and then a final judgment by default only after the requisites to its entry, including a jury trial on damages, have occurred. An entry of default is not a final order or a final judgment. Stone v. Martin, 69 N.C. App. 650, 318 S.E.2d 108, 1984 N.C. App. LEXIS 3531 (1984).

The entry of default is interlocutory in nature and is not a final judicial action. State Employee's Credit Union, Inc. v. Gentry, 75 N.C. App. 260, 330 S.E.2d 645, 1985 N.C. App. LEXIS 3638 (1985).

While obtaining a default judgment was normally a two-step process with entry of default before the clerk preceding the judgment, G.S. 1A-1 , N.C. R. Civ. P. 55 did not prohibit both motions from being made in the same pleading. While it was the better practice to follow the normal procedure, under the facts of the case, there was no prejudice to the utility, which was sued by an accident victim, as the trial court considered setting aside the default judgment under the more lenient standard of G.S. 1A-1 , N.C. R. Civ. P. 55(d), rather than G.S. 1A-1, N.C. R. Civ. P. 60(b), but found that relief was not warranted. Ruiz v. Mecklenburg Utils., Inc., 189 N.C. App. 123, 657 S.E.2d 432, 2008 N.C. App. LEXIS 418 (2008).

Defaults may not be entered after an answer has been filed, etc. even if the answer is late, as defaults should not be entered, even though technical default is clear, if justice may be served otherwise. Peebles v. Moore, 302 N.C. 351 , 275 S.E.2d 833, 1981 N.C. LEXIS 1048 (1981).

By waiting till an answer had been tardily filed before seeking to obtain entry of default, the plaintiff waived its rights to entry of default. Joe Newton, Inc. v. Tull, 75 N.C. App. 325, 330 S.E.2d 664, 1985 N.C. App. LEXIS 3629 (1985).

According to the language of this section, defaults may not be entered after answer has been filed, even though the answer is late; however, a better reasoned and more equitable result may be reached by adhering to the principle that a default should not be entered, even though technical default is clear, if justice may be served otherwise. Fieldcrest Cannon Employees Credit Union v. Mabes, 116 N.C. App. 351, 447 S.E.2d 510, 1994 N.C. App. LEXIS 896 (1994).

Response to an amended complaint following a motion for a more definite statement was due within 20 days, however, because the answer was filed, albeit late, before default was entered and because there was no prejudice, it was not improper to deny a motion to strike the response. Broughton v. McClatchy Newspapers, Inc., 161 N.C. App. 20, 588 S.E.2d 20, 2003 N.C. App. LEXIS 1983 (2003).

Trial court erred in granting a default judgment because the cottage owner had filed an answer prior to entry of default judgment, and after an answer had been filed — even if the answer was untimely filed — a default could not be entered. Monteith v. Kovas, 162 N.C. App. 545, 594 S.E.2d 787, 2004 N.C. App. LEXIS 173 (2004).

Written Motion Not Mandatory. —

Section (a) of this rule provides for the use of affidavit or motion or some other method. The use of the disjunctive rather than the conjunctive suggests that the use of a written motion is not mandatory. While it may be better practice to file a written motion, the use of a written motion is not mandatory. Sawyer v. Cox, 36 N.C. App. 300, 244 S.E.2d 173, 1978 N.C. App. LEXIS 2470 , cert. denied, 295 N.C. 467 , 246 S.E.2d 216, 1978 N.C. LEXIS 910 (1978).

Section (a) of this rule plainly does not require proof solely by affidavit; the clerk may act upon any proof he or she deems appropriate, including the record alone. Silverman v. Tate, 61 N.C. App. 670, 301 S.E.2d 732, 1983 N.C. App. LEXIS 2739 (1983).

Default may not be entered if an answer has been filed, even if the answer is deficient in some respect. North Carolina Nat'l Bank v. Virginia Carolina Bldrs., 307 N.C. 563 , 299 S.E.2d 629, 1983 N.C. LEXIS 1107 (1983).

Where default is established, defendant has no further standing to contest the merits of plaintiff ’s right to recover. His only recourse is to show good cause for setting aside the default and, failing that, to contest the amount of the recovery. North Am. Acceptance Corp. v. Samuels, 11 N.C. App. 504, 181 S.E.2d 794, 1971 N.C. App. LEXIS 1566 (1971); Peebles v. Moore, 48 N.C. App. 497, 269 S.E.2d 694, 1980 N.C. App. LEXIS 3259 (1980), modified, aff'd, 302 N.C. 351 , 275 S.E.2d 833, 1981 N.C. LEXIS 1048 (1981); Hasty v. Carpenter, 51 N.C. App. 333, 276 S.E.2d 513, 1981 N.C. App. LEXIS 2233 (1981).

Challenge to Merits After Default. —

Where an entry of default had not been set aside and the complaint was sufficient to state a claim, the defendant in default was not allowed to defend its merits by asserting affirmative defenses in a motion for summary judgment. Hartwell v. Mahan, 153 N.C. App. 788, 571 S.E.2d 252, 2002 N.C. App. LEXIS 1258 (2002).

Employee’s motion in limine to exclude evidence from his former employer in a hearing on damages with respect to the employee’s claim for recovery of unpaid commissions was proper because a default judgment had been entered against the employer pursuant to G.S. 1A-1 , N.C. R. Civ. P. 55(d), such that the employer was not entitled to offer evidence to dispute its liability for the liquidated damages sought pursuant to the North Carolina Wage and Hour Act, G.S. 95-25.22(a) and (a1). Luke v. Omega Consulting Group, LC, 194 N.C. App. 745, 670 S.E.2d 604, 2009 N.C. App. LEXIS 32 (2009).

Challenge to Sufficiency of Complaint After Default. —

A default judgment admits only the allegations contained within the complaint, and a defendant may still show that the complaint is insufficient to warrant plaintiff ’s recovery. Hunter v. Spaulding, 97 N.C. App. 372, 388 S.E.2d 630, 1990 N.C. App. LEXIS 139 (1990).

Defendant’s exception to judgment, entered in open court, permitted him to challenge on appeal whether a default judgment could be based upon plaintiff ’s complaint. Hunter v. Spaulding, 97 N.C. App. 372, 388 S.E.2d 630, 1990 N.C. App. LEXIS 139 (1990).

Substantive Allegations Deemed Admitted When Default Entered. —

When default is entered due to defendant’s failure to answer, the substantive allegations raised by plaintiff ’s complaint are no longer in issue, and, for the purposes of entry of default and default judgment, are deemed admitted. Bell v. Martin, 299 N.C. 715 , 264 S.E.2d 101, 1980 N.C. LEXIS 991 (1980); Peebles v. Moore, 48 N.C. App. 497, 269 S.E.2d 694, 1980 N.C. App. LEXIS 3259 (1980), modified, aff'd, 302 N.C. 351 , 275 S.E.2d 833, 1981 N.C. LEXIS 1048 (1981); State Employee's Credit Union, Inc. v. Gentry, 75 N.C. App. 260, 330 S.E.2d 645, 1985 N.C. App. LEXIS 3638 (1985).

Where respondent in a partition proceeding failed to answer petition for partition because he was satisfied that the interests of the tenants in common were correctly alleged and that the relief prayed for was appropriate, petitioners were not entitled to an entry of default, as respondents were not “in default” under this rule. Macon v. Edinger, 49 N.C. App. 624, 272 S.E.2d 411, 1980 N.C. App. LEXIS 3438 (1980), rev'd, 303 N.C. 274 , 278 S.E.2d 256, 1981 N.C. LEXIS 1096 (1981).

Raising Affirmative Defense for First Time on Summary Judgment Ruling. —

Even if the plaintiff’s motion to strike tardily filed answer had been ruled upon and allowed before the trial court considered the defendant’s motion for summary judgment based upon an affirmative defense, the defendants would have been entitled to proceed with their motion. An affirmative defense may be raised for the first time by affidavit for the purpose of ruling on a motion for summary judgment. Joe Newton, Inc. v. Tull, 75 N.C. App. 325, 330 S.E.2d 664, 1985 N.C. App. LEXIS 3629 (1985).

Defendant is entitled to a hearing where he may move to vacate entry of default in favor of plaintiff. Bell v. Martin, 299 N.C. 715 , 264 S.E.2d 101, 1980 N.C. LEXIS 991 (1980).

Prior Hearing Not Required. —

The North Carolina Industrial Commission was not required by subsection (f) to conduct a full evidentiary hearing prior to entering default against the State. Parker v. State DOT, 122 N.C. App. 279, 468 S.E.2d 589, 1996 N.C. App. LEXIS 250 (1996).

Effect of 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 N.C. App. LEXIS 67 (1991).

Default Entered Properly. —

Denial of the defendants’ motion to set aside entry of default was not in error. RC Assocs. v. Regency Ventures, Inc., 111 N.C. App. 367, 432 S.E.2d 394, 1993 N.C. App. LEXIS 788 (1993).

III.Entry of Judgment by Default
A.By Clerk

Subsection (b)(1) Subject to G.S. 1-75.11 and G.S. 1-209(4). —

Default judgment by the clerk, provided for by subsection (b)(1) of this rule, is subject to the jurisdictional proofs required by G.S. 1-75.11 , and is still controlled by G.S. 1-209(4), which empowers the clerk to enter all judgments by default final and default and inquiry as are authorized by this rule. Taylor v. Triangle Porsche-Audi, Inc., 27 N.C. App. 711, 220 S.E.2d 806, 1975 N.C. App. LEXIS 1952 (1975), cert. denied, 289 N.C. 619 , 223 S.E.2d 396, 1976 N.C. LEXIS 1369 (1976).

Applicability of G.S. 1-75.11 to Judgment Against Nonappearing Defendant. —

In order for a valid judgment to be entered in an action against a nonappearing defendant, there must be compliance with the provisions of this rule as well as G.S. 1-75.11 . Hill v. Hill, 11 N.C. App. 1, 180 S.E.2d 424, 1971 N.C. App. LEXIS 1443 , cert. denied, 279 N.C. 348 , 182 S.E.2d 580, 1971 N.C. LEXIS 787 (1971).

Entry of default by the clerk is not a prerequisite to obtaining judgment against a nonappearing defendant. Plaintiff has the option to bypass entry of default and proceed to trial. Love v. Nationwide Mut. Ins. Co., 45 N.C. App. 444, 263 S.E.2d 337, 1980 N.C. App. LEXIS 2671 , cert. denied, 300 N.C. 198 , 269 S.E.2d 617, 1980 N.C. LEXIS 1522 (1980).

Liens established pursuant to Chapter 44A are not “contractual security” within the meaning of subsection (b)(1) of this rule, and a clerk or assistant clerk of court is without jurisdiction to make orders consummating foreclosure of liens established pursuant to Chapter 44A. Ridge Community Investors, Inc. v. Berry, 293 N.C. 688 , 239 S.E.2d 566, 1977 N.C. LEXIS 1016 (1977).

Mere demand for a specified dollar amount does not suffice to make claim one for “a sum certain,” as contemplated by section (b) of this rule. Hecht Realty, Inc. v. Hastings, 45 N.C. App. 307, 262 S.E.2d 858, 1980 N.C. App. LEXIS 2614 (1980).

Complaint Not for “Sum Certain.” —

Where plaintiff ’s complaint alleged a breach of contract by defendant, but nothing in the allegations of the complaint made it possible to compute the amount of damages to which plaintiff was entitled by reason of the breach, then the allegations of the complaint were not sufficient to state a claim “for a sum certain or a sum which can by computation be made certain” within the meaning of subsection (b)(1) of this rule. Hecht Realty, Inc. v. Hastings, 45 N.C. App. 307, 262 S.E.2d 858, 1980 N.C. App. LEXIS 2614 (1980).

Plaintiffs’ claim was not for a sum certain where their damages were mitigated by a sum dependent on plaintiffs’ estimate of the “fair rental value” of some unspecified amount of land, and where there was uncertainty as to how plaintiffs arrived at an expense figure for land clearing. Williams v. Moore, 95 N.C. App. 601, 383 S.E.2d 416, 1989 N.C. App. LEXIS 818 (1989).

Although a trial court did not abuse its discretion by finding that a failure to file an extension of time did not constitute a mistake since there was no explanation for a law firm’s actions, a motion to set aside a default judgment should have been granted under G.S. 1A-1 , N.C. R. Civ. P. 60(b) because a judgment was void since a clerk was unable to enter a default where there was no sum certain. Basnight Constr. Co. v. Peters & White Constr. Co., 169 N.C. App. 619, 610 S.E.2d 469, 2005 N.C. App. LEXIS 605 (2005).

Authority of Clerk Concurrent with That of Judge in Certain Instances. —

The authority of the clerk of court to enter judgments in certain instances is concurrent with and in addition to that of the judge of the superior court. Highfill v. Williamson, 19 N.C. App. 523, 199 S.E.2d 469, 1973 N.C. App. LEXIS 1696 (1973).

And Judge Is Not Deprived of Jurisdiction Thereby. —

The judge of the superior court is in no way deprived of jurisdiction simply because the clerk, in certain instances, has concurrent jurisdiction. Highfill v. Williamson, 19 N.C. App. 523, 199 S.E.2d 469, 1973 N.C. App. LEXIS 1696 (1973); Hasty v. Carpenter, 51 N.C. App. 333, 276 S.E.2d 513, 1981 N.C. App. LEXIS 2233 (1981).

When Clerk May Enter Judgment. —

There are two basic requirements that must be fulfilled before a clerk can enter a default judgment: (1) Plaintiff ’s claim must be for a sum certain or for a sum that can by computation be made certain, and (2) defendant must have been defaulted for failure to appear and he must not have been an infant or incompetent person. Roland v. W & L Motor Lines, 32 N.C. App. 288, 231 S.E.2d 685, 1977 N.C. App. LEXIS 1915 (1977); General Foods Corp. v. Morris, 49 N.C. App. 541, 272 S.E.2d 17, 1980 N.C. App. LEXIS 3422 (1980).

Clerk may enter default judgment against a defendant only if he has never made an appearance. Roland v. W & L Motor Lines, 32 N.C. App. 288, 231 S.E.2d 685, 1977 N.C. App. LEXIS 1915 (1977).

This rule authorizes the clerk to enter only those judgments which would have been designated formerly as “default final.” Taylor v. Triangle Porsche-Audi, Inc., 27 N.C. App. 711, 220 S.E.2d 806, 1975 N.C. App. LEXIS 1952 (1975), cert. denied, 289 N.C. 619 , 223 S.E.2d 396, 1976 N.C. LEXIS 1369 (1976).

The clerk can enter a default judgment against a defendant only if the defendant has failed to appear in the matter. North Carolina Nat'l Bank v. McKee, 63 N.C. App. 58, 303 S.E.2d 842, 1983 N.C. App. LEXIS 3013 (1983).

The entry of default by the clerk requires only that the clerk ascertain that the party against whom a judgment for affirmative relief is sought has failed to plead. Beard v. Pembaur, 68 N.C. App. 52, 313 S.E.2d 853, 1984 N.C. App. LEXIS 3163 , cert. denied, 311 N.C. 750 , 321 S.E.2d 126, 1984 N.C. LEXIS 2035 (1984).

Court clerk appropriately entered default against the contracting corporation where the owner filed the response on the corporation’s behalf, the owner was not a licensed attorney, and thus, the answer was not a valid response for the corporation. Sheng Yu Ke v. Heng-Qian Zhou, 256 N.C. App. 485, 808 S.E.2d 458, 2017 N.C. App. LEXIS 973 (2017).

In a creditor’s action to renew a judgment, the creditor was entitled to judgment as a matter of law because the underlying default judgment was not void, as a clerk was authorized to enter the default judgment, since the creditor’s affidavit and verified complaint included specific allegations enabling the clerk to identify the amount owed under the default judgment with certainty. Unifund CCR Partners v. Loggins, 270 N.C. App. 805, 841 S.E.2d 835, 2020 N.C. App. LEXIS 253 (2020).

Affidavit Held Sufficient. —

Where plaintiffs’ affidavit referred to complaint and complaint contained lease as Exhibit A, plaintiffs’ affidavit met the requirements of this rule for entry of default judgment by the clerk, even though the affidavit was supplemented by allegations in plaintiffs’ unverified complaint; while the basis for plaintiffs’ motion would have been clearer if all material had been in either an affidavit or a verified complaint, it was not improper for plaintiffs to refer in their affidavit to material already set out in or attached to their complaint. Williams v. Moore, 95 N.C. App. 601, 383 S.E.2d 416, 1989 N.C. App. LEXIS 818 (1989).

Owner of a company was entitled to a default judgment against a co-owner regarding ownership and management of the company because the co-owner had not appeared in the action by either filing an answer or responsive pleading, the procedural requirements for default judgment had been met by way of an affidavit demonstrating that the co-owner was subject to personal jurisdiction in the court, and that the co-owner promised to perform services on real property in North Carolina for the benefit of the owner. Pres. Point Dev., LLC v. Land Partners of Am., LLC, 2022 NCBC LEXIS 12 (N.C. Super. Ct. Feb. 15, 2022).

Plaintiff is not required to show that defendant is not an infant and not under disability before he is entitled to obtain an entry of default and a judgment by default. General Foods Corp. v. Morris, 49 N.C. App. 541, 272 S.E.2d 17, 1980 N.C. App. LEXIS 3422 (1980).

Nor Is Clerk Required to Make Such Finding. —

This rule and G.S. 1-75.11 do not require the clerk to make an affirmative finding that defendant is not a minor nor under legal disability in order to enter a default or a default judgment. General Foods Corp. v. Morris, 49 N.C. App. 541, 272 S.E.2d 17, 1980 N.C. App. LEXIS 3422 (1980).

Basis for Finding Defendant Neither Infant Nor Incompetent. —

Where verified complaint stated: “Defendant is a citizen and resident of the County of Person, State of North Carolina, and is of a legal age and under no legal disability,” there was a basis upon which the court could find that defendant was neither an infant nor an incompetent person. Highfill v. Williamson, 19 N.C. App. 523, 199 S.E.2d 469, 1973 N.C. App. LEXIS 1696 (1973).

Entry of default and of default judgment by the clerk may be simultaneous and can be contained in the same document. Taylor v. Triangle Porsche-Audi, Inc., 27 N.C. App. 711, 220 S.E.2d 806, 1975 N.C. App. LEXIS 1952 (1975), cert. denied, 289 N.C. 619 , 223 S.E.2d 396, 1976 N.C. LEXIS 1369 (1976).

B.By Judge

This rule does not provide for judgments by “default and inquiry” per se. Taylor v. Triangle Porsche-Audi, Inc., 27 N.C. App. 711, 220 S.E.2d 806, 1975 N.C. App. LEXIS 1952 (1975), cert. denied, 289 N.C. 619 , 223 S.E.2d 396, 1976 N.C. LEXIS 1369 (1976).

Subsection (b)(2) of this rule does not require a written motion for entry of judgment by default. Sawyer v. Cox, 36 N.C. App. 300, 244 S.E.2d 173, 1978 N.C. App. LEXIS 2470 , cert. denied, 295 N.C. 467 , 246 S.E.2d 216, 1978 N.C. LEXIS 910 (1978).

When Judgment Must Be Entered by Judge. —

When a party, or his representative, has appeared in an action and later defaults, section (b) of this rule requires that the judge, rather than the clerk, enter the judgment by default after the required notice has been given. Roland v. W & L Motor Lines, 32 N.C. App. 288, 231 S.E.2d 685, 1977 N.C. App. LEXIS 1915 (1977); Williams v. Jennette, 77 N.C. App. 283, 335 S.E.2d 191, 1985 N.C. App. LEXIS 4066 (1985).

Where the claim is not for a sum certain or for a sum which can by computation be made certain, the party entitled to the default judgment must make his application to a judge. Grant v. Cox, 106 N.C. App. 122, 415 S.E.2d 378, 1992 N.C. App. LEXIS 365 (1992).

An appearance need not be a direct response to the complaint; there may be an appearance whenever a defendant takes, seeks or agrees to some step in the proceedings that is beneficial to himself or detrimental to the plaintiff. Williams v. Jennette, 77 N.C. App. 283, 335 S.E.2d 191, 1985 N.C. App. LEXIS 4066 (1985).

An appearance within the meaning of section (b) of this rule is not always comprised of a direct response to a complaint. Stanaland v. Stanaland, 89 N.C. App. 111, 365 S.E.2d 170, 1988 N.C. App. LEXIS 237 (1988).

In some cases, an appearance may arise by implication, as when a defendant takes, seeks or agrees to some step in the proceedings that is beneficial to himself or detrimental to the plaintiff. Stanaland v. Stanaland, 89 N.C. App. 111, 365 S.E.2d 170, 1988 N.C. App. LEXIS 237 (1988).

Negotiations as Appearances. —

Negotiations for settlements or continuances, whether by letter or by meeting, after the complaint is filed, constitute appearances within the meaning of subsection (b)(2) of this rule. Stanaland v. Stanaland, 89 N.C. App. 111, 365 S.E.2d 170, 1988 N.C. App. LEXIS 237 (1988).

Defendant’s meeting with plaintiff and her attorney was sufficient to constitute an appearance within the meaning of subsection (b)(2) of this rule. Stanaland v. Stanaland, 89 N.C. App. 111, 365 S.E.2d 170, 1988 N.C. App. LEXIS 237 (1988).

Notice Requirement Under Subsection (b)(2) Inapplicable Where No Appearance Made. —

Requirement of subsection (b)(2) of this rule that a defendant who has appeared in an action be served with written notice of application of a default judgment at least three days prior to the hearing on the application is inapplicable where defendant does not make an appearance prior to the entry of default by the clerk or default judgment. North Brook Farm Lines v. McBrayer, 35 N.C. App. 34, 241 S.E.2d 74, 1978 N.C. App. LEXIS 2858 (1978).

Effect of Failure to Give Notice under Subsection (b)(2). —

Failure to give notice under subsection (b)(2) of this rule constitutes a mere procedural irregularity, subjecting resulting judgment to direct but not collateral attack. Yale v. National Indem. Co., 602 F.2d 642, 1979 U.S. App. LEXIS 13262 (4th Cir. 1979).

“Request to Calendar Clerk” and calendar which were mailed to defendant were sufficient notice of an application for judgment to satisfy the requirements of subsection (b)(2) of this rule. Sawyer v. Cox, 36 N.C. App. 300, 244 S.E.2d 173, 1978 N.C. App. LEXIS 2470 , cert. denied, 295 N.C. 467 , 246 S.E.2d 216, 1978 N.C. LEXIS 910 (1978).

Motion to Set Aside and Inquiry Thereon as Waiver of Notice Requirement. —

Where defendants brought the matter in controversy before the trial court as a result of their motion to set aside clerk’s order entering default, and there was a full inquiry, defendants in effect waived the notice requirement of subsection (b)(2) of this rule and were not entitled to further notice prior to entry of default judgment. Webb v. James, 46 N.C. App. 551, 265 S.E.2d 642, 1980 N.C. App. LEXIS 2858 (1980).

Defendant Held Entitled to Notice. —

Where defendant filed an application for an extension of time in which to answer, a motion to vacate entry of default, and a motion to dismiss the complaint, and was present for a hearing in superior court on his motion to vacate, he appeared in the action within the meaning of subsection (b)(2) of this rule and should have been served with written notice of plaintiff ’s application for default judgment at least three days prior to the hearing on the application; failure to provide the statutory notice required that the default judgment be vacated. Miller v. Belk, 18 N.C. App. 70, 196 S.E.2d 44, 1973 N.C. App. LEXIS 1779 , cert. denied, 283 N.C. 665 , 197 S.E.2d 874, 1973 N.C. LEXIS 1035 (1973).

Where defendant had made an appearance in plaintiff’s action for purposes of section (b) of this rule by meeting with plaintiff and her attorney, plaintiff was required to provide three days’ notice of subsequent default hearing. Stanaland v. Stanaland, 89 N.C. App. 111, 365 S.E.2d 170, 1988 N.C. App. LEXIS 237 (1988).

Oral Warning Not Sufficient Notice. —

Oral warning given to defendant during meeting with plaintiff and her attorney that plaintiff would go forward with her case did not comprise the written notice required by subsection (b)(2) of this rule. Stanaland v. Stanaland, 89 N.C. App. 111, 365 S.E.2d 170, 1988 N.C. App. LEXIS 237 (1988).

Same Judge Need Not Enter Default Judgment and Default Final. —

Subsection (b)(2) of this rule does not require the same judge who enters default judgment to likewise conduct jury trial to determine damages and enter default final. Highfill v. Williamson, 19 N.C. App. 523, 199 S.E.2d 469, 1973 N.C. App. LEXIS 1696 (1973).

Default Judgment Did Not Prevent Answering Requests for Admissions. —

Entry of default under G.S. 1A-1-55(a) did not preclude a seller from responding to the buyers’ requests for admissions under G.S. 1A-1-36(b) because the seller was free to contest the sufficiency of the complaint to state a claim for recovery; by not responding to the requests, the seller admitted the matters requested, establishing a claim for breach of contract. Kniep v. Templeton, 185 N.C. App. 622, 649 S.E.2d 425, 2007 N.C. App. LEXIS 1943 (2007).

Entry of Default Judgment Proper. —

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 N.C. App. LEXIS 1314 (2016).

Buyers of mobile applications were entitled to entry of default judgment against the developer of the applications because the buyers presented sufficient proof that the buyers properly served the developer with the complaint and summons and that the court had personal jurisdiction. Furthermore, the buyers adequately stated claims for fraud and unfair and deceptive trade practices as the buyers alleged that the buyers did not receive promised mobile applications for which the buyers paid the developer. KBT Realty Servs. v. AppyCity, LLC, 2021 NCBC 47, 2021 NCBC LEXIS 68 (N.C. Super. Ct. Aug. 9, 2021).

Entry of Default Judgment Improper. —

In an owner’s action against joint tenants and their lender to quiet title to property, the trial court should not have entered a default judgment against the tenants quieting title until all claims to the property had been adjudicated because the trial court erred in making findings of fact in the default judgment that were contradictory and not supported by the evidentiary record and to make conclusions of law and order based on such findings of fact; the judgment entered erroneously declared the owner the rightful owner of a one-half, undivided interest in the property as a tenant-in-common, declared the second deed null and void, and declared a deed of trust null and void, but the evidence did not support the findings because the trial court’s finding as to the ownership as tenants-in-common was erroneous, and the trial court did not articulate its rationale with any specificity in declaring the second deed or the deed of trust null and void, and thus failed to provide sufficient details for effective appellate review. Jackson v. Culbreth, 199 N.C. App. 531, 681 S.E.2d 813, 2009 N.C. App. LEXIS 1492 (2009).

In an owner’s action against joint tenants and their lender to quiet title to property, the trial court should not have entered a default judgment against the tenants quieting title until all claims to the property had been adjudicated because the complaint was an action in rem against the tenants and the lender’s predecessor in interest, and the owner’s claims regarding funding based on forgery and misrepresentations were inextricably linked to her claims against the tenants regarding the forgery and their knowledge of it; because the trial court set aside a default judgment against the predecessor in interest and substituted the lender as a party defendant, the claims for rights to the title were effectively made against the lender, and the trial court’s conclusions of law that a second deed was null and void and that the deed of trust naming the predecessor in interest as lender was null and void extended the judgment in favor of the owner and against the tenants to the lender and ended any potential rights the lender could have had in the property. Jackson v. Culbreth, 199 N.C. App. 531, 681 S.E.2d 813, 2009 N.C. App. LEXIS 1492 (2009).

In an owner’s action against joint tenants and their lender to quiet title to property, the trial court abused its discretion by denying a lender’s motion to reconsider under G.S. 1A-1 , N.C. R. Civ. P. 52(b) its order entering a default judgment against joint tenants because the underlying default judgment was based on erroneous findings of fact and a misapplication of law; the trial court stated that it reconsidered the pleadings of record and the lender’s brief but made no additional findings of fact or conclusions of law on which to base its denial of the motion to reconsider, and the trial court should have amended its findings, made additional findings, and amended its judgment because equity and justice required the trial court to allow the lender to defend its claim on the merits. Jackson v. Culbreth, 199 N.C. App. 531, 681 S.E.2d 813, 2009 N.C. App. LEXIS 1492 (2009).

Damages Properly Determined. —

Trial court properly determined the damages a defaulted guarantor owed a landlord and did not allow the guarantor to present a defense where it considered the attachments to the amended complaint and found that the guarantor had guaranteed the rent for the initial term of the lease, but had not guaranteed the rent under an extension of the lease term. Webb v. McJas, Inc., 228 N.C. App. 129, 745 S.E.2d 21, 2013 N.C. App. LEXIS 666 (2013).

IV.Setting Aside Default

Entry of default may be set aside, not by motion pursuant to G.S. 1A-1 , Rule 60(b), but by motion pursuant to section (d) of this rule and a showing of good cause. Bailey v. Gooding, 60 N.C. App. 459, 299 S.E.2d 267, 1983 N.C. App. LEXIS 2486 (1983).

An adequate basis for the motion to set aside must be shown. North Am. Acceptance Corp. v. Samuels, 11 N.C. App. 504, 181 S.E.2d 794, 1971 N.C. App. LEXIS 1566 (1971).

Entry of Default Might Be Set Aside on Showing That Would Not Justify Setting Aside Default Judgment. —

A court might feel justified in setting aside an entry of default on a showing that would not move it to set aside a default judgment. Whaley v. Rhodes, 10 N.C. App. 109, 177 S.E.2d 735, 1970 N.C. App. LEXIS 1198 (1970); Crotts v. Camel Pawn Shop, Inc., 16 N.C. App. 392, 192 S.E.2d 55, 1972 N.C. App. LEXIS 1714 , cert. denied, 282 N.C. 425 , 192 S.E.2d 835, 1972 N.C. LEXIS 974 (1972); Hubbard v. Lumley, 17 N.C. App. 649, 195 S.E.2d 330, 1973 N.C. App. LEXIS 1433 (1973).

The rules evidently make a distinction between what is required to make a good case for setting aside a default and what is required to set aside a judgment. Whaley v. Rhodes, 10 N.C. App. 109, 177 S.E.2d 735, 1970 N.C. App. LEXIS 1198 (1970).

An entry of default is an interlocutory and ministerial act and, therefore, is more easily set aside than a default judgment. Peebles v. Moore, 48 N.C. App. 497, 269 S.E.2d 694, 1980 N.C. App. LEXIS 3259 (1980), modified, aff'd, 302 N.C. 351 , 275 S.E.2d 833, 1981 N.C. LEXIS 1048 (1981).

First Clause of Section (d) Governs Motion to Vacate Entry of Default. —

Where a default but no judgment has been entered, the motion to vacate the default is governed by the first clause of section (d) of this rule. Whaley v. Rhodes, 10 N.C. App. 109, 177 S.E.2d 735, 1970 N.C. App. LEXIS 1198 (1970).

And Reference to G.S. 1A-1 , Rule 60 Is Unnecessary. —

Where defendant’s motion to set aside and vacate entry of default is governed by section (d) of this rule, any reference to or discussion of G.S. 1A-1 , Rule 60, governing the setting aside of judgment by default, is unnecessary and surplusage. Hubbard v. Lumley, 17 N.C. App. 649, 195 S.E.2d 330, 1973 N.C. App. LEXIS 1433 (1973).

Standard of G.S. 1A-1 , Rule 60(b)(1) Inapplicable to Judgment Determining Issue of Liability But Not Damages. —

A judgment by a superior court judge which determined the issue of liability in a personal injury action and ordered a trial on the issue of damages was an entry of default, rather than a default judgment, since it was not a final judgment. Therefore, the trial court erred in applying the “mistake, inadvertence, surprise or excusable neglect” standard of G.S. 1A-1 , Rule 60(b)(1) rather than the “good cause shown” standard of section (d) of this rule in ruling on defendant’s motion to set aside its judgment. Pendley v. Ayers, 45 N.C. App. 692, 263 S.E.2d 833, 1980 N.C. App. LEXIS 2703 (1980).

There is no necessity to find excusable neglect in granting motion to set aside entry of default. Hence, plaintiff ’s assignment of error directed at trial judge’s conclusion that excusable neglect existed was to no avail; such finding was surplusage, and though erroneous, was not prejudicial. Whaley v. Rhodes, 10 N.C. App. 109, 177 S.E.2d 735, 1970 N.C. App. LEXIS 1198 (1970).

In setting aside an entry of default, as opposed to a default judgment, a showing of excusable neglect is not necessary. Frye v. Wiles, 33 N.C. App. 581, 235 S.E.2d 889, 1977 N.C. App. LEXIS 2255 (1977); Hecht Realty, Inc. v. Hastings, 45 N.C. App. 307, 262 S.E.2d 858, 1980 N.C. App. LEXIS 2614 (1980).

Attack of Default Judgment on Appeal. —

Failure to attack default judgment at the trial court level precludes such an attack on appeal. University of N.C. v. Shoemate, 113 N.C. App. 205, 437 S.E.2d 892, 1994 N.C. App. LEXIS 9 (1994).

Only Good Cause Required to Set Aside Entry of Default. While setting aside a default judgment under G.S. 1A-1 , Rule 60(b) generally involves a showing of excusable neglect and a meritorious defense, to set aside an entry of default all that need be shown is good cause. Peebles v. Moore, 48 N.C. App. 497, 269 S.E.2d 694, 1980 N.C. App. LEXIS 3259 (1980), modified, aff'd, 302 N.C. 351 , 275 S.E.2d 833, 1981 N.C. LEXIS 1048 (1981).

To set aside a default all that need be shown is good cause. Whaley v. Rhodes, 10 N.C. App. 109, 177 S.E.2d 735, 1970 N.C. App. LEXIS 1198 (1970); Frye v. Wiles, 33 N.C. App. 581, 235 S.E.2d 889, 1977 N.C. App. LEXIS 2255 (1977); Hecht Realty, Inc. v. Hastings, 45 N.C. App. 307, 262 S.E.2d 858, 1980 N.C. App. LEXIS 2614 (1980).

Where the facts of a case are sufficient to warrant a conclusion by the trial judge that defendant has shown good cause for his failure to file an answer, the judge’s action in vacating the entry of default must be upheld. Whaley v. Rhodes, 10 N.C. App. 109, 177 S.E.2d 735, 1970 N.C. App. LEXIS 1198 (1970); Crotts v. Camel Pawn Shop, Inc., 16 N.C. App. 392, 192 S.E.2d 55, 1972 N.C. App. LEXIS 1714 , cert. denied, 282 N.C. 425 , 192 S.E.2d 835, 1972 N.C. LEXIS 974 (1972).

For the entry of a default to be disturbed, section (d) of this rule requires that “good cause” be shown. That determination is in the trial judge’s discretion and will not be disturbed absent an abuse of discretion. Byrd v. Mortenson, 60 N.C. App. 85, 298 S.E.2d 170, 1982 N.C. App. LEXIS 3263 (1982), aff'd in part, modified, 308 N.C. 536 , 302 S.E.2d 809, 1983 N.C. LEXIS 1222 (1983).

A motion to set aside entry of default is governed by the first clause of section (d) of this rule that, for good cause shown, the court may set aside an entry of default. This standard is more lax than that required for setting aside a default judgment pursuant to G.S. 1A-1 , Rule 60(b), which requires the presence of mistake, inadvertence, or excusable neglect. Bailey v. Gooding, 60 N.C. App. 459, 299 S.E.2d 267, 1983 N.C. App. LEXIS 2486 (1983).

To set aside an entry of default, good cause must be shown. Silverman v. Tate, 61 N.C. App. 670, 301 S.E.2d 732, 1983 N.C. App. LEXIS 2739 (1983).

What constitutes “good cause” depends on the circumstances in a particular case, and within the limits of discretion, an inadvertence which is not strictly excusable may constitute good cause, particularly where plaintiff can suffer no harm from the short delay involved in the default and grave injustice may be done to defendant. Peebles v. Moore, 48 N.C. App. 497, 269 S.E.2d 694, 1980 N.C. App. LEXIS 3259 (1980), modified, aff'd, 302 N.C. 351 , 275 S.E.2d 833, 1981 N.C. LEXIS 1048 (1981).

Inadvertence, even if not strictly “excusable,” may constitute good cause, particularly in a case where plaintiff can suffer no harm from the short delay involved in the default and grave injustice may be done to defendant. Whaley v. Rhodes, 10 N.C. App. 109, 177 S.E.2d 735, 1970 N.C. App. LEXIS 1198 (1970).

Burden on Defendant to Show Good Cause. —

In moving for relief pursuant to section (d) of this rule, the burden is on defendant, as the defaulting party, not to refute the allegations of plaintiff ’s complaint, nor to show the existence of factual issues as in summary judgment, but to show good cause why he should be allowed to file answer to plaintiff ’s complaint. Bell v. Martin, 299 N.C. 715 , 264 S.E.2d 101, 1980 N.C. LEXIS 991 (1980); Peebles v. Moore, 48 N.C. App. 497, 269 S.E.2d 694, 1980 N.C. App. LEXIS 3259 (1980), modified, aff'd, 302 N.C. 351 , 275 S.E.2d 833, 1981 N.C. LEXIS 1048 (1981).

Defendant failed to show good cause for setting aside of entry of default where defendant’s affidavits showed that, although defendant’s legal department received suit papers on June 7, 1978, they were misplaced and not relocated until July 12, 1978, the day entry of default was made. Britt v. Georgia-Pacific Corp., 46 N.C. App. 107, 264 S.E.2d 395, 1980 N.C. App. LEXIS 2754 (1980).

Trial court did not abuse its discretion in refusing to set aside the entry of default where defendant’s only action was to deliver the suit papers to his insurance company; after delivery, he took no further action to inquire into the progress of the case. Cabe v. Worley, 140 N.C. App. 250, 536 S.E.2d 328, 2000 N.C. App. LEXIS 1111 (2000).

Trial court did not err in denying a credit union’s motion for relief from entry of default, as the credit union was properly served but failed to file a responsive pleading to the complaint and lacked good cause for failing to file a responsive pleading. Old Salem Foreign Car Serv., Inc. v. Webb, 159 N.C. App. 93, 582 S.E.2d 673, 2003 N.C. App. LEXIS 1426 (2003).

Where an individual claimed good cause for striking an entry of default judgment because he was not a lawyer and was unfamiliar with legal matters, the trial court properly found that such did not constitute good cause for setting aside the entry of default under G.S. 1A-1 , Rule 55(d). Granville Med. Ctr. v. Tipton, 160 N.C. App. 484, 586 S.E.2d 791, 2003 N.C. App. LEXIS 1826 (2003).

Trial court did not abuse its discretion under G.S. 1A-1-55(d) and G.S. 1A-1-60(b) in denying an insurance carrier’s motion to vacate a default judgment, as the carrier failed to show good cause to grant the requested relief where the carrier’s actions upon being served with the papers were not diligent, and it was not attentive to its responsibilities and duties; there was no showing that the judge’s decision was manifestly unsupported by reason in the circumstances. Lowery v. Campbell, 185 N.C. App. 659, 649 S.E.2d 453, 2007 N.C. App. LEXIS 1948 (2007), aff'd, 362 N.C. 231 , 657 S.E.2d 354, 2008 N.C. LEXIS 140 (2008).

Denial of defendant’s motion to set aside a default pursuant to G.S. 1A-1 , N.C. R. Civ. P. 55 was proper because correspondence sent by defendant to plaintiff, plaintiff’s counsel, and state agencies showed his intent to address the matter and belief he was doing so properly; defendant’s claims amounted to nothing more than alleging that he was unaware of the need to file an answer because of his unfamiliarity with the law. Such an excuse insufficient to warrant a finding of abuse of discretion. Lewis v. Hope, 224 N.C. App. 322, 736 S.E.2d 214, 2012 N.C. App. LEXIS 1460 (2012).

Trial court did not err in denying the corporation’s motion to set aside entry of default where the motion was filed about seven months after the default was entered. Sheng Yu Ke v. Heng-Qian Zhou, 256 N.C. App. 485, 808 S.E.2d 458, 2017 N.C. App. LEXIS 973 (2017).

Order Refusing to Set Aside Upheld on Appeal. —

The trial court’s decision not to set aside the entry of default was not unsupported by reason where the defendant filed her motion to set aside the entry of default almost six months after its entry; where she claimed to be “unaware that she was required to file an answer to the plaintiff’s complaint as she is not an attorney and has not been involved in civil litigation, other than the present domestic civil action;” and where she claimed to believe that she was entitled to rely on her former husband’s defense of this deficiency action, since it related to property jointly owned by them. First Citizens Bank & Trust Co. v. Cannon, 138 N.C. App. 153, 530 S.E.2d 581, 2000 N.C. App. LEXIS 549 (2000).

Regarding a breach of contract action filed against an individual and his business entities, where uncontradicted evidence established that 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, the individual’s motion to strike the subsequent entry of default was properly denied because the medical center showed proof of service, even though the postal receipt had been signed by a third party. Granville Med. Ctr. v. Tipton, 160 N.C. App. 484, 586 S.E.2d 791, 2003 N.C. App. LEXIS 1826 (2003).

Trial court did not abuse its discretion by denying the husband’s motion to set aside entry of default because he took no action regarding the case between the filing of the court’s decision on his appeal and the entry of default, he admitted to not fully complying with the terms of the parties’ separation agreement and property settlement, and he was able to contest the wife’s evidence at trial. Jones v. Jones, 263 N.C. App. 606, 824 S.E.2d 185, 2019 N.C. App. LEXIS 82 (2019), aff'd, 373 N.C. 381 , 837 S.E.2d 872, 2020 N.C. LEXIS 95 (2020).

Order Refusing to Set Aside Reversed on Appeal. —

Trial court abused its discretion in denying defendants’ motion to set aside entry of default and the trial court’s grant of default judgment in favor plaintiffs because the trial court identified no reason for its denial of defendants’ motion other than uncertainty as to whether the time for which defendants had to file an answer had run, but, any doubt should have been resolved in favor of setting aside the entry of default; had the trial court applied the good cause standard, it would have nonetheless abused its discretion by denying defendants’ motion; and, given the size of the judgment and the nature of the claims, defendants would suffer a grave injustice if they were denied the ability to defend against plaintiffs’ claims. Swan Beach Corolla, L.L.C. v. Cty. of Currituck, 255 N.C. App. 837, 805 S.E.2d 743, 2017 N.C. App. LEXIS 807 (2017), aff'd, 371 N.C. 110 , 813 S.E.2d 217, 2018 N.C. LEXIS 323 (2018).

Seller Not Deprived of Right to Have Default Judgment Set Aside. —

Seller’s claim that the entry of both a default judgment and a summary judgment simultaneously deprived the seller of the seller’s right to move to have the default judgment set aside for good cause was rejected, as the seller’s burden would have been the same regardless of which judgment the seller moved to set aside since: (1) the seller never made a G.S. 1A-1-55(d) motion to have the entry of default set aside; and (2) after entry of the default judgment and the summary judgment, the seller could only have sought relief from the trial court pursuant to G.S. 1A-1-60(b). Kniep v. Templeton, 185 N.C. App. 622, 649 S.E.2d 425, 2007 N.C. App. LEXIS 1943 (2007).

Excusable Mistake, Inadvertence, Surprise or Neglect Required to Set Aside Default Judgment. —

The rule as to what is required to set aside a judgment specifies “mistake, inadvertence, surprise, or excusable neglect.” This has been construed to mean that the mistake, inadvertence, or surprise, as well as neglect, must be excusable in order to give the court the power to set aside the judgment. Whaley v. Rhodes, 10 N.C. App. 109, 177 S.E.2d 735, 1970 N.C. App. LEXIS 1198 (1970).

Meritorious Defense and Good Reason for Default Must Be Shown. —

The court should not reopen a default judgment merely because the party in default requests it, but should require the party to show both that there was a good reason for the default and that he has a meritorious defense to the action. North Am. Acceptance Corp. v. Samuels, 11 N.C. App. 504, 181 S.E.2d 794, 1971 N.C. App. LEXIS 1566 (1971).

Excusable Neglect Not Shown. —

Affidavit filed by defendant stating that he was 63 years old and semi-retired; that he had two nephews who were seriously ill; that due to his nephews’ illnesses he had to operate both his own general store and his nephews’ trucking business; and that he was under great physical and mental strain at the time summons and complaint were served and for several weeks thereafter, failed to make out a case of excusable neglect under subsection (b)(1) of this rule. Rawleigh, Moses & Co. v. Capital City Furn., Inc., 9 N.C. App. 640, 177 S.E.2d 332, 1970 N.C. App. LEXIS 1426 (1970).

Failure of defendant subcontractor to contact its attorney until after a default judgment was entered against it did not constitute excusable neglect, and the trial court, therefore, properly denied the subcontractor’s motion for relief from judgment. JMM Plumbing & Utils., Inc. v. Basnight Constr. Co., 169 N.C. App. 199, 609 S.E.2d 487, 2005 N.C. App. LEXIS 509 (2005).

Trial court properly denied defendants’ N.C. R. Civ. P. 60(b) motion to set aside default judgment because defendants made no request for written findings of fact regarding the trial court’s order denying their post-trial motions but rather requested the trial court to amend its findings under G.S. 1A-1 , N.C. R. Civ. P. 52(b); the trial court did not err in failing to make findings of fact and conclusions of law as to whether there was a showing of excusable neglect and meritorious defense because the issue of whether there was a showing of a meritorious defense was immaterial when there was sufficient evidence to support the trial court’s conclusion that defendants failed to establish excusable neglect. Monaghan, M.D. v. Schilling, MD, 197 N.C. App. 578, 677 S.E.2d 562, 2009 N.C. App. LEXIS 718 (2009).

Jurisdiction of Court on Motion to Set Aside Clerk’s Entry of Default Judgment. —

When defendants made a motion to set aside the clerk’s entry of default and default judgment, the trial court was not limited to a review of the action of the clerk, but was vested with jurisdiction to hear and determine all matters in controversy and render such judgment or order within the limits provided by law, including default judgment; this principle would apply even if the order by the clerk was a nullity. Webb v. James, 46 N.C. App. 551, 265 S.E.2d 642, 1980 N.C. App. LEXIS 2858 (1980).

Motion to set aside a default or a judgment by default is addressed to the discretion of the court. North Am. Acceptance Corp. v. Samuels, 11 N.C. App. 504, 181 S.E.2d 794, 1971 N.C. App. LEXIS 1566 (1971).

Motion pursuant to section (d) of this rule to set aside an entry by default is addressed to the discretion of the trial court. Privette v. Privette, 30 N.C. App. 41, 226 S.E.2d 188, 1976 N.C. App. LEXIS 2140 (1976).

Motion to set aside an entry of default is addressed to the sound discretion of the trial judge, and the order of the trial court ruling on such a motion will not be disturbed on appeal absent a showing of abuse of that discretion. Coulbourn Lumber Co. v. Grizzard, 51 N.C. App. 561, 277 S.E.2d 95, 1981 N.C. App. LEXIS 2275 (1981).

Motion to set aside a default is addressed to the discretion of the court. Whaley v. Rhodes, 10 N.C. App. 109, 177 S.E.2d 735, 1970 N.C. App. LEXIS 1198 (1970); Crotts v. Camel Pawn Shop, Inc., 16 N.C. App. 392, 192 S.E.2d 55, 1972 N.C. App. LEXIS 1714 , cert. denied, 282 N.C. 425 , 192 S.E.2d 835, 1972 N.C. LEXIS 974 (1972).

As Is Determination of Good Cause to Vacate Entry of Default. —

The determination of good cause is for the trial judge in the exercise of his sound discretion. Pioneer Acoustical Co. v. Cisne & Assocs., 25 N.C. App. 114, 212 S.E.2d 402, 1975 N.C. App. LEXIS 2193 (1975).

Determination as to whether good cause exists to vacate an entry of default is addressed to the sound discretion of the trial judge. Hasty v. Carpenter, 51 N.C. App. 333, 276 S.E.2d 513, 1981 N.C. App. LEXIS 2233 (1981).

Section (d) of this rule specifically allows the trial court to set aside an entry of default for good cause shown. The determination of whether good cause has been shown is for the trial judge in the exercise of his sound discretion. Stone v. Martin, 69 N.C. App. 650, 318 S.E.2d 108, 1984 N.C. App. LEXIS 3531 (1984).

And Court’s Determination Will Not Be Disturbed Absent Abuse. —

Determination of whether good cause exists to vacate an entry of default is addressed to the sound discretion of the trial judge, and his exercise of that discretion will not be disturbed on appeal unless a clear abuse of discretion is shown. Hubbard v. Lumley, 17 N.C. App. 649, 195 S.E.2d 330, 1973 N.C. App. LEXIS 1433 (1973); Miller v. Miller, 24 N.C. App. 319, 210 S.E.2d 438, 1974 N.C. App. LEXIS 1993 (1974); Frye v. Wiles, 33 N.C. App. 581, 235 S.E.2d 889, 1977 N.C. App. LEXIS 2255 (1977); Britt v. Georgia-Pacific Corp., 46 N.C. App. 107, 264 S.E.2d 395, 1980 N.C. App. LEXIS 2754 (1980); Webb v. James, 46 N.C. App. 551, 265 S.E.2d 642, 1980 N.C. App. LEXIS 2858 (1980); Williams v. Jennette, 77 N.C. App. 283, 335 S.E.2d 191, 1985 N.C. App. LEXIS 4066 (1985).

A judge is subject to reversal for abuse of discretion only upon a showing by a litigant that the challenged actions are manifestly unsupported by reason. Byrd v. Mortenson, 60 N.C. App. 85, 298 S.E.2d 170, 1982 N.C. App. LEXIS 3263 (1982), aff'd in part, modified, 308 N.C. 536 , 302 S.E.2d 809, 1983 N.C. LEXIS 1222 (1983).

Presumption That Judge Acted Within Discretion. —

Where appellant failed to bring evidence up for review, the appellate court would presume that the trial judge acted within his discretion on evidence showing good cause to vacate the entry of default. Crotts v. Camel Pawn Shop, Inc., 16 N.C. App. 392, 192 S.E.2d 55, 1972 N.C. App. LEXIS 1714 , cert. denied, 282 N.C. 425 , 192 S.E.2d 835, 1972 N.C. LEXIS 974 (1972); Moseley v. Branch Banking & Trust Co., 19 N.C. App. 137, 198 S.E.2d 36, 1973 N.C. App. LEXIS 1597 , cert. denied, 284 N.C. 121 , 199 S.E.2d 659, 1973 N.C. LEXIS 791 (1973).

Discretion Not Abused. —

Where defendant did not offer any evidence showing a good reason for her default upon which the judge could have set aside the entry of default, nor show an adequate basis for the judge to have set aside the default judgment on the grounds of mistake, inadvertence, surprise, excusable neglect or meritorious defense, the judge did not abuse her discretion in failing to set aside the entry of default or the judgment by default. North Am. Acceptance Corp. v. Samuels, 11 N.C. App. 504, 181 S.E.2d 794, 1971 N.C. App. LEXIS 1566 (1971).

Trial court did not abuse its discretion in setting aside the entry of default in a medical malpractice action even though the doctor did not take any further action after delivering the patient’s claim to his office manager, who forwarded the claim to an insurer; the potentially grave damage to the doctor coupled with the relatively short delay in processing the claim supported the trial court’s finding of good cause. Atkins v. Mortenson, 183 N.C. App. 625, 644 S.E.2d 625, 2007 N.C. App. LEXIS 1100 (2007).

Former employer failed to show that a trial court abused its discretion when it denied the employer’s motion under G.S. 1A-1 , N.C. R. Civ. P. 55(d) to set aside a default judgment that was entered against it in a former employee’s action to recover unpaid commissions, as the employer failed to show that it acted diligently where it chose not to defend the action based on the advice of counsel and the determination that the employee was not owed anything; good cause was not shown. Luke v. Omega Consulting Group, LC, 194 N.C. App. 745, 670 S.E.2d 604, 2009 N.C. App. LEXIS 32 (2009).

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 complied with both G.S. 1A-1 , N.C. R. Civ. P. 4 and 5 based upon the plain language of those statutes, and plaintiff was not required to serve the notice of service of process by publication as to one defendant upon other defendants; the 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 because 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 N.C. App. LEXIS 721 (2011).

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); defendant’s motion to set aside the entry of default was not verified by defendant. Jones v. Wallis, 211 N.C. App. 353, 712 S.E.2d 180, 2011 N.C. App. LEXIS 721 (2011).

Because both G.S, 1A-1, N.C. R. Civ. P. 59(a)(8) and (9) were post-trial motions, and the case concluded at the summary judgment stage, the trial court did not err by concluding that it was not proper to set aside default against defendant and vacate the summary judgment pursuant to Rule 59(a)(8) and (9). Bodie Island Beach Club Ass'n v. Wray, 215 N.C. App. 283, 716 S.E.2d 67, 2011 N.C. App. LEXIS 1887 (2011).

Trial court did not abuse its discretion in entering default against defendant under G.S. 1A-1 , N.C. R. Civ. P. 55(a) because it properly found that no responsive pleading had been filed by defendant. Bodie Island Beach Club Ass'n v. Wray, 215 N.C. App. 283, 716 S.E.2d 67, 2011 N.C. App. LEXIS 1887 (2011).

Trial court did not err in entering summary judgment against defendant on the ground that not all defendants were in default because final judgment against defendant did not adjudicate any rights between plaintiffs and the answering defendants. Bodie Island Beach Club Ass'n v. Wray, 215 N.C. App. 283, 716 S.E.2d 67, 2011 N.C. App. LEXIS 1887 (2011).

As to considerations in exercising discretion, see Howell v. Haliburton, 22 N.C. App. 40, 205 S.E.2d 617, 1974 N.C. App. LEXIS 2229 (1974).

Default Judgments Not Favored. —

Inasmuch as the law generally disfavors default judgments, any doubt should be resolved in favor of setting aside an entry of default so the case may be decided on its merits. At the same time the rules which require responsive pleadings within a limited time serve important social goals, and a party should not be permitted to flout them with impunity. Byrd v. Mortenson, 60 N.C. App. 85, 298 S.E.2d 170, 1982 N.C. App. LEXIS 3263 (1982), aff'd in part, modified, 308 N.C. 536 , 302 S.E.2d 809, 1983 N.C. LEXIS 1222 (1983).

In exercising its discretion the court will be guided by the fact that default judgments are not favored in the law. North Am. Acceptance Corp. v. Samuels, 11 N.C. App. 504, 181 S.E.2d 794, 1971 N.C. App. LEXIS 1566 (1971). See also, Peebles v. Moore, 48 N.C. App. 497, 269 S.E.2d 694, 1980 N.C. App. LEXIS 3259 (1980), modified, aff'd, 302 N.C. 351 , 275 S.E.2d 833, 1981 N.C. LEXIS 1048 (1981).

A motion for entry of default and default judgment is addressed to the discretion of the court. In exercising its discretion the trial court should be guided by the consideration that default judgments are disfavored by the law. North Carolina Nat'l Bank v. McKee, 63 N.C. App. 58, 303 S.E.2d 842, 1983 N.C. App. LEXIS 3013 (1983).

Any doubt should be resolved in favor of setting aside defaults, so that cases may be decided on their merits. Whaley v. Rhodes, 10 N.C. App. 109, 177 S.E.2d 735, 1970 N.C. App. LEXIS 1198 (1970); Peebles v. Moore, 48 N.C. App. 497, 269 S.E.2d 694, 1980 N.C. App. LEXIS 3259 (1980), modified, aff'd, 302 N.C. 351 , 275 S.E.2d 833, 1981 N.C. LEXIS 1048 (1981).

Order setting aside or refusing to set aside entry of default is not a final order and is, therefore, not appealable, where judgment has not been entered. First-Citizens Bank & Trust Co. v. R & G Constr. Co., 24 N.C. App. 131, 210 S.E.2d 97, 1974 N.C. App. LEXIS 1951 (1974).

Order entered pursuant to section (d) of this rule, setting aside entry by default, was interlocutory, and plaintiff ’s appeal thereon was premature. Pioneer Acoustical Co. v. Cisne & Assocs., 25 N.C. App. 114, 212 S.E.2d 402, 1975 N.C. App. LEXIS 2193 (1975).

Entry of Default Judgment Against One of Several Defendants Properly Set Aside. —

Where, in a civil action to recover money advanced by plaintiff in an alleged factoring agreement with defendant furniture company, brought against the company and five individual guarantors, one individual defendant failed to answer, an entry of default against said defendant was proper, but default judgment against him was properly set aside; while said defendant was not entitled to file an answer or other defensive pleading, the action would proceed to trial on its merits on the complaint and answers filed by the non-defaulting defendants, and appropriate judgment would be entered as to the defaulting defendant following the trial. Rawleigh, Moses & Co. v. Capital City Furn., Inc., 9 N.C. App. 640, 177 S.E.2d 332, 1970 N.C. App. LEXIS 1426 (1970).

Entry of default and judgment by default would be improper where defendants showed (1) excusable neglect in failing to timely file a responsive pleading, and (2) a meritorious defense to plaintiff’s claim. North Carolina Nat'l Bank v. McKee, 63 N.C. App. 58, 303 S.E.2d 842, 1983 N.C. App. LEXIS 3013 (1983).

Where 30 days had not elapsed since the filing of amended complaint, judgment by default was not available; the default judgment obtained was, therefore, void, and it was error as a matter of law for the court to refuse to set it aside. Hyder v. Dergance, 76 N.C. App. 317, 332 S.E.2d 713, 1985 N.C. App. LEXIS 3844 (1985).

Early Pretrial Judgments. —

Court could set aside judgment reassigning child custody when the previous child custody order had not been vacated and there was no showing of a change in circumstances concerning the child’s welfare that supported the change in custody. West v. Marko, 130 N.C. App. 751, 504 S.E.2d 571, 1998 N.C. App. LEXIS 1165 (1998).

Entry of Judgment Set Aside. —

Where counsel for defendant failed to file responsive pleadings within the allowable time limit and there was no evidence in the record that defendant was anything less than diligent in its pursuit of the matter, nor any allegations that plaintiff was prejudiced by the five-day delay between the expiration of the filing period and the date defendant filed its motion and proposed answer, justice would best be served by setting aside the entry of default. Automotive Equip. Distribs., Inc. v. Petroleum Equip. & Serv., Inc., 87 N.C. App. 606, 361 S.E.2d 895, 1987 N.C. App. LEXIS 3275 (1987).

The trial court erred in denying defendant’s motion to set aside entry of default where defendant did everything that could reasonably have been required to demonstrate diligent attention to the case, it did not appear as though plaintiffs suffered any harm by virtue of the delay, and there was the possibility that defendant would suffer injustice by being unable to defend the action. Brown v. Lifford, 136 N.C. App. 379, 524 S.E.2d 587, 2000 N.C. App. LEXIS 3 (2000).

Court could set aside judgment reassigning child custody when the previous child custody order had not been vacated and there was no showing of a change in circumstances concerning the child’s welfare that supported the change in custody. West v. Marko, 130 N.C. App. 751, 504 S.E.2d 571, 1998 N.C. App. LEXIS 1165 (1998).

In a negligence case, a trial court did not abuse discretion by setting aside a default judgment, under G.S. 1A-1 , N.C. R. Civ. P. 55(d), where the party’s failure to timely file an answer was primarily due to the negligence of her insurance company, and the delay caused by setting aside the default was relatively brief and did not prejudice the opposing party. Vares v. Vares, 154 N.C. App. 83, 571 S.E.2d 612, 2002 N.C. App. LEXIS 1409 (2002).

In a case brought by homeowners against a construction company alleging faulty construction of a house, the homeowners failed to show that the trial court abused its discretion in setting aside a default against the construction company where the construction company had informed the trial court of confusion regarding the attorney who would represent it; on the day the entry of default was entered, the construction company’s attorney had informed homeowners’ counsel that representation had been secured and the construction company was prepared to file an answer, the construction company asserted that setting aside the entry of default would not prejudice homeowners since discovery had taken place during an earlier dismissed action, and the construction company also argued that homeowners knew that the construction company would assert the statute of repose as a defense as it had previously done in the earlier case. Moore v. F. Douglas Biddy Constr., Inc., 161 N.C. App. 87, 587 S.E.2d 479, 2003 N.C. App. LEXIS 2004 (2003).

Under circumstances in which the third-party plaintiffs who obtained an entry of default stipulated to the existence of good cause for setting aside the entry, the trial court did not abuse its discretion in finding good cause to set the default aside; further, the homeowners presented no evidence to show that the trial court abused its discretion in making this determination. Emick v. Sunset Beach & Twin Lakes, Inc., 180 N.C. App. 582, 638 S.E.2d 490, 2006 N.C. App. LEXIS 2516 (2006).

Pursuant to G.S. 40A-46 and G.S. 1A-1 , N.C. R. Civ. P. 55(d), a trial court did not abuse its discretion by granting a condemnee’s motion to set aside the entry of default against a second condemnee and deem the second condemnee’s answer timely filed. The State was aware that the second condemnee had given the condemnee a power of attorney no later than October 2005, as evidenced by the fact that the State served notice of the condemnation and an amended answer on the second condemnee in care of the condemnee; the State nonetheless waited until the day of trial to seek entry of default against the second condemnee. City of Wilson Redevelopment Comm'n v. Boykin, 193 N.C. App. 20, 667 S.E.2d 282, 2008 N.C. App. LEXIS 1755 (2008).

Multiple Default Judgments. —

A custody order remained binding and effective, where the trial court entered an order setting aside the entry of default obtained by the father of a minor child against the mother, but the order did not purport to set aside the subsequent default judgment that was entered against the mother awarding custody of their minor child to the father, so that the custody order remained valid and could be modified only by showing a substantial change in circumstances. West v. Marko, 130 N.C. App. 751, 504 S.E.2d 571, 1998 N.C. App. LEXIS 1165 (1998).

Party May Not Claim Judgment Is Defective After Accepting Its Benefits. —

After petitioning the court to enter a default judgment, plaintiff relied upon its validity and force thrice — by executing on it; by retaining the money collected by execution; and by suing defendant in a separate action for future rents. The law does not permit a party to claim that a judgment is defective after relying upon its validity and accepting its benefits. Kimzay Winston-Salem, Inc. v. Jester, 103 N.C. App. 77, 404 S.E.2d 176, 1991 N.C. App. LEXIS 568 (1991).

An order reopening and enlarging a default judgment was erroneous because, by deciding to obtain a final judgment for the sum certain that was owed when the default judgment was entered, rather than to have the damages determined later by a trial, plaintiff waived any right it might have had to obtain judgment for a larger amount. Kimzay Winston-Salem, Inc. v. Jester, 103 N.C. App. 77, 404 S.E.2d 176, 1991 N.C. App. LEXIS 568 (1991).

Superior court order which kept a default judgment in effect and permitted it to be enlarged from $7,039 to $35,857 was erroneous because the court had no authority to enter it. The order neither set aside the default judgment nor relieved plaintiff of it as authorized by this rule or G.S. 1A-1 , Rule 60(b), N.C.R.Civ.P. Kimzay Winston-Salem, Inc. v. Jester, 103 N.C. App. 77, 404 S.E.2d 176, 1991 N.C. App. LEXIS 568 (1991).

Motion for Relief on Grounds of Insufficient Service. —

In filing a motion to claim exempt property, which was inconsistent with her later motion for relief from judgment on the grounds of the invalidity of service of process, defendant made a general appearance, and her subsequent motion for relief from a default judgment on the grounds of the invalidity of service of process was properly dismissed. Faucette v. Dickerson, 103 N.C. App. 620, 406 S.E.2d 602, 1991 N.C. App. LEXIS 868 (1991).

Default judgment was void under G.S. 1A-1 , N.C. R. Civ. P. 55(d) and G.S. 1A-1 , N.C. R. Civ. P. 60(b) because the service by publication under G.S. 1A-1, N.C. R. Civ. P. 4(j1) failed to list the correct county where the action was commenced. Accordingly, because the default judgment was void, the trial court abused its discretion in not granting a motion to set aside the judgment. Connette v. Jones, 196 N.C. App. 351, 674 S.E.2d 751, 2009 N.C. App. LEXIS 359 (2009).

Motion for Relief on Grounds of Invalid Entry of Default. —

Trial court erred in denying the driver’s motion to set aside a default judgment entered in favor of the victim in the victim’s personal injury action, as the default judgment was predicated upon an invalid entry of default. McIlwaine v. Williams, 155 N.C. App. 426, 573 S.E.2d 262, 2002 N.C. App. LEXIS 1620 (2002).

Because defendant made a general appearance waiving her objection to lack of personal jurisdiction over her due to defects in service of process by filing her Motion to Claim Exemptions, her request to set aside the entry of default against her was improper. Slattery v. AppyCity, LLC, 2022 NCBC 8, 2022 NCBC LEXIS 14 (N.C. Super. Ct. Feb. 16, 2022).

Appeal of a judgment setting aside an execution sale of certain real property was interlocutory because, while the record contained an entry of default as to the property’s owners, it did not contain a default judgment against them, as provided in G.S. 1A-1 , N.C. R. Civ. P. 55(b), so the record did not establish that all claims against all parties had been resolved. Beneficial Mortg. Co. v. Peterson, 163 N.C. App. 73, 592 S.E.2d 724, 2004 N.C. App. LEXIS 292 (2004).

Applicability If Default Judgment Already Entered. —

Trial court appropriately declined to analyze a motion by the seller of office buildings to set aside a default judgment on the basis of excusable neglect due to the alleged non-action and negligence of its then-counsel under the good cause standard to set aside an entry of default because a default judgment had already been entered against the seller. Instead, the seller’s motion to vacate was governed by the civil rule for relief from judgment or order. Judd v. Tilghman Med. Assocs., LLC, 272 N.C. App. 520, 847 S.E.2d 45, 2020 N.C. App. LEXIS 538 (2020).

Remand Necessary. —

When a trial court did not make a specific finding of whether defendants’ contact with plaintiff’s attorney occurred before or after the entry of a default judgment under G.S. 1A-1 , N.C. R. Civ. P. 55(b), a remand was necessary to determine if defendants made an “appearance” prior to the entry of the default, and if defendants did, the default judgment would be void under G.S. 1A-1 , N.C. R. Civ. P. 60(b)(4); the trial court would then have to determine if defendants had shown “good cause” under G.S. 1A-1, N.C. R. Civ. P. 55(d) to set aside the entry of default. Coastal Fed. Credit Union v. Falls, 217 N.C. App. 100, 718 S.E.2d 192, 2011 N.C. App. LEXIS 2349 (2011).

V.Decisions under Prior Law

Editor’s Note. —

The cases cited below were decided under former G.S. 1-211 .

Complaint which fails to state a cause of action is not sufficient to support a default judgment for plaintiff. Lowe's of Raleigh, Inc. v. Worlds, 4 N.C. App. 293, 166 S.E.2d 517, 1969 N.C. App. LEXIS 1488 (1969).

Default judgment admits only the averments in the complaint, and the defendant may still show that such averments are insufficient to warrant plaintiff ’s recovery. Lowe's of Raleigh, Inc. v. Worlds, 4 N.C. App. 293, 166 S.E.2d 517, 1969 N.C. App. LEXIS 1488 (1969).

Where judgment by default is irregularly and improvidently entered by the assistant clerk of the superior court, the clerk of the superior court has authority to vacate the same upon motion in the cause. Booker v. Porth, 1 N.C. App. 434, 161 S.E.2d 767, 1968 N.C. App. LEXIS 1102 (1968).

Rule 56. Summary judgment.

  1. For claimant. —  A party seeking to recover upon a claim, counterclaim, or crossclaim or to obtain a declaratory judgment may, at any time after the expiration of 30 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof.
  2. For defending party. —  A party against whom a claim, counterclaim, or crossclaim is asserted or a declaratory judgment is sought, may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.
  3. Motion and proceedings thereon. —  The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party may serve opposing affidavits at least two days before the hearing. If the opposing affidavit is not served on the other parties at least two days before the hearing on the motion, the court may continue the matter for a reasonable period to allow the responding party to prepare a response, proceed with the matter without considering the untimely served affidavit, or take such other action as the ends of justice require. For the purpose of this two-day requirement only, service shall mean personal delivery, facsimile transmission, or other means such that the party actually receives the affidavit within the required time.The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is genuine issue as to the amount of damages. Summary judgment, when appropriate, may be rendered against the moving party.

    The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is genuine issue as to the amount of damages. Summary judgment, when appropriate, may be rendered against the moving party.

    The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is genuine issue as to the amount of damages. Summary judgment, when appropriate, may be rendered against the moving party.

  4. Case not fully adjudicated on motion. —  If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established.
  5. Form of affidavits; further testimony; defense required. —  Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
  6. When affidavits are unavailable. —  Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
  7. Affidavits made in bad faith. —  Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney’s fees.

History. 1967, c. 954, s. 1; 2000-127, s. 6.

Comment

While it has long been urged in North Carolina, see Chadbourn, A Summary Judgment Procedure for North Carolina, 14 N.C.L. Rev., 211 (1936), and while, in one form or another, it has been adopted in a majority of the states, the procedure provided by this rule is wholly new to North Carolina. It adds a powerful new weapon for the just, swift and efficient disposition of claims or defenses patently without merit. The rule provides a device whereby it can expeditiously be determined whether or not there exists between the parties a genuine issue as to any material fact. It is not the purpose of the rule to resolve disputed material issues of fact but rather to determine if such issues exist.

Under prior procedure, if the pleadings disclosed an issue of fact, a trial was generally necessary even though there might in actuality be no genuine dispute at all as to the facts. It was enough if the issue was formally raised by the pleadings. Significantly, however, the code drafters were well aware that there might indeed be no issue of material fact present even though the pleadings appeared to present one. They thus provided that sham and irrelevant defenses could be stricken, former § 1-126, that irrelevant and redundant matter might be stricken, former § 1-153, and that a frivolous demurrer, answer or reply might be disregarded, former § 1-219. But, for reasons that need not be examined here, these devices have not proved equal to the task of identifying those claims or defenses in which there was no genuine dispute as to a material fact.

The great merit of the summary judgment is that it does provide a device for identifying the factually groundless claim or defense. It does so by enabling the parties to lay before the court materials extraneous to the pleadings. If these materials reveal any dispute as to a material fact, summary judgment is precluded. But as section (e) makes clear, a party cannot necessarily rely on the pleadings to show the existence of such a dispute.

The operation of the rule can be illustrated by supposing an action to recover damages for personal injuries. The sole defense offered is that the plaintiff ’s exclusive remedy is afforded by the Workmen’s Compensation Act. The plaintiff moves for summary judgment, supporting his motion with affidavits which on their face show that the act is inapplicable to the defendant’s enterprise. At the hearing on the motion, the defendant can forestall summary judgment simply by producing an affidavit, deposition or interrogatory or oral testimony tending to show that he does come under the act. If, on the other hand, he does nothing, entry of partial summary judgment, leaving for later jury determination the amount of damages, can be entered against him. He has failed to show that there is a genuine issue as to any material fact except damages.

The defendant might also move for a summary judgment in the case supposed. If he shows, without any contrary showing by the plaintiff, that the act applies, then it would be appropriate to enter judgment for the defendant. Of course, section (f) permits the refusal of the motion when a party presents reasons for his inability to present affidavits opposing the motion.

It will be observed that section (e) requires that supporting and opposing affidavits “shall be made on personal knowledge” and “shall set forth such facts as would be admissible in evidence.”

Legal Periodicals.

For article on the new summary judgment rule in North Carolina, see 5 Wake Forest Intra. L. Rev. 87 (1969).

For survey of decisions under the North Carolina Rules of Civil Procedure, see 50 N.C.L. Rev. 729 (1972).

For note dealing with summary judgment on testimonial evidence, see 55 N.C.L. Rev. 232 (1977).

For survey of 1976 case law on civil procedure, see 55 N.C.L. Rev. 914 (1977).

For survey of 1977 law on civil procedure, see 56 N.C.L. Rev. 874 (1978).

For survey of 1979 law on civil procedure, see 58 N.C.L. Rev. 1261 (1980).

For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

For survey of 1980 law on civil procedure, see 59 N.C.L. Rev. 1058 (1981).

For note on default not constituting an admission of facts for purposes of summary judgment, see 17 Wake Forest L. Rev. 49 (1981).

For survey of 1982 law on civil procedure, see 61 N.C.L. Rev. 991 (1983).

For Survey of Developments in North Carolina Law (1992), see 71 N.C.L. Rev. 1893 (1993).

For a survey of 1996 development in civil procedure law, see 75 N.C.L. Rev. 2229 (1997).

CASE NOTES

Analysis

I.In General

Summary Judgment Defined. —

Summary judgment is a device whereby judgment is rendered if the pleadings, depositions, interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that a party is entitled to judgment as a matter of law. Johnson v. Phoenix Mut. Life Ins. Co., 300 N.C. 247 , 266 S.E.2d 610, 1980 N.C. LEXIS 1069 (1980); Rose v. Guilford County, 60 N.C. App. 170, 298 S.E.2d 200, 1982 N.C. App. LEXIS 3277 (1982).

This rule and its federal counterpart are practically the same. Pridgen v. Hughes, 9 N.C. App. 635, 177 S.E.2d 425, 1970 N.C. App. LEXIS 1425 (1970); Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971); Page v. Sloan, 281 N.C. 697 , 190 S.E.2d 189, 1972 N.C. LEXIS 1162 (1972); Norfolk & W. Ry. v. Werner Indus., Inc., 286 N.C. 89 , 209 S.E.2d 734, 1974 N.C. LEXIS 1181 (1974); Reavis v. Campbell, 27 N.C. App. 231, 218 S.E.2d 873, 1975 N.C. App. LEXIS 1804 (1975); Pitts v. Village Inn Pizza, Inc., 296 N.C. 81 , 249 S.E.2d 375, 1978 N.C. LEXIS 1162 (1978); Piedmont Consultants of Statesville, Inc. v. Baba, 48 N.C. App. 160, 268 S.E.2d 222, 1980 N.C. App. LEXIS 3212 (1980).

And Federal Decisions May Be Looked to for Guidance in Applying This Rule. —

FRCP, Rule 56 is substantially the same as this rule and the Supreme Court therefore looks to the federal decisions for guidance in applying this rule. Singleton v. Stewart, 280 N.C. 460 , 186 S.E.2d 400, 1972 N.C. LEXIS 1265 (1972); Dendy v. Watkins, 288 N.C. 447 , 219 S.E.2d 214, 1975 N.C. LEXIS 1010 (1975).

Summary judgment is a new procedure in North Carolina. Motyka v. Nappier, 9 N.C. App. 579, 176 S.E.2d 858, 1970 N.C. App. LEXIS 1410 (1970); Patterson v. Reid, 10 N.C. App. 22, 178 S.E.2d 1, 1970 N.C. App. LEXIS 1181 (1970).

Demurrer and Summary Judgment Compared. —

A demurrer was a proper method of testing the legal sufficiency of the complaint, but it was confined only to the complaint itself. A motion for summary judgment allows the court to consider matter outside of the complaint for the purpose of ascertaining whether a genuine issue of fact does exist, thus recognizing the fact that a genuine issue of fact may not exist even though one appears in the complaint. Motyka v. Nappier, 9 N.C. App. 579, 176 S.E.2d 858, 1970 N.C. App. LEXIS 1410 (1970).

Motion for Directed Verdict Similar. —

The motion for summary judgment and the motion for a directed verdict are functionally very similar. Williams v. Carolina Power & Light Co., 296 N.C. 400 , 250 S.E.2d 255, 1979 N.C. LEXIS 1144 (1979).

Functionally the motion for summary judgment and the motion for a directed verdict are closely akin to each other. Dendy v. Watkins, 288 N.C. 447 , 219 S.E.2d 214, 1975 N.C. LEXIS 1010 (1975).

For comparison of motion for directed verdict and motion for summary judgment, see Edwards v. Northwestern Bank, 53 N.C. App. 492, 281 S.E.2d 86, 1981 N.C. App. LEXIS 2615 (1981).

For comparison of motion for failure to state a claim under G.S. 1A-1 , Rule 12(b)(6) and motion for summary judgment, see Shoffner Indus., Inc. v. W.B. Lloyd Constr. Co., 42 N.C. App. 259, 257 S.E.2d 50, 1979 N.C. App. LEXIS 2838 , cert. denied, 298 N.C. 296 , 259 S.E.2d 301, 1979 N.C. LEXIS 1583 (1979).

Conversion of G.S. 1A-1 , Rule 10(c) Motion to Motion for Summary Judgment. —

Where affidavits considered by the trial court were not incorporated by reference into the pleadings pursuant to Rule 10(c), the motion to dismiss was converted into a motion for summary judgment. Richland Run Homeowners Ass'n v. CHC Durham Corp., 123 N.C. App. 345, 473 S.E.2d 649, 1996 N.C. App. LEXIS 726 (1996), rev'd, 346 N.C. 170 , 484 S.E.2d 527, 1997 N.C. LEXIS 216 (1997).

Conversion of G.S. 1A-1 , Rule 12(b)(6) and 12(c) Motions to Motions for Summary Judgment. —

Motions under G.S. 1A-1 , Rules 12(b)(6) and 12(c) can be treated as summary judgment motions, the difference being that under G.S. 1A-1 , Rules 12(b)(6) and 12(c) the motion is decided on the pleadings alone, while under this rule the court may receive and consider various kinds of evidence. Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971).

A motion to dismiss for failure to state a claim under G.S. 1A-1 , Rule 12(b)(6) is converted to a motion under this rule for summary judgment when matters outside the pleadings are presented to and not excluded by the court. Stanback v. Stanback, 297 N.C. 181 , 254 S.E.2d 611, 1979 N.C. LEXIS 1249 (1979); Smith v. Independent Life Ins. Co., 43 N.C. App. 269, 258 S.E.2d 864, 1979 N.C. App. LEXIS 3068 (1979); Piedmont Consultants of Statesville, Inc. v. Baba, 48 N.C. App. 160, 268 S.E.2d 222, 1980 N.C. App. LEXIS 3212 (1980); Baugh v. Woodard, 56 N.C. App. 180, 287 S.E.2d 412, 1982 N.C. App. LEXIS 2346 (1982).

Where extraneous matter is received and considered on a motion to dismiss under G.S. 1A-1 , Rule 12(b)(6), the motion should be treated as a motion for summary judgment and disposed of in the manner and on the conditions stated in this rule. Fowler v. Williamson, 39 N.C. App. 715, 251 S.E.2d 889, 1979 N.C. App. LEXIS 2578 (1979); Roach v. City of Lenoir, 44 N.C. App. 608, 261 S.E.2d 299, 1980 N.C. App. LEXIS 2491 (1980); Parslow v. Parslow, 47 N.C. App. 84, 266 S.E.2d 746, 1980 N.C. App. LEXIS 2978 (1980); Oliver v. Roberts, 49 N.C. App. 311, 271 S.E.2d 399, 1980 N.C. App. LEXIS 3402 (1980), cert. denied, 276 S.E.2d 283, 1981 N.C. LEXIS 1559 (N.C. 1981).

Where the record contains affidavits and indicates that the trial judge, in addition to considering the pleadings and attached exhibits, also heard counsel for both parties and considered briefs submitted by both parties, the motion for judgment on the pleadings under G.S. 1A-1 , Rule 12(c) must be considered as though it was made under this rule. Minor v. Minor, 70 N.C. App. 76, 318 S.E.2d 865, 1984 N.C. App. LEXIS 3611 (1984).

Where matters outside the pleadings are presented to and not excluded by the court on a motion to dismiss for failure to state a claim, the motion shall be treated as one for summary judgment under this rule. DeArmon v. B. Mears Corp., 312 N.C. 749 , 325 S.E.2d 223, 1985 N.C. LEXIS 1494 (1985); King v. Durham County Mental Health Developmental Disabilities & Substance Abuse Auth., 113 N.C. App. 341, 439 S.E.2d 771, 1994 N.C. App. LEXIS 19 (1994).

The denial of a motion to dismiss under G.S. 1A-1 , Rule 12(b)(6) does not prevent the court from allowing a subsequent motion for summary judgment. Dull v. Mutual of Omaha Ins. Co., 85 N.C. App. 310, 354 S.E.2d 752, 1987 N.C. App. LEXIS 2598 (1987); Burton v. NCNB Nat'l Bank, 85 N.C. App. 702, 355 S.E.2d 800, 1987 N.C. App. LEXIS 2647 (1987).

Where matters outside the pleadings are before the court, a motion to dismiss may be treated as a motion for summary judgment. Deans v. Layton, 89 N.C. App. 358, 366 S.E.2d 560, 1988 N.C. App. LEXIS 189 (1988).

When a trial court considers matters outside the pleadings, a motion under Rule 12 is automatically converted into a motion for summary judgment. North Carolina Steel, Inc. v. National Council on Comp. Ins., 123 N.C. App. 163, 472 S.E.2d 578, 1996 N.C. App. LEXIS 678 (1996), aff'd in part and rev'd in part, 347 N.C. 627 , 496 S.E.2d 369, 1998 N.C. LEXIS 112 (1998).

Where, in a claim brought by mobile home owners alleging unfair and deceptive trade practices by the manufacturers of the homes, the parties presented to the trial court deposition testimony and affidavits, none of which was excluded by the trial court, the trial court’s conversion of the manufacturers’ N.C. R. Civ. P. 12(b)(6) motion into a N.C. R. Civ. P. 56 motion was proper; although the owners argued that they were not given a reasonable opportunity to present all pertinent material, the owners did not request a continuance or additional time to produce evidence, but fully participated in the hearing, and thus their claim was meritless. Belcher v. Fleetwood Enters., 162 N.C. App. 80, 590 S.E.2d 15, 2004 N.C. App. LEXIS 9 (2004).

Where, in support of their motion claiming that a legal malpractice claim against them was time barred, lawyers submitted a complaint filed against the client in a separate case and the client’s answer to that complaint, which were not excluded by the trial court, the motion was treated as one for summary judgment. Bolton v. Crone, 162 N.C. App. 171, 589 S.E.2d 915, 2004 N.C. App. LEXIS 56 (2004).

Trial court converted a G.S. 1A-1 , N.C. R. Civ. P. 12(b)(6) motion into a motion for summary judgment because the court considered matters outside of the pleadings in the form of exhibits, depositions, affidavits and discovery responses. Bailey v. Handee Hugo's, Inc., 173 N.C. App. 723, 620 S.E.2d 312, 2005 N.C. App. LEXIS 2302 (2005).

Because the trial court clearly considered matters outside the pleadings, the trial court properly treated defendants’ G.S. 1A-1 , N.C. R. Civ. P. 12(b)(6) motion to dismiss as a motion for summary judgment under G.S. 1A-1 , N.C. R. Civ. P. 56. Barbee v. Johnson, 190 N.C. App. 349, 660 S.E.2d 135, 2008 N.C. App. LEXIS 887 (2008).

Because the trial court considered matters outside the pleadings, including the separation agreement and/or defendant’s affidavit supporting his first dismissal motion, in which he asserted that plaintiff’s claims were waived by the 18 April 2013 separation agreement, defendant’s motion to dismiss for failure to state a claim was converted into one of summary judgment; additionally, her equitable distribution and spousal support claims had to be reviewed under the summary judgment standard as they were necessarily based on the terms of the separation agreement itself or defendant’s affidavit. Holton v. Holton, 258 N.C. App. 408, 813 S.E.2d 649, 2018 N.C. App. LEXIS 297 (2018).

Memoranda, Briefs and Oral Arguments Not Outside the Pleadings for Purposes of Converting Motion. —

Memoranda of points and authorities as well as briefs and oral arguments are not considered matters outside the pleading for purposes of converting a motion under G.S. 1A-1 , Rule 12 into a motion for summary judgment. Privette v. University of N.C. 96 N.C. App. 124, 385 S.E.2d 185, 1989 N.C. App. LEXIS 969 (1989).

Affidavit. —

Affidavit that stated that “to the best of (the affiant’s) knowledge,” the mortgagors were not in the Armed Forces and that the affiant was familiar with the records of petitioner in support of a foreclosure sale was properly considered under G.S. 1A-1 , N.C. R. Civ. P. 56(e) and 43(e) as the affiant put a self-imposed limitation to the affiant’s personal knowledge that based on the documents he had reviewed his affirmations were true. In re Yopp, 217 N.C. App. 488, 720 S.E.2d 769, 2011 N.C. App. LEXIS 2609 (2011).

Section (c) of this rule does not require that a party move for summary judgment in order to be entitled to it. McNair Constr. Co. v. Fogle Bros. Co., 64 N.C. App. 282, 307 S.E.2d 200, 1983 N.C. App. LEXIS 3264 (1983).

Motion Under G.S. 1A-1 , Rule 12(b)(6) Not Converted by Incorporation of Exhibit by Reference in Complaint. —

Where, in her complaint, plaintiff incorporated by reference a complaint in a federal court action and attached a copy of it, the complaint in the federal court action was not a matter outside the pleadings so as to convert her motion to dismiss under G.S. 1A-1 , Rule 12(b)(6) into a motion for summary judgment, since G.S. 1A-1 , Rule 10(c) provides that such an exhibit is a part of the pleading for all purposes. Stanback v. Stanback, 297 N.C. 181 , 254 S.E.2d 611, 1979 N.C. LEXIS 1249 (1979).

Treatment of Summary Judgment Motion as Though Made Under G.S. 1A-1 , Rule 12(c). —

Where the record on appeal contained no affidavits, answers to interrogatories, or anything other than the pleadings upon which to base decision, motion for summary judgment would be considered as though made under G.S. 1A-1 , Rule 12(c) for judgment on the pleadings, and not as a motion under this rule. Reichler v. Tillman, 21 N.C. App. 38, 203 S.E.2d 68, 1974 N.C. App. LEXIS 1703 (1974); Town of Bladenboro v. McKeithan, 44 N.C. App. 459, 261 S.E.2d 260, 1980 N.C. App. LEXIS 2477 (1980).

Notice Requirement. —

Where the trial court entered an order substituting estate administrator as defendant on the same day it granted summary judgment to plaintiffs, the administrator did not receive timely notice of the motion for summary judgment motion as provided for in G.S. 1A-1 , Rule 56(e), and the grant of summary judgment was error. Dixon v. Hill, 174 N.C. App. 252, 620 S.E.2d 715, 2005 N.C. App. LEXIS 2393 (2005), cert. denied, 548 U.S. 906, 126 S. Ct. 2972, 165 L. Ed. 2d 954, 2006 U.S. LEXIS 4950 (2006).

In a wife’s appeal of the absolute divorce, she failed to show that she did not receive adequate and proper notice of the hearing on the husband’s motion for summary judgment since the husband’s notice of hearing was adequate and proper in light of G.S. 1A-1 , N.C. R. Civ. P. 56, as despite the fact that it failed to state the time of the hearing, it did state the date, location, and courtroom number and was served upon the wife at least 10 days prior to the hearing. Wilson v. Wilson, 191 N.C. App. 789, 666 S.E.2d 653, 2008 N.C. App. LEXIS 1479 (2008).

Trial court erred in entering summary judgment in favor of plaintiff on an action alleging that defendant was in default on two promissory notes where neither party filed a motion for summary judgment, the only notice was that plaintiff and defendant were participating in a hearing regarding a motion in limine, and thus, defendant did not have the requisite 10-day notice under G.S. 1A-1 , N.C. R. Civ. P. 56. Buckner v. TigerSwan, Inc., 244 N.C. App. 385, 781 S.E.2d 494, 2015 N.C. App. LEXIS 1039 (2015).

Plaintiff may not defeat a motion for summary judgment by taking a voluntary dismissal after a hearing on the summary judgment motion where plaintiff introduces evidence, and after the court signs the summary judgment, but before it is filed with the clerk. Maurice v. Hatterasman Motel Corp., 38 N.C. App. 588, 248 S.E.2d 430, 1978 N.C. App. LEXIS 2247 (1978).

Where a party appears at a summary judgment hearing and produces evidence or is given an opportunity to produce evidence and fails to do so, and the question is submitted to the court for decision, he has “rested his case” within the meaning of G.S. 1A-1 , Rule 41(a)(1)(i). He cannot thereafter take a voluntary dismissal under G.S. 1A-1 , Rule 41(a)(1)(i). Maurice v. Hatterasman Motel Corp., 38 N.C. App. 588, 248 S.E.2d 430, 1978 N.C. App. LEXIS 2247 (1978); Wesley v. Bland, 92 N.C. App. 513, 374 S.E.2d 475, 1988 N.C. App. LEXIS 1062 (1988).

Validity of the judgment does not depend upon the form in which the determination is made, whether express or implied, but upon the correctness of the determination. Tripp v. Flaherty, 27 N.C. App. 180, 218 S.E.2d 709, 1975 N.C. App. LEXIS 1790 (1975).

There is no requirement that summary judgment, to be valid, must contain ritual statement that there is no genuine issue as to any material fact. Tripp v. Flaherty, 27 N.C. App. 180, 218 S.E.2d 709, 1975 N.C. App. LEXIS 1790 (1975).

When it is unclear from looking at a judgment whether a default judgment or a summary judgment was intended, the wording of the body of the judgment itself controls, not the heading. East Carolina Oil Transp., Inc. v. Petroleum Fuel & Term. Co., 82 N.C. App. 746, 348 S.E.2d 165, 1986 N.C. App. LEXIS 2630 (1986).

Matters determined by summary judgment, as by any other judgment, are res judicata in a subsequent action. T.A. Loving Co. v. Latham, 15 N.C. App. 441, 190 S.E.2d 248, 1972 N.C. App. LEXIS 1936 (1972).

But an order denying summary judgment is not res judicata, and a judge is clearly within his rights in vacating such denial. Where nothing pertinent to the motion has been filed subsequent to the previous order, it is not necessary to issue new notice. Miller v. Miller, 34 N.C. App. 209, 237 S.E.2d 552, 1977 N.C. App. LEXIS 1639 (1977).

Ripeness. —

Inmate’s case was ripe for summary judgment because whether the inmate had a legal right to have credits applied against his life sentence was a matter of law, not an issue of fact. Price v. Beck, 153 N.C. App. 763, 571 S.E.2d 247, 2002 N.C. App. LEXIS 1253 (2002).

Conversion of G.S. 1A-1 , Rule 12(B)(6) and 12(C) Motions to Motions for Summary Judgment. —

Where an employee referred in a complaint for a violation of the North Carolina Retaliatory Employment Discrimination Act, G.S. 95-240 et seq., to the administrative complaint and/or right-to-sue letter from the North Carolina Department of Labor, which were not attached to the complaint, and they formed the procedural basis for the complaint, the trial court did not convert the employer’s motion to dismiss under G.S. 1A-1 , Rule 12(b)(6), into one for summary judgment under this rule, by considering the unattached documents. Brackett v. SGL Carbon Corp., 158 N.C. App. 252, 580 S.E.2d 757, 2003 N.C. App. LEXIS 1041 (2003).

Summary Judgment Not Precluded by Earlier Denial of Motion Under G.S. 1A-1 , Rule 12(b)(6). —

Denial of a motion to dismiss for failure to state a claim upon which relief can be granted, which motion merely challenges the sufficiency of the complaint, does not prevent the court’s allowance of a subsequent motion for summary judgment based on affidavits outside the complaint. Alltop v. J.C. Penney Co., 10 N.C. App. 692, 179 S.E.2d 885, 1971 N.C. App. LEXIS 1699 , cert. denied, 279 N.C. 348 , 182 S.E.2d 580, 1971 N.C. LEXIS 783 (1971).

Denial of a motion to dismiss made under G.S. 1A-1 , Rule 12(b)(6) does not prevent the court, whether in the person of the same or a different superior court judge, from thereafter allowing a subsequent motion for summary judgment made and supported as provided in this rule. Barbour v. Little, 37 N.C. App. 686, 247 S.E.2d 252, 1978 N.C. App. LEXIS 2830 , cert. denied, 295 N.C. 733 , 248 S.E.2d 862, 1978 N.C. LEXIS 1129 (1978).

In a wrongful death action against a city and a railroad arising from a motorist’s death after being struck by a train at a railroad crossing, after a trial court partially denied the city’s motion to dismiss under Rule 12(b)(6) and Rule 12(c), it was not precluded from granting the city’s summary judgment motion. Wilkerson v. Norfolk S. Ry. Co., 151 N.C. App. 332, 566 S.E.2d 104, 2002 N.C. App. LEXIS 744 (2002).

Superior court judge’s summary judgment ruling was proper because another superior court judge first concluded, pursuant to a motion to dismiss, that the factual allegations in North Carolina counties’ complaints were legally sufficient so as to not preclude their claims for recovery of taxes from online travel companies. Thereafter, the judge concluded, on the summary judgment motion, that the counties failed to provide any authority that the companies had a legal duty to collect the taxes. Wake County v. Hotels.com, L.P., 235 N.C. App. 633, 762 S.E.2d 477, 2014 N.C. App. LEXIS 897 (2014).

However, a motion for summary judgment denied by one superior court judge may not be allowed by another on identical legal issues. But this does not apply to interlocutory orders given in the progress of the cause. American Travel Corp. v. Central Carolina Bank & Trust Co., 57 N.C. App. 437, 291 S.E.2d 892, 1982 N.C. App. LEXIS 2685 (1982).

A motion for summary judgment denied by one superior court judge may not be allowed by another superior court judge on identical legal issues. Furr v. Charmichael, 82 N.C. App. 634, 347 S.E.2d 481, 1986 N.C. App. LEXIS 2606 (1986).

Summary Judgment for Nonmovant. —

Although plaintiffs filed motion for summary judgment, trial court entered summary judgment for defendants. When appropriate, summary judgment may be rendered against the party moving for such judgment. Coulter v. City of Newton, 100 N.C. App. 523, 397 S.E.2d 244, 1990 N.C. App. LEXIS 1060 (1990).

Pleadings Deemed Amended. —

Where a motion for summary judgment is supported by matters outside the pleadings, the pleadings are deemed amended if in fact the issue not raised by the pleadings or by the motion for summary judgment is tried by the express or implied consent of both parties. 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 N.C. App. LEXIS 818 (1990).

Because the plaintiffs’ summary judgment motion went only to liability, the trial court had the power to render summary judgment for the defendants with respect to liability notwithstanding the procedural defects in the defendants’ summary judgment motion. Messer v. Laurel Hill Assocs., 102 N.C. App. 307, 401 S.E.2d 843, 1991 N.C. App. LEXIS 290 (1991).

Continuance Properly Denied. —

Trial court properly declined to continue a summary judgment hearing in a wrongful death action where the mother of a deceased child failed to move to continue the hearing: the trial court did not abuse its discretion when it denied a motion to continue a hearing on a motion for summary judgment when the party failed to file and give notice of the motion to continue and submit an affidavit pursuant to subsection (f) of this rule. Draughon v. Harnett County Bd. of Educ., 158 N.C. App. 208, 580 S.E.2d 732, 2003 N.C. App. LEXIS 1047 (2003), aff'd, 358 N.C. 131 , 591 S.E.2d 521, 2004 N.C. LEXIS 11 (2004).

Failure to Seek Additional Discovery. —

Plaintiffs were not prevented from utilizing any necessary discovery procedures by the trial court’s granting of a continuance of only 45 days on a summary judgment hearing, rather than 120 days, as plaintiffs sought no additional discovery, with the exception of one occasion on which they served defendants with written discovery requests, and as plaintiffs filed their own motion for summary judgment prior to the hearing; moreover, a summary judgment hearing was not required to take place upon completion of all factual discovery, and any argument that an order setting a date for a summary judgment hearing violated G.S. 1A-1-26(d) was erroneous. Sapp v. Yadkin County, 209 N.C. App. 430, 704 S.E.2d 909, 2011 N.C. App. LEXIS 208 (2011).

Entry of Summary Judgment. —

The mere filing of an affirmative defense without more is not sufficient to establish the absence of a justiciable issue, nor is the grant of a G.S. 1A-1 , Rule 12(b)(6) motion, nor the entry of summary judgment. These events may only be evidence of the absence of a justiciable issue. However, action by the losing party which perpetuated litigation in the fact of events substantially establishing that the pleadings no longer presented a justiciable controversy may also serve as evidence for purposes of G.S. 6-21.5 . Sunamerica Fin. Corp. v. Bonham, 328 N.C. 254 , 400 S.E.2d 435, 1991 N.C. LEXIS 106 (1991).

North Carolina Disciplinary Hearing Commission was not required to state on the record the reasons for granting or denying a motion for summary judgment. N.C. State Bar v. Scott, 241 N.C. App. 477, 773 S.E.2d 520, 2015 N.C. App. LEXIS 514 (2015).

Distinction Between Motion to Dismiss and Summary Judgment. —

The distinction between a G.S. 1A-1 , Rule 12(b)(6) motion to dismiss and a motion for summary judgment is more than a mere technicality. When considering a G.S. 1A-1 , Rule 12(b)(6) motion to dismiss, the trial court need only look to the face of the complaint to determine whether it reveals an insurmountable bar to plaintiff’s recovery. By contrast, when considering a summary judgment motion, the trial court must look at more than the pleadings; it must also consider additional matters such as affidavits, depositions and other specified matter outside the pleadings. Locus v. Fayetteville State Univ., 102 N.C. App. 522, 402 S.E.2d 862, 1991 N.C. App. LEXIS 450 (1991).

Ordinarily, findings of fact and conclusions of law are not required in the determination of a motion for summary judgment, and if these are made, they are disregarded on appeal. Sunamerica Fin. Corp. v. Bonham, 328 N.C. 254 , 400 S.E.2d 435, 1991 N.C. LEXIS 106 (1991).

Effect of Denial of Motion on Subsequent Motions Based on Trial Evidence. —

Denial of a motion for summary judgment, based only upon a forecast of evidence, should not operate to bar the granting of a directed verdict or a judgment notwithstanding the verdict based on the evidence actually presented at trial. Whittaker Gen. Medical Corp. v. Daniel, 87 N.C. App. 659, 362 S.E.2d 302, 1987 N.C. App. LEXIS 3313 (1987), rev'd, 374 S.E.2d 268, 1988 N.C. LEXIS 691 (N.C. 1988), rev'd in part, 324 N.C. 523 , 379 S.E.2d 824, 1989 N.C. LEXIS 299 (1989).

Attorneys’ Fees. —

G.S. 6-21.5 provides in part that the entry of judgment pursuant to Rule 50 or this rule may be some evidence that an attorneys’ fee may be warranted. The statute’s reference to these rules, which are applicable only if evidence in addition to the pleadings is before the court, thus implies that when deciding whether to grant a motion under G.S. 6-21.5 the trial court may consider evidence developed after the pleadings have been filed. Sunamerica Fin. Corp. v. Bonham, 328 N.C. 254 , 400 S.E.2d 435, 1991 N.C. LEXIS 106 (1991).

Denial of Sanctions Upheld. —

Motion brought by plaintiffs who sought sanctions under G.S. 1A-1 , Rule 56(g) on the grounds that defendant filed an affidavit in support of summary judgment that was not based on his personal knowledge, because it used a phrase with which he was unacquainted, in bad faith, was not so unwarranted by existing case law as to merit sanctions under G.S. 1A-1 , Rule 11. Johnson v. Harris, 149 N.C. App. 928, 563 S.E.2d 224, 2002 N.C. App. LEXIS 383 (2002).

Interlocutory Appeals. —

Defendants were allowed to make an interlocutory appeal of plaintiff’s motion for partial summary judgment pursuant to G.S. 1A-1 , N.C. R. Civ. P. 56; although the appeal was interlocutory, to deny appellate review would have allowed the judgment to strip defendants of their property without any possible redress except another lawsuit, and therefore would have affected a substantial right pursuant to G.S. 1-277 . Estate of Graham v. Morrison, 156 N.C. App. 154, 576 S.E.2d 355, 2003 N.C. App. LEXIS 81 (2003).

Because a trial court’s order requiring landowners to remove substantial structures from their property affected their substantial rights, the partial summary judgment under G.S. 1A-1 , N.C. R. Civ. P. 56(c) was immediately appealable. Keener v. Arnold, 161 N.C. App. 634, 589 S.E.2d 731, 2003 N.C. App. LEXIS 2278 (2003).

In a defamation action, the appeal of the candidate and campaign from the trial court’s denial of their G.S. 1A-1 , N.C. R. Civ. P. 12(b)(6) motion was interlocutory, and the denial did not challenge a substantial right that was to be lost absent immediate appellate review pursuant to G.S. 1-277(a) ; the instant case was akin to a previous case in which an appeal from a motion for judgment on pleadings pursuant to G.S. 1A-1 , N.C. R. Civ. P. 12(c) was dismissed, and the instant case was distinguishable from a previous case in which an appeal on a ruling on a motion for summary judgment pursuant to G.S. 1A-1, N.C. R. Civ. P. 56 was allowed, as a motion under G.S. 1A-1, N.C. R. Civ. P. 12(c) was more similar to a G.S. 1A-1, N.C. R. Civ. P. 12(b)(6) motion. Grant v. Miller, 170 N.C. App. 184, 611 S.E.2d 477, 2005 N.C. App. LEXIS 902 (2005).

In a case involving specific performance, an appellate court considered an appeal from the granting of a motion for partial summary judgment because it was not interlocutory since it disposed of all of the claims brought before the trial court. Wolfe v. Villines, 169 N.C. App. 483, 610 S.E.2d 754, 2005 N.C. App. LEXIS 690 (2005).

Because the granting of summary judgment did not dispose of the case as to all parties, as the injured person entered into a stipulation of dismissal without prejudice as to the motel, and the granting summary judgment as to contributory negligence completely disposed of the case, the judgment was not interlocutory as it disposed of the cause leaving nothing to be judicially determined between the parties in the trial court. Duval v. OM Hospitality, LLC, 186 N.C. App. 390, 651 S.E.2d 261, 2007 N.C. App. LEXIS 2190 (2007).

II.Purpose of Summary Judgment

This rule is designed to permit penetration of an unfounded claim or defense in advance of trial and to allow summary disposition for either party when a fatal weakness in the claim or defense is exposed. Patrick v. Hurdle, 16 N.C. App. 28, 190 S.E.2d 871, 1972 N.C. App. LEXIS 1635 , cert. denied, 282 N.C. 304 , 192 S.E.2d 195, 1972 N.C. LEXIS 942 (1972); Caldwell v. Deese, 288 N.C. 375 , 218 S.E.2d 379, 1975 N.C. LEXIS 986 (1975); Philbin Invs., Inc. v. Orb Enters., Ltd., 35 N.C. App. 622, 242 S.E.2d 176, 1978 N.C. App. LEXIS 3047 , cert. denied, 295 N.C. 90 , 244 S.E.2d 260, 1978 N.C. LEXIS 958 (1978); Thompson v. Northwestern Sec. Life Ins. Co., 44 N.C. App. 668, 262 S.E.2d 397, 1980 N.C. App. LEXIS 2584 , cert. denied, 300 N.C. 202 , 269 S.E.2d 620, 1980 N.C. LEXIS 1521 (1980); Southeastern Asphalt & Concrete Co. v. American Defender Life Ins. Co., 69 N.C. App. 185, 316 S.E.2d 311, 1984 N.C. App. LEXIS 3394 (1984); Cannon v. Miller, 71 N.C. App. 460, 322 S.E.2d 780, 1984 N.C. App. LEXIS 3909 (1984), vacated, 313 N.C. 324 , 327 S.E.2d 888, 1985 N.C. LEXIS 1570 (1985); N.C. Coastal Motor Line v. Everette Truck Line, 77 N.C. App. 149, 334 S.E.2d 499, 1985 N.C. App. LEXIS 4028 (1985); Sink v. Andrews, 81 N.C. App. 594, 344 S.E.2d 831, 1986 N.C. App. LEXIS 2340 (1986); Palm Beach, Inc. v. Allen, 91 N.C. App. 115, 370 S.E.2d 440, 1988 N.C. App. LEXIS 716 (1988).

The purpose of this rule is to preserve the court from frivolous defenses, and to defeat attempts to use formal pleadings as means to delay the recovery of just demands. Kidd v. Early, 289 N.C. 343 , 222 S.E.2d 392, 1976 N.C. LEXIS 1290 (1976); Baum v. Golden, 83 N.C. App. 218, 349 S.E.2d 625, 1986 N.C. App. LEXIS 2692 (1986).

Summary judgment is designed to eliminate formal trials where only questions of law are involved by permitting penetration of an unfounded claim or defense in advance of trial and allowing summary disposition for either party when a fatal weakness in the claim or defense is exposed. Highlands Tp. Taxpayers Ass'n v. Highlands Tp. Taxpayers Ass'n, 62 N.C. App. 537, 303 S.E.2d 234, 1983 N.C. App. LEXIS 2913 (1983).

The goal of this procedural device is to allow penetration of an unfounded claim or defense before trial. Asheville Contracting Co. v. City of Wilson, 62 N.C. App. 329, 303 S.E.2d 365, 1983 N.C. App. LEXIS 2929 (1983).

A motion for summary judgment is an attempt by a party to avoid the necessity of trial by exposing a fatal weakness in the claim or defense of his opponent. Normile v. Miller, 63 N.C. App. 689, 306 S.E.2d 147, 1983 N.C. App. LEXIS 3195 (1983), modified, 313 N.C. 98 , 326 S.E.2d 11, 1985 N.C. LEXIS 1521 (1985).

The goal of summary judgment procedures is to allow penetration of an unfounded claim or defense before trial. Thus, if there is any question as to the credibility of an affiant in a summary judgment motion or if there is a question which can be resolved only by the weight of the evidence, summary judgment should be denied. Broadway v. Blythe Indus., Inc., 313 N.C. 150 , 326 S.E.2d 266, 1985 N.C. LEXIS 1510 (1985).

The ultimate goal of the procedural device of summary judgment is to allow penetration of an unfounded claim or defense before trial. Murphrey v. Winslow, 70 N.C. App. 10, 318 S.E.2d 849, 1984 N.C. App. LEXIS 3607 (1984), rev'd, 313 N.C. 320 , 327 S.E.2d 878, 1985 N.C. LEXIS 1536 (1985).

Summary judgment is designed to eliminate the necessity of a formal trial where only questions of law are involved and a fatal weakness in the claim of a party is exposed. Hall v. Post, 85 N.C. App. 610, 355 S.E.2d 819, 1987 N.C. App. LEXIS 2646 (1987), rev'd, 323 N.C. 259 , 372 S.E.2d 711, 1988 N.C. LEXIS 611 (1988).

And to Allow a Preview or Forecast of the Proof. —

The procedure for a summary judgment motion is designed to allow a “preview” or “forecast” of the proof of the parties in order to determine whether a jury trial is necessary. Loy v. Lorm Corp., 52 N.C. App. 428, 278 S.E.2d 897, 1981 N.C. App. LEXIS 2468 (1981); Asheville Contracting Co. v. City of Wilson, 62 N.C. App. 329, 303 S.E.2d 365, 1983 N.C. App. LEXIS 2929 (1983).

Purpose of summary judgment is to provide an expeditious method for determining whether a material issue of fact actually exists. Patterson v. Reid, 10 N.C. App. 22, 178 S.E.2d 1, 1970 N.C. App. LEXIS 1181 (1970); Alltop v. J.C. Penney Co., 10 N.C. App. 692, 179 S.E.2d 885, 1971 N.C. App. LEXIS 1699 , cert. denied, 279 N.C. 348 , 182 S.E.2d 580, 1971 N.C. LEXIS 783 (1971); Blackmon v. Valley Decorating Co., 11 N.C. App. 137, 180 S.E.2d 396, 1971 N.C. App. LEXIS 1466 (1971); Robinson v. McMahan, 11 N.C. App. 275, 181 S.E.2d 147, 1971 N.C. App. LEXIS 1504 , cert. denied, 279 N.C. 395 , 183 S.E.2d 243, 1971 N.C. LEXIS 825 (1971); Millsaps v. Wilkes Contracting Co., 14 N.C. App. 321, 188 S.E.2d 663, 1972 N.C. App. LEXIS 2125 , cert. denied, 281 N.C. 623 , 190 S.E.2d 466, 1972 N.C. LEXIS 1129 (1972); Emanuel v. Colonial Life & Accident Ins. Co., 35 N.C. App. 435, 242 S.E.2d 381, 1978 N.C. App. LEXIS 3005 (1978); Vassey v. Burch, 301 N.C. 68 , 269 S.E.2d 137, 1980 N.C. LEXIS 1145 (1980); Gregory v. Perdue, Inc., 47 N.C. App. 655, 267 S.E.2d 584, 1980 N.C. App. LEXIS 3163 (1980); Southerland v. Kapp, 59 N.C. App. 94, 295 S.E.2d 602, 1982 N.C. App. LEXIS 2854 (1982).

The purpose of summary judgment is to go beyond or to pierce the pleadings and determine whether there is a genuine issue of material fact. Singleton v. Stewart, 280 N.C. 460 , 186 S.E.2d 400, 1972 N.C. LEXIS 1265 (1972).

The purpose of summary judgment is to eliminate formal trials where only questions of law are involved by allowing summary disposition for either party when a fatal weakness in the claim or defense is exposed. Gray v. Hager, 69 N.C. App. 331, 317 S.E.2d 59, 1984 N.C. App. LEXIS 3477 (1984).

And, If Not, Whether Movant Is Entitled to Judgment. —

The purpose of the summary judgment rule is to provide an expeditious method of determining whether a genuine issue as to any material fact actually exists, and if not, whether the moving party is entitled to judgment as a matter of law. Schoolfield v. Collins, 12 N.C. App. 106, 182 S.E.2d 648, 1971 N.C. App. LEXIS 1294 (1971), rev'd, 281 N.C. 604 , 189 S.E.2d 208, 1972 N.C. LEXIS 1117 (1972); Gudger v. Transitional Furn., Inc., 30 N.C. App. 387, 226 S.E.2d 835, 1976 N.C. App. LEXIS 2262 (1976).

The purpose of the summary judgment procedure provided by this rule is to ferret out those cases in which there is no genuine issue as to any material fact and in which, upon such undisputed facts, a party is entitled to judgment as a matter of law. Haithcock v. Chimney Rock Co., 10 N.C. App. 696, 179 S.E.2d 865, 1971 N.C. App. LEXIS 1700 (1971); Robinson v. McMahan, 11 N.C. App. 275, 181 S.E.2d 147, 1971 N.C. App. LEXIS 1504 , cert. denied, 279 N.C. 395 , 183 S.E.2d 243, 1971 N.C. LEXIS 825 (1971); Peterson v. Winn-Dixie of Raleigh, Inc., 14 N.C. App. 29, 187 S.E.2d 487, 1972 N.C. App. LEXIS 2029 (1972); Cameron-Brown Capital Corp. v. Spencer, 31 N.C. App. 499, 229 S.E.2d 711, 1976 N.C. App. LEXIS 2025 (1976), cert. denied, 291 N.C. 710 , 232 S.E.2d 203, 1977 N.C. LEXIS 1240 (1977).

And to Bring Litigation to a Prompt Disposition on the Merits. —

The purpose of summary judgment is to bring litigation to an early decision on the merits without the delay and expense of a trial where it can be readily demonstrated that no material facts are in issue. Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971); Blades v. City of Raleigh, 280 N.C. 531 , 187 S.E.2d 35, 1972 N.C. LEXIS 1277 (1972); McNair v. Boyette, 282 N.C. 230 , 192 S.E.2d 457, 1972 N.C. LEXIS 930 (1972); Yount v. Lowe, 24 N.C. App. 48, 209 S.E.2d 867, 1974 N.C. App. LEXIS 1925 (1974), aff'd, 288 N.C. 90 , 215 S.E.2d 563, 1975 N.C. LEXIS 885 (1975); Barrett v. Phillips, 29 N.C. App. 220, 223 S.E.2d 918, 1976 N.C. App. LEXIS 2446 (1976); Carr v. Great Lakes Carbon Corp., 49 N.C. App. 631, 272 S.E.2d 374, 1980 N.C. App. LEXIS 3427 (1980); Texaco, Inc. v. Creel, 57 N.C. App. 611, 292 S.E.2d 130, 1982 N.C. App. LEXIS 2694 (1982), aff'd, 310 N.C. 695 , 314 S.E.2d 506, 1984 N.C. LEXIS 1698 (1984); Jones v. City of Burlington, 58 N.C. App. 193, 293 S.E.2d 252, 1982 N.C. App. LEXIS 2716 (1982); Southern Ry. v. ADM Milling Co., 58 N.C. App. 667, 294 S.E.2d 750, 1982 N.C. App. LEXIS 2828 (1982); Angola Farm Supply & Equip. Co. v. FMC Corp., 59 N.C. App. 272, 296 S.E.2d 503, 1982 N.C. App. LEXIS 3102 (1982); Harris v. Walden, 314 N.C. 284 , 333 S.E.2d 254, 1985 N.C. LEXIS 1785 (1985); Campbell v. Board of Educ., 76 N.C. App. 495, 333 S.E.2d 507, 1985 N.C. App. LEXIS 3908 (1985).

Summary judgment is a device to make possible the prompt disposition of controversies on their merits without a trial, if in essence there is no real dispute as to the salient facts. Pridgen v. Hughes, 9 N.C. App. 635, 177 S.E.2d 425, 1970 N.C. App. LEXIS 1425 (1970); Town of Southern Pines v. Mohr, 30 N.C. App. 342, 226 S.E.2d 865, 1976 N.C. App. LEXIS 2250 (1976).

This rule is for the disposition of cases where there is no genuine issue of fact. Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971); Riggins v. County of Mecklenburg, 14 N.C. App. 624, 188 S.E.2d 749, 1972 N.C. App. LEXIS 2197 (1972); Caldwell v. Deese, 288 N.C. 375 , 218 S.E.2d 379, 1975 N.C. LEXIS 986 (1975); Barrett v. Phillips, 29 N.C. App. 220, 223 S.E.2d 918, 1976 N.C. App. LEXIS 2446 (1976); Baumann v. Smith, 298 N.C. 778 , 260 S.E.2d 626, 1979 N.C. LEXIS 1419 (1979).

The purpose of the motion for summary judgment is to determine prior to trial whether there is any genuine issue with respect to any material fact and, if not, to provide for an early and effective disposition of the matter. Doggett v. Welborn, 18 N.C. App. 105, 196 S.E.2d 36, 1973 N.C. App. LEXIS 1788 , cert. denied, 283 N.C. 665 , 197 S.E.2d 873, 1973 N.C. LEXIS 1032 (1973); Britt v. Britt, 26 N.C. App. 132, 215 S.E.2d 172, 1975 N.C. App. LEXIS 1989 , cert. denied, 288 N.C. 238 , 217 S.E.2d 678, 1975 N.C. LEXIS 901 (1975); Carroll v. Rountree, 34 N.C. App. 167, 237 S.E.2d 566, 1977 N.C. App. LEXIS 1631 (1977).

While a day in court may be a constitutional necessity when there are disputed questions of fact, the function of the motion of summary judgment is to smoke out if there is any case, i.e., any genuine dispute as to any material fact, and if there is no case, to conserve judicial time and energy by avoiding an unnecessary trial and by providing a speedy and efficient summary disposition. Pridgen v. Hughes, 9 N.C. App. 635, 177 S.E.2d 425, 1970 N.C. App. LEXIS 1425 (1970); Town of Southern Pines v. Mohr, 30 N.C. App. 342, 226 S.E.2d 865, 1976 N.C. App. LEXIS 2250 (1976).

Summary judgment allows quick and final disposition of claims where there is no real question as to whether plaintiff should recover, or where the defendant has established a complete defense. Oakley v. Little, 49 N.C. App. 650, 272 S.E.2d 370, 1980 N.C. App. LEXIS 3428 (1980).

The purpose of this rule is to eliminate formal trials where only questions of law are involved. Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971); Nat Harrison Assocs. v. North Carolina State Ports Auth., 280 N.C. 251 , 185 S.E.2d 793, 1972 N.C. LEXIS 1225 (1972); Riggins v. County of Mecklenburg, 14 N.C. App. 624, 188 S.E.2d 749, 1972 N.C. App. LEXIS 2197 (1972); Caldwell v. Deese, 288 N.C. 375 , 218 S.E.2d 379, 1975 N.C. LEXIS 986 (1975); Nasco Equip. Co. v. Mason, 291 N.C. 145 , 229 S.E.2d 278, 1976 N.C. LEXIS 941 (1976); Barrett v. Phillips, 29 N.C. App. 220, 223 S.E.2d 918, 1976 N.C. App. LEXIS 2446 (1976); Baumann v. Smith, 298 N.C. 778 , 260 S.E.2d 626, 1979 N.C. LEXIS 1419 (1979); Phillips v. Universal Underwriters Ins. Co., 43 N.C. App. 56, 257 S.E.2d 671, 1979 N.C. App. LEXIS 3027 (1979); Thompson v. Northwestern Sec. Life Ins. Co., 44 N.C. App. 668, 262 S.E.2d 397, 1980 N.C. App. LEXIS 2584 , cert. denied, 300 N.C. 202 , 269 S.E.2d 620, 1980 N.C. LEXIS 1521 (1980); Poindexter v. Sanco Corp., 44 N.C. App. 694, 262 S.E.2d 333, 1980 N.C. App. LEXIS 2551 (1980); Asheville Contracting Co. v. City of Wilson, 62 N.C. App. 329, 303 S.E.2d 365, 1983 N.C. App. LEXIS 2929 (1983).

The purpose of a summary judgment motion is to eliminate a trial when, based on the pleadings and supporting materials, the trial court determines that only questions of law, not fact, are at issue. Loy v. Lorm Corp., 52 N.C. App. 428, 278 S.E.2d 897, 1981 N.C. App. LEXIS 2468 (1981).

The purpose of summary judgment is to eliminate formal trials where only questions of law are involved by allowing summary disposition for either party when a fatal weakness in the claim or defense is exposed. Gray v. Hager, 69 N.C. App. 331, 317 S.E.2d 59, 1984 N.C. App. LEXIS 3477 (1984).

The purpose of this rule is to prevent unnecessary trials when there are no genuine issues of fact and to identify and separate such issues if they are present. Kidd v. Early, 289 N.C. 343 , 222 S.E.2d 392, 1976 N.C. LEXIS 1290 (1976); Arnold v. Howard, 29 N.C. App. 570, 225 S.E.2d 149, 1976 N.C. App. LEXIS 2569 (1976); Old S. Life Ins. Co. v. Bank of N.C. 36 N.C. App. 18, 244 S.E.2d 264, 1978 N.C. App. LEXIS 2401 (1978); Pierce Concrete, Inc. v. Cannon Realty & Constr. Co., 77 N.C. App. 411, 335 S.E.2d 30, 1985 N.C. App. LEXIS 4065 (1985).

The purpose of summary judgment is to eliminate formal trials where only questions of law are involved by permitting penetration of an unfounded claim or defense in advance of trial and allowing summary disposition for either party when a fatal weakness in the claim or defense is exposed. Pressman v. UNC, 78 N.C. App. 296, 337 S.E.2d 644, 1985 N.C. App. LEXIS 4308 (1985).

The purpose of a summary judgment motion is to foreclose the need for a trial when, based upon the pleadings and supporting materials, the trial court determines that only questions of law, not fact, are to be decided. Robertson v. Hartman, 90 N.C. App. 250, 368 S.E.2d 199, 1988 N.C. App. LEXIS 442 (1988).

Thus Saving Time and Expense. —

The obvious purpose of summary judgment is to save time and expense in cases where there is no “genuine issue” as to any material fact. Dendy v. Watkins, 288 N.C. 447 , 219 S.E.2d 214, 1975 N.C. LEXIS 1010 (1975).

One purpose of motion for summary judgment is to avoid useless trials when a debtor has chosen to defend rather than default. Land-of-Sky Regional Council v. County of Henderson, 78 N.C. App. 85, 336 S.E.2d 653, 1985 N.C. App. LEXIS 4246 (1985).

The purpose of a motion for summary judgment is to avoid a useless trial. N.C. Coastal Motor Line v. Everette Truck Line, 77 N.C. App. 149, 334 S.E.2d 499, 1985 N.C. App. LEXIS 4028 (1985).

It is not the purpose of the summary judgment procedure to resolve disputed material issues of fact. Patterson v. Reid, 10 N.C. App. 22, 178 S.E.2d 1, 1970 N.C. App. LEXIS 1181 (1970); Blackmon v. Valley Decorating Co., 11 N.C. App. 137, 180 S.E.2d 396, 1971 N.C. App. LEXIS 1466 (1971); Robinson v. McMahan, 11 N.C. App. 275, 181 S.E.2d 147, 1971 N.C. App. LEXIS 1504 , cert. denied, 279 N.C. 395 , 183 S.E.2d 243, 1971 N.C. LEXIS 825 (1971); Millsaps v. Wilkes Contracting Co., 14 N.C. App. 321, 188 S.E.2d 663, 1972 N.C. App. LEXIS 2125 , cert. denied, 281 N.C. 623 , 190 S.E.2d 466, 1972 N.C. LEXIS 1129 (1972); Stonestreet v. Compton Motors, Inc., 18 N.C. App. 527, 197 S.E.2d 579, 1973 N.C. App. LEXIS 1928 (1973); Reid v. Reid, 32 N.C. App. 750, 233 S.E.2d 620, 1977 N.C. App. LEXIS 2053 (1977); Carroll v. Rountree, 34 N.C. App. 167, 237 S.E.2d 566, 1977 N.C. App. LEXIS 1631 (1977).

The purpose of this rule is not to allow the court to decide an issue of fact, but to determine whether a genuine issue of fact exists and thereby eliminate the necessity of a formal trial where only questions of law are involved and a fatal weakness in the claim or defense of a party is exposed. Econo-Travel Motor Hotel Corp. v. Taylor, 301 N.C. 200 , 271 S.E.2d 54, 1980 N.C. LEXIS 1152 (1980).

Summary judgment is not a device to resolve factual disputes; however, complex facts and legal issues do not preclude summary judgment. Land-of-Sky Regional Council v. County of Henderson, 78 N.C. App. 85, 336 S.E.2d 653, 1985 N.C. App. LEXIS 4246 (1985).

Nor to Test the Sufficiency of the Evidence. —

The office of summary judgment is not to test the sufficiency of the evidence. Mitchell v. Mitchell, 12 N.C. App. 54, 182 S.E.2d 627, 1971 N.C. App. LEXIS 1284 (1971).

The summary judgment rule was not intended to deprive a party of a jury trial. Kidd v. Early, 289 N.C. 343 , 222 S.E.2d 392, 1976 N.C. LEXIS 1290 (1976).

Nor to Provide a Quick and Easy Method of Clearing the Docket. —

The purpose of summary judgment is not to provide a quick and easy method for clearing the docket, but is to permit the disposition of cases in which there is no genuine controversy concerning any fact material to issues raised by the pleadings, so that the litigation involves questions of law only. First Fed. Sav. & Loan Ass'n v. Branch Banking & Trust Co., 282 N.C. 44 , 191 S.E.2d 683, 1972 N.C. LEXIS 885 (1972); Housing, Inc. v. Weaver, 37 N.C. App. 284, 246 S.E.2d 219, 1978 N.C. App. LEXIS 2740 (1978), aff'd, 296 N.C. 581 , 251 S.E.2d 457, 1979 N.C. LEXIS 1204 (1979); Durham v. Vine, 40 N.C. App. 564, 253 S.E.2d 316, 1979 N.C. App. LEXIS 2303 (1979).

III.Propriety of Summary Judgment
A.In General

Summary judgment is a drastic remedy. First Fed. Sav. & Loan Ass'n v. Branch Banking & Trust Co., 282 N.C. 44 , 191 S.E.2d 683, 1972 N.C. LEXIS 885 (1972); Billings v. Joseph Harris Co., 27 N.C. App. 689, 220 S.E.2d 361, 1975 N.C. App. LEXIS 1949 (1975), aff'd, 290 N.C. 502 , 226 S.E.2d 321, 1976 N.C. LEXIS 1091 (1976); Wilson Bros. v. Mobile Oil, 63 N.C. App. 334, 305 S.E.2d 40, 1983 N.C. App. LEXIS 3058 (1983); Bradshaw v. McElroy, 62 N.C. App. 515, 302 S.E.2d 908, 1983 N.C. App. LEXIS 2908 (1983).

And Must Be Used Cautiously. —

Summary judgment is a drastic remedy, one to be approached with caution. Billings v. Joseph Harris Co., 27 N.C. App. 689, 220 S.E.2d 361, 1975 N.C. App. LEXIS 1949 (1975), aff'd, 290 N.C. 502 , 226 S.E.2d 321, 1976 N.C. LEXIS 1091 (1976); DeCarlo v. Gerryco, Inc., 46 N.C. App. 15, 264 S.E.2d 370, 1980 N.C. App. LEXIS 2740 (1980); Southern Watch Supply Co. v. Regal Chrysler-Plymouth, Inc., 69 N.C. App. 164, 316 S.E.2d 318, 1984 N.C. App. LEXIS 3390 (1984).

Summary judgment should be used cautiously. North Carolina Nat'l Bank v. Gillespie, 291 N.C. 303 , 230 S.E.2d 375, 1976 N.C. LEXIS 975 (1976).

Requirement that summary judgment be entered only where there is no genuine disputed factual issue and the party is entitled to judgment as a matter of law should be cautiously observed. Volkman v. DP Assocs., 48 N.C. App. 155, 268 S.E.2d 265, 1980 N.C. App. LEXIS 3190 (1980).

While the granting of summary judgment is a drastic remedy and should be granted cautiously, summary judgment is appropriate when the nonmoving party cannot produce evidence of an essential element of his claim. Anderson v. Canipe, 69 N.C. App. 534, 317 S.E.2d 44, 1984 N.C. App. LEXIS 3473 (1984).

Especially in Negligence Cases. —

Summary judgment is a drastic measure, and it should be used with caution, especially in a negligence case in which a jury ordinarily applies the reasonable person standard to the facts of each case. Williams v. Carolina Power & Light Co., 296 N.C. 400 , 250 S.E.2d 255, 1979 N.C. LEXIS 1144 (1979); Willis v. Duke Power Co., 42 N.C. App. 582, 257 S.E.2d 471, 1979 N.C. App. LEXIS 3198 (1979); Brown v. Duke Power Co., 45 N.C. App. 384, 263 S.E.2d 366, 1980 N.C. App. LEXIS 2636 , cert. denied, 300 N.C. 194 , 269 S.E.2d 615, 1980 N.C. LEXIS 1533 (1980); Holcomb v. United States Fire Ins. Co., 52 N.C. App. 474, 279 S.E.2d 50, 1981 N.C. App. LEXIS 2471 (1981); Laughter v. Southern Pump & Tank Co., 75 N.C. App. 185, 330 S.E.2d 51, 1985 N.C. App. LEXIS 3605 , cert. denied, 314 N.C. 666 , 335 S.E.2d 495, 1985 N.C. LEXIS 2119 (1985).

Summary judgment is a somewhat drastic remedy and should be granted cautiously, especially in actions alleging negligence as a basis of recovery. Dumouchelle v. Duke Univ., 69 N.C. App. 471, 317 S.E.2d 100, 1984 N.C. App. LEXIS 3489 (1984).

Although North Carolina appellate courts have consistently held that summary judgment is rarely appropriate in negligence actions, summary judgment should be entered where the forecast of evidence before the trial court demonstrates that a plaintiff cannot support an essential element of his claim. Thus, summary judgment was appropriate in action arising from automobile collision. Patterson v. Pierce, 115 N.C. App. 142, 443 S.E.2d 770, 1994 N.C. App. LEXIS 562 (1994).

And Awarded Only Where the Truth Is Clear. —

Summary judgment is an extreme remedy and should be awarded only where the truth is quite clear. Lee v. Shor, 10 N.C. App. 231, 178 S.E.2d 101, 1970 N.C. App. LEXIS 1242 (1970); Nationwide Mut. Ins. Co. v. Chantos, 25 N.C. App. 482, 214 S.E.2d 438, 1975 N.C. App. LEXIS 2308 , cert. denied, 287 N.C. 465 , 215 S.E.2d 624, 1975 N.C. LEXIS 1140 (1975); Edwards v. Means, 36 N.C. App. 122, 243 S.E.2d 161, 1978 N.C. App. LEXIS 2416 , cert. denied, 295 N.C. 260 , 245 S.E.2d 777, 1978 N.C. LEXIS 992 (1978); Volkman v. DP Assocs., 48 N.C. App. 155, 268 S.E.2d 265, 1980 N.C. App. LEXIS 3190 (1980); Warren v. Rosso & Mastracco, Inc., 78 N.C. App. 163, 336 S.E.2d 699, 1985 N.C. App. LEXIS 4260 (1985).

So That No Party Is Deprived of Trial on a Genuinely Disputed Factual Issue. —

Since this rule provides a somewhat drastic remedy, it must be used with due regard to its purposes and a cautious observance of its requirements, in order that no person shall be deprived of a trial on a genuinely disputed factual issue. Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971); Moore v. Bryson, 11 N.C. App. 260, 181 S.E.2d 113, 1971 N.C. App. LEXIS 1502 (1971); Miller v. Snipes, 12 N.C. App. 342, 183 S.E.2d 270, 1971 N.C. App. LEXIS 1356 , cert. denied, 279 N.C. 619 , 184 S.E.2d 883, 1971 N.C. LEXIS 901 (1971); Koontz v. City of Winston-Salem, 280 N.C. 513 , 186 S.E.2d 897, 1972 N.C. LEXIS 1276 (1972); Executive Leasing Assocs. v. Rowland, 30 N.C. App. 590, 227 S.E.2d 642, 1976 N.C. App. LEXIS 2309 (1976); Texaco, Inc. v. Creel, 57 N.C. App. 611, 292 S.E.2d 130, 1982 N.C. App. LEXIS 2694 (1982), aff'd, 310 N.C. 695 , 314 S.E.2d 506, 1984 N.C. LEXIS 1698 (1984); Angola Farm Supply & Equip. Co. v. FMC Corp., 59 N.C. App. 272, 296 S.E.2d 503, 1982 N.C. App. LEXIS 3102 (1982); Godwin Sprayers, Inc. v. Utica Mut. Ins. Co., 59 N.C. App. 497, 296 S.E.2d 843, 1982 N.C. App. LEXIS 3155 (1982); Sauls v. Charlotte Liberty Mut. Ins. Co., 62 N.C. App. 533, 303 S.E.2d 358, 1983 N.C. App. LEXIS 2927 (1983); Justus v. Deutsch, 62 N.C. App. 711, 303 S.E.2d 571, 1983 N.C. App. LEXIS 2973 (1983); Byrd Motor Lines v. Dunlop Tire & Rubber Corp., 63 N.C. App. 292, 304 S.E.2d 773, 1983 N.C. App. LEXIS 3050 (1983); Barnes v. Wilson Hdwe. Co., 77 N.C. App. 473, 336 S.E.2d 457 (1985).

Where matters involving the credibility and weight of the evidence exist, summary judgment ordinarily should be denied. Burrow v. Westinghouse Elec. Corp., 88 N.C. App. 347, 363 S.E.2d 215, 1988 N.C. App. LEXIS 31 (1988).

Summary judgment may not be used to resolve factual disputes which are material to the disposition of the action. Robertson v. Hartman, 90 N.C. App. 250, 368 S.E.2d 199, 1988 N.C. App. LEXIS 442 (1988).

Where there is a need to find facts, then summary judgment is not an appropriate device to employ, provided those facts are material. Robertson v. Hartman, 90 N.C. App. 250, 368 S.E.2d 199, 1988 N.C. App. LEXIS 442 (1988).

Generally Summary Judgment Inappropriate Where Subjective Feelings or Conflicting Evidence Is Involved. —

Generally summary judgment is inappropriate when issues such as motive, intent, and other subjective feelings and reactions are material, or when the evidence presented is subject to conflicting interpretations, or reasonable men might differ as to its significance. Smith v. Currie, 40 N.C. App. 739, 253 S.E.2d 645, 1979 N.C. App. LEXIS 2327 , cert. denied, 297 N.C. 612 , 257 S.E.2d 219, 1979 N.C. LEXIS 1509 (1979); Feibus Co. v. Godley Constr. Co., 301 N.C. 294 , 271 S.E.2d 385, 1980 N.C. LEXIS 1175 (1980).

Summary judgment is rarely proper when a state of mind such as intent or knowledge is at issue. Valdese Gen. Hosp. v. Burns, 79 N.C. App. 163, 339 S.E.2d 23, 1986 N.C. App. LEXIS 2052 (1986); Robertson v. Hartman, 90 N.C. App. 250, 368 S.E.2d 199, 1988 N.C. App. LEXIS 442 (1988).

Summary judgment is generally not appropriate where intent or other subjective feelings are at issue. The rule that intent should generally be a question of fact for the jury does not mean, however, that it should always be so. Little v. National Servs. Indus., Inc., 79 N.C. App. 688, 340 S.E.2d 510, 1986 N.C. App. LEXIS 2114 (1986).

Two types of cases involve an absence of material issues of fact: (a) Those where a claim or defense is utterly baseless in fact, and (b) those where only a question of law on the indisputable facts is in controversy and it can be appropriately decided without full exposure of trial. Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971); Blades v. City of Raleigh, 280 N.C. 531 , 187 S.E.2d 35, 1972 N.C. LEXIS 1277 (1972); McNair v. Boyette, 282 N.C. 230 , 192 S.E.2d 457, 1972 N.C. LEXIS 930 (1972); Calhoun v. Calhoun, 18 N.C. App. 429, 197 S.E.2d 83, 1973 N.C. App. LEXIS 1892 (1973); Baumann v. Smith, 298 N.C. 778 , 260 S.E.2d 626, 1979 N.C. LEXIS 1419 (1979); Rockingham Square Shopping Center, Inc. v. Integon Life Ins. Corp., 52 N.C. App. 633, 279 S.E.2d 918, 1981 N.C. App. LEXIS 2522 , cert. denied, 304 N.C. 196 , 285 S.E.2d 101, 1981 N.C. LEXIS 1446 (1981).

Summary judgment should be granted only when movant is clearly entitled thereto. Houck v. Overcash, 282 N.C. 623 , 193 S.E.2d 905, 1973 N.C. LEXIS 1134 (1973).

Test Is Whether There Is Any Genuine Issue as to Any Material Fact. —

Where a motion for summary judgment, the test is whether on the basis of the materials presented to the court there is any genuine issue as to any material fact. Alltop v. J.C. Penney Co., 10 N.C. App. 692, 179 S.E.2d 885, 1971 N.C. App. LEXIS 1699 , cert. denied, 279 N.C. 348 , 182 S.E.2d 580, 1971 N.C. LEXIS 783 (1971); Prather, Thomas, Campbell, Pridgeon, Inc. v. Florilina Properties, Inc., 29 N.C. App. 316, 224 S.E.2d 289, 1976 N.C. App. LEXIS 2465 (1976); Lowe v. Murchison, 44 N.C. App. 488, 261 S.E.2d 255, 1980 N.C. App. LEXIS 2474 (1980).

The critical question for determination by the trial court in considering a motion for summary judgment is whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, establish a genuine issue as to any material fact. Johnston County Tuberculosis Ass'n v. North Carolina Tuberculosis & Respiratory Disease Ass'n, 15 N.C. App. 492, 190 S.E.2d 264, 1972 N.C. App. LEXIS 1947 (1972); In re Will of Edgerton, 29 N.C. App. 60, 223 S.E.2d 524, 1976 N.C. App. LEXIS 2377 , cert. denied, 290 N.C. 308 , 225 S.E.2d 832, 1976 N.C. LEXIS 1062 (1976); Oliver v. Roberts, 49 N.C. App. 311, 271 S.E.2d 399, 1980 N.C. App. LEXIS 3402 (1980), cert. denied, 276 S.E.2d 283, 1981 N.C. LEXIS 1559 (N.C. 1981).

Upon a motion for summary judgment, the trial court first must determine whether there is a genuine issue as to any material fact. Only after the trial court determines that there is no genuine issue as to any material fact, can it dispose of the matter. Housing, Inc. v. Weaver, 37 N.C. App. 284, 246 S.E.2d 219, 1978 N.C. App. LEXIS 2740 (1978), aff'd, 296 N.C. 581 , 251 S.E.2d 457, 1979 N.C. LEXIS 1204 (1979).

And Whether Party Is Entitled to Judgment. —

The test for summary judgment is twofold: Is there a genuine issue of material fact, and is the moving party entitled to judgment as a matter of law? Gore v. Hill, 52 N.C. App. 620, 279 S.E.2d 102, 1981 N.C. App. LEXIS 2452 (1981); First Am. Fed. Sav. & Loan Ass'n v. Royall, 77 N.C. App. 131, 334 S.E.2d 792, 1985 N.C. App. LEXIS 4025 (1985).

The test on a motion for summary judgment made under this rule and supported by matters outside the pleadings is whether, on the basis of the materials presented to the courts, there is any genuine issue as to any material fact and whether the movant is entitled to judgment as a matter of law. Barbour v. Little, 37 N.C. App. 686, 247 S.E.2d 252, 1978 N.C. App. LEXIS 2830 , cert. denied, 295 N.C. 733 , 248 S.E.2d 862, 1978 N.C. LEXIS 1129 (1978); Ward v. Durham Life Ins. Co., 90 N.C. App. 286, 368 S.E.2d 391, 1988 N.C. App. LEXIS 539 (1988), aff'd, 325 N.C. 202 , 381 S.E.2d 698, 1989 N.C. LEXIS 375 (1989).

On motion for summary judgment, the question before the court is whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that a party is entitled to judgment as a matter of law. Gregory v. Perdue, Inc., 47 N.C. App. 655, 267 S.E.2d 584, 1980 N.C. App. LEXIS 3163 (1980); Buffington v. Buffington, 69 N.C. App. 483, 317 S.E.2d 97, 1984 N.C. App. LEXIS 3488 (1984); Dumouchelle v. Duke Univ., 69 N.C. App. 471, 317 S.E.2d 100, 1984 N.C. App. LEXIS 3489 (1984); Herbert v. Browning-Ferris Indus. of S. Atl., Inc., 90 N.C. App. 339, 368 S.E.2d 416, 1988 N.C. App. LEXIS 555 (1988); Meadows v. Cigar Supply Co., 91 N.C. App. 404, 371 S.E.2d 765, 1988 N.C. App. LEXIS 883 (1988).

Where there is no genuine issue as to any material fact, the sole question for the court’s determination is whether defendant is entitled to judgment as a matter of law. Weaver v. Home Sec. Life Ins. Co., 20 N.C. App. 135, 201 S.E.2d 63, 1973 N.C. App. LEXIS 1491 (1973); Prather, Thomas, Campbell, Pridgeon, Inc. v. Florilina Properties, Inc., 29 N.C. App. 316, 224 S.E.2d 289, 1976 N.C. App. LEXIS 2465 (1976).

Determination of what constitutes a “genuine issue as to any material fact” is often difficult. Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971); McNair v. Boyette, 282 N.C. 230 , 192 S.E.2d 457, 1972 N.C. LEXIS 930 (1972); Lowman v. Huffman, 15 N.C. App. 700, 190 S.E.2d 700, 1972 N.C. App. LEXIS 2008 (1972); Zimmerman v. Hogg & Allen, 286 N.C. 24 , 209 S.E.2d 795, 1974 N.C. LEXIS 1175 (1974); Norfolk & W. Ry. v. Werner Indus., Inc., 286 N.C. 89 , 209 S.E.2d 734, 1974 N.C. LEXIS 1181 (1974); Nasco Equip. Co. v. Mason, 291 N.C. 145 , 229 S.E.2d 278, 1976 N.C. LEXIS 941 (1976); Barrett v. Phillips, 29 N.C. App. 220, 223 S.E.2d 918, 1976 N.C. App. LEXIS 2446 (1976).

A genuine issue is one which can be maintained by substantial evidence. Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971); Koontz v. City of Winston-Salem, 280 N.C. 513 , 186 S.E.2d 897, 1972 N.C. LEXIS 1276 (1972); McNair v. Boyette, 282 N.C. 230 , 192 S.E.2d 457, 1972 N.C. LEXIS 930 (1972); Zimmerman v. Hogg & Allen, 286 N.C. 24 , 209 S.E.2d 795, 1974 N.C. LEXIS 1175 (1974); Norfolk & W. Ry. v. Werner Indus., Inc., 286 N.C. 89 , 209 S.E.2d 734, 1974 N.C. LEXIS 1181 (1974); Barrett v. Phillips, 29 N.C. App. 220, 223 S.E.2d 918, 1976 N.C. App. LEXIS 2446 (1976); Gladstein v. South Square Assocs., 39 N.C. App. 171, 249 S.E.2d 827, 1978 N.C. App. LEXIS 2352 (1978), cert. denied, 296 N.C. 736 , 254 S.E.2d 178, 1979 N.C. LEXIS 1277 (1979); Steel Creek Dev. Corp. v. Smith, 300 N.C. 631 , 268 S.E.2d 205, 1980 N.C. LEXIS 1137 (1980); City of Thomasville v. Lease-Afex, Inc., 300 N.C. 651 , 268 S.E.2d 190, 1980 N.C. LEXIS 1130 (1980); Bernick v. Jurden, 306 N.C. 435 , 293 S.E.2d 405, 1982 N.C. LEXIS 1448 (1982); Hillman v. United States Liab. Ins. Co., 59 N.C. App. 145, 296 S.E.2d 302, 1982 N.C. App. LEXIS 3078 (1982); Godwin Sprayers, Inc. v. Utica Mut. Ins. Co., 59 N.C. App. 497, 296 S.E.2d 843, 1982 N.C. App. LEXIS 3155 (1982); Justus v. Deutsch, 62 N.C. App. 711, 303 S.E.2d 571, 1983 N.C. App. LEXIS 2973 (1983); Byrd Motor Lines v. Dunlop Tire & Rubber Corp., 63 N.C. App. 292, 304 S.E.2d 773, 1983 N.C. App. LEXIS 3050 (1983); Anderson v. Canipe, 69 N.C. App. 534, 317 S.E.2d 44, 1984 N.C. App. LEXIS 3473 (1984); All In One Maintenance Serv. v. Beech Mt. Constr. Co., 70 N.C. App. 49, 318 S.E.2d 856, 1984 N.C. App. LEXIS 3608 (1984); Cox v. Cox, 75 N.C. App. 354, 330 S.E.2d 506, 1985 N.C. App. LEXIS 3637 (1985); Surrette v. Duke Power Co., 78 N.C. App. 647, 338 S.E.2d 129, 1986 N.C. App. LEXIS 1963 (1986); Sturm v. Goss, 90 N.C. App. 326, 368 S.E.2d 399, 1988 N.C. App. LEXIS 542 (1988).

A genuine issue of material fact is defined as one in which the facts alleged are such as to constitute a legal defense or are of such nature as to affect the result of the action, or if the resolution of the issue is so essential that the party against whom it is resolved may not prevail. A genuine issue is one which can be maintained by substantial evidence. Smith v. Smith, 65 N.C. App. 139, 308 S.E.2d 504, 1983 N.C. App. LEXIS 3393 (1983).

When Issue Is Material. —

An issue is material if the facts alleged are such as to constitute a legal defense or are of such nature as to affect the result of the action, or if the resolution of the issue is so essential that the party against whom it is resolved may not prevail. Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971); Koontz v. City of Winston-Salem, 280 N.C. 513 , 186 S.E.2d 897, 1972 N.C. LEXIS 1276 (1972); McNair v. Boyette, 282 N.C. 230 , 192 S.E.2d 457, 1972 N.C. LEXIS 930 (1972); Lowman v. Huffman, 15 N.C. App. 700, 190 S.E.2d 700, 1972 N.C. App. LEXIS 2008 (1972); Kiser v. Snyder, 17 N.C. App. 445, 194 S.E.2d 638, 1973 N.C. App. LEXIS 1380 , cert. denied, 283 N.C. 257 , 195 S.E.2d 689, 1973 N.C. LEXIS 943 (1973); Zimmerman v. Hogg & Allen, 286 N.C. 24 , 209 S.E.2d 795, 1974 N.C. LEXIS 1175 (1974); Norfolk & W. Ry. v. Werner Indus., Inc., 286 N.C. 89 , 209 S.E.2d 734, 1974 N.C. LEXIS 1181 (1974); Nasco Equip. Co. v. Mason, 291 N.C. 145 , 229 S.E.2d 278, 1976 N.C. LEXIS 941 (1976); Mecklenburg County v. Westbery, 32 N.C. App. 630, 233 S.E.2d 658, 1977 N.C. App. LEXIS 2029 (1977); First Citizens Bank & Trust Co. v. Northwestern Ins. Co., 44 N.C. App. 414, 261 S.E.2d 242, 1980 N.C. App. LEXIS 2469 (1980); Loy v. Lorm Corp., 52 N.C. App. 428, 278 S.E.2d 897, 1981 N.C. App. LEXIS 2468 (1981); Godwin Sprayers, Inc. v. Utica Mut. Ins. Co., 59 N.C. App. 497, 296 S.E.2d 843, 1982 N.C. App. LEXIS 3155 (1982); Byrd Motor Lines v. Dunlop Tire & Rubber Corp., 63 N.C. App. 292, 304 S.E.2d 773, 1983 N.C. App. LEXIS 3050 (1983); Cox v. Cox, 75 N.C. App. 354, 330 S.E.2d 506, 1985 N.C. App. LEXIS 3637 (1985).

An issue is material if the facts alleged would constitute a legal defense, or would affect the result of the action, or if its resolution would prevent the party against whom it is resolved from prevailing in the action. Raleigh Paint & Wallpaper Co. v. Peacock & Assocs., 38 N.C. App. 144, 247 S.E.2d 728, 1978 N.C. App. LEXIS 2119 (1978); Miller v. Lemon Tree Inn of Wilmington, Inc., 39 N.C. App. 133, 249 S.E.2d 836, 1978 N.C. App. LEXIS 2348 (1978); Gladstein v. South Square Assocs., 39 N.C. App. 171, 249 S.E.2d 827, 1978 N.C. App. LEXIS 2352 (1978), cert. denied, 296 N.C. 736 , 254 S.E.2d 178, 1979 N.C. LEXIS 1277 (1979); Steel Creek Dev. Corp. v. Smith, 300 N.C. 631 , 268 S.E.2d 205, 1980 N.C. LEXIS 1137 (1980); City of Thomasville v. Lease-Afex, Inc., 300 N.C. 651 , 268 S.E.2d 190, 1980 N.C. LEXIS 1130 (1980); Hillman v. United States Liab. Ins. Co., 59 N.C. App. 145, 296 S.E.2d 302, 1982 N.C. App. LEXIS 3078 (1982); Sauls v. Charlotte Liberty Mut. Ins. Co., 62 N.C. App. 533, 303 S.E.2d 358, 1983 N.C. App. LEXIS 2927 (1983); Elmore's Feed & Seed, Inc. v. Patrick, 62 N.C. App. 715, 303 S.E.2d 394, 1983 N.C. App. LEXIS 2995 (1983).

An issue is material if the facts alleged would constitute a legal defense or would affect the result of the action. North Carolina Nat'l Bank v. Gillespie, 291 N.C. 303 , 230 S.E.2d 375, 1976 N.C. LEXIS 975 (1976).

A fact is material if it would constitute or would irrevocably establish any material element of a claim or defense. Bernick v. Jurden, 306 N.C. 435 , 293 S.E.2d 405, 1982 N.C. LEXIS 1448 (1982); Anderson v. Canipe, 69 N.C. App. 534, 317 S.E.2d 44, 1984 N.C. App. LEXIS 3473 (1984); All In One Maintenance Serv. v. Beech Mt. Constr. Co., 70 N.C. App. 49, 318 S.E.2d 856, 1984 N.C. App. LEXIS 3608 (1984); Surrette v. Duke Power Co., 78 N.C. App. 647, 338 S.E.2d 129, 1986 N.C. App. LEXIS 1963 (1986).

A fact is material if it constitutes a legal defense, such as the bar of an applicable statute of limitations. Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488 , 329 S.E.2d 350, 1985 N.C. LEXIS 1555 (1985); Boundreau v. Baughman, 86 N.C. App. 165, 356 S.E.2d 907, 1987 N.C. App. LEXIS 2680 (1987), aff'd in part and rev'd in part, 322 N.C. 331 , 368 S.E.2d 849, 1988 N.C. LEXIS 366 (1988).

In application for life insurance policy, written questions and answers relating to health are material as a matter of law. Sauls v. Charlotte Liberty Mut. Ins. Co., 62 N.C. App. 533, 303 S.E.2d 358, 1983 N.C. App. LEXIS 2927 (1983).

How Absence of Genuine Issue of Material Fact Established. —

A party may show that there is no genuine issue as to any material facts by showing that no facts are in dispute. And where an issue of fact arises, a party may show that it is not a genuine issue as to a material fact by showing that the party with the burden of proof in the action will not be able to present substantial evidence which would allow that issue to be resolved in his favor. Best v. Perry, 41 N.C. App. 107, 254 S.E.2d 281, 1979 N.C. App. LEXIS 2389 (1979).

A question of fact which is immaterial does not preclude summary judgment. Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971); McNair v. Boyette, 282 N.C. 230 , 192 S.E.2d 457, 1972 N.C. LEXIS 930 (1972); Keith v. G.D. Reddick, Inc., 15 N.C. App. 94, 189 S.E.2d 775, 1972 N.C. App. LEXIS 1830 (1972); Norfolk & W. Ry. v. Werner Indus., Inc., 286 N.C. 89 , 209 S.E.2d 734, 1974 N.C. LEXIS 1181 (1974); Johnson v. Northwestern Bank, 27 N.C. App. 240, 218 S.E.2d 722, 1975 N.C. App. LEXIS 1806 (1975); Nasco Equip. Co. v. Mason, 291 N.C. 145 , 229 S.E.2d 278, 1976 N.C. LEXIS 941 (1976); Mecklenburg County v. Westbery, 32 N.C. App. 630, 233 S.E.2d 658, 1977 N.C. App. LEXIS 2029 (1977); Capps v. City of Raleigh, 35 N.C. App. 290, 241 S.E.2d 527, 1978 N.C. App. LEXIS 2961 (1978); Ledford v. Ledford, 49 N.C. App. 226, 271 S.E.2d 393, 1980 N.C. App. LEXIS 3375 (1980); Little v. National Servs. Indus., Inc., 79 N.C. App. 688, 340 S.E.2d 510, 1986 N.C. App. LEXIS 2114 (1986); Prince v. Mallard Lakes Ass'n, 82 N.C. App. 431, 346 S.E.2d 191, 1986 N.C. App. LEXIS 2457 (1986); Dull v. Mutual of Omaha Ins. Co., 85 N.C. App. 310, 354 S.E.2d 752, 1987 N.C. App. LEXIS 2598 (1987).

Summary Judgment to Be Granted Only Where No Genuine Issue of Material Fact Is Presented. —

Summary judgment is an extreme remedy and is appropriate only where no genuine issue of material fact is presented. Long v. Long, 15 N.C. App. 525, 190 S.E.2d 415, 1972 N.C. App. LEXIS 1956 (1972); Haddock v. Smithson, 30 N.C. App. 228, 226 S.E.2d 411, 1976 N.C. App. LEXIS 2188 , cert. denied, 290 N.C. 776 , 229 S.E.2d 32, 1976 N.C. LEXIS 1192 (1976); Emanuel v. Colonial Life & Accident Ins. Co., 35 N.C. App. 435, 242 S.E.2d 381, 1978 N.C. App. LEXIS 3005 (1978).

Summary judgment should be granted with caution and only where the movant has established the nonexistence of any genuine issue of fact. English v. Holden Beach Realty Corp., 41 N.C. App. 1, 254 S.E.2d 223, 1979 N.C. App. LEXIS 2386 , cert. denied, 297 N.C. 609 , 257 S.E.2d 217, 1979 N.C. LEXIS 1493 (1979).

In ruling on a motion for summary judgment the court does not resolve issues of fact, and must deny the motion if there is any issue of genuine material fact. Singleton v. Stewart, 280 N.C. 460 , 186 S.E.2d 400, 1972 N.C. LEXIS 1265 (1972); Whitten v. Bob King's AMC/Jeep, Inc., 30 N.C. App. 161, 226 S.E.2d 530, 1976 N.C. App. LEXIS 2173 (1976), rev'd, 292 N.C. 84 , 231 S.E.2d 891, 1977 N.C. LEXIS 1044 (1977); Baumann v. Smith, 298 N.C. 778 , 260 S.E.2d 626, 1979 N.C. LEXIS 1419 (1979); Southland Assocs. v. Peach, 52 N.C. App. 340, 278 S.E.2d 293, 1981 N.C. App. LEXIS 2442 (1981).

Summary judgment may not be granted if there is any genuine issue as to any material fact. Williams v. North Carolina State Bd. of Educ., 284 N.C. 588 , 201 S.E.2d 889, 1974 N.C. LEXIS 1291 (1974); Gray v. American Express Co., 34 N.C. App. 714, 239 S.E.2d 621, 1977 N.C. App. LEXIS 1799 (1977).

The motion for summary judgment should not be granted unless it is perfectly clear that no issue of fact is involved and inquiry into the facts is not desirable to clarify the application of the law. Dendy v. Watkins, 288 N.C. 447 , 219 S.E.2d 214, 1975 N.C. LEXIS 1010 (1975); Carlton v. Carlton, 74 N.C. App. 690, 329 S.E.2d 682, 1985 N.C. App. LEXIS 3572 (1985).

Before entry of summary judgment it must be clearly established by the record before the trial court that there is a lack of any triable issue of fact. A-S-P Assocs. v. City of Raleigh, 38 N.C. App. 271, 247 S.E.2d 800, 1978 N.C. App. LEXIS 2167 (1978), rev'd, 298 N.C. 207 , 258 S.E.2d 444, 1979 N.C. LEXIS 1362 (1979).

Generally, on undisputed aspects of the opposing evidential forecast, where there is no genuine issue of fact, the moving party is entitled to judgment as a matter of law. Taylor v. Greensboro News Co., 57 N.C. App. 426, 291 S.E.2d 852, 1982 N.C. App. LEXIS 2679 (1982); Quality Inns Int'l, Inc. v. Booth, Fish, Simpson, Harrison & Hall, 58 N.C. App. 1, 292 S.E.2d 755, 1982 N.C. App. LEXIS 2736 (1982); Bicycle Transit Auth., Inc. v. Bell, 314 N.C. 219 , 333 S.E.2d 299, 1985 N.C. LEXIS 1777 (1985).

Summary judgment is proper only where there are no material facts in issue. Southern Watch Supply Co. v. Regal Chrysler-Plymouth, Inc., 69 N.C. App. 164, 316 S.E.2d 318, 1984 N.C. App. LEXIS 3390 (1984).

Summary judgment is appropriate only where there are no genuine and material issues of fact to be resolved. Harris-Teeter Supermarkets, Inc. v. Hampton, 76 N.C. App. 649, 334 S.E.2d 81, 1985 N.C. App. LEXIS 3915 (1985).

Summary judgment under this section should be granted when there is no genuine issue of material fact and only issues of law remain. Johnson v. Holbrook, 77 N.C. App. 485, 335 S.E.2d 53, 1985 N.C. App. LEXIS 4071 (1985).

Evidence held insufficient to establish any genuine issue of material fact. Long v. Vertical Technologies, Inc., 113 N.C. App. 598, 439 S.E.2d 797, 1994 N.C. App. LEXIS 150 (1994).

And Where a Party Is Entitled to Judgment as a Matter of Law. —

Summary judgment is proper only when there is no genuine issue as to any material fact and one party is entitled to judgment as a matter of law. Bogle v. Duke Power Co., 27 N.C. App. 318, 219 S.E.2d 308 (1975), cert. denied, 289 N.C. 296 , 222 S.E.2d 695 (1976); Mecklenburg County v. Westbery, 32 N.C. App. 630, 233 S.E.2d 658 (1977); Frye v. Arrington, 58 N.C. App. 180, 292 S.E.2d 772 (1982); Laughter v. Southern Pump & Tank Co., 75 N.C. App. 185, 330 S.E.2d 51, cert. denied, 314 N.C. 666 , 335 S.E.2d 495 (1985); Schaffner v. Cumberland County Hosp. Sys., 77 N.C. App. 689, 336 S.E.2d 116 (1985); Valdese Gen. Hosp. v. Burns, 79 N.C. App. 163, 339 S.E.2d 23 (1986); Ward v. Turcotte, 79 N.C. App. 458, 339 S.E.2d 444 (1986); Little v. National Servs. Indus., Inc., 79 N.C. App. 688, 340 S.E.2d 510 (1986). In accord with first paragraph in main volume. See Vance v. Wiley T. Booth, Inc., 112 N.C. App. 600, 436 S.E.2d 256, 1993 N.C. App. LEXIS 1202 (1993).

Rendition of summary judgment is conditioned upon a showing by the movant that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law. Page v. Sloan, 12 N.C. App. 433, 183 S.E.2d 813, 1971 N.C. App. LEXIS 1380 (1971), aff'd, 281 N.C. 697 , 190 S.E.2d 189, 1972 N.C. LEXIS 1162 (1972); Singleton v. Stewart, 280 N.C. 460 , 186 S.E.2d 400, 1972 N.C. LEXIS 1265 (1972); Page v. Sloan, 281 N.C. 697 , 190 S.E.2d 189, 1972 N.C. LEXIS 1162 (1972); Kiser v. Snyder, 17 N.C. App. 445, 194 S.E.2d 638, 1973 N.C. App. LEXIS 1380 , cert. denied, 283 N.C. 257 , 195 S.E.2d 689, 1973 N.C. LEXIS 943 (1973); Van Poole v. Messer, 19 N.C. App. 70, 198 S.E.2d 106, 1973 N.C. App. LEXIS 1569 (1973); Norfolk & W. Ry. v. Werner Indus., Inc., 286 N.C. 89 , 209 S.E.2d 734, 1974 N.C. LEXIS 1181 (1974); Caldwell v. Deese, 288 N.C. 375 , 218 S.E.2d 379, 1975 N.C. LEXIS 986 (1975); Parker v. Bennett, 32 N.C. App. 46, 231 S.E.2d 10, 1977 N.C. App. LEXIS 1854 , cert. denied, 292 N.C. 266 , 233 S.E.2d 393, 1977 N.C. LEXIS 1073 (1977); Harris v. Carter, 33 N.C. App. 179, 234 S.E.2d 472, 1977 N.C. App. LEXIS 2122 (1977); Moore v. Fieldcrest Mills, Inc., 36 N.C. App. 350, 244 S.E.2d 208, 1978 N.C. App. LEXIS 2480 (1978), aff'd, 296 N.C. 467 , 251 S.E.2d 419, 1979 N.C. LEXIS 1186 (1979); Baumann v. Smith, 41 N.C. App. 223, 254 S.E.2d 627, 1979 N.C. App. LEXIS 2438 , rev'd, 298 N.C. 778 , 260 S.E.2d 626, 1979 N.C. LEXIS 1419 (1979); Strickland v. Tant, 41 N.C. App. 534, 255 S.E.2d 325, 1979 N.C. App. LEXIS 2662 , cert. denied, 298 N.C. 304 , 259 S.E.2d 917, 1979 N.C. LEXIS 1619 (1979); Willis v. Duke Power Co., 42 N.C. App. 582, 257 S.E.2d 471, 1979 N.C. App. LEXIS 3198 (1979); Williams v. Congdon, 43 N.C. App. 53, 257 S.E.2d 677, 1979 N.C. App. LEXIS 3023 (1979); Heritage Communities of N.C. Inc. v. Powers, Inc., 49 N.C. App. 656, 272 S.E.2d 399, 1980 N.C. App. LEXIS 3441 (1980); Miller v. Triangle Volkswagen, Inc., 55 N.C. App. 593, 286 S.E.2d 608, 1982 N.C. App. LEXIS 2252 (1982); Ft. Recovery Indus., Inc. v. Perry, 57 N.C. App. 354, 291 S.E.2d 329, 1982 N.C. App. LEXIS 2636 (1982); Candid Camera Video World, Inc. v. Mathews, 76 N.C. App. 634, 334 S.E.2d 94, 1985 N.C. App. LEXIS 3931 (1985).

Motion for summary judgment may be granted only when there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law. Zimmerman v. Hogg & Allen, 286 N.C. 24 , 209 S.E.2d 795, 1974 N.C. LEXIS 1175 (1974); North Carolina Nat'l Bank v. Gillespie, 291 N.C. 303 , 230 S.E.2d 375, 1976 N.C. LEXIS 975 (1976); Ballenger v. Crowell, 38 N.C. App. 50, 247 S.E.2d 287, 1978 N.C. App. LEXIS 2084 (1978); Branch Banking & Trust Co. v. Creasy, 301 N.C. 44 , 269 S.E.2d 117, 1980 N.C. LEXIS 1142 (1980); First Citizens Bank & Trust Co. v. Northwestern Ins. Co., 44 N.C. App. 414, 261 S.E.2d 242, 1980 N.C. App. LEXIS 2469 (1980); Ellis v. Smith-Broadhurst, Inc., 48 N.C. App. 180, 268 S.E.2d 271, 1980 N.C. App. LEXIS 3192 (1980); Cunningham v. Brown, 51 N.C. App. 264, 276 S.E.2d 718, 1981 N.C. App. LEXIS 2226 (1981); Loy v. Lorm Corp., 52 N.C. App. 428, 278 S.E.2d 897, 1981 N.C. App. LEXIS 2468 (1981); Lattimore v. Fisher's Food Shoppe, Inc., 69 N.C. App. 227, 316 S.E.2d 344, 1984 N.C. App. LEXIS 3403 (1984), rev'd, 313 N.C. 467 , 329 S.E.2d 346, 1985 N.C. LEXIS 1542 (1985); Ivey v. Williams, 74 N.C. App. 532, 328 S.E.2d 837, 1985 N.C. App. LEXIS 3494 (1985).

Summary judgment is proper only when the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Lee v. Shor, 10 N.C. App. 231, 178 S.E.2d 101, 1970 N.C. App. LEXIS 1242 (1970); Lowman v. Huffman, 15 N.C. App. 700, 190 S.E.2d 700, 1972 N.C. App. LEXIS 2008 (1972); Ryals v. Barefoot, 19 N.C. App. 564, 199 S.E.2d 483, 1973 N.C. App. LEXIS 1703 (1973); Pilot Freight Carriers, Inc. v. David G. Allen Co., 22 N.C. App. 442, 206 S.E.2d 750, 1974 N.C. App. LEXIS 2352 (1974), cert. denied, 287 N.C. 465 , 215 S.E.2d 625, 1975 N.C. LEXIS 1137 (1975); Norfolk & W. Ry. v. Werner Indus., Inc., 286 N.C. 89 , 209 S.E.2d 734, 1974 N.C. LEXIS 1181 (1974); Barnes v. Barnes, 30 N.C. App. 196, 226 S.E.2d 549, 1976 N.C. App. LEXIS 2180 , cert. denied, 290 N.C. 775 , 229 S.E.2d 31, 1976 N.C. LEXIS 1185 (1976); Haddock v. Smithson, 30 N.C. App. 228, 226 S.E.2d 411, 1976 N.C. App. LEXIS 2188 , cert. denied, 290 N.C. 776 , 229 S.E.2d 32, 1976 N.C. LEXIS 1192 (1976); Whitten v. Bob King's AMC/Jeep, Inc., 292 N.C. 84 , 231 S.E.2d 891, 1977 N.C. LEXIS 1044 (1977); Reid v. Reid, 32 N.C. App. 750, 233 S.E.2d 620, 1977 N.C. App. LEXIS 2053 (1977); Edwards v. Means, 36 N.C. App. 122, 243 S.E.2d 161, 1978 N.C. App. LEXIS 2416 , cert. denied, 295 N.C. 260 , 245 S.E.2d 777, 1978 N.C. LEXIS 992 (1978); Bentley v. Langley, 39 N.C. App. 20, 249 S.E.2d 481, 1978 N.C. App. LEXIS 2332 (1978), cert. denied, 296 N.C. 735 , 254 S.E.2d 176, 1979 N.C. LEXIS 1428 (1979); Fitzgerald v. Wolf, 40 N.C. App. 197, 252 S.E.2d 523, 1979 N.C. App. LEXIS 2596 (1979); Jenkins v. Stewart & Everett Theatres, Inc., 41 N.C. App. 262, 254 S.E.2d 776, 1979 N.C. App. LEXIS 2439 , cert. denied, 297 N.C. 698 , 259 S.E.2d 295, 1979 N.C. LEXIS 1535 (1979); Neihage v. Kittrell Auto Parts, Inc., 41 N.C. App. 538, 255 S.E.2d 315, 1979 N.C. App. LEXIS 2665 , cert. denied, 298 N.C. 298 , 259 S.E.2d 914, 1979 N.C. LEXIS 1593 (1979); Stillwell Enters., Inc. v. Interstate Equip. Co., 41 N.C. App. 204, 254 S.E.2d 770, 1979 N.C. App. LEXIS 2440 (1979), rev'd, 300 N.C. 286 , 266 S.E.2d 812, 1980 N.C. LEXIS 1071 (1980); Johnson v. Phoenix Mut. Life Ins. Co., 44 N.C. App. 210, 261 S.E.2d 135, 1979 N.C. App. LEXIS 3264 (1979), rev'd, 300 N.C. 247 , 266 S.E.2d 610, 1980 N.C. LEXIS 1069 (1980); Wells v. North Carolina Nat'l Bank, 44 N.C. App. 592, 261 S.E.2d 296, 1980 N.C. App. LEXIS 2494 (1980); Thompson v. Northwestern Sec. Life Ins. Co., 44 N.C. App. 668, 262 S.E.2d 397, 1980 N.C. App. LEXIS 2584 , cert. denied, 300 N.C. 202 , 269 S.E.2d 620, 1980 N.C. LEXIS 1521 (1980); Econo-Travel Motor Hotel Corp. v. Taylor, 45 N.C. App. 229, 262 S.E.2d 869, 1980 N.C. App. LEXIS 2608 , rev'd, 301 N.C. 200 , 271 S.E.2d 54, 1980 N.C. LEXIS 1152 (1980); Bell v. Martin, 299 N.C. 715 , 264 S.E.2d 101, 1980 N.C. LEXIS 991 (1980); Econo-Travel Motor Hotel Corp. v. Taylor, 301 N.C. 200 , 271 S.E.2d 54, 1980 N.C. LEXIS 1152 (1980); Quail Hollow E. Condominium Ass'n v. Donald J. Scholz Co., 47 N.C. App. 518, 268 S.E.2d 12, 1980 N.C. App. LEXIS 3166 (1980); Brenner v. Little Red Sch. House, Ltd., 302 N.C. 207 , 274 S.E.2d 206, 1981 N.C. LEXIS 1044 (1981); Kent v. Humphries, 303 N.C. 675 , 281 S.E.2d 43, 1981 N.C. LEXIS 1203 (1981); Dealers Specialties, Inc. v. Neighborhood Hous. Servs., Inc., 54 N.C. App. 46, 283 S.E.2d 155, 1981 N.C. App. LEXIS 2811 (1981), modified, 305 N.C. 633 , 291 S.E.2d 137, 1982 N.C. LEXIS 1341 (1982); Sharpe v. Quality Educ., Inc., 59 N.C. App. 304, 296 S.E.2d 661, 1982 N.C. App. LEXIS 3113 (1982); Ruffin v. Contractors & Materials, Inc., 69 N.C. App. 174, 316 S.E.2d 353, 1984 N.C. App. LEXIS 3399 (1984); Amoco Oil Co. v. Griffin, 78 N.C. App. 716, 338 S.E.2d 601, 1986 N.C. App. LEXIS 1999 (1986).

In order for the granting of plaintiff’s motion for summary judgment to be appropriate, it must appear from the items submitted in support of plaintiff’s motion that plaintiff was entitled to judgment as a matter of law. Atkinson v. Wilkerson, 10 N.C. App. 643, 179 S.E.2d 872, 1971 N.C. App. LEXIS 1688 (1971); Carr v. Great Lakes Carbon Corp., 49 N.C. App. 631, 272 S.E.2d 374, 1980 N.C. App. LEXIS 3427 (1980).

If the evidentiary materials filed by the parties indicate that a genuine issue of material fact does exist, the motion for summary judgment must be denied, as the motion may be granted only where there is no such issue and the moving party is entitled to judgment as a matter of law. Vassey v. Burch, 301 N.C. 68 , 269 S.E.2d 137, 1980 N.C. LEXIS 1145 (1980).

In addition to no issue of fact being present, to grant summary judgment a court must find that on the undisputed aspects of the opposing evidential forecasts the party given judgment is entitled to it as a matter of law. Godwin Sprayers, Inc. v. Utica Mut. Ins. Co., 59 N.C. App. 497, 296 S.E.2d 843, 1982 N.C. App. LEXIS 3155 (1982).

Summary judgment, like judgment on the pleadings, is appropriately granted only where no disputed issues of fact have been presented and the undisputed facts show that any party is entitled to judgment as a matter of law. Minor v. Minor, 70 N.C. App. 76, 318 S.E.2d 865, 1984 N.C. App. LEXIS 3611 (1984).

When considering a motion for summary judgment, the question before the court is whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that a party is entitled to judgment as a matter of law. The burden upon the moving party is to establish that there is no genuine issue as to any material fact remaining to be determined and this burden may be carried by a movant by proving that an essential element of the opposing party’s claim is nonexistent. Gray v. Hager, 69 N.C. App. 331, 317 S.E.2d 59, 1984 N.C. App. LEXIS 3477 (1984).

A motion for summary judgment should be allowed only when there exists no triable genuine issue of material fact and the movant’s forecast of the evidence demonstrates that it is entitled to a judgment as a matter of law. Cashion v. Texas Gulf, Inc., 79 N.C. App. 632, 339 S.E.2d 797, 1986 N.C. App. LEXIS 2107 (1986).

Summary judgment is appropriate only where the pleadings, affidavits and other evidentiary materials before the court disclose that there is no genuine issue of material fact and that a party is entitled to judgment as a matter of law. Rolling Fashion Mart, Inc. v. Mainor, 80 N.C. App. 213, 341 S.E.2d 61, 1986 N.C. App. LEXIS 2162 (1986).

A party moving for summary judgment is entitled to such judgment if he can show, through pleadings and affidavits, that there is no genuine issue of material fact requiring a trial and that he is entitled to judgment as a matter of law. Hagler v. Hagler, 319 N.C. 287 , 354 S.E.2d 228, 1987 N.C. LEXIS 1927 (1987).

This rule does not require that party move for summary judgment in order to be entitled to it; however, the nonmovant must be entitled to the judgment as a matter of law. N.C. Coastal Motor Line v. Everette Truck Line, 77 N.C. App. 149, 334 S.E.2d 499, 1985 N.C. App. LEXIS 4028 (1985).

There was no merit to plaintiff’s argument that upon plaintiff’s motion for summary judgment, the trial court was unauthorized to enter summary judgment for defendant because defendant had not requested summary judgment. Summary judgment could, when appropriate, be rendered against the party moving for such judgment. Sullivan v. Pender County, 196 N.C. App. 726, 676 S.E.2d 69, 2009 N.C. App. LEXIS 526 (2009).

Evidence Must Be Insufficient to Support a Verdict for Nonmovant. —

Motion for summary judgment should be granted only if, as a matter of law, the evidence is insufficient to support a verdict for the nonmovant. Freeman v. Sturdivant Dev. Co., 25 N.C. App. 56, 212 S.E.2d 190, 1975 N.C. App. LEXIS 2168 (1975).

Even If Facts Claimed by Plaintiff Are Proved or Taken as True. —

Summary judgment is proper when it appears that even if the facts as claimed by plaintiff are taken as true, there can be no recovery. Doggett v. Welborn, 18 N.C. App. 105, 196 S.E.2d 36, 1973 N.C. App. LEXIS 1788 , cert. denied, 283 N.C. 665 , 197 S.E.2d 873, 1973 N.C. LEXIS 1032 (1973); Hudson v. All Star Mills, Inc., 68 N.C. App. 447, 315 S.E.2d 514, 1984 N.C. App. LEXIS 3297 (1984); Lowder v. Lowder, 68 N.C. App. 505, 315 S.E.2d 520, 1984 N.C. App. LEXIS 3299 (1984).

Summary judgment is proper where it appears that even if the facts as claimed by a plaintiff are proved, there can be no recovery, thus providing a device for identifying the factually groundless claim or defense. Pridgen v. Hughes, 9 N.C. App. 635, 177 S.E.2d 425, 1970 N.C. App. LEXIS 1425 (1970).

Absence of Evidence Leading to Different Conclusion Must Be Shown. —

Before summary judgment may be had, the record must affirmatively show that not only would the moving party be entitled to judgment from the evidence before the court, but it must also show there can be no other evidence from which a jury could reach a different conclusion as to a material fact. Goode v. Tait, Inc., 36 N.C. App. 268, 243 S.E.2d 404, 1978 N.C. App. LEXIS 2466 , cert. denied, 295 N.C. 465 , 246 S.E.2d 215, 1978 N.C. LEXIS 902 (1978); McLean v. Sale, 38 N.C. App. 520, 248 S.E.2d 372, 1978 N.C. App. LEXIS 2230 (1978), cert. denied, 296 N.C. 585 , 254 S.E.2d 32, 1979 N.C. LEXIS 1217 (1979); Easter v. Lexington Mem. Hosp., 49 N.C. App. 398, 271 S.E.2d 545, 1980 N.C. App. LEXIS 3395 (1980), rev'd, 303 N.C. 303 , 278 S.E.2d 253, 1981 N.C. LEXIS 1095 (1981).

If different material conclusions can be drawn from the evidence, summary judgment should be denied, even though the evidence is uncontradicted. Durham v. Vine, 40 N.C. App. 564, 253 S.E.2d 316, 1979 N.C. App. LEXIS 2303 (1979); Spector United Employees Credit Union v. Smith, 45 N.C. App. 432, 263 S.E.2d 319, 1980 N.C. App. LEXIS 2650 (1980).

Where the evidence of the party to be awarded summary judgment is self-contradictory or allows reasonable inferences inconsistent with conclusions necessary to entitle that party to summary judgment, the trial court should not enter summary judgment and should allow the case to proceed to trial. A-S-P Assocs. v. City of Raleigh, 38 N.C. App. 271, 247 S.E.2d 800, 1978 N.C. App. LEXIS 2167 (1978), rev'd, 298 N.C. 207 , 258 S.E.2d 444, 1979 N.C. LEXIS 1362 (1979).

Summary judgment should be denied if different material conclusions can be drawn from the evidence. Godwin Sprayers, Inc. v. Utica Mut. Ins. Co., 59 N.C. App. 497, 296 S.E.2d 843, 1982 N.C. App. LEXIS 3155 (1982); Carlton v. Carlton, 74 N.C. App. 690, 329 S.E.2d 682, 1985 N.C. App. LEXIS 3572 (1985); Warren v. Rosso & Mastracco, Inc., 78 N.C. App. 163, 336 S.E.2d 699, 1985 N.C. App. LEXIS 4260 (1985); Herbert v. Browning-Ferris Indus. of S. Atl., Inc., 90 N.C. App. 339, 368 S.E.2d 416, 1988 N.C. App. LEXIS 555 (1988).

As Where Moving Papers Affirmatively Disclose a Material Controversy. —

Where the moving papers affirmatively disclose that the nature of the controversy presents a good faith and actual, as distinguished from formal, dispute on one or more material issues, summary judgment cannot be used. Page v. Sloan, 281 N.C. 697 , 190 S.E.2d 189, 1972 N.C. LEXIS 1162 (1972); Pitts v. Village Inn Pizza, Inc., 296 N.C. 81 , 249 S.E.2d 375, 1978 N.C. LEXIS 1162 (1978).

Motion for summary judgment must be denied if the opposing party submits material which casts doubts upon the existence of a material fact or upon the credibility of a material witness, or if such doubts are raised by movant’s own evidentiary material. Kidd v. Early, 289 N.C. 343 , 222 S.E.2d 392, 1976 N.C. LEXIS 1290 (1976).

Summary judgment is appropriate when movant shows through discovery that the opposing party cannot produce evidence to support an essential element of his claim. Dellinger v. Belk, 34 N.C. App. 488, 238 S.E.2d 788, 1977 N.C. App. LEXIS 1725 (1977), cert. denied, 294 N.C. 182 , 241 S.E.2d 517, 1978 N.C. LEXIS 1198 (1978).

Lack of Cause of Action or Defense Supports Grant of Judgment. —

Where the pleadings or proof disclose that no cause of action or defense exists, summary judgment may be granted. Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971); Nat Harrison Assocs. v. North Carolina State Ports Auth., 280 N.C. 251 , 185 S.E.2d 793, 1972 N.C. LEXIS 1225 (1972); Norfolk & W. Ry. v. Werner Indus., Inc., 286 N.C. 89 , 209 S.E.2d 734, 1974 N.C. LEXIS 1181 (1974); Barrett v. Phillips, 29 N.C. App. 220, 223 S.E.2d 918, 1976 N.C. App. LEXIS 2446 (1976).

Where the pleadings or proof disclose that no cause of action exists, summary judgment may be granted. Davenport v. Davenport, 25 N.C. App. 621, 214 S.E.2d 294, 1975 N.C. App. LEXIS 2341 (1975); Williams v. Congdon, 43 N.C. App. 53, 257 S.E.2d 677, 1979 N.C. App. LEXIS 3023 (1979); Rockingham Square Shopping Center, Inc. v. Town of Madison, 45 N.C. App. 249, 262 S.E.2d 705, 1980 N.C. App. LEXIS 2619 (1980).

Summary judgment is appropriately entered if the movant establishes that an essential part or element of the opposing party’s claim is nonexistent. Rorrer v. Cooke, 313 N.C. 338 , 329 S.E.2d 355, 1985 N.C. LEXIS 1543 (1985).

Where the pleadings or proof of the plaintiff disclose that no claim exists, summary judgment for defendant is proper. Colonial Bldg. Co. v. Justice, 83 N.C. App. 643, 351 S.E.2d 140, 1986 N.C. App. LEXIS 2744 (1986).

When the only issues to be decided are issues of law, summary judgment is proper. Wachovia Mtg. Co. v. Autry-Barker-Spurrier Real Estate, Inc., 39 N.C. App. 1, 249 S.E.2d 727, 1978 N.C. App. LEXIS 2330 (1978), aff'd, 297 N.C. 696 , 256 S.E.2d 688, 1979 N.C. LEXIS 1267 (1979); Brawley v. Brawley, 87 N.C. App. 545, 361 S.E.2d 759, 1987 N.C. App. LEXIS 3274 (1987).

And Presence of Difficult Questions of Law Is No Barrier. —

Where there is no genuine issue as to the facts, the presence of important or difficult questions of law is no barrier to the granting of summary judgment. Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971); Wachovia Mtg. Co. v. Autry-Barker-Spurrier Real Estate, Inc., 39 N.C. App. 1, 249 S.E.2d 727, 1978 N.C. App. LEXIS 2330 (1978), aff'd, 297 N.C. 696 , 256 S.E.2d 688, 1979 N.C. LEXIS 1267 (1979).

Summary judgment is appropriate where there is no genuine issue of material fact and the case presents only questions of law. This is true even if the questions of law are complex. VEPCO v. Tillett, 80 N.C. App. 383, 343 S.E.2d 188, 1986 N.C. App. LEXIS 2212 , cert. denied, 317 N.C. 715 , 347 S.E.2d 457, 1986 N.C. LEXIS 2452 (1986).

Movant Entitled to Summary Judgment Where Directed Verdict Would Be Required. —

If the materials before the court at the summary judgment hearing would require a directed verdict for defendants at trial, defendants are entitled to summary judgment. Whitaker v. Blackburn, 47 N.C. App. 144, 266 S.E.2d 763, 1980 N.C. App. LEXIS 2995 (1980).

If a verdict would be directed for the movant on the evidence presented at the hearing on the motion for summary judgment, the motion for summary judgment may properly be granted. Dendy v. Watkins, 288 N.C. 447 , 219 S.E.2d 214, 1975 N.C. LEXIS 1010 (1975); Haskins v. Carolina Power & Light Co., 47 N.C. App. 664, 267 S.E.2d 587, 1980 N.C. App. LEXIS 3164 (1980).

On motion for summary judgment, the test is whether the moving party presents materials which would require a directed verdict in his favor if offered as evidence at trial. Haithcock v. Chimney Rock Co., 10 N.C. App. 696, 179 S.E.2d 865, 1971 N.C. App. LEXIS 1700 (1971); Coakley v. Ford Motor Co., 11 N.C. App. 636, 182 S.E.2d 260, 1971 N.C. App. LEXIS 1602 , cert. denied, 279 N.C. 393 , 183 S.E.2d 244, 1971 N.C. LEXIS 815 (1971); Millsaps v. Wilkes Contracting Co., 14 N.C. App. 321, 188 S.E.2d 663, 1972 N.C. App. LEXIS 2125 , cert. denied, 281 N.C. 623 , 190 S.E.2d 466, 1972 N.C. LEXIS 1129 (1972); Fitzgerald v. Wolf, 40 N.C. App. 197, 252 S.E.2d 523, 1979 N.C. App. LEXIS 2596 (1979).

Unless Nonmovant Shows a Triable Issue of Fact. —

Where a motion for summary judgment is supported by proof which would require a directed verdict in his favor at trial, movant is entitled to summary judgment, unless the opposing party comes forward to show a triable issue of material fact. In re Will of Edgerton, 29 N.C. App. 60, 223 S.E.2d 524, 1976 N.C. App. LEXIS 2377 , cert. denied, 290 N.C. 308 , 225 S.E.2d 832, 1976 N.C. LEXIS 1062 (1976); Old S. Life Ins. Co. v. Bank of N.C. 36 N.C. App. 18, 244 S.E.2d 264, 1978 N.C. App. LEXIS 2401 (1978); Watson v. Watson, 49 N.C. App. 58, 270 S.E.2d 542, 1980 N.C. App. LEXIS 3360 (1980).

The opposing party is not entitled to have the motion for summary judgment denied on the mere hope that at trial he will be able to discredit movant’s evidence; he must, at the hearing, be able to point out to the court something indicating the existence of a triable issue of material fact. Kidd v. Early, 289 N.C. 343 , 222 S.E.2d 392, 1976 N.C. LEXIS 1290 (1976).

Or Shows Unavailability of Affidavits. —

If the party moving for summary judgment by affidavit or otherwise presents materials which would require a directed verdict in his favor if presented at trial, he is entitled to summary judgment unless the opposing party either shows that affidavits are then unavailable to him or comes forward with affidavits or other materials that show there is a triable issue of fact. Pridgen v. Hughes, 9 N.C. App. 635, 177 S.E.2d 425, 1970 N.C. App. LEXIS 1425 (1970); First Fed. Sav. & Loan Ass'n v. Branch Banking & Trust Co., 14 N.C. App. 567, 188 S.E.2d 661, 1972 N.C. App. LEXIS 2177 , rev'd, 282 N.C. 44 , 191 S.E.2d 683, 1972 N.C. LEXIS 885 (1972); Millsaps v. Wilkes Contracting Co., 14 N.C. App. 321, 188 S.E.2d 663, 1972 N.C. App. LEXIS 2125 , cert. denied, 281 N.C. 623 , 190 S.E.2d 466, 1972 N.C. LEXIS 1129 (1972); Brooks v. Smith, 27 N.C. App. 223, 218 S.E.2d 489, 1975 N.C. App. LEXIS 1802 (1975).

If plaintiff’s claim is barred by the statute of limitations, defendant is entitled to judgment as a matter of law and summary judgment is appropriate. Brantley v. Dunstan, 10 N.C. App. 706, 179 S.E.2d 878, 1971 N.C. App. LEXIS 1703 (1971); Poston v. Morgan-Schultheiss, Inc., 46 N.C. App. 321, 265 S.E.2d 615, 1980 N.C. App. LEXIS 2816 (1980).

Ordinarily, the question of whether a cause of action is barred by the statute of limitations is a mixed question of law and fact. However, when the bar is properly pleaded and the facts are admitted or are not in conflict, the question of whether the action is barred becomes one of law, and summary judgment is appropriate. Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488 , 329 S.E.2d 350, 1985 N.C. LEXIS 1555 (1985).

The statute of limitations, if properly pled, and if all the facts with reference thereto are admitted or established, may act as an affirmative defense, barring plaintiff’s claims and entitling defendants to summary judgment as a matter of law. Lackey v. Bressler, 86 N.C. App. 486, 358 S.E.2d 560, 1987 N.C. App. LEXIS 2745 (1987); Rowan County Bd. of Educ. v. United States Gypsum Co., 87 N.C. App. 106, 359 S.E.2d 814, 1987 N.C. App. LEXIS 3072 (1987).

When the statute of limitations is properly pleaded and the facts of the case are not in dispute, resolution of the question becomes a matter of law, and summary judgment may be appropriate. Marshburn v. Associated Indem. Corp., 84 N.C. App. 365, 353 S.E.2d 123, 1987 N.C. App. LEXIS 2508 (1987); Boundreau v. Baughman, 86 N.C. App. 165, 356 S.E.2d 907, 1987 N.C. App. LEXIS 2680 (1987), aff'd in part and rev'd in part, 322 N.C. 331 , 368 S.E.2d 849, 1988 N.C. LEXIS 366 (1988).

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 N.C. App. LEXIS 818 (1990).

When defendant establishes a complete defense to plaintiff’s claim, he is entitled to the quick and final disposition of that claim which summary judgment provides. Ballinger v. North Carolina Dep't of Revenue, 59 N.C. App. 508, 296 S.E.2d 836, 1982 N.C. App. LEXIS 3153 (1982), cert. denied, 307 N.C. 576 , 299 S.E.2d 645, 1983 N.C. LEXIS 1176 (1983).

The court may grant summary judgment if the movant conclusively establishes every element of its claim or conclusively establishes a complete defense or legal bar to the nonmovant’s claim. VEPCO v. Tillett, 80 N.C. App. 383, 343 S.E.2d 188, 1986 N.C. App. LEXIS 2212 , cert. denied, 317 N.C. 715 , 347 S.E.2d 457, 1986 N.C. LEXIS 2452 (1986).

A defending party is entitled to summary judgment if he can show that no claim for relief exists or that the claimant cannot overcome an affirmative defense to the claim. Rolling Fashion Mart, Inc. v. Mainor, 80 N.C. App. 213, 341 S.E.2d 61, 1986 N.C. App. LEXIS 2162 (1986).

A defending party is entitled to summary judgment if it can establish that no claim for relief exists or that the claimant cannot overcome an affirmative defense or legal bar to the claim. Wilder v. Hobson, 101 N.C. App. 199, 398 S.E.2d 625, 1990 N.C. App. LEXIS 1209 (1990).

Motive, like intent or other states of mind, is rarely susceptible to direct proof and almost always depends on inferences drawn from circumstantial evidence. Consequently, summary judgment should rarely be granted in cases in which it is at issue. Burrow v. Westinghouse Elec. Corp., 88 N.C. App. 347, 363 S.E.2d 215, 1988 N.C. App. LEXIS 31 (1988).

Constitutional Arguments Susceptible to Summary Judgment. —

Since the general rule is that the constitutionality of a statute is to be determined merely from an examination of the statute itself and of only those matters of which the court may take judicial notice, plaintiff ’s constitutional arguments presented a question of law and were properly susceptible to summary judgment. Baugh v. Woodard, 56 N.C. App. 180, 287 S.E.2d 412, 1982 N.C. App. LEXIS 2346 (1982).

Summary judgment is not a proper remedy for failure to join a necessary party. Dildy v. Southeastern Fire Ins. Co., 13 N.C. App. 66, 185 S.E.2d 272, 1971 N.C. App. LEXIS 1158 (1971).

Summary judgment procedure is available to both plaintiff and defendant. Pridgen v. Hughes, 9 N.C. App. 635, 177 S.E.2d 425, 1970 N.C. App. LEXIS 1425 (1970); Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971); Clear Fir Sales Co. v. Carolina Plywood Distrib., Inc., 13 N.C. App. 429, 185 S.E.2d 737, 1972 N.C. App. LEXIS 2257 (1972); McNair v. Boyette, 282 N.C. 230 , 192 S.E.2d 457, 1972 N.C. LEXIS 930 (1972).

A defending party may show as a matter of law that he is entitled to summary judgment in his favor by showing that there is no genuine issue of material fact concerning an essential element of the claimant’s claim for relief and that the claimant cannot prove the existence of that element. Best v. Perry, 41 N.C. App. 107, 254 S.E.2d 281, 1979 N.C. App. LEXIS 2389 (1979); Ramsey v. Rudd, 49 N.C. App. 670, 272 S.E.2d 162, 1980 N.C. App. LEXIS 3437 (1980).

If defendants clearly establish that there is no genuine issue as to the nonexistence of material facts which are necessary as an essential element of any cause of action against them, then they are entitled to summary judgment on that action. Clodfelter v. Bates, 44 N.C. App. 107, 260 S.E.2d 672, 1979 N.C. App. LEXIS 3182 (1979), cert. denied, 299 N.C. 329 , 265 S.E.2d 394, 1980 N.C. LEXIS 1004 (1980).

A defending party is entitled to summary judgment if he can show that the claimant cannot prove the existence of an essential element of his claim or cannot surmount an affirmative defense which would bar the claim. Little v. National Servs. Indus., Inc., 79 N.C. App. 688, 340 S.E.2d 510, 1986 N.C. App. LEXIS 2114 (1986).

Party Need Not Move for Judgment in Order to Be Entitled to It. —

Section (c) of this rule does not require that a party move for summary judgment in order to be entitled to it. Greenway v. North Carolina Farm Bureau Mut. Ins. Co., 35 N.C. App. 308, 241 S.E.2d 339, 1978 N.C. App. LEXIS 2963 (1978); McNair Constr. Co. v. Fogle Bros. Co., 64 N.C. App. 282, 307 S.E.2d 200, 1983 N.C. App. LEXIS 3264 (1983).

Summary judgment may be granted in favor of a nonmoving party in proper cases. A-S-P Assocs. v. City of Raleigh, 38 N.C. App. 271, 247 S.E.2d 800, 1978 N.C. App. LEXIS 2167 (1978), rev'd, 298 N.C. 207 , 258 S.E.2d 444, 1979 N.C. LEXIS 1362 (1979).

Summary judgment in favor of the nonmovant is appropriate when the evidence presented demonstrates that no material issues of fact are in dispute, and the nonmovant is entitled to entry of judgment as a matter of law. A-S-P Assocs. v. City of Raleigh, 298 N.C. 207 , 258 S.E.2d 444, 1979 N.C. LEXIS 1362 (1979).

In an appropriate case, summary judgment may be rendered against the moving party. Candid Camera Video World, Inc. v. Mathews, 76 N.C. App. 634, 334 S.E.2d 94, 1985 N.C. App. LEXIS 3931 (1985).

After Movant Is Given Opportunity to Show Existence of a Genuine Issue. —

Summary judgment for the nonmoving party should be granted only when the moving party has been given adequate opportunity to show in opposition that there is a genuine issue of fact to be resolved. A-S-P Assocs. v. City of Raleigh, 298 N.C. 207 , 258 S.E.2d 444, 1979 N.C. LEXIS 1362 (1979).

Granting of Summary Judgment by Judge on Own Motion. —

The granting of summary judgment or judgment on the pleadings by the trial judge on his own motion is a practice not to be commended, and is clearly erroneous where there is a factual question to be answered. Crews v. Taylor, 21 N.C. App. 296, 204 S.E.2d 193, 1974 N.C. App. LEXIS 1784 (1974).

Rarely is it proper to enter summary judgment in favor of the party having the burden of proof. Blackwell v. Massey, 69 N.C. App. 240, 316 S.E.2d 350, 1984 N.C. App. LEXIS 3400 (1984).

Jurisdiction of Successor Judge. —

Successor judge in the superior court had no jurisdiction to overrule at summary judgment the order of the first judge who in ruling on the same legal issues at summary judgment determined that the issues were to go to trial rather than be decided on summary judgment. Cail v. Cerwin, 185 N.C. App. 176, 648 S.E.2d 510, 2007 N.C. App. LEXIS 1684 (2007).

Summary judgment may be granted for a party with the burden of proof on his own affidavits (1) when there are only latent doubts as to the affiant’s credibility; (2) when the opposing party has failed to introduce any materials supporting his opposition, failed to point to specific areas of impeachment and contradiction, and failed to utilize section (f) of this rule; and (3) when summary judgment is otherwise appropriate. Almond Grading Co. v. Shaver, 74 N.C. App. 576, 329 S.E.2d 417, 1985 N.C. App. LEXIS 3517 (1985); Valdese Gen. Hosp. v. Burns, 79 N.C. App. 163, 339 S.E.2d 23, 1986 N.C. App. LEXIS 2052 (1986).

Plaintiff’s bare assertions in unverified complaint, which were denied by defendant, held insufficient to support entry of summary judgment for plaintiff. Smith v. Rushing Constr. Co., 84 N.C. App. 692, 353 S.E.2d 692, 1987 N.C. App. LEXIS 2540 (1987).

Where plaintiff made a motion for summary judgment, which was denied, and later plaintiff filed a second motion for summary judgment involving the same issue as presented by the initial motion, the trial court erred by granting plaintiff’s second motion for summary judgment. Taylorsville Fed. Savs. & Loan Ass'n v. Keen, 110 N.C. App. 784, 431 S.E.2d 484, 1993 N.C. App. LEXIS 691 (1993).

Appellate Conclusion Improper. —

Where Court of Appeals majority opinion included a paragraph that concluded that a balancing of the equities favored denial of relief to plaintiff, such a conclusion was improper at the summary judgment stage. Roberts v. Madison County Realtors Ass'n, 344 N.C. 394 , 474 S.E.2d 783, 1996 N.C. LEXIS 485 (1996).

Judgment on Pleadings Treated As Summary Judgment. —

Where matters outside the pleadings were considered by the court in reaching its decision on the judgment on the pleadings, the motion was treated as if it was a motion for summary judgment. Helms v. Holland, 124 N.C. App. 629, 478 S.E.2d 513, 1996 N.C. App. LEXIS 1207 (1996).

Standing Determination May Be Reviewed by Subsequent Superior Court Judge. —

Standing is an issue of subject matter jurisdiction which may be raised at any time; therefore, it is proper for a second superior court judge to review standing in motion for summary judgment after a previous motion to dismiss had been denied by another judge. Transcontinental Gas Pipe Line Corp. v. Calco Enters., 132 N.C. App. 237, 511 S.E.2d 671, 1999 N.C. App. LEXIS 104 (1999).

Summary Judgment Granted. —

Landowner was entitled to summary judgment pursuant to G.S. 1A-1 , Rule 56 in the landowner’s action seeking relief from a county ordinance that imposed a moratorium on the issuance of building permits dealing with the construction of heavy industry; the ordinance was invalid, because notice was not given once a week for two successive weeks before the public hearing on the ordinance was held, as was required under G.S. 153A-323, and instead notice was only published once. Sandy Mush Props., Inc. v. Rutherford County, 160 N.C. App. 683, 586 S.E.2d 849, 2003 N.C. App. LEXIS 1934 (2003), op. withdrawn, sub. op., 164 N.C. App. 162, 595 S.E.2d 233, 2004 N.C. App. LEXIS 743 (2004).

Summary Judgment Denied. —

Given the fact issues as to whether an officer violated a worker’s constitutional rights, the officer was not immune from suit and summary judgment was denied. Campbell v. Anderson, 156 N.C. App. 371, 576 S.E.2d 726, 2003 N.C. App. LEXIS 128 (2003).

Exclusions in a commercial insurance policy issued to a corporation precluded the conclusion that it provided coverage for a non-covered vehicle involved in an accident while being driven by the owner of the corporation, and an appellate court declined to disregard the corporation’s identity under the doctrine of piercing the corporate veil for the purpose of reaching the coverage in the corporation’s policy; a trial court erred in denying an insurance company’s motion for summary judgment and in granting summary judgment for an administratrix in a declaratory judgment action brought by the administratrix seeking to determine the rights and responsibilities relating to the corporation’s commercial policy. Cherry v. State Farm Mut. Auto. Ins. Co., 162 N.C. App. 535, 590 S.E.2d 925, 2004 N.C. App. LEXIS 179 (2004).

B.Particular Types of Actions, etc

This rule is not limited in its application to any particular type or types of action. Pridgen v. Hughes, 9 N.C. App. 635, 177 S.E.2d 425, 1970 N.C. App. LEXIS 1425 (1970); Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971); McNair v. Boyette, 282 N.C. 230 , 192 S.E.2d 457, 1972 N.C. LEXIS 930 (1972); Atkins v. Beasley, 53 N.C. App. 33, 279 S.E.2d 866, 1981 N.C. App. LEXIS 2534 (1981).

While the motion for summary judgment will receive stricter application in negligence cases, summary judgment is available in all types of litigation to both plaintiff and defendant. Emerson v. Great Atl. & Pac. Tea Co., 41 N.C. App. 715, 255 S.E.2d 768, 1979 N.C. App. LEXIS 2731 (1979).

Section (a) of this rule contemplates that summary judgment may be granted for any type of claim, counterclaim, or cross-claim, or for a declaratory judgment, so long as the issue to be determined is one which lends itself to summary adjudication. Frank H. Conner Co. v. Spanish Inns Charlotte, Ltd., 294 N.C. 661 , 242 S.E.2d 785, 1978 N.C. LEXIS 1295 (1978).

Summary judgment may be granted for any type of claim, including a claim for specific performance of a contract. Atkins v. Beasley, 53 N.C. App. 33, 279 S.E.2d 866, 1981 N.C. App. LEXIS 2534 (1981).

Summary judgment is an appropriate procedure in a declaratory judgment action. Montgomery v. Hinton, 45 N.C. App. 271, 262 S.E.2d 697, 1980 N.C. App. LEXIS 2627 (1980); Threatte v. Threatte, 59 N.C. App. 292, 296 S.E.2d 521, 1982 N.C. App. LEXIS 3109 (1982), vacated, 308 N.C. 384 , 302 S.E.2d 226, 1983 N.C. LEXIS 1171 (1983); Pine Knoll Ass'n v. Cardon, 126 N.C. App. 155, 484 S.E.2d 446, 1997 N.C. App. LEXIS 327 (1997).

Summary judgment may be entered upon the motion of either the plaintiff or the defendant under this rule, and the rule applies in an action for declaratory judgment. Bellefonte Underwriters Ins. Co. v. Alfa Aviation, Inc., 61 N.C. App. 544, 300 S.E.2d 877, 1983 N.C. App. LEXIS 2701 (1983), aff'd, 310 N.C. 471 , 312 S.E.2d 426, 1984 N.C. LEXIS 1578 (1984).

The propriety of a summary judgment in an action for a declaratory judgment is governed by the same rules applicable to other actions. Meachan v. Montgomery County Bd. of Educ., 47 N.C. App. 271, 267 S.E.2d 349, 1980 N.C. App. LEXIS 3087 (1980); North Carolina Life & Accident & Health Ins. Guar. Ass'n v. Underwriters Nat'l Assurance Co., 48 N.C. App. 508, 269 S.E.2d 688, 1980 N.C. App. LEXIS 3257 (1980), cert. denied, 301 N.C. 527 , 273 S.E.2d 453, 1980 N.C. LEXIS 1592 (1980), rev'd, 455 U.S. 691, 102 S. Ct. 1357, 71 L. Ed. 2d 558, 1982 U.S. LEXIS 88 (1982).

Summary judgment can be appropriate in an action for a declaratory judgment where there is no genuine issue of material fact and one of the parties is entitled to judgment as a matter of law. North Carolina Ass'n of ABC Bds. v. Hunt, 76 N.C. App. 290, 332 S.E.2d 693, 1985 N.C. App. LEXIS 3855 (1985).

Summary judgment is appropriate in a special proceeding under G.S. 136-68 to establish a cartway; where respondents to an action seeking to establish a cartway across their land failed to respond to affidavits by petitioners establishing their right to the cartway, the petitioners were granted partial summary judgment on the establishment of the right to a permanent cartway, but the action was remanded for a jury determination of the path of the cartway and the damages to be paid to respondents. Greene v. Garner, 163 N.C. App. 142, 592 S.E.2d 589, 2004 N.C. App. LEXIS 294 (2004).

Summary Judgment on a Claim for Damages. —

Summary judgment on a claim for damages is appropriate where the moving party sufficiently establishes by competent documents that a liquidated amount is owing him and the opposing party fails to show facts which dispute that evidence. In such a case there is no triable issue of fact concerning damages due the moving party. Frank H. Conner Co. v. Spanish Inns Charlotte, Ltd., 294 N.C. 661 , 242 S.E.2d 785, 1978 N.C. LEXIS 1295 (1978).

No prohibition exists as to granting summary judgment on the issue of damages where there is no genuine issue of material fact as to those damages. Sylva Shops, Ltd. P'ship v. Hibbard, 175 N.C. App. 423, 623 S.E.2d 785, 2006 N.C. App. LEXIS 181 (2006).

Summary judgment is rarely appropriate in a negligence action. Barnes v. Wilson Hdwe. Co., 77 N.C. App. 773, 336 S.E.2d 457, 1985 N.C. App. LEXIS 4376 (1985); Warren v. Rosso & Mastracco, Inc., 78 N.C. App. 163, 336 S.E.2d 699, 1985 N.C. App. LEXIS 4260 (1985); White v. Hunsinger, 88 N.C. App. 382, 363 S.E.2d 203, 1988 N.C. App. LEXIS 1197 (1988).

Summary judgment should rarely be granted in negligence cases. Moore v. Crumpton, 306 N.C. 618 , 295 S.E.2d 436, 1982 N.C. LEXIS 1550 (1982).

Negligence claims are rarely susceptible of summary adjudication, and should ordinarily be resolved by trial of the issues. Lamb v. Wedgewood S. Corp., 308 N.C. 419 , 302 S.E.2d 868, 1983 N.C. LEXIS 1213 (1983).

Although summary judgment is seldom granted in negligence cases, it may be granted where the evidence shows a lack of any negligence on the part of the defendant. Smith-Price v. Charter Behavioral Health Sys., 164 N.C. App. 349, 595 S.E.2d 778, 2004 N.C. App. LEXIS 816 (2004).

Summary judgment may be granted in a negligence action even though summary judgment is seldom appropriate in a negligence case where there are no genuine issues of material fact and the plaintiff fails to show one of the elements of negligence. Lavelle v. Schultz, 120 N.C. App. 857, 463 S.E.2d 567, 1995 N.C. App. LEXIS 932 (1995).

To survive a defendant’s motion for summary judgment in a negligence action, a plaintiff must set forth a prima facie case (1) that the defendant failed to exercise proper care in the performance of a duty owed the plaintiff; (2) that the negligent breach of that duty was a proximate cause of the plaintiff’s injury; and (3) that a person of ordinary prudence should have foreseen that the plaintiff’s injury was probable under the circumstances. While summary judgment is normally not appropriate in negligence actions, where the forecast of evidence shows that a plaintiff cannot establish one of these required elements, summary judgment is appropriate. Strickland v. Doe, 156 N.C. App. 292, 577 S.E.2d 124, 2003 N.C. App. LEXIS 115 (2003).

Although the issue of contributory negligence was often not appropriate for summary judgment, the investors contributory negligence in neither reviewing nor requesting financial data before purchasing stock allegedly recommended by the attorney in two corporations, along with their signing of an investment letter stating that the decision to purchase the stock was not based on any representation as to the stock’s likely performance but instead was based on the investors’ independent examination and judgment of the company’s prospects when it was not, so clearly established the investors’ contributory negligence that no other reasonable conclusion could be reached that their contributory negligence barred their negligence claims against the attorney. Hahne v. Hanzel, 161 N.C. App. 494, 588 S.E.2d 915, 2003 N.C. App. LEXIS 2182 (2003).

Or Where Contributory Negligence Is Involved. —

Like negligence, contributory negligence is rarely appropriate for summary judgment. Ballenger v. Crowell, 38 N.C. App. 50, 247 S.E.2d 287, 1978 N.C. App. LEXIS 2084 (1978); Branks v. Kern, 83 N.C. App. 32, 348 S.E.2d 815, 1986 N.C. App. LEXIS 2632 (1986), rev'd, 320 N.C. 621 , 359 S.E.2d 780, 1987 N.C. LEXIS 2372 (1987).

Summary judgment, under G.S. 1A-1 , N.C. R. Civ. P. 56(c), dismissing a prospective employee’s negligence claim against a prospective employer for injuries received during a pre-employment interview was proper, as the employer owed the employee no duty of care, because the injuries were the result of the employee’s failure to observe the open and obvious condition of where certain safety devices were placed. Huntley v. Howard Lisk Co., 154 N.C. App. 698, 573 S.E.2d 233, 2002 N.C. App. LEXIS 1528 (2002).

And Ordinarily Negligence Actions Should Be Resolved by Trial. —

As a general proposition issues of negligence are ordinarily not susceptible of summary adjudication either for or against the claimant, but should be resolved by trial in the ordinary manner. Page v. Sloan, 281 N.C. 697 , 190 S.E.2d 189, 1972 N.C. LEXIS 1162 (1972); Kiser v. Snyder, 17 N.C. App. 445, 194 S.E.2d 638, 1973 N.C. App. LEXIS 1380 , cert. denied, 283 N.C. 257 , 195 S.E.2d 689, 1973 N.C. LEXIS 943 (1973); Roberts v. Whitley, 17 N.C. App. 554, 195 S.E.2d 62, 1973 N.C. App. LEXIS 1403 (1973); Moore v. Fieldcrest Mills, Inc., 296 N.C. 467 , 251 S.E.2d 419, 1979 N.C. LEXIS 1186 (1979); Moye v. Thrifty Gas Co., 40 N.C. App. 310, 252 S.E.2d 837, 1979 N.C. App. LEXIS 2251 , cert. denied, 297 N.C. 611 , 257 S.E.2d 219, 1979 N.C. LEXIS 1503 (1979); Vassey v. Burch, 301 N.C. 68 , 269 S.E.2d 137, 1980 N.C. LEXIS 1145 (1980); Hockaday v. Morse, 57 N.C. App. 109, 290 S.E.2d 763, 1982 N.C. App. LEXIS 2601 (1982); Roberson v. Griffeth, 57 N.C. App. 227, 291 S.E.2d 347, 1982 N.C. App. LEXIS 2642 (1982); Quality Inns Int'l, Inc. v. Booth, Fish, Simpson, Harrison & Hall, 58 N.C. App. 1, 292 S.E.2d 755, 1982 N.C. App. LEXIS 2736 (1982).

Negligence issues are not ordinarily susceptible to summary disposition. However, where there is no genuine issue of material fact and reasonable men could only concede the defendant was not negligent, then a motion for summary judgment is proper. Boza v. Schiebel, 65 N.C. App. 151, 308 S.E.2d 510, 1983 N.C. App. LEXIS 3395 (1983).

Issues of negligence should ordinarily be resolved by a jury and are rarely appropriate for summary judgment. Schaffner v. Cumberland County Hosp. Sys., 77 N.C. App. 689, 336 S.E.2d 116, 1985 N.C. App. LEXIS 4375 (1985).

There is a presumption against granting summary judgment in negligence cases. Wilson Bros. v. Mobile Oil, 63 N.C. App. 334, 305 S.E.2d 40, 1983 N.C. App. LEXIS 3058 (1983).

Only in exceptional cases involving the question of negligence or reasonable care will summary judgment be appropriate to resolve the controversy. Gladstein v. South Square Assocs., 39 N.C. App. 171, 249 S.E.2d 827, 1978 N.C. App. LEXIS 2352 (1978), cert. denied, 296 N.C. 736 , 254 S.E.2d 178, 1979 N.C. LEXIS 1277 (1979); Emerson v. Great Atl. & Pac. Tea Co., 41 N.C. App. 715, 255 S.E.2d 768, 1979 N.C. App. LEXIS 2731 (1979); Letchworth v. Town of Ayden, 44 N.C. App. 1, 260 S.E.2d 143, 1979 N.C. App. LEXIS 3163 (1979), cert. denied, 299 N.C. 331 , 265 S.E.2d 396, 1980 N.C. LEXIS 1014 (1980).

As it is usually the jury’s prerogative to apply the standard of reasonable care in a negligence action, and in such actions summary judgment is, therefore, appropriate only in exceptional cases where the movant shows that one or more of the essential elements of the claim do not appear in the pleadings or proof at the discovery stage of the proceedings. Ziglar v. E.I. Du Pont De Nemours & Co., 53 N.C. App. 147, 280 S.E.2d 510, 1981 N.C. App. LEXIS 2579 , cert. denied, 304 N.C. 393 , 285 S.E.2d 838, 1981 N.C. LEXIS 1506 (1981).

It is only in the exceptional negligence case that this rule should be invoked. Even in a case in which there is no substantial dispute as to what occurred, it usually remains for the jury, under appropriate instructions from the court, to apply the standard of the reasonably prudent man to the facts of the case. Robinson v. McMahan, 11 N.C. App. 275, 181 S.E.2d 147, 1971 N.C. App. LEXIS 1504 , cert. denied, 279 N.C. 395 , 183 S.E.2d 243, 1971 N.C. LEXIS 825 (1971); Page v. Sloan, 281 N.C. 697 , 190 S.E.2d 189, 1972 N.C. LEXIS 1162 (1972); Kiser v. Snyder, 17 N.C. App. 445, 194 S.E.2d 638, 1973 N.C. App. LEXIS 1380 , cert. denied, 283 N.C. 257 , 195 S.E.2d 689, 1973 N.C. LEXIS 943 (1973); Roberts v. Whitley, 17 N.C. App. 554, 195 S.E.2d 62, 1973 N.C. App. LEXIS 1403 (1973); Stancill v. City of Washington, 29 N.C. App. 707, 225 S.E.2d 834, 1976 N.C. App. LEXIS 2632 (1976); Haddock v. Smithson, 30 N.C. App. 228, 226 S.E.2d 411, 1976 N.C. App. LEXIS 2188 , cert. denied, 290 N.C. 776 , 229 S.E.2d 32, 1976 N.C. LEXIS 1192 (1976); Edwards v. Means, 36 N.C. App. 122, 243 S.E.2d 161, 1978 N.C. App. LEXIS 2416 , cert. denied, 295 N.C. 260 , 245 S.E.2d 777, 1978 N.C. LEXIS 992 (1978); Ballenger v. Crowell, 38 N.C. App. 50, 247 S.E.2d 287, 1978 N.C. App. LEXIS 2084 (1978); Moore v. Fieldcrest Mills, Inc., 296 N.C. 467 , 251 S.E.2d 419, 1979 N.C. LEXIS 1186 (1979); Johnson v. Lockman, 41 N.C. App. 54, 254 S.E.2d 187, 1979 N.C. App. LEXIS 2370 , cert. denied, 297 N.C. 610 , 257 S.E.2d 436, 1979 N.C. LEXIS 1498 (1979); Vassey v. Burch, 301 N.C. 68 , 269 S.E.2d 137, 1980 N.C. LEXIS 1145 (1980); Stansfield v. Mahowsky, 46 N.C. App. 829, 266 S.E.2d 28, 1980 N.C. App. LEXIS 2940 (1980); Arey v. Board of Light & Water Comm'n, 50 N.C. App. 505, 274 S.E.2d 268, 1981 N.C. App. LEXIS 2145 (1981); Hockaday v. Morse, 57 N.C. App. 109, 290 S.E.2d 763, 1982 N.C. App. LEXIS 2601 (1982); Roberson v. Griffeth, 57 N.C. App. 227, 291 S.E.2d 347, 1982 N.C. App. LEXIS 2642 (1982); Quality Inns Int'l, Inc. v. Booth, Fish, Simpson, Harrison & Hall, 58 N.C. App. 1, 292 S.E.2d 755, 1982 N.C. App. LEXIS 2736 (1982); Derrick v. Ray, 61 N.C. App. 218, 300 S.E.2d 721, 1983 N.C. App. LEXIS 2652 (1983); Southern Watch Supply Co. v. Regal Chrysler-Plymouth, Inc., 69 N.C. App. 164, 316 S.E.2d 318, 1984 N.C. App. LEXIS 3390 (1984).

Summary judgment will not usually be feasible in negligence cases where the standard of the prudent man must be applied. Pridgen v. Hughes, 9 N.C. App. 635, 177 S.E.2d 425, 1970 N.C. App. LEXIS 1425 (1970); Robinson v. McMahan, 11 N.C. App. 275, 181 S.E.2d 147, 1971 N.C. App. LEXIS 1504 , cert. denied, 279 N.C. 395 , 183 S.E.2d 243, 1971 N.C. LEXIS 825 (1971); Long v. Long, 15 N.C. App. 525, 190 S.E.2d 415, 1972 N.C. App. LEXIS 1956 (1972); Brawley v. Heymann, 16 N.C. App. 125, 191 S.E.2d 366, 1972 N.C. App. LEXIS 1653 , cert. denied, 282 N.C. 425 , 192 S.E.2d 835, 1972 N.C. LEXIS 976 (1972); Forte v. Dillard Paper Co., 35 N.C. App. 340, 241 S.E.2d 394, 1978 N.C. App. LEXIS 2968 , cert. denied, 295 N.C. 89 , 244 S.E.2d 258, 1978 N.C. LEXIS 954 (1978); Whitaker v. Blackburn, 47 N.C. App. 144, 266 S.E.2d 763, 1980 N.C. App. LEXIS 2995 (1980).

The propriety of summary judgment does not always revolve around the elusive distinction between questions of fact and law. Although there may be no question of fact, when the facts are such that reasonable men could differ on the issue of negligence, courts have generally considered summary judgment improper. Gladstein v. South Square Assocs., 39 N.C. App. 171, 249 S.E.2d 827, 1978 N.C. App. LEXIS 2352 (1978), cert. denied, 296 N.C. 736 , 254 S.E.2d 178, 1979 N.C. LEXIS 1277 (1979).

When the facts are such that reasonable men could differ on the issue of negligence, courts have generally considered summary judgment improper. Derrick v. Ray, 61 N.C. App. 218, 300 S.E.2d 721, 1983 N.C. App. LEXIS 2652 (1983).

Summary judgment is rarely appropriate in negligence actions because ordinarily it is the duty of the jury to apply the standard of care of a reasonably prudent person. Bernick v. Jurden, 306 N.C. 435 , 293 S.E.2d 405, 1982 N.C. LEXIS 1448 (1982).

The stringent requirements placed on a movant are intended, because summary judgment is a drastic measure, and it should be used with caution. This is especially true in a negligence case in which a jury ordinarily applies the reasonable person standard to the facts of each case. McCullough v. AMOCO Oil Co., 64 N.C. App. 312, 307 S.E.2d 208, 1983 N.C. App. LEXIS 3267 (1983), rev'd, 310 N.C. 452 , 312 S.E.2d 417, 1984 N.C. LEXIS 1577 (1984).

It is an accepted tenet of jurisprudence that summary judgment is rarely proper in negligence cases. Even where there is no dispute as to the essential facts, where reasonable people could differ with respect to whether a party acted with reasonable care, it ordinarily remains the province of the jury to apply the reasonable person standard. But where there is no genuine issue of material fact and reasonable men could only conclude that the defendant was not negligent, entry of summary judgment is proper. Elmore's Feed & Seed, Inc. v. Patrick, 62 N.C. App. 715, 303 S.E.2d 394, 1983 N.C. App. LEXIS 2995 (1983); Byrd Motor Lines v. Dunlop Tire & Rubber Corp., 63 N.C. App. 292, 304 S.E.2d 773, 1983 N.C. App. LEXIS 3050 (1983); Wilson Bros. v. Mobile Oil, 63 N.C. App. 334, 305 S.E.2d 40, 1983 N.C. App. LEXIS 3058 (1983).

Ordinarily, summary judgment is not appropriate in negligence actions because the right of recovery usually depends on the application of the reasonable person standard of care. Only the jury, under instructions from the court, may apply that standard. Holley v. Burroughs Wellcome Co., 74 N.C. App. 736, 330 S.E.2d 228, 1985 N.C. App. LEXIS 3574 (1985), aff'd, 318 N.C. 352 , 348 S.E.2d 772, 1986 N.C. LEXIS 2651 (1986).

Summary judgment is rarely appropriate in negligence cases, even when there is no dispute as to the facts, because the issue of whether a party acted in conformity with the reasonable person standard is ordinarily an issue to be determined by a jury. Surrette v. Duke Power Co., 78 N.C. App. 647, 338 S.E.2d 129, 1986 N.C. App. LEXIS 1963 (1986).

If the pleadings establish the existence of a cause of action, summary judgment should be granted cautiously in negligence cases, in which the jury ordinarily applies a standard of care to the facts of the case. Coleman v. Cooper, 89 N.C. App. 188, 366 S.E.2d 2, 1988 N.C. App. LEXIS 281 (1988).

Summary judgment may be granted in a negligence action. Cole v. Duke Power Co., 68 N.C. App. 159, 314 S.E.2d 808, 1984 N.C. App. LEXIS 3185 (1984).

And when the facts in a negligence action are admitted or established, negligence is a question of law and the court must say whether it does or does not exist. Kiser v. Snyder, 17 N.C. App. 445, 194 S.E.2d 638, 1973 N.C. App. LEXIS 1380 , cert. denied, 283 N.C. 257 , 195 S.E.2d 689, 1973 N.C. LEXIS 943 (1973).

When Summary Judgment for Defendant Is Proper in Negligence Action. —

Summary judgment for defendant in a negligence action is proper where the evidence fails to show negligence on the part of defendant, or where contributory negligence on the part of plaintiff is established, or where it is established that the purported negligence of defendant was not the proximate cause of plaintiff ’s injury. Hale v. Duke Power Co., 40 N.C. App. 202, 252 S.E.2d 265, 1979 N.C. App. LEXIS 2613 , cert. denied, 297 N.C. 452 , 256 S.E.2d 805, 1979 N.C. LEXIS 1436 (1979); Stansfield v. Mahowsky, 46 N.C. App. 829, 266 S.E.2d 28, 1980 N.C. App. LEXIS 2940 (1980); Edwards v. Akion, 52 N.C. App. 688, 279 S.E.2d 894, 1981 N.C. App. LEXIS 2542 , aff'd, 304 N.C. 585 , 284 S.E.2d 518, 1981 N.C. LEXIS 1370 (1981); Rorrer v. Cooke, 313 N.C. 338 , 329 S.E.2d 355, 1985 N.C. LEXIS 1543 (1985).

Summary judgment is proper in negligence cases where it appears that there can be no recovery even if the facts as claimed by plaintiff are true. Pridgen v. Hughes, 9 N.C. App. 635, 177 S.E.2d 425, 1970 N.C. App. LEXIS 1425 (1970); Kiser v. Snyder, 17 N.C. App. 445, 194 S.E.2d 638, 1973 N.C. App. LEXIS 1380 , cert. denied, 283 N.C. 257 , 195 S.E.2d 689, 1973 N.C. LEXIS 943 (1973); Joyce v. City of High Point, 30 N.C. App. 346, 226 S.E.2d 856, 1976 N.C. App. LEXIS 2251 (1976); Whitaker v. Blackburn, 47 N.C. App. 144, 266 S.E.2d 763, 1980 N.C. App. LEXIS 2995 (1980); Long v. Southern Bell Tel. & Tel. Co., 53 N.C. App. 110, 280 S.E.2d 3, 1981 N.C. App. LEXIS 2518 (1981); Southern Watch Supply Co. v. Regal Chrysler-Plymouth, Inc., 69 N.C. App. 164, 316 S.E.2d 318, 1984 N.C. App. LEXIS 3390 (1984); O'Connor v. Corbett Lumber Corp., 84 N.C. App. 178, 352 S.E.2d 267, 1987 N.C. App. LEXIS 2478 (1987); Jacobs v. Hill's Food Stores, Inc., 88 N.C. App. 730, 364 S.E.2d 692, 1988 N.C. App. LEXIS 210 (1988).

Where motion for summary judgment is supported by evidentiary matter showing a lack of negligence on the part of the movants and there is no question as to the credibility of the witnesses and no evidence is offered in opposition thereto, no issue is raised for the jury to consider under appropriate instructions. Moore v. Fieldcrest Mills, Inc., 296 N.C. 467 , 251 S.E.2d 419, 1979 N.C. LEXIS 1186 (1979).

Although issues of negligence and contributory negligence are rarely appropriate for summary judgment, where the uncontroverted evidence indicated that plaintiff failed to use ordinary care and that want of due care was at least one of the proximate causes of the fall at issue, and plaintiff was contributorily negligent as a matter of law, summary judgment in favor of defendants was proper. Brooks v. Francis, 57 N.C. App. 556, 291 S.E.2d 889, 1982 N.C. App. LEXIS 2686 (1982).

While summary judgment is generally not appropriate in negligence cases, it is appropriate in cases in which it appears that the plaintiff cannot recover even if the facts as alleged by the plaintiff are true. Stoltz v. Burton, 69 N.C. App. 231, 316 S.E.2d 646, 1984 N.C. App. LEXIS 3385 (1984).

Where it is clearly established that defendant’s negligence was not the proximate cause of plaintiff’s injury, summary judgment is appropriate. Southern Watch Supply Co. v. Regal Chrysler-Plymouth, Inc., 69 N.C. App. 164, 316 S.E.2d 318, 1984 N.C. App. LEXIS 3390 (1984).

Summary judgment may be granted in a negligence case where there is no question as to the credibility of witnesses and the evidence shows either (1) a lack of any negligence on the part of the defendant, or (2) that plaintiff was contributorily negligent as a matter of law. Surrette v. Duke Power Co., 78 N.C. App. 647, 338 S.E.2d 129, 1986 N.C. App. LEXIS 1963 (1986).

As a general rule, summary judgment is not appropriate where issues of negligence are involved. However, if the evidentiary forecasts establish either a lack of any conduct on the part of the movant which could constitute negligence, or the existence, as a matter of law, of a complete defense to the claim, summary judgment may be properly allowed. Sink v. Andrews, 81 N.C. App. 594, 344 S.E.2d 831, 1986 N.C. App. LEXIS 2340 (1986).

Summary judgment is appropriate in a negligence case if it is established that the alleged negligence of a defendant was not the proximate cause of a plaintiff’s injury. Street v. Moffitt, 84 N.C. App. 138, 351 S.E.2d 821, 1987 N.C. App. LEXIS 2465 (1987).

Alleged tortfeasor was entitled to summary judgment, as there was no evidence that his driving while under the influence proximately caused the accident; the tortfeasor, who was under the legal blood-alcohol limit, had not violated any rules of the road. Efird v. Hubbard, 151 N.C. App. 577, 565 S.E.2d 713, 2002 N.C. App. LEXIS 753 (2002).

Summary judgment based on res judicata in a negligence action was proper in favor of third-party defendants/contractors but not in favor of third-party defendant/Department of Transportation, where the court had reversed the final judgment for the latter defendant in the prior case. Green v. Dixon, 137 N.C. App. 305, 528 S.E.2d 51, 2000 N.C. App. LEXIS 333 , aff'd, 352 N.C. 666 , 535 S.E.2d 356, 2000 N.C. LEXIS 742 (2000).

A premises owner is entitled to summary judgment in a slip and fall case if it can show either the non-existence of an essential element of the plaintiff’s claim or that the plaintiff has no evidence of an essential element of her claim. Nourse v. Food Lion, Inc., 127 N.C. App. 235, 488 S.E.2d 608, 1997 N.C. App. LEXIS 800 (1997), aff'd, 347 N.C. 666 , 496 S.E.2d 379, 1998 N.C. LEXIS 111 (1998).

Wrongful Death Actions. —

Trial court properly granted summary judgment to employee’s of a school in a wrongful death action filed by the mother of a child who died after suffering a heat stroke during a football practice; the sworn evidence of record showed that no genuine issue of material fact existed regarding the employees’ breach of any duty toward the child. Draughon v. Harnett County Bd. of Educ., 158 N.C. App. 208, 580 S.E.2d 732, 2003 N.C. App. LEXIS 1047 (2003), aff'd, 358 N.C. 131 , 591 S.E.2d 521, 2004 N.C. LEXIS 11 (2004).

Summary judgment dismissal of claims against a board of education for the alleged wrongful death of a football player was proper since all of the personal representative’s claims against the board were purely derivative of claims against the board’s individual employees and those claims against the individual employees were previously dismissed on the merits. Draughon v. Harnett County Bd. of Educ., 166 N.C. App. 464, 602 S.E.2d 721, 2004 N.C. App. LEXIS 1785 (2004).

Ordinarily discovery is required prior to granting summary judgment in a medical malpractice suit so that the party can explore issues of malpractice. Easter v. Lexington Mem. Hosp., 49 N.C. App. 398, 271 S.E.2d 545, 1980 N.C. App. LEXIS 3395 (1980), rev'd, 303 N.C. 303 , 278 S.E.2d 253, 1981 N.C. LEXIS 1095 (1981).

The inference created by res ipsa loquitur will defeat a motion for summary judgment even though the defendant presents evidence tending to establish absence of negligence. The burden of proving negligence, however, remains with the plaintiff; accordingly, the finder of fact may reject the permissible inference of negligence even though the defendant presents no evidence. Schaffner v. Cumberland County Hosp. Sys., 77 N.C. App. 689, 336 S.E.2d 116, 1985 N.C. App. LEXIS 4375 (1985).

For discussion of application of res ipsa loquitur in medical malpractice actions, see Schaffner v. Cumberland County Hosp. Sys., 77 N.C. App. 689, 336 S.E.2d 116, 1985 N.C. App. LEXIS 4375 (1985).

Summary Judgment Upheld in Medical Malpractice Action. —

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 N.C. LEXIS 1105 (2003).

Summary judgment is generally inappropriate in an action for fraud, as the existence of fraud necessarily involves a question concerning the existence of fraudulent intent, and the intent of a party is a state of mind generally within the exclusive knowledge of that party which must, by necessity, must be proved by circumstantial evidence. Girard Trust Bank v. Belk, 41 N.C. App. 328, 255 S.E.2d 430, 1979 N.C. App. LEXIS 2690 , cert. denied, 298 N.C. 293 , 259 S.E.2d 299 (1979).

Allegations of fraud do not readily lend themselves to resolution by way of summary judgment, because a cause of action based on fraud usually requires the determination of a litigant’s state of mind. Johnson v. Phoenix Mut. Life Ins. Co., 300 N.C. 247 , 266 S.E.2d 610, 1980 N.C. LEXIS 1069 (1980); Watts v. Cumberland County Hosp. Sys., 75 N.C. App. 1, 330 S.E.2d 242, 1985 N.C. App. LEXIS 3577 (1985), rev'd, 317 N.C. 321 , 345 S.E.2d 201, 1986 N.C. LEXIS 2791 (1986).

But Fraud May Be Summarily Adjudicated When Absence of Genuine Issue Is Clearly Established. —

Summary judgment is inappropriate in a fraud case where the court is called upon to draw a factual inference in favor of the moving party, or where the court is called upon to resolve a genuine issue of credibility, but the issue of fraud may be summarily adjudicated when it is clearly established that there is no genuine issue of material fact. Johnson v. Phoenix Mut. Life Ins. Co., 300 N.C. 247 , 266 S.E.2d 610, 1980 N.C. LEXIS 1069 (1980); Ramsey v. Keever's Used Cars, 92 N.C. App. 187, 374 S.E.2d 135, 1988 N.C. App. LEXIS 1028 (1988).

In order for defendant in an action for fraud to prevail on its motion for summary judgment, he must show that evidence of one or more of the elements of fraud is unavailable to plaintiff. Johnson v. Phoenix Mut. Life Ins. Co., 44 N.C. App. 210, 261 S.E.2d 135, 1979 N.C. App. LEXIS 3264 (1979), rev'd, 300 N.C. 247 , 266 S.E.2d 610, 1980 N.C. LEXIS 1069 (1980).

If the defendant moving for summary judgment in a fraud case presents material evidence which effectively negates even one of the essential elements of fraud, summary judgment in defendant’s favor should be allowed. It is not necessary that defendant’s material evidence negate all of the essential elements. Russo v. Mountain High, Inc., 38 N.C. App. 159, 247 S.E.2d 654, 1978 N.C. App. LEXIS 2122 (1978); Ramsey v. Keever's Used Cars, 92 N.C. App. 187, 374 S.E.2d 135, 1988 N.C. App. LEXIS 1028 (1988).

In a claim for relief based on fraud, summary judgment for defendant is proper where the forecast of evidence shows that even one of the essential elements of fraud is missing. Uzzell v. Integon Life Ins. Corp., 78 N.C. App. 458, 337 S.E.2d 639, 1985 N.C. App. LEXIS 4285 (1985), cert. denied, 317 N.C. 341 , 346 S.E.2d 149, 1986 N.C. LEXIS 2342 (1986).

To overcome defendant’s motion for summary judgment in an action alleging fraud, breach of contract, and unfair trade practices, plaintiff needed only to forecast evidence: (1) that defendant made a definite and specific representation to her that was materially false; (2) that defendant made the representation with knowledge of its falsity; and (3) that plaintiff reasonably relied on the representation to her detriment. Kent v. Humphries, 50 N.C. App. 580, 275 S.E.2d 176, 1981 N.C. App. LEXIS 2159 , aff'd in part, modified, 303 N.C. 675 , 281 S.E.2d 43, 1981 N.C. LEXIS 1203 (1981).

Libel Action by Public Figure. —

When a libel action brought by a public figure is at the summary judgment stage, the appropriate question for the trial judge is whether the evidence in the record would allow a reasonable finder of fact to find either that the plaintiff has shown actual malice by clear and convincing evidence or that the plaintiff has not. Proffitt v. Greensboro News & Record, Inc., 91 N.C. App. 218, 371 S.E.2d 292, 1988 N.C. App. LEXIS 814 (1988).

Summary judgment in a libel action is not favored where proof of actual malice is required of the plaintiff. Cochran v. Piedmont Publishing Co., 62 N.C. App. 548, 302 S.E.2d 903, 1983 N.C. App. LEXIS 2946 (1983), cert. denied, 469 U.S. 816, 105 S. Ct. 83, 83 L. Ed. 2d 30, 1984 U.S. LEXIS 3052 (1984).

Falsely Reporting Child Abuse and Neglect. —

Where plaintiff alleged that the defendant store clerk made false accusations of child abuse and neglect and injury, and forecast evidence that the defendant knew the report to be false, a genuine issue of material fact existed — particularly as to whether the defendant acted with malice and therefore lost the immunity accorded by former G.S. 7A-550 — to withstand summary judgment in a slander per se cause of action; however, summary judgment was appropriately granted in favor of defendant store where, if actual malice was proven, the defendant store clerk acted outside the scope of her employment. Dobson v. Harris, 134 N.C. App. 573, 521 S.E.2d 710, 1999 N.C. App. LEXIS 894 (1999), rev'd, 352 N.C. 77 , 530 S.E.2d 829, 2000 N.C. LEXIS 433 (2000).

Legal Malpractice Action. —

For a discussion of the standard for granting summary judgment in a legal malpractice action, see Bamberger v. Bernholz, 96 N.C. App. 555, 386 S.E.2d 450, 1989 N.C. App. LEXIS 1115 (1989), rev'd, 326 N.C. 589 , 391 S.E.2d 192, 1990 N.C. LEXIS 232 (1990).

Termination of Parental Rights. —

Article 24B of Chapter 7A (former G.S. 7A-289.22 et seq.) does not provide for a summary proceeding to determine whether the petitioner has proven the existence of one or more of the grounds for termination. Thus, the trial court erred in granting petitioners’ motion for partial summary judgment. Curtis v. Curtis, 104 N.C. App. 625, 410 S.E.2d 917, 1991 N.C. App. LEXIS 1091 (1991).

A summary judgment may not be entered granting an absolute divorce in this State. Edwards v. Edwards, 42 N.C. App. 301, 256 S.E.2d 728, 1979 N.C. App. LEXIS 2835 (1979).

Raising of Affirmative Defenses on Motion. —

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, 1977 N.C. App. LEXIS 1593 , cert. denied, 293 N.C. 740 , 241 S.E.2d 513, 1977 N.C. LEXIS 1024 (1977); Ridings v. Ridings, 55 N.C. App. 630, 286 S.E.2d 614, 1982 N.C. App. LEXIS 2250 (1982).

If an affirmative defense required to be raised by a responsive pleading is sought to be raised for the first time in a motion for summary judgment, the motion must ordinarily refer expressly to the affirmative defense relied upon. Dickens v. Puryear, 302 N.C. 437 , 276 S.E.2d 325, 1981 N.C. LEXIS 1073 (1981).

Defense of laches may be properly raised by summary judgment motion. Capps v. City of Raleigh, 35 N.C. App. 290, 241 S.E.2d 527, 1978 N.C. App. LEXIS 2961 (1978).

As May Statute of Frauds. —

While the statute of frauds is an affirmative defense which ordinarily must be pleaded, 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 N.C. App. LEXIS 2979 (1980).

Expiration of Statute of Repose. —

Whether a statute of repose has expired is strictly a legal issue, and where the pleadings and proof show without contradiction that the statute has expired, then summary judgment may be granted. Cellu Prods. Co. v. G.T.E. Prods. Corp., 81 N.C. App. 474, 344 S.E.2d 566, 1986 N.C. App. LEXIS 2321 (1986).

Summary judgment is an appropriate means of raising the defense of a statute of limitation if the statute is properly before the court. Baucom's Nursery Co. v. Mecklenburg County, 89 N.C. App. 542, 366 S.E.2d 558, 1988 N.C. App. LEXIS 261 (1988).

Assignments. —

Generally, the interpretation of an assignment is governed by rules applicable to the interpretation of a contract. If there is no ambiguity regarding the subject matter of the assignment, the plaintiff ’s intent can be interpreted without resort to extrinsic evidence and summary judgment may be appropriate. Martin v. Ray Lackey Enters., Inc., 100 N.C. App. 349, 396 S.E.2d 327, 1990 N.C. App. LEXIS 986 (1990).

Shareholders’ Derivative Actions. —

For a case discussing interplay of rules and statutes governing procedure and discovery in shareholders’ derivative action, particularly with respect to former G.S. 55-55(c) (see now G.S. 55-7-40 ), this rule, and G.S. 1A-1 , Rules 12 and 23, see Alford v. Shaw, 327 N.C. 526 , 398 S.E.2d 445, 1990 N.C. LEXIS 1009 (1990).

Lack of Verification Pursuant to G.S. 1A-1 , Rule 23(b). —

Because the verification requirement in G.S. 1A-1 , Rule 23(b) is not jurisdictional in nature, where the purposes behind the rule have been fulfilled by the time the objection to a defective or absent verification is lodged, dismissal or summary judgment in favor of defendants is not appropriate. Alford v. Shaw, 327 N.C. 526 , 398 S.E.2d 445, 1990 N.C. LEXIS 1009 (1990).

Actions Against Counties and Municipalities. —

County waived sovereign immunity to the extent that an insurance policy it purchased covered negligent acts committed by emergency medical technicians (EMTs) who worked for the county, and the trial court erred by dismissing a lawsuit which claimed that a person died because EMTs employed by the county were negligent. Dawes v. Nash County, 357 N.C. 442 , 584 S.E.2d 760, 2003 N.C. LEXIS 829 (2003).

Condemnation Proceedings. —

In condemnation proceeding brought pursuant to city’s power of eminent domain under G.S. 160A-240.1 , partial summary judgment was properly granted precluding property owners from recovering for diminution in value caused by the city’s construction of a median restricting access to lanes in only one direction of travel; the separation of lanes of traffic was an exercise of police power, and the means used to accomplish the legitimate objective were reasonable in light of the fact that the owners still had free ingress and egress to their property, and injury to property caused by such an exercise of police power was not compensable. City of Concord v. Stafford, 173 N.C. App. 201, 618 S.E.2d 276, 2005 N.C. App. LEXIS 1915 (2005).

Court Properly Granted Summary Judgment to an Executor Where No Evidence of Lack of Testamentary Capacity. —

Although a trial court properly granted summary judgment to an executor where there was no evidence of a lack of testamentary capacity, the trial court erred in finding estoppel and no undue influence; a caveator showed that the caveator would have received a bequest in any event and that there were genuine issues of material fact relating to undue influence. In re Will of Smith, 158 N.C. App. 722, 582 S.E.2d 356, 2003 N.C. App. LEXIS 1229 (2003).

C.Cases in Which Summary Judgment Held Proper

Declaratory Judgment. —

Summary judgment was proper in an action seeking a declaratory judgment as to the validity of a zoning ordinance where there was no substantial controversy as to the facts disclosed by the evidence, but the controversy involved the legal significance of those facts. Blades v. City of Raleigh, 280 N.C. 531 , 187 S.E.2d 35, 1972 N.C. LEXIS 1277 (1972); Taylor v. Taylor, 45 N.C. App. 449, 263 S.E.2d 351, 1980 N.C. App. LEXIS 2670 , rev'd, 301 N.C. 357 , 271 S.E.2d 506, 1980 N.C. LEXIS 1164 (1980).

Summary judgment was proper in case involving a determination of prior jurisdiction between two towns’ competing resolutions of intent where one municipality had sought to involuntarily annex two acres within the boundaries of the other. Town of Spencer v. Town of E. Spencer, 351 N.C. 124 , 522 S.E.2d 297, 1999 N.C. LEXIS 1255 (1999).

Condominium association was properly granted summary judgment on a declaratory judgment action given the rejection of the developer’s arguments as to its ability to retain ownership of the disputed areas as inconsistent with the North Carolina Condominium Act. Residences at Biltmore Condo. Owners' Ass'n v. Power Dev., LLC, 243 N.C. App. 711, 778 S.E.2d 467, 2015 N.C. App. LEXIS 892 (2015).

Declaratory Judgment Action Challenging the Denial of a Rezoning Application. —

Trial court properly granted summary judgment pursuant to G.S. 1A-1 , N.C. R. Civ. P. 56 to a city in property owners’ declaratory judgment action pursuant to G.S. 1-253 , challenging a denial of an application to rezone property; a city council’s finding that the rezoning would lead to further traffic congestion in the area had a plausible basis, and that the decision had a basis in reason and bore a substantial relation to public safety. Ashby v. Town of Cary, 161 N.C. App. 499, 588 S.E.2d 572, 2003 N.C. App. LEXIS 2199 (2003).

Sovereign Immunity. —

Trial court properly granted the county summary judgment on the tort claims brought by a volunteer treasurer of a nonprofit emergency medical services provider where the county’s decisions to assume operational control of the provider after its board resolved to cease operations and transfer the provider’s vehicles were discretionary decisions satisfying its statutorily delegated responsibilities, and thus, the county had shown that governmental immunity barred the tort claims. Fuller v. Wake Cty., 254 N.C. App. 32, 802 S.E.2d 106, 2017 N.C. App. LEXIS 459 (2017).

Issue of Punitive Damages Was Appropriate for Ruling in a Second Summary Judgment Motion. —

Trial court properly granted defendants’ summary judgment motion pursuant to G.S. 1A-1 , N.C. R. Civ. P. 56 in a medical malpractice action as to the issue punitive damages, because the issue of punitive damages was not mentioned in an initial summary judgment motion decided by a different judge, and was thus appropriate for ruling in the second motion. Fox v. Green, 161 N.C. App. 460, 588 S.E.2d 899, 2003 N.C. App. LEXIS 2193 (2003).

In a declaratory judgment action challenging a city’s condemnation proceeding for expansion of the city’s sewer system, a judgment for the city that was essentially a grant of summary judgment was proper because the intended use of the condemnation satisfied the public use and public benefit test as all city residents, including the landowners whose property was being condemned, would have the equal right to connect to the expanded sewer system, which was an essential service. Tucker v. City of Kannapolis, 159 N.C. App. 174, 582 S.E.2d 697, 2003 N.C. App. LEXIS 1442 (2003).

In the declaratory judgment action, the trial court properly granted partial summary judgment pursuant to G.S. 1A-1 , Rule 56, in favor of the estate administrator on the issue as to whether the airport insurance policies issued by the insurer provided coverage to the corporations if the corporations were to be found liable; coverage of the corporations was not excluded as the plane that crashed was not owned by, rented by, or loaned to the corporations, and the plane was in flight for the account of its owner, not the corporations. Carlson v. Old Republic Ins. Co., 160 N.C. App. 399, 585 S.E.2d 497, 2003 N.C. App. LEXIS 1796 (2003).

When a deceased child’s mother filed a declaratory judgment action against the child’s father, seeking a determination of the parties’ rights to share in the child’s estate, including the proceeds of a wrongful death suit on the child’s behalf, under G.S. 31A-2 , because the father did not support or communicate with the child from age four until almost age 20, the mother’s summary judgment motion, under G.S. 1A-1 , Rule 56, was properly granted because, while the father resumed support of and contact with the child before the child’s death, support had to be resumed at least one year before the end of the father’s legal obligation to support the child, which ended at age 18, to apply the exception to G.S. 31A-2 ’s preclusion, found in G.S. 31A-2(1), so that exception did not apply to the father. McKinney v. Richitelli, 357 N.C. 483 , 586 S.E.2d 258, 2003 N.C. LEXIS 1097 (2003).

Ruling Simultaneous to Class Certification. —

Trial court did not err in granting summary judgment prior to ruling on the credit cardholder’s pending motion for class certification because the parties had stipulated that both motions could be considered simultaneously. Gaynoe v. First Union Corp., 153 N.C. App. 750, 571 S.E.2d 24, 2002 N.C. App. LEXIS 1259 (2002).

Trial court did not err in declaring that a county ordinance that pertained to employment discrimination and its enabling statute, G.S. 160A-492 , were unconstitutional acts because they violated the provisions of N.C. Const. art. II, § 24(1)(j); thus, summary judgment in favor of employer was proper. Williams v. Blue Cross Blue Shield, 357 N.C. 170 , 581 S.E.2d 415, 2003 N.C. LEXIS 595 (2003).

Trial court properly granted summary judgment to a retailer in its declaratory judgment action against a tenant, the landlord, and the landlord’s successor in interest because, while a restrictive covenant in a deed between the retailer and the landlord created a real covenant running with the land transferred in the deed and barred the retailer’s use of that tract of land for a grocery store, the trial court correctly determined that the restrictive covenant did not impose upon the retailer the five-mile radius restriction to which the landlord earlier agreed in a negotiated commercial lease with the tenant. Wal-Mart Stores, Inc. v. Ingles Mkts., Inc., 158 N.C. App. 414, 581 S.E.2d 111, 2003 N.C. App. LEXIS 1175 (2003).

Contributory Negligence in Use of Steps. —

Although issues of negligence and contributory negligence are rarely appropriate for summary judgment, where the uncontroverted evidence indicated that plaintiff failed to use ordinary care and that want of due care was at least one of the proximate causes of the fall at issue, her use of steps rendered her contributorily negligent as a matter of law, making summary judgment in favor of defendants proper. Brooks v. Francis, 57 N.C. App. 556, 291 S.E.2d 889, 1982 N.C. App. LEXIS 2686 (1982).

Summary judgment was appropriate where defendants set forth no specific facts to support their allegation that the plaintiff represented to them that their loans would be refinanced. Lexington State Bank v. Miller, 137 N.C. App. 748, 529 S.E.2d 454, 2000 N.C. App. LEXIS 501 (2000).

Contributory Negligence in a Fast Food Restaurant. —

Summary judgment was appropriate although defendant may have been negligent in placing the platform over which plaintiff fell so that it was partially hidden by a counter overhang, where plaintiff admitted that she saw the structure before she tripped over it and that she was not distracted by any action of defendant. Allsup v. McVille, Inc., 139 N.C. App. 415, 533 S.E.2d 823, 2000 N.C. App. LEXIS 905 (2000), aff'd, 353 N.C. 359 , 543 S.E.2d 476, 2001 N.C. LEXIS 261 (2001).

Contributory Negligence in Construction. —

Where injured subcontractor’s employee knew that holes left by refrigeration installer remained in flooring, but failed to take precautions and lock scaffold’s wheels in place prior to beginning the day’s work of installing ceiling tiles, he was contributorily negligent as a matter of law; gross negligence was not present to overcome finding of contributory negligence, and thus summary judgment was proper. Sawyer v. Food Lion, Inc., 144 N.C. App. 398, 549 S.E.2d 867, 2001 N.C. App. LEXIS 429 (2001).

Trial court properly granted summary judgment pursuant to G.S. 1A-1 , N.C. R. Civ. P. 56(c), to a developer and a construction company in relation to property owners’ claims arising from the installation of allegedly faulty synthetic stucco in a townhouse; considering the indications the owners received that the synthetic stucco was problematic, their failure to engage the services of a qualified inspector to inspect the synthetic stucco before they purchased the townhouse constituted contributory negligence as a matter of law. Swain v. Preston Falls E., L.L.C., 156 N.C. App. 357, 576 S.E.2d 699, 2003 N.C. App. LEXIS 106 (2003).

Contributory Negligence For Building Defects. —

There was insufficient evidence to allow a reasonable mind to conclude the county’s Certificate of Occupancy proximately caused the buyer’s damages, where the buyer proceeded to closing at the urging of the realtor, knowing of home’s defects, and based on the promises of the builder to fix said defects after closing, and summary judgment for the county on the buyer’s negligent inspection claim was also proper because the buyer was contributorily negligent. Eason v. Union County, 160 N.C. App. 388, 585 S.E.2d 452, 2003 N.C. App. LEXIS 1791 (2003).

Alleged Negligence by Subcontractor. —

Subcontractor that was hired by general contractor to install trusses on roofs of two buildings did not have a duty to protect the buildings from rainwater, and the trial court ruled correctly that the subcontractor was entitled to summary judgment on a condominium association’s claim alleging that the subcontractor negligently allowed rainwater to damage buildings the association managed. Finley Forest Condo. Ass'n v. Perry, 163 N.C. App. 735, 594 S.E.2d 227, 2004 N.C. App. LEXIS 570 (2004).

No Genuine Issue as to Inflicted Injury. —

Where plaintiff took advantage of the discovery procedures available and was still unable to obtain evidence as to when and how injury occurred and who or what caused it, and the record did not reveal that any injury in the nature of an inflicted harm occurred, and plaintiff ’s condition could just as well have been from a pathological cause, there was an absence of a showing of a genuine issue as to any material fact and summary judgment was appropriate. Hoover v. Gaston Mem. Hosp., 11 N.C. App. 119, 180 S.E.2d 479, 1971 N.C. App. LEXIS 1462 (1971).

Summary judgment was appropriate where plaintiff’s claim did not meet the test in Woodson v. Rowland, 329 N.C. 330 , 407 S.E.2d 222 (1991), requiring that the plaintiff show that the defendant engaged in misconduct he knew was substantially certain to cause serious injury. Henderson v. Henderson, 121 N.C. App. 752, 468 S.E.2d 454, 1996 N.C. App. LEXIS 129 (1996).

No Genuine Issue of Material Fact Regarding False Statement or Misrepresentation. —

Trial court properly granted the owners’ summary judgment motion as to a subcontractor’s claim that the owners made a false representation upon which the subcontractor reasonably relied since a genuine issue of material fact did not exist regarding whether an owner made a false statement or misrepresentation about guaranteeing payment. Watson Elec. Constr. Co. v. Summit Cos., LLC, 160 N.C. App. 647, 587 S.E.2d 87, 2003 N.C. App. LEXIS 1930 (2003).

Affidavit Contained Only General Allegations. —

Summary judgment was appropriate where no issue of fact existed as to the outstanding balance on the respective loans because the defendant’s affidavit contained only general allegations and conclusions, and no specific facts were provided in it as to the dates of any uncredited payments, their amounts, or any other relevant information. Lexington State Bank v. Miller, 137 N.C. App. 748, 529 S.E.2d 454, 2000 N.C. App. LEXIS 501 (2000).

In an action to recover damages for alleged wrongful suspension or discharge etc. of plaintiff from his employment with defendant, trial court properly entered summary judgment for defendant where defendant’s evidence established that, except for a bargaining agreement, plaintiff ’s contract of employment was for an indefinite period of time, terminable at the will of either party, that defendant suspended plaintiff for cause, and that defendant had the right to do so, conditioned or circumscribed only by the provisions of a collective bargaining agreement. Tucker v. General Tel. Co., 50 N.C. App. 112, 272 S.E.2d 911, 1980 N.C. App. LEXIS 3467 (1980).

Summary judgment for defendant was proper in an action alleging wrongful discharge due to a handicapped condition, since plaintiff’s rhinitis was not a “physical impairment” under G.S. 168A-3 because his medical records established that his condition was temporary; nor did his condition render him “handicapped” under G.S. 168A-3 . Simmons v. Chemol Corp., 137 N.C. App. 319, 528 S.E.2d 368, 2000 N.C. App. LEXIS 311 (2000).

In the former deputy sheriff’s retaliatory discharge in violation of G.S. 153A-99 cause of action against the sheriff and the surety, the sheriff and surety were entitled to summary judgment pursuant to G.S. 1A-1 , N.C. R. Civ. P. 56; the former deputy’s assertion that the former deputy was fired due to the former deputy’s affiliation with the sheriff’s primary election foe was insufficient to establish a nexus between the protected activity and the discharge, because the evidence of the nexus was from the former deputy’s deposition testimony that amounted to mere conjecture. Venable v. Vernon, 162 N.C. App. 702, 592 S.E.2d 256, 2004 N.C. App. LEXIS 250 (2004).

Where the plaintiff sought to be reinstated to the same position, pursuant to 25 N.C.A.C. 1B.0428, defendant/state agency which reinstated plaintiff/employee as an auditor, not chief auditor, but within the same pay grade, was entitled to judgment as a matter of law. Hodge v. North Carolina DOT, 137 N.C. App. 247, 528 S.E.2d 22, 2000 N.C. App. LEXIS 334 , rev'd, 352 N.C. 664 , 535 S.E.2d 32, 2000 N.C. LEXIS 745 (2000).

Action for Sexual Assault or Seduction. —

Summary judgment was appropriate in an action to recover for sexual assault or seduction where the evidence tended to show that plaintiff willingly went to a field with defendant, willingly drank two alcoholic beverages, and remembered nothing until she found herself back in town, but subsequently discovered that she had had intercourse, since there was no evidence that plaintiff feared or even knew that harmful or offensive contact might occur, which was required to show an assault, and since there was no evidence that defendant deceived or enticed plaintiff in any way, which was required to show seduction. McCraney v. Flanagan, 47 N.C. App. 498, 267 S.E.2d 404, 1980 N.C. App. LEXIS 3144 (1980).

Vicarious Alienation of Affection. —

Summary judgment was proper on plaintiff’s alienation of affection claim against defendant moving company which he alleged was vicariously liable where moving company’s field representative’s involvement with plaintiff’s wife was not done in furtherance of the moving company’s business, the agent’s actions were not within the scope of his employment, and the company did not ratify the allegedly wrongful acts. Mercier v. Daniels, 139 N.C. App. 588, 533 S.E.2d 877, 2000 N.C. App. LEXIS 989 (2000).

Animal Attack. —

Summary judgment was properly granted to the cat owners in the victim’s action seeking compensation for injuries caused by the cat, as the victim failed to establish that the cat exhibited vicious propensities in past, or that the owners had any reason to suspect that the cat would attack the victim. Ray v. Young, 154 N.C. App. 492, 572 S.E.2d 216, 2002 N.C. App. LEXIS 1445 (2002).

Where materials presented in support of defendant’s motion for summary judgment showed that plaintiff had suffered no compensable injury or damage, the entry of summary judgment was proper, since there appeared to be no genuine issue as to any material fact. Alltop v. J.C. Penney Co., 10 N.C. App. 692, 179 S.E.2d 885, 1971 N.C. App. LEXIS 1699 , cert. denied, 279 N.C. 348 , 182 S.E.2d 580, 1971 N.C. LEXIS 783 (1971).

Insurance Claim. —

Summary judgment for plaintiff was appropriate where the estate of plaintiff’s son could recover under his parents’ automobile insurance policy although they placed the policy in the name of a piece of property they owned which was incapable of being legally classified as an individual or as an entity, commercial or otherwise, as the insured; the court resolved the ambiguity created by designating a place as the insured in favor of the plaintiff who paid the premiums and obtained the family coverage. Stockton v. North Carolina Farm Bureau Mut. Ins. Co., 139 N.C. App. 196, 532 S.E.2d 566, 2000 N.C. App. LEXIS 799 (2000).

Plaintiffs, whose home burned down just before it was completed, were entitled to summary judgment against defendant insurer where, under the plain language of the policy, plaintiffs were entitled to recover the full limit of liability. Rouse v. Williams Realty Bldg. Co., 143 N.C. App. 67, 544 S.E.2d 609, 2001 N.C. App. LEXIS 219 , aff'd, 354 N.C. 357 , 554 S.E.2d 337, 2001 N.C. LEXIS 1081 (2001).

In an insured’s action against an insurer, summary judgment was properly granted to the insurer because another state’s judgment in a class action against the insurer, which the insured did not opt out of, was entitled to full faith and credit and barred the insured’s action. Freeman v. Pac. Life Ins. Co., 156 N.C. App. 583, 577 S.E.2d 184, 2003 N.C. App. LEXIS 190 (2003).

When an insured sued an insurer for breach of contract and unfair and deceptive practices for negotiating his premium payment on a life insurance policy and then refunding it, stating that no coverage ever existed, summary judgment was properly granted to the insured, because (1) the insurer’s negotiation of the insured’s payment, after it knew of the insured’s health problems, was inconsistent with enforcing a “good health” provision of the policy and waived that provision, (2) the insurer could not claim accord and satisfaction based on the insured’s negotiation of the refund check, because that negotiation was based on the insurer’s misrepresentation that the insured was never covered, when it knew he was, (3) and this conduct was an unfair and deceptive practice under G.S. 75-1.1 and G.S. 58-63-15(1) . Cullen v. Valley Forge Life Ins. Co., 161 N.C. App. 570, 589 S.E.2d 423, 2003 N.C. App. LEXIS 2273 (2003).

Summary judgment was properly granted in favor of the insurer where the husband’s homeowner’s policy for personal liability did not apply to a named insured or insured; the wife was both a named insured and an insured under the policy such that there was no coverage for the injuries that she received from the husband, and there was no reasonable expectation that the insurer would pay costs incurred for a lawsuit for which there was no coverage. N.C. Farm Bureau Mut. Ins. Co. v. Fowler, 162 N.C. App. 100, 589 S.E.2d 911, 2004 N.C. App. LEXIS 55 (2004).

Summary judgment was properly granted in favor of an insurer in a breach of contract action because two insureds admitted there was no breach of an insurance contract by failing to make a timely response to requests for admissions; moreover, the fact that the insureds’ attorney failed to provide the discovery documents to the insureds did not provide a basis for relief from the judgment. Brown v. Foremost Affiliated Ins. Servs., 158 N.C. App. 727, 582 S.E.2d 335, 2003 N.C. App. LEXIS 1222 (2003).

Trial court properly granted summary judgment to an administratrix on her claims against two uninsured motorist insurers because, on the date of the insolvency of the third insurer with whom the administratrix settled following the work related death of her husband, the two uninsured motorist insurers became liable to the administratrix for the unfunded amount of the settlement with the insolvent insurer. Jones v. N.C. Ins. Guaranty Ass'n, 163 N.C. App. 105, 592 S.E.2d 600, 2004 N.C. App. LEXIS 302 (2004).

Insurance company was entitled to summary judgment in homeowners’ action seeking payment under a policy that the company issued to a contractor that built a retaining wall because the policy was not in force when the contractor built the wall and damage which occurred to the wall after water seeped into the ground occurred outside the policy period. Hutchinson v. Nationwide Mut. Fire Ins. Co., 163 N.C. App. 601, 594 S.E.2d 61, 2004 N.C. App. LEXIS 407 (2004).

Release of Tortfeasor in Insurance Claim. —

Insureds were entitled to summary judgment in an insurer’s declaratory judgment action against them to determine the insureds’ rights to pursue underinsured motorist benefits when they released the tortfeasor, because the release was clearly limited to the tortfeasor, and the release did not have to contain a covenant not to enforce judgment or to expressly reserve the insureds’ rights against the insurer. N.C. Farm Bureau Mut. Ins. Co. v. Edwards, 154 N.C. App. 616, 572 S.E.2d 805, 2002 N.C. App. LEXIS 1514 (2002).

Insurance Claim. —

In an insured’s action against an insurer, summary judgment was properly granted to the insurer because another state’s judgment in a class action against the insurer, which the insured did not opt out of, was entitled to full faith and credit and barred the insured’s action. Freeman v. Pac. Life Ins. Co., 156 N.C. App. 583, 577 S.E.2d 184, 2003 N.C. App. LEXIS 190 (2003).

Public duty doctrine did not bar a negligent home inspection claim as the public duty doctrine applied only to law enforcement officers and the county’s purchase of a liability insurance policy covering law officers did not waive sovereign immunity as building inspectors were not officers; thus, summary judgment for the county was proper. Kennedy v. Haywood County, 158 N.C. App. 526, 581 S.E.2d 119, 2003 N.C. App. LEXIS 1174 (2003).

Duty of Insurer to Defend. —

The trial court correctly entered summary judgment for real estate company on the issue of whether insurer had a duty to defend it in an underlying action, where real estate company’s failure to set up a mobile home did not fit under any of the insurer’s contract exclusions, because the real estate company had not completed its work and since one of the exclusions was ambiguous and a reasonable person reading the contract would have understood the contract to cover all ordinary business operations of the company. Lambe Realty Inv., Inc. v. Allstate Ins. Co., 137 N.C. App. 1, 527 S.E.2d 328, 2000 N.C. App. LEXIS 261 (2000).

Summary judgment was properly granted to an insurer in its claim for declaratory judgment wherein it was determined that it had no duty to defend its insured nor any duty to reimburse it for expenses of the insured in defending against a claim by an equipment company for breach of contract and indemnification, because the contract between the insured and the company had been found to be invalid. Pa. Nat'l Mut. Cas. Ins. Co. v. Associated Scaffolders & Equip. Co., 157 N.C. App. 555, 579 S.E.2d 404, 2003 N.C. App. LEXIS 749 (2003).

There was no genuine issue as to any material fact in an action under an airplane insurance policy where defendant insurance company effectively canceled the policy under the terms of the contract by notice to plaintiff insured when plaintiff failed to make premium payments on time and had not waived the right of cancellation by past acceptance of late payments which conformed to the conditions of cancellation, and where tender or refund of the unearned portion of the premium payments was not a condition precedent to cancellation. Klein v. Avemco Ins. Co., 289 N.C. 63 , 220 S.E.2d 595, 1975 N.C. LEXIS 875 (1975).

In an insurance case, the trial court correctly granted summary judgment dismissing an insured’s claim for insurance coverage of a vehicle destroyed by a fire because the vehicle was being prepared for racing and the insurance policy clearly excluded coverage of racing vehicles. Barnes v. Erie Ins. Exch., 156 N.C. App. 270, 576 S.E.2d 681, 2003 N.C. App. LEXIS 103 (2003).

In an insurance case, the trial court correctly granted summary judgment dismissing an insured’s claim against the bailee of the insured’s vehicle, whose alleged negligence caused a fire which destroyed the vehicle, because the insured attempted to assert that claim as a third-party claim, under G.S. 1A-1 , N.C. R. Civ. P. 14(a), after an insurer answered the insured’s original complaint, effectively amending that complaint without complying with G.S. 1A-1 , N.C. R. Civ. P. 15, which was improper. Barnes v. Erie Ins. Exch., 156 N.C. App. 270, 576 S.E.2d 681, 2003 N.C. App. LEXIS 103 (2003).

Summary judgment dismissing plaintiff ’s action against defendant insurance company under an uninsured motorists endorsement to a policy was proper where the admitted facts established that at the time the action was instituted a claim for wrongful death was no longer within the coverage provided by the policy. Brown v. Lumbermens Mut. Cas. Co., 19 N.C. App. 391, 199 S.E.2d 42, 1973 N.C. App. LEXIS 1663 (1973), aff'd, 285 N.C. 313 , 204 S.E.2d 829, 1974 N.C. LEXIS 973 (1974).

The trial court properly granted summary judgment in favor of plaintiff-insurer where the pleadings, affidavits, and deposition testimony indicated that defendant’s use of co-defendant’s car constituted “regular use” within the meaning of the insurer’s policies thereby excluding coverage. Nationwide Mut. Ins. Co. v. Walters, 142 N.C. App. 183, 541 S.E.2d 773, 2001 N.C. App. LEXIS 33 (2001).

Change of Beneficiary of Insurance Policy. —

Trial court properly granted summary judgment for wife of decedent/service member who made her the beneficiary of his insurance policy, although he had earlier entered into a child support agreement promising to make the child of his first marriage the beneficiary; federal law and federal regulations bestowed upon the service member an absolute right to designate the policy beneficiary, even in conflict with state law, and the proceeds were not attachable under the federal Servicemember’s Group Life Insurance Act. Lewis v. Estate of Lewis, 137 N.C. App. 112, 527 S.E.2d 340, 2000 N.C. App. LEXIS 250 (2000).

In an action to recover accidental death insurance proceeds, where defendant’s evidentiary matter established that cause of death was heart failure and defendant’s evidence was not contradicted by plaintiff in response to motion for summary judgment, the motion was properly granted. Hicks v. Old Republic Life Ins. Co., 29 N.C. App. 561, 225 S.E.2d 164, 1976 N.C. App. LEXIS 2567 (1976).

Summary judgment was proper under the family purpose doctrine for defendant/father whose son was killed when his automobile collided with plaintiff’s, where father did little more than extend credit to his son by providing him with the purchase price of the car and the son made periodic payments and had actual, exclusive control of it after its purchase. Tart v. Martin, 137 N.C. App. 371, 527 S.E.2d 708, 2000 N.C. App. LEXIS 326 , rev'd, 353 N.C. 252 , 540 S.E.2d 332, 2000 N.C. LEXIS 900 (2000).

Commission Agreement. —

Where defendant’s original contract for the sale of land to a third party was cancelled, and plaintiff submitted no evidentiary materials in opposition to defendant’s motion for summary judgment, plaintiff failed to raise any issue of fact as to the nature of an oral agreement by defendant to pay plaintiff one half of any commissions defendant received, since the right to share in commissions under an agreement between brokers to divide commissions does not arise until the commissions have actually been received by the broker charged with liability; thus, summary judgment was appropriate. Chears v. Robert A. Young & Assocs., 49 N.C. App. 674, 272 S.E.2d 402, 1980 N.C. App. LEXIS 3440 (1980).

Summary judgment was appropriate on plaintiff’s vicarious liability claim where plaintiff submitted an affidavit alleging that the person who tried to repossess her automobile, pushed her to the ground twice and injured her knee but failed to submit any affidavits or other material relating to the question of his status as an independent contractor; none of the evidence before the trial court rebutted the defendant’s claim that he was an independent contractor or supported the plaintiff’s claim that the company should have known of his alleged penchant for aggressive behavior and the likelihood that he would assault plaintiff. Jiggetts v. Lancaster, 138 N.C. App. 546, 531 S.E.2d 851, 2000 N.C. App. LEXIS 630 (2000).

No Property Right in At-Will Employment. —

The trial court erred in failing to grant summary judgment for defendant-state agency where plaintiff, a county extension director, was an employee at-will with no cognizable property right in his employment and, therefore, barred from bringing a due process claim. McCallum v. North Carolina Coop. Extension Serv. of N.C. State Univ., 142 N.C. App. 48, 542 S.E.2d 227, 2001 N.C. App. LEXIS 51 (2001).

In an action for specific performance of an option contract for the sale of land, where plaintiffs’ affidavits and materials in support of their motion for summary judgment, if true, established that upon tender of the deed they were ready, willing and able to pay defendants cash for the property, there were only latent doubts as to the credibility of the affidavits, the affidavits of a disinterested bank president strongly corroborated plaintiffs’ affidavits and financial statements, and defendants neither produced any contradictory affidavits, pointed to any specific grounds for impeachment, nor utilized section (f) of this rule, summary judgment against defendants decreeing specific performance was appropriate. Kidd v. Early, 289 N.C. 343 , 222 S.E.2d 392, 1976 N.C. LEXIS 1290 (1976).

Summary Judgment was Proper in Action Involving Church Property. —

When church officials sued seceders from the church to recover church property, summary judgment was properly granted to the church officials because the church was a connectional church governed by the national and diocesan church’s canons, which provided that the church held its property in trust for the diocese; thus, when the seceders withdrew from the church, the property reverted to the diocese. Daniel v. Wray, 158 N.C. App. 161, 580 S.E.2d 711, 2003 N.C. App. LEXIS 1038 (2003).

Summary judgment in favor of land seller was correct where there was no contract in writing pertaining to the conveyance of the realty as required by G.S. 22-2 . Henry v. Shore, 18 N.C. App. 463, 197 S.E.2d 270, 1973 N.C. App. LEXIS 1903 (1973).

In a case involving property foreclosure, plaintiff lender was entitled to summary judgment where HUD entity’s alleged refusal to recast defendant’s debt or discount the mortgage was not arbitrary, capricious, or an abuse of discretion, and violated no applicable law, and there existed, therefore, no material issue of fact. Multifamily Mortg. Trust 1996-1 v. Century Oaks Ltd., 139 N.C. App. 140, 532 S.E.2d 578, 2000 N.C. App. LEXIS 802 (2000).

Summary Ejectment Actions. —

Trial court properly granted summary judgment pursuant to G.S. 1A-1 , N.C. R. Civ. P. 56(c), to a railway in a summary ejectment action; an oil company’s sublease of property from an advertising company terminated when the lease between the railway and the advertising company terminated, and the oil company’s claim for betterments under G.S. 1-340 failed based on the company’s status as a tenant. Atl. & E. Carolina Ry. Co. v. Wheatly Oil Co., 163 N.C. App. 748, 594 S.E.2d 425, 2004 N.C. App. LEXIS 579 (2004).

Adverse Possession Action. —

Summary judgment was properly granted to a homeowners’ association on an adverse possession claim where a deed only described the parcel in which the grantor held title, case law did not allow the purchasers to tack on the grantor’s time of possession to satisfy G.S. 1-40 , and the purchasers otherwise did not satisfy the prescriptive period. Cole v. Bonaparte's Retreat Prop. Owners' Ass'n, 259 N.C. App. 27, 815 S.E.2d 403, 2018 N.C. App. LEXIS 389 (2018).

Credit Card Contract Claim. —

Trial court did not err in granting summary judgment for the bank on the breach of contract claim because the trial court correctly interpreted the cardholder agreement and determined that there were no triable issues of fact entitling the bank to summary judgment. Gaynoe v. First Union Corp., 153 N.C. App. 750, 571 S.E.2d 24, 2002 N.C. App. LEXIS 1259 (2002).

Where evidence against a check cashing business established that it executed contracts for usurious loans, it used its alternative business purpose of providing Internet access to consumers as a guise to cover this illegal activity, and no evidentiary basis existed upon which a reasonable fact-finder could reach a contrary conclusion, the State’s claims of usury and violations of the Consumer Finance Act were established as a matter of law; moreover, the contracts which customers had with the business were cancelled pursuant to G. S. 75-15.1, requiring all funds collected by the business pursuant to such contracts to be refunded to the customers. State ex rel. Cooper v. NCCS Loans, Inc., 174 N.C. App. 630, 624 S.E.2d 371, 2005 N.C. App. LEXIS 2588 (2005).

Lender was properly granted summary judgment in a lender’s action because the borrower failed to show any improper conduct on lender’s part where there was no requirement for an in-person interview, there was no evidence of a forged signature, the lender disclosed all fees, there was no evidence of harm from allegedly backdated documents, there was no requirement that the lender recommend a reverse mortgage, and there was no violation in the same closing attorney representing both the borrower and the lender. Melton v. Family First Mortg. Corp., 156 N.C. App. 129, 576 S.E.2d 365, 2003 N.C. App. LEXIS 67 , aff'd, 357 N.C. 573 , 597 S.E.2d 672, 2003 N.C. LEXIS 1267 (2003).

Purchasing bank was properly granted summary judgment in a lender’s action because the bank, in buying a mortgage that the borrower alleged was improperly obtained in the borrower’s name, had no dealings with the borrower and had simply purchased the subject mortgage soon after its execution. Melton v. Family First Mortg. Corp., 156 N.C. App. 129, 576 S.E.2d 365, 2003 N.C. App. LEXIS 67 , aff'd, 357 N.C. 573 , 597 S.E.2d 672, 2003 N.C. LEXIS 1267 (2003).

In Action for Permanent Injunction of Member’s Inappropriate Behavior Toward Association. —

Although the member presented evidence that the association’s board president and dockmaster acted inappropriately towards him, because the member’s own behavior and conduct towards the association was equally inappropriate and continued unabated, and because the trial court weighed and balanced the competing equities of both parties and concluded that the member’s conduct was egregious enough to warrant the issuance of a permanent injunction, summary judgment was properly granted in favor of the association. Fed. Point Yacht Club Ass'n v. Moore, 233 N.C. App. 298, 758 S.E.2d 1, 2014 N.C. App. LEXIS 307 (2014).

To recover damages on a claim alleging unfair and deceptive trade practices, a plaintiff must show, inter alia, actual injury as a result of the defendant’s unfair and deceptive act; where, in a claim brought by mobile home owners alleging unfair and deceptive trade practices by the manufacturers of the homes in the manufacturers’ recommendations for use of an allegedly defective mobile home tie down system, summary judgment for the manufacturers was proper and was affirmed where, in his deposition, one owner admitted that he did not rely on the manufacturers’ recommendation to use the tie-down system at issue when he bought his mobile home, that did not read the manual which specified the system, that the manufacturers did not make any representations about the system before he bought his mobile home, that his home withstood two hurricanes without damage to the system, and that he had not suffered any damages. Belcher v. Fleetwood Enters., 162 N.C. App. 80, 590 S.E.2d 15, 2004 N.C. App. LEXIS 9 (2004).

Action for Fraud. —

Where plaintiff failed to prove that defendant car dealership knew or had reason to know of used car’s history, and did not even forecast that she could produce such evidence at trial, there was no genuine issue regarding the dealership’s knowledge and summary judgment was correct as to charge of fraud. Ramsey v. Keever's Used Cars, 92 N.C. App. 187, 374 S.E.2d 135, 1988 N.C. App. LEXIS 1028 (1988).

Summary judgment pursuant to G.S. 1A-1 , N.C. R. Civ. P. 56(c) was properly granted in 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), G.S. 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 N.C. App. LEXIS 188 (2003).

Summary judgment in favor of a newspaper corporation, a publishing company, the publishing company’s president, a newspaper editor, and a newspaper staff writer in a litigant’s action for, inter alia, fraud was proper because the litigant stated in a deposition that she had not relied on any statements by defendants in regard to an article by the writer. Broughton v. McClatchy Newspapers, Inc., 161 N.C. App. 20, 588 S.E.2d 20, 2003 N.C. App. LEXIS 1983 (2003).

Unfair Trade Practice. —

Trial court properly granted the owners’ summary judgment motion as to a subcontractor’s claim for treble damages under G.S. 75-1.1 of the North Carolina Unfair and Deceptive Trade Practices Act, G.S. 75-1 et seq., as the subcontractor failed to plead a viable fraud claim, and failed to show substantial aggravating circumstances attending to a breach of contract. Watson Elec. Constr. Co. v. Summit Cos., LLC, 160 N.C. App. 647, 587 S.E.2d 87, 2003 N.C. App. LEXIS 1930 (2003).

Failure to Prove Essential Elements of Fraud Claim. —

Trial court properly granted summary judgment in favor of a corporation and its stockholder as the former employee, who was required by an agreement to sell his stock to the corporation for which he worked upon the termination of his employment, could not prove essential elements of his claims for for fraud, constructive fraud, negligent misrepresentation, violating the North Carolina Securities Act (G.S. 78A-56(b)), and punitive damages. Sullivan v. Mebane Packaging Group, Inc., 158 N.C. App. 19, 581 S.E.2d 452, 2003 N.C. App. LEXIS 944 (2003).

Fraud Claim Was Properly Dismissed on Summary Judgment. —

Plaintiff’s claim that its former customer’s employee revealed to plaintiff’s competitor confidential information from plaintiff’s bid that allowed the competitor to underbid, thereby committing fraud and violating G.S. 66-152(3) and G.S. 75-1.1 , was properly dismissed on summary judgment; plaintiff, by submitting information to its customer and allowing it to use and disclose bid information at its sole discretion, did not act reasonably to maintain the secrecy of its bid information, so that it was not a “trade secret.” Area Landscaping, L.L.C. v. Glaxo-Wellcome, Inc., 160 N.C. App. 520, 586 S.E.2d 507, 2003 N.C. App. LEXIS 1825 (2003).

Summary judgment was properly granted to the tax preparers on a fraudulent concealment claim where at the time the emails were sent, the preparers had already been terminated by plaintiff and replaced by another accountant, and as a result, they owed no per se fiduciary duty to plaintiff.

In an action for fraud based upon alleged misrepresentation of acreage in a land sale, summary judgment was properly granted for defendants who successfully carried the burden of negating an element of fraud by showing that any representations on their part were made neither with knowledge of their falsity nor in culpable ignorance of their truth. Russo v. Mountain High, Inc., 38 N.C. App. 159, 247 S.E.2d 654, 1978 N.C. App. LEXIS 2122 (1978).

Fraudulent Inducement of Real Estate Purchase. —

Summary judgment was properly granted in favor of the real estate agents on the purchasers’ fraud and unfair and deceptive trade practices claims because the purchasers failed to make a sufficient showing that they suffered damages. Wall v. Fry, 162 N.C. App. 73, 590 S.E.2d 283, 2004 N.C. App. LEXIS 61 (2004).

Buyers’ misrepresentation claims against defendant seller and real estate agent were properly dismissed on summary judgment because defendants’ affidavits, in which they stated they did not know the land sold to the buyers was in a flood zone, negated the element of “intent to deceive” and the buyers did not produce conflicting evidence. Taylor v. Gore, 161 N.C. App. 300, 588 S.E.2d 51, 2003 N.C. App. LEXIS 2054 (2003).

Buyers’ negligent misrepresentation claims against the seller and his real estate agent failed, as the agent was entitled to rely on a surveyor’s representation that the property sold to the buyers was not in a flood zone. Taylor v. Gore, 161 N.C. App. 300, 588 S.E.2d 51, 2003 N.C. App. LEXIS 2054 (2003).

Negligent Failure to Maintain Sidewalk. —

Summary judgment was appropriate where the plaintiff failed to offer any evidence that the city had either actual or constructive notice of any alleged defect in its sidewalk, as required to support a negligence claim under G.S. 160A-296(a) , and so as to create a genuine issue of material fact. Willis v. City of New Bern, 137 N.C. App. 762, 529 S.E.2d 691, 2000 N.C. App. LEXIS 499 (2000).

Slander Per Se Against Reporter of Child Abuse. —

Summary judgment for the defendant on the issue of slander per se was appropriate where the plaintiff’s description of retaliatory motives for defendant’s report failed to rebut the statutory presumption created in favor of the defendant by the child abuse reporting provisions of G.S. 7B-301 and 7B-309 which together provide immunity not merely conditional upon proof of good faith, but a “good faith” immunity which endows the reporter with the mandatory presumption that he or she acted in good faith. Dobson v. Harris, 352 N.C. 77 , 530 S.E.2d 829, 2000 N.C. LEXIS 433 (2000).

Slander of Title Claim. —

Summary judgment in favor of a newspaper corporation, a publishing company, the publishing company’s president, a newspaper editor, and a newspaper staff writer in a litigant’s action for, inter alia, slander of title was proper because the statement that title to the litigant’s property was held in trust for the litigant’s children was true and there were no damages shown. Broughton v. McClatchy Newspapers, Inc., 161 N.C. App. 20, 588 S.E.2d 20, 2003 N.C. App. LEXIS 1983 (2003).

Summary judgment was appropriate on the plaintiffs’ defamation claim where, taken as a whole, newspaper article was a substantially accurate report of the allegations in the arrest warrant; although a disputed semicolon was admittedly misused in a sentence, its use did not cause the article to fail the substantial accuracy test when compared to the warrant. Lacomb v. Jacksonville Daily News Co., 142 N.C. App. 511, 543 S.E.2d 219, 2001 N.C. App. LEXIS 148 (2001).

Libel Claim. —

Trial court did not err in granting defendants’ motion for summary judgment on plaintiffs’ libel claim. Martin Marietta Corp. v. Wake Stone Corp., 111 N.C. App. 269, 432 S.E.2d 428, 1993 N.C. App. LEXIS 802 (1993), aff'd, 339 N.C. 602 , 453 S.E.2d 146, 1995 N.C. LEXIS 21 (1995).

Where trial court determined that plaintiffs were limited-purpose public figures and the plaintiffs failed to show malice on the part of defendants vis-a-vis their statements in a newspaper story, the trial court did not err in granting summary judgment to the defendants on plaintiffs’ defamation claims. Gaunt v. Pittaway, 135 N.C. App. 442, 520 S.E.2d 603, 1999 N.C. App. LEXIS 1147 (1999).

Union was entitled to summary judgment on the members’ libel claims since the union was entitled to a qualified privilege with regard to the statements it made in the newsletter and the members failed to show sufficient evidence of actual damages. Priest v. Sobeck, 160 N.C. App. 230, 584 S.E.2d 867, 2003 N.C. App. LEXIS 1730 (2003).

Summary judgment in favor of a newspaper corporation, a publishing company, the publishing company’s president, a newspaper editor, and a newspaper staff writer in a litigant’s action for, inter alia, libel, was proper because the writer’s article about the litigant’s 30-year litigation with a former spouse contained statements that were not susceptible of only one defamatory meaning as a matter of law, notwithstanding the litigant’s interpretation of the statements. Broughton v. McClatchy Newspapers, Inc., 161 N.C. App. 20, 588 S.E.2d 20, 2003 N.C. App. LEXIS 1983 (2003).

Action for Breach of Contract by Failing to Pay for Goods. —

Company that ordered telephone equipment accepted the equipment because it did not reject it within three weeks after the equipment was installed, pursuant to a contract it signed to purchase the equipment; because the general notice which the company gave that the equipment did not conform to its requirements did not revoke its acceptance, the trial court properly granted summary judgment for a company that sold the equipment on its claim that the company which bought the equipment wrongfully failed to pay for it. Business Communs., Inc. v. Ki Networks, Inc., 157 N.C. App. 710, 580 S.E.2d 77, 2003 N.C. App. LEXIS 937 (2003).

Breach of Contract Claim. —

Trial court properly granted the owners’ summary judgment motion as to a subcontractor’s claim of breach of contract, as the subcontractor neither claimed that it had a direct contract with the owners nor produced evidence tending to show that the owners ratified the contract between the contractor and the subcontractor. Watson Elec. Constr. Co. v. Summit Cos., LLC, 160 N.C. App. 647, 587 S.E.2d 87, 2003 N.C. App. LEXIS 1930 (2003).

Trial court properly granted partial summary judgment to a businessman against a shareholder and a corporation because the merger of a company into the corporation without any prior notice to or consent by the businessman resulted in a breach of a stock option and restriction agreement between the businessman and the company and its sole shareholder, because the merger clearly effected a change in the capitalization of the company. Lee v. Scarborough, 162 N.C. App. 674, 592 S.E.2d 43, 2004 N.C. App. LEXIS 259 , op. withdrawn, sub. op., 164 N.C. App. 357, 595 S.E.2d 729, 2004 N.C. App. LEXIS 812 (2004).

Corporation’s approval of a merger pursuant to G.S. 55-11-01 to 55-11-10 constituted a change in the capitalization of the corporation and violated the terms of its option agreement with a consultant who had a five-year option to purchase 50 percent of the shares of the corporation; thus, summary judgment under G.S. 1A-1 , N.C. R. Civ. P. 56(c) was properly entered for the consultant on the issue of breach of contract against both the corporation and its principal. Lee v. Scarborough, 164 N.C. App. 357, 595 S.E.2d 729, 2004 N.C. App. LEXIS 812 (2004).

Summary judgment was properly granted to buyers on their breach of contract suit against a seller because, under the plain language of the agreement entered into between the parties, which stated that the seller would “cause” enumerated repairs to be made, the seller was required to fully complete the enumerated repairs, not just pay for them; since it was undisputed that the repairs had not been performed and since the buyers had not frustrated any effort made by the seller to complete the repairs, the evidence showed that the seller was in breach despite the fact that she had deposited a sum for the repairs in escrow. Cater v. Barker, 172 N.C. App. 441, 617 S.E.2d 113, 2005 N.C. App. LEXIS 1799 (2005), aff'd, 360 N.C. 357 , 625 S.E.2d 778, 2006 N.C. LEXIS 15 (2006).

Trial court properly held that buyers were entitled to a return of their earnest money deposited in escrow upon the signing of a contract for the purchase of the sellers’ house, and thus properly granted summary judgment to the buyers, because the buyers promptly exercised their right to terminate the contract, as provided in an addendum to the contract, when an inspection revealed that repairs were necessary in an amount exceeding $10,000. Dysart v. Cummings, 181 N.C. App. 641, 640 S.E.2d 832, 2007 N.C. App. LEXIS 402 , aff'd, 361 N.C. 580 , 650 S.E.2d 593, 2007 N.C. LEXIS 1008 (2007).

Summary judgment was appropriate on the breach of contract and related claims where plaintiff’s argument that the trial court erred in declining to treat its verified complaint as an affidavit was purely procedural, and the only argument offered on genuine issues of material fact was a passing, bare assertion that such issues were present. Allied Spectrum, LLC v. German Auto Ctr., Inc., 250 N.C. App. 308, 793 S.E.2d 271, 2016 N.C. App. LEXIS 1169 (2016), aff'd, 370 N.C. 454 , 809 S.E.2d 565, 2018 N.C. LEXIS 54 (2018).

In an action to recover on a note which was guaranteed, by defendants, summary judgment was properly entered for plaintiff where the record did not indicate any doubts, other than latent doubts, as to the credibility of plaintiff ’s affiant, defendants failed to introduce any materials in their favor or point to any specific areas of impeachment or contradiction, and no genuine issue of material fact was raised. United Va. Bank v. Woronoff, 50 N.C. App. 160, 272 S.E.2d 618, 1980 N.C. App. LEXIS 3463 (1980), cert. denied, 302 N.C. 629 , 280 S.E.2d 449 (1981).

The bank was entitled to summary judgment since the record failed to show that the bank had actual notice or knowledge that the trustee was breaching the trust agreement and his fiduciary duty when he entered into the substitution of collateral agreement with the bank. FNB Southeast v. Lane, 160 N.C. App. 535, 586 S.E.2d 530, 2003 N.C. App. LEXIS 1821 (2003).

In an action brought by plaintiff, a subcontractor, to recover payment for materials provided on apartment construction projects, summary judgment for defendants was proper; affidavits plaintiff submitted did no more than set forth plaintiff’s unsubstantiated allegations. Smiley's Plumbing Co. v. PFP One, Inc., 155 N.C. App. 754, 575 S.E.2d 66, 2003 N.C. App. LEXIS 16 (2003).

Where plaintiff, in her deposition, repudiated the allegations of her complaint in an unequivocal manner, a motion for summary judgment in defendant’s favor would be proper, since a directed verdict in defendant’s favor would be called for at trial on the basis of plaintiff ’s testimony. Woods v. Smith, 297 N.C. 363 , 255 S.E.2d 174, 1979 N.C. LEXIS 1253 (1979).

Inability to Serve Process. —

Plaintiff ’s failure to demonstrate that her inability to serve process upon a codefendant was excusable, or that it prejudiced her case against the defendant at bar, would not constitute grounds for reversing summary judgment as to the present defendant. Ramsey v. Keever's Used Cars, 92 N.C. App. 187, 374 S.E.2d 135, 1988 N.C. App. LEXIS 1028 (1988).

Summary judgment on the basis of governmental immunity was appropriate where the defendants, the city and the police officer who drove the van which struck the plaintiff’s vehicle, were both immune from liability because the officer’s negligence took place while he was engaged in the repair and subsequent return of the van to the city’s garage, a governmental function. Dobrowolska v. Wall, 138 N.C. App. 1, 530 S.E.2d 590, 2000 N.C. App. LEXIS 539 (2000).

Property owners’ negligent misrepresentation claim against county agencies was barred by sovereign immunity. Tabor v. County of Orange, 156 N.C. App. 88, 575 S.E.2d 540, 2003 N.C. App. LEXIS 28 (2003).

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 were entitled to summary judgment because they were statutorily immune under G.S. 58-82-5 as they met the statutory definitions of a rural fire department and a fireman, and the injury occurred when they were responding to and in the process of suppressing a fire. Luhmann v. Hoenig, 161 N.C. App. 452, 588 S.E.2d 550, 2003 N.C. App. LEXIS 2187 (2003), rev'd, 358 N.C. 529 , 597 S.E.2d 763, 2004 N.C. LEXIS 674 (2004).

Sovereign Immunity. —

County had not waived sovereign immunity by means of either the State Building Code or its purchase of liability insurance, and summary judgment in favor of the county in a claim alleging failure to properly inspect a house and negligent issuance of permits relating to the house was affirmed. Norton v. SMC Bldg., 156 N.C. App. 564, 577 S.E.2d 310, 2003 N.C. App. LEXIS 206 (2003).

When an assistant principal was sued for a student’s injuries when an automobile struck the student as she walked to her school bus stop, assistant principal was entitled to summary judgment because, under G.S. 115C-42 , he only waived sovereign immunity to the extent he purchased liability coverage, his insurance policy contained an exclusion of coverage for incidents arising from the use of a motor vehicle, and an exception to this exclusion for supervising students entering and exiting a school bus required the assistant principal’s personal presence before his sovereign immunity was waived, and, as he was not present when the student was injured, his sovereign immunity was not waived, whether or not he changed the student’s bus stop after she was assaulted on the school bus. Herring v. Liner, 163 N.C. App. 534, 594 S.E.2d 117, 2004 N.C. App. LEXIS 422 (2004).

Estoppel. —

Where plaintiff asserts estoppel against defendants, summary judgment is appropriate when the defendants as the moving parties establish the absence of any genuine issue of fact as a complete defense to the opponent’s claim. If the factual evidence, taken in the light most favorable to the nonmovant, allows no inferences inconsistent with the defense, the movant has satisfied his burden, and summary judgment in its favor will be affirmed, and this is true even when the facts raise difficult questions of law. Thomas v. Ray, 69 N.C. App. 412, 317 S.E.2d 53, 1984 N.C. App. LEXIS 3476 (1984).

In an action by a commercial landlord for damages occasioned by a default by a company on a lease, summary judgment was proper estopping a guarantor of the company’s lease from avoiding the guaranty where the guarantor had personally benefitted from the extension of the original lease that he had guaranteed. Sherwin-Williams Co. v. ASBN, Inc., 163 N.C. App. 547, 594 S.E.2d 135, 2004 N.C. App. LEXIS 416 (2004).

Defense of Laches. —

Summary judgment was properly granted to buyers on a seller’s defense of laches alleged in the buyers’ breach of contract suit because the defense was not applicable in that the trial court’s entry of summary judgment awarded the buyers damages, a legal remedy, not specific performance; laches is not available in an action at law. Cater v. Barker, 172 N.C. App. 441, 617 S.E.2d 113, 2005 N.C. App. LEXIS 1799 (2005), aff'd, 360 N.C. 357 , 625 S.E.2d 778, 2006 N.C. LEXIS 15 (2006).

Failure to Assert Specific Facts in Supporting Affidavit. —

Summary judgment was appropriate where defendants set forth no specific facts with respect to the various properties’ fair values or other relevant information to support their allegation that the plaintiff intentionally paid less than fair market value for all the property at the foreclosure sales. Lexington State Bank v. Miller, 137 N.C. App. 748, 529 S.E.2d 454, 2000 N.C. App. LEXIS 501 (2000).

Alleged Negligence of Veterinarian. —

Plaintiff cat owner possessed knowledge that her cat might bite during an attempted catheterization and such knowledge was equal or superior to that of the veterinarian attempting to perform such procedure, and where the cat bit plaintiff during the course of said catheterization, plaintiff failed to establish a breech of duty on the part of the veterinarian, and the veterinarian was entitled to summary judgment as no material fact remained to be resolved at trial. Branks v. Kern, 320 N.C. 621 , 359 S.E.2d 780, 1987 N.C. LEXIS 2372 (1987).

Medical Malpractice. —

There was no error in granting defendant’s motion for summary judgment in a medical malpractice action where the affidavits of experts relied upon by plaintiff failed to identify the applicable standard of care required for the defendant. Evans v. Appert, 91 N.C. App. 362, 372 S.E.2d 94, 1988 N.C. App. LEXIS 878 (1988).

Legal Malpractice Action. —

Legal malpractice action accrues at the time of the last act of the defendant giving rise to the cause of action, but if the claimant’s loss is not readily apparent to the claimant at the time of its origin, and is discovered or should reasonably be discovered by the claimant two or more years after the last act of the defendant giving rise to the cause of action, suit must be commenced within one year from the date discovery is made; a legal malpractice case alleging that the lawyers failed to advise the client of use restrictions on land purchased by the client was time barred, and the trial court’s order dismissing the case was affirmed, where, in a separate case, 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 N.C. App. LEXIS 56 (2004).

Summary judgment in favor of estate of defendant attorney in legal malpractice action alleging his negligent representation of plaintiff in a medical malpractice action held proper. Rorrer v. Cooke, 313 N.C. 338 , 329 S.E.2d 355, 1985 N.C. LEXIS 1543 (1985).

Trial court did not err in granting summary judgment to a law firm, that was being sued by a client for malpractice with regard to the law firm’s representation of the client in a forfeiture proceeding, because the client failed to demonstrate that his injury proximately resulted from the law firm’s alleged negligence. Belk v. Cheshire, 159 N.C. App. 325, 583 S.E.2d 700, 2003 N.C. App. LEXIS 1529 (2003).

In an appeal by outdoor advertising companies of the revocations of their permits for outdoor advertising signs, summary judgment was properly applied to the trial court’s finding that the words “height” and “sign” in N.C. Admin. Code tit. 19A, r. 2E.0203(1)(f) were used in their common sense as this interpretation of a regulation was a question of law, rather than of fact, and there was no indication that the words had acquired some technical meaning. Capital Outdoor, Inc. v. Tolson, 159 N.C. App. 55, 582 S.E.2d 717, 2003 N.C. App. LEXIS 1417 (2003).

Action Against Police Officers in High-Speed Chase. —

Summary judgment was proper where plaintiff failed to demonstrate the existence of a genuine issue of material fact as to gross negligence on the part of the officers who attempted to apprehend a motorist suspected of driving while intoxicated and the actions of the officers were, otherwise, exempt under G.S. 20-145 . Norris v. Zambito, 135 N.C. App. 288, 520 S.E.2d 113, 1999 N.C. App. LEXIS 1061 (1999).

Summary judgment was proper when only issues were legal ones, namely the effect of a note being erroneously marked “Paid and Satisfied,” and the effect of plaintiff’s lack of possession on its ability to enforce the note. G.E. Capital Mtg. Servs. v. Neely, 135 N.C. App. 187, 519 S.E.2d 553, 1999 N.C. App. LEXIS 971 (1999).

Where Only a Question of Law was Presented. —

Where resolution of an issue presented only questions of law, the case was appropriate for entry of summary judgment, provided the undisputed facts established that one of the parties was entitled to judgment. Smith v. State Farm Mut. Auto. Ins. Co., 157 N.C. App. 596, 580 S.E.2d 46, 2003 N.C. App. LEXIS 933 (2003), rev'd, 358 N.C. 725 , 599 S.E.2d 905, 2004 N.C. LEXIS 913 (2004).

Summary Judgment Properly Entered for Defendants. —

See Smith v. Association for Retarded Citizens for Hous. Dev. Servs., Inc., 75 N.C. App. 435, 331 S.E.2d 324, 1985 N.C. App. LEXIS 3701 (1985).

Trial court did not err in granting summary judgment to a skier’s parents on the injured party’s negligence claim that they were liable for the actions of their 12-year-old son who ran into the injured party on a beginner’s ski slope and injured her, because the injured party did not present a sufficient forecast of evidence to overcome the rebuttable presumption that the 12-year-old skier was incapable of negligence. Frank v. Funkhouser, 169 N.C. App. 108, 609 S.E.2d 788, 2005 N.C. App. LEXIS 515 (2005).

As the evidence before the trial court on a motion for summary judgment filed by a police department did not raise a genuine issue of material fact as to whether numerous current police officers were entitled to a pay increase, because the city council had not approved any pay raise for existing employees of the police department with post-secondary degrees, the trial court properly granted summary judgment in favor of the department and against the contesting officers. City of Asheville v. Bowman, 172 N.C. App. 586, 616 S.E.2d 669, 2005 N.C. App. LEXIS 1808 (2005).

Action to Quiet Title. —

Where a city became the record owner of property pursuant to a tax foreclosure sale, and where purported adverse possessors brought their action to quiet title beyond the one year statute of limitation contained in G.S. 105-377 , there were no genuine issues of material fact and the city was entitled to summary judgment. Overstreet v. City of Raleigh, 75 N.C. App. 351, 330 S.E.2d 643, 1985 N.C. App. LEXIS 3639 (1985).

Summary judgment quieting title in the seller of lots in a subdivision was properly granted; the seller had sought to quiet title to a parcel adjacent to the subdivision that was discovered when a new survey revealed that the seller and her husband did not convey all of certain real estate when they sold the subdivision lots, and the seller’s title to this parcel was superior to that of the owners of lots in the subdivision, who purported to divide the parcel among themselves. Hensley v. Samel, 163 N.C. App. 303, 593 S.E.2d 411, 2004 N.C. App. LEXIS 375 (2004).

Summary judgment was properly granted to the seller of lots in a subdivision finding that she held title to the subdivision’s roads because the deeds of the owners of lots in the subdivision did not purport to grant them an ownership interest in the roads and only granted them the right to use the roads to access their lots. Hensley v. Samel, 163 N.C. App. 303, 593 S.E.2d 411, 2004 N.C. App. LEXIS 375 (2004).

Summary judgment was appropriate where the plaintiffs failed to establish the existence of an agency relationship between defendant/franchisor and defendant/cleaning company whose driver ran over a six-year-old boy. Although the franchise agreement was extensive, prescribing standards of attire and appearance of franchisee’s employees and the condition of its equipment, the franchisor’s involvement functioned largely to ensure uniform service and public good will toward the corporation, and the franchisor retained no control over the hiring, firing, or supervision of the franchisee’s personnel and its remedies, in the event of a breach of the Agreement, were limited. Miller v. Piedmont Steam Co., 137 N.C. App. 520, 528 S.E.2d 923, 2000 N.C. App. LEXIS 419 (2000).

In a house owner’s suit brought to recover from an employer for the negligence of the employer’s employee, occurring when the employee failed to sufficiently extinguish a cigarette while at the owner’s house, resulting in the destruction of the owner’s home, the trial court properly granted summary judgment to the owner on the issue of respondeat superior. While the employer contended that the employee’s act of smoking was not within the scope of her employment, the employee did not depart from the employer’s business when she smoked the cigarette and negligently failed to extinguish it when going to answer the phone as the employee was on the employer’s premises where she was required to be, able and willing to perform her duties, and the negligence occurred when she went to perform one of those duties, answering the telephone. Estes v. Comstock Homebuilding Cos., 195 N.C. App. 536, 673 S.E.2d 399, 2009 N.C. App. LEXIS 209 (2009).

Summary Judgment Was Appropriate In Tortious Interference With Contract Claim. —

Plaintiff’s claim of tortious interference with contract against its former customer’s employee and a competitor was properly dismissed on summary judgment, as the competitor’s bid for a landscaping contract with the customer was a non-malicious motive for its “interference” with plaintiff’s contract, and the fact that the competitor’s bid was lower than plaintiff’s provided a non-malicious business explanation for the employee’s actions. Area Landscaping, L.L.C. v. Glaxo-Wellcome, Inc., 160 N.C. App. 520, 586 S.E.2d 507, 2003 N.C. App. LEXIS 1825 (2003).

Third Party Beneficiary. —

Trial court properly granted the owners’ summary judgment motion as a subcontractor was not a third-party beneficiary of the contractor’s agreement with the owners where: (1) even assuming that the owners agreed to pay the contractor additional funds in order to pay various subcontractors, no new consideration flowed to the the owners, (2) under the original contract between the contractor and the owners, the contractor agreed to construct a dialysis center for a fixed price, and any additional money above the fixed price would constitute a contractual modification requiring new consideration, and (3) all claims, including the alleged additional contract, were determined in an arbitration proceeding between the contractor and the owners. Watson Elec. Constr. Co. v. Summit Cos., LLC, 160 N.C. App. 647, 587 S.E.2d 87, 2003 N.C. App. LEXIS 1930 (2003).

Summary judgment was proper for defendant insurer whose policy excluded the commercial use of a boat; although no member of the public was paying for a parasail ride or was even in the boat at the time of plaintiff’s injury, plaintiff was parasailing to attract customers. Bratton v. Oliver, 141 N.C. App. 121, 539 S.E.2d 40, 2000 N.C. App. LEXIS 1294 (2000).

In a private nuisance action against adjacent landowners, one of the defendants presented an affidavit that it was not and had never been an owner of the land in question. By failing to come forward with evidence, by affidavit or otherwise, which would have tended to show an issue of triable fact, the plaintiff ’s claim was subject to summary judgment. Bjornsson v. Mize, 75 N.C. App. 289, 330 S.E.2d 520, 1985 N.C. App. LEXIS 3614 (1985).

County Swine Farm Regulations. —

Summary judgment was appropriate for plaintiff who sued the county claiming that a county swine ordinance and county health board rules were preempted by the General Assembly’s “complete and integrated regulatory scheme” of swine farm regulations; counties may not act to zone a swine farm other than as authorized by the limited statutory exception of G.S. 153-340(b)(3). Craig v. County of Chatham, 143 N.C. App. 30, 545 S.E.2d 455, 2001 N.C. App. LEXIS 221 (2001), aff'd in part and rev'd in part, 356 N.C. 40 , 565 S.E.2d 172, 2002 N.C. LEXIS 539 (2002).

Tobacco Cooperative Stabilization Corporations Marketing Operations Were Not Improper. —

Trial court properly granted summary judgment to a tobacco cooperative stabilization corporation in a restraint of trade claim brought by various tobacco warehouses because the corporation’s creation of market centers subsidizing warehouse operations fell within an exemption of North Carolina’s antitrust laws under G.S. 54-141 ; furthermore, the tobacco warehouses could not assert claims under N.C. Const. art. I, §§ 19 and 34 as no action was taken by the corporation as State action. Bailey v. Flue-Cured Tobacco Coop. Stabilization Corp., 158 N.C. App. 449, 581 S.E.2d 811, 2003 N.C. App. LEXIS 1179 (2003).

Property Owners’ Association’s Assessments. —

Summary judgment was proper where no genuine issue of material fact existed as to the application and enforceability of owners’ association’s assessment provisions against defendant property owners. McGinnis Point Owners Ass'n v. Joyner, 135 N.C. App. 752, 522 S.E.2d 317, 1999 N.C. App. LEXIS 1242 (1999).

Easement Claim. —

In an apartment complex owner’s action to enjoin a developer and a corporation from parking a 40-foot eight-wheeled construction trailer on a lot on which the owner had an easement for ingress and egress to the complex, a grant of summary judgment on the issue of the existence of an easement across the street and ordering of the removal of the trailer was proper because the owner had acquired an easement by dedication and by prior use and the trailer, which blocked access to the apartments, was an unreasonable interference with the owner’s rights. Ferrell v. Doub, 160 N.C. App. 373, 585 S.E.2d 456, 2003 N.C. App. LEXIS 1800 (2003).

When the seller of lots in a subdivision was properly found to have title to a newly-discovered parcel adjacent to the subdivision, it was error to deny her motion for partial summary judgment on the issue of whether seller was entitled to use the roads in the subdivision to access her parcel; seller held title to those roads and could use them as she saw fit, as long as she did not interfere with the easements possessed by the owners of lots in the subdivision to use the roads to access their lots. Hensley v. Samel, 163 N.C. App. 303, 593 S.E.2d 411, 2004 N.C. App. LEXIS 375 (2004).

Obligations Under a Separation Agreement. —

Where the facts indicated that the parties executed a separation agreement free from any duress or other illegalities which would invalidate their contract, and the parties negotiated the terms of their agreement at arms-length, there was no genuine issue of material fact to be decided; defendant’s obligation to pay support to plaintiff was clear and summary judgment on the issue was proper. Brandt v. Brandt, 92 N.C. App. 438, 374 S.E.2d 663, 1988 N.C. App. LEXIS 1072 (1988), aff'd, 325 N.C. 429 , 383 S.E.2d 656, 1989 N.C. LEXIS 477 (1989).

Railroad Retirement Benefits Under a Marital Separation Agreement. —

Trial court properly granted summary judgment in favor of ex-wife in her suit to enforce a separation agreement and did not err in entering an order awarding the ex-wife 29.5 percent of the ex-husband’s divisible railroad retirement benefits. Gilmore v. Garner, 157 N.C. App. 664, 580 S.E.2d 15, 2003 N.C. App. LEXIS 942 (2003).

Subrogation. —

Summary judgment was proper where the lease contained an explicit waiver by each party of its right to recover against the other for any loss covered by insurance and the defendant insurance company included a clause permitting its insured to contract to release third parties from liability, thus waiving its right to subrogation. Lexington Ins. Co. v. Tires into Recycled Energy & Supplies, Inc., 136 N.C. App. 223, 522 S.E.2d 798, 1999 N.C. App. LEXIS 1312 (1999).

Enforcement of Lien. —

Trial court properly granted the owners’ summary judgment motion as to a subcontractor’s claim for enforcement of lien under G.S. 44A-23 , as the subcontractor’s claim was by way of subrogation, the contractor’s claim against the owners had been arbitrated, and after the contractor’s claim was set-off against the owners’ claim, the contractor was indebted to the owners for corrected and uncompleted work. Watson Elec. Constr. Co. v. Summit Cos., LLC, 160 N.C. App. 647, 587 S.E.2d 87, 2003 N.C. App. LEXIS 1930 (2003).

Controlling Statutes of Limitation and Repose. —

Although ordinarily it is error for a court to hear and rule on a motion for summary judgment when discovery procedures, which might lead to the production of evidence relevant to the motion, are still pending, where the information sought by plaintiff was not material to the pertinent dates under the statutes of limitation and repose which controlled the disposition of the case, plaintiff suffered no prejudice because the court granted defendant’s summary judgment motion, based on such statutes, prior to the completion of discovery. Cellu Prods. Co. v. G.T.E. Prods. Corp., 81 N.C. App. 474, 344 S.E.2d 566, 1986 N.C. App. LEXIS 2321 (1986).

Action Barred by Statute of Limitations. —

Contractor’s Insurer’s motion for summary judgment was properly granted where the subcontractors’ suit was time-barred under G.S. 44A-28(b) because: (1) the contractor had sent a final bill on the project to the City; (2) the project engineer had advised the City that the work was substantially complete and that final payment (less a retainage) should be made, with the retainage balance to be paid after the City was satisfied that the project was 100-percent complete; (3) the City wrote the contractor a check for the final amount less the retainer more than one-year before the suit was filed; (4) the City’s Finance Director was confident that the final sum had been determined even though a retainage had been kept; and (5) the City’s engineering technician testified that contractors submitted a final bill and that the retainage was usually paid one to three months later. Cencomp, Inc. v. Webcon, Inc., 157 N.C. App. 501, 579 S.E.2d 482, 2003 N.C. App. LEXIS 731 (2003).

Although a deed which a grantor delivered to a grantee as a trustee was void ab initio because it was executed before the trust came into effect, the trial court erred by denying the trustee’s motion for summary judgment on the grantor’s claim for title to the property because the grantor’s claim was based on allegations of fraud and misrepresentation, and was barred by G.S. 1-52(9) . Gifford v. Linnell, 157 N.C. App. 530, 579 S.E.2d 440, 2003 N.C. App. LEXIS 744 (2003).

Contract which a buyer and a seller concluded for the purchase of a mobile home was governed by North Carolina’s Uniform Commercial Code because the predominant factor of the contract was the delivery of the mobile home, and services provided to install it were incidental; the trial court ruled correctly that the buyer and seller’s contract reduced the time for filing an action for breach of contract from four years to one year, pursuant to G.S. 25-2-725(1) , and that the seller was entitled to summary judgment on the buyer’s claim for breach of contract because the buyer’s action was time-barred. Hensley v. Ray's Motor Co. of Forest City, Inc., 158 N.C. App. 261, 580 S.E.2d 721, 2003 N.C. App. LEXIS 1050 (2003).

To determine if a lawsuit is barred by the three year statute of limitations in G.S. 1-52 , a court first determines when the breach occurred that caused the cause of action to accrue; where a counterclaim on a breach of contract action was filed more than three years after the breach allegedly occurred, the counterclaim was barred by the statute of limtations and was properly dismissed on summary judgment. PharmaResearch Corp. v. Mash, 163 N.C. App. 419, 594 S.E.2d 148, 2004 N.C. App. LEXIS 410 (2004).

Action Barred By Statute of Repose. —

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 substantial completed and occupied as a residence; the homeowners’ allegations that the construction company’s conduct and failure to follow the building code constituted more than ordinary negligence were insufficient to establish equitable estoppel to bar the construction company from asserting the statute of limitations defense, and summary judgment in favor of the construction company was affirmed. Moore v. F. Douglas Biddy Constr., Inc., 161 N.C. App. 87, 587 S.E.2d 479, 2003 N.C. App. LEXIS 2004 (2003).

Settlement Properly Not Set Aside. —

Summary judgment order was proper as the pain clinic and its doctors could not set aside a settlement with the foundation and its trustee that was entered into after the decision was made to not continue the funding of the clinic because: (1) any fiduciary duty was repudiated before the settlement negotiations; (2) the fraud and breach of contract claims were barred by statutes of limitations; and (3) the negligent misrepresentation claim was properly denied as there was no duty owed; furthermore, the clinic and its doctors failed to allege damages under any tort theory as to the foundation’s bank and the law firm, therefore, their claims were properly dismissed as to them for failing to allege damage as an essential element of each cause of action. Piedmont Inst. of Pain Mgmt. v. Staton Found., 157 N.C. App. 577, 581 S.E.2d 68, 2003 N.C. App. LEXIS 934 (2003).

Where plaintiff failed to comply with sections (e) and (f) of this rule and did not point to any specific ground for impeaching defendant’s affidavit, which established his right to summary judgment, trial court properly granted summary judgment against plaintiff on its claims against defendant. G & S Bus. Servs., Inc. v. Fast Fare, Inc., 94 N.C. App. 483, 380 S.E.2d 792, 1989 N.C. App. LEXIS 557 (1989).

Party Did Not Request A Continuance To Permit Pre-trial Discovery. —

Trial court did not err in proceeding with a summary judgment hearing where the plaintiffs did not move for a continuance of the summary judgment hearing to allow additional time for pre-trial discovery to take place. Shroyer v. County of Mecklenburg, 154 N.C. App. 163, 571 S.E.2d 849, 2002 N.C. App. LEXIS 1402 (2002).

Alleged Discrimination in Violation of Constitution. —

Summary judgment was proper against plaintiff who alleged that defendant/city discriminated against her in violation of the Fourteenth Amendment of the United States Constitution and Article I, Section 19 of the North Carolina Constitution by enforcing its parking requirements against her but not against other businesses in the area, because the plaintiff failed to offer evidence of an essential element of her claim, namely, that the city acted in a consciously evil manner. Brown v. City of Greensboro, 137 N.C. App. 164, 528 S.E.2d 588, 2000 N.C. App. LEXIS 271 (2000).

Intentional Infliction of Emotional Distress. —

Where one plaintiff could place no time period in which defendant allegedly intentionally inflicted emotional distress, and where she was unable to place a day, month or year on any of the specific events she alleged, there was simply no evidence to indicate that any of the alleged incidents regarding plaintiff took place within the three-year statute of limitations period, and the trial court did not err in granting summary judgment to defendant against that plaintiff. Waddle v. Sparks, 100 N.C. App. 129, 394 S.E.2d 683, 1990 N.C. App. LEXIS 903 (1990), aff'd in part, rev'd, 331 N.C. 73 , 414 S.E.2d 22, 1992 N.C. LEXIS 152 (1992).

Summary judgment was proper on a nurse’s claim for intentional infliction of emotional distress; her co-worker’s actions in breaking rules at work and then throwing papers at her when she confronted him were not sufficiently outrageous. Smith-Price v. Charter Behavioral Health Sys., 164 N.C. App. 349, 595 S.E.2d 778, 2004 N.C. App. LEXIS 816 (2004).

Negligent Infliction of Emotional Distress. —

Trial court properly granted summary judgment to a funeral company on a claim of negligent infliction of emotional distress by the wife of a decedent; the wife failed to show that she suffered severe emotional distress based on the company’s disinterment of the decedent pursuant to a court order obtained by the decedent’s mother, and the subsequent reburial of the decedent in Puerto Rico. Pacheco v. Rogers & Breece, Inc., 157 N.C. App. 445, 579 S.E.2d 505, 2003 N.C. App. LEXIS 738 (2003).

Summary judgment was proper against nurse’s claim for negligent infliction of emotional distress; she failed to show that her co-worker owed her any duty or that he breached the duty. Smith-Price v. Charter Behavioral Health Sys., 164 N.C. App. 349, 595 S.E.2d 778, 2004 N.C. App. LEXIS 816 (2004).

Invasion of Privacy — Intrusion Claim. —

Summary judgment in favor of a newspaper corporation, a publishing company, the publishing company’s president, a newspaper editor, and a newspaper staff writer in a litigant’s action for, inter alia, invasion of privacy, was proper because the litigant could only have claimed an invasion of privacy claim for intrusion in North Carolina and the writer’s use of public records did not constitute an intrusion sufficient to support the claim. Broughton v. McClatchy Newspapers, Inc., 161 N.C. App. 20, 588 S.E.2d 20, 2003 N.C. App. LEXIS 1983 (2003).

Failure to Meet Severity Requirement of Negligent Infliction of Emotional Distress. —

Summary judgment was appropriate where defendant/stepmother who shot her husband met her burden of demonstrating the absence of an essential element of plaintiffs stepdaughters’ claim, i.e., severe emotional distress, and the alleged emotional distress of plaintiffs as described in their responses to defendant’s interrogatories failed to meet the requisite level of “severe” emotional distress. Johnson v. Scott, 137 N.C. App. 534, 528 S.E.2d 402, 2000 N.C. App. LEXIS 413 (2000).

Action to Quiet Title Based on Fraud. —

Where the cause of action is in fraud, the defendants would have a basic right to a jury trial. However, judge in action to quiet title based on fraud and on construction of deed considered only the intent of the parties in the deed in question and did not reach the issue of fraud. Once the intent was determined from the four corners of the deed, “fraud” no longer mattered and no jury trial was necessary; therefore, the judge was able to dispose of the case on a judgment on the pleadings. Mason-Reel v. Simpson, 100 N.C. App. 651, 397 S.E.2d 755, 1990 N.C. App. LEXIS 1138 (1990).

Trespass to Real Property. —

Summary judgment in favor of a newspaper corporation, a publishing company, the publishing company’s president, a newspaper editor, and a newspaper staff writer in a litigant’s action for, inter alia, trespass was proper because the litigant engaged in “social” conversation with the writer on the litigant’s property and did not ask the writer to leave. Broughton v. McClatchy Newspapers, Inc., 161 N.C. App. 20, 588 S.E.2d 20, 2003 N.C. App. LEXIS 1983 (2003).

In the State’s action seeking to prevent landowners from trespassing on property over which they built a walkway and seeking a declaration of fee simple ownership, summary judgment was properly granted to the State where it was clearly established that the landowners’ deed contained no reference to an easement. Moreover, the landowners’ claimed ownership of a right to use the property was defeated by a judgment that held a restraint on use of the property was a invalid, which judgment had occurred prior to when the landowners obtained their deed. State v. Willis, 163 N.C. App. 572, 594 S.E.2d 139, 2004 N.C. App. LEXIS 418 (2004).

Conspiracy. —

Summary judgment proper where plaintiff did not obtain the right to be valedictorian and offered nothing beyond bare assertions that defendants engaged in some conspiracy to keep her from attaining the position. Townsend v. Board of Educ., 118 N.C. App. 302, 454 S.E.2d 817, 1995 N.C. App. LEXIS 159 (1995).

Undue Influence Over Testator. —

Trial court did not err in granting partial summary judgment on the issue of undue influence regarding the execution of a will and a codicil as the caveators, who challenged the conveyance of the testator’s property to the university which provided care and legal assistance to the testator, failed to prove the existence of undue influence. In re Will of Campbell, 155 N.C. App. 441, 573 S.E.2d 550, 2002 N.C. App. LEXIS 1639 (2002).

Application for Certificate of Need. —

Where both parties forecast evidence to support recommendation by the administrative law judge and final agency decision which were contrary, a genuine issue of material fact existed regarding hospital’s application for a certificate of need, a contested case hearing would be required, and final agency inappropriately granted summary judgment for hospital. Presbyterian-Orthopaedic Hosp. v. North Carolina Dep't of Human Resources, 122 N.C. App. 529, 470 S.E.2d 831, 1996 N.C. App. LEXIS 460 (1996).

An application for certificate of need must comply with all review criteria, and where an application failed to show that it satisfied mandatory criteria, administrative law judge did not err in recommending summary judgment against applicant. Presbyterian-Orthopaedic Hosp. v. North Carolina Dep't of Human Resources, 122 N.C. App. 529, 470 S.E.2d 831, 1996 N.C. App. LEXIS 460 (1996).

Declaratory Judgment as to Right of Way. —

Summary judgment for the defendant was proper where the plaintiff’s claim was based on an original right of way which was incapable of being described and, therefore, patently ambiguous and void and where based, on their usage, the parties and their predecessors in title accepted a road, other than the original, as the right of way intended to be reserved by the recorded plat. Parrish v. Hayworth, 138 N.C. App. 637, 532 S.E.2d 202, 2000 N.C. App. LEXIS 784 (2000).

Negligent Entrustment Claim. —

Summary judgment was proper where there was insufficient evidence to show that car rental agency knew or should have known that driver was an “incompetent or reckless driver who is likely to cause injury to others”, an essential element of a negligent entrustment claim. Dwyer v. Margono, 128 N.C. App. 122, 493 S.E.2d 763, 1997 N.C. App. LEXIS 1283 (1997).

The Court of Appeals erred in reversing the trial court’s order granting summary judgment to defendant father of driver who hit plaintiff on the issue of negligent entrustment where the driver’s only moving violation, more than two years prior to the collision, and his no-fault involvement in three accidents could not by themselves support a conclusion that he was an incompetent or reckless driver likely to cause injury to others. Tart v. Martin, 353 N.C. 252 , 540 S.E.2d 332, 2000 N.C. LEXIS 900 (2000).

Summary judgment on the basis of laches was appropriate in favor of defendant school board which entered into contracts that included options to purchase land for consolidated schools in compliance with the results of its own vote to consolidate and with the passage of school bond issue in a general election while plaintiff taxpayer and citizens group waited to file suit challenging defendant’s compliance with G.S. 115C-72 . Save Our Schs. of Bladen County, Inc. v. Bladen County Bd. of Educ., 140 N.C. App. 233, 535 S.E.2d 906, 2000 N.C. App. LEXIS 1109 (2000).

No Duty Owed to Plaintiff. —

Summary judgment was appropriate where no genuine issue existed as to whether third-party defendants/contractors breached their duty to plaintiffs by failing to attach a 45 m.p.h. speed advisory sign to the “left lane closed ahead” sign; the third-party defendants/Department of Transportation had sole discretion in determining the signage for the construction project, and the only duty of the contractors was to exercise ordinary care in providing and maintaining reasonable warnings. Davis v. J.M.X., Inc., 137 N.C. App. 267, 528 S.E.2d 56, 2000 N.C. App. LEXIS 309 , aff'd, 352 N.C. 662 , 535 S.E.2d 356, 2000 N.C. LEXIS 752 (2000).

Summary judgment was properly granted to a property owner, dismissing a pedestrian’s suit to recover for injuries sustained when she slipped and fell in the owner’s icy parking lot, because the pedestrian’s own testimony demonstrated that she knew of the hazardous condition of the parking lot, and thus, there was no issue of genuine fact that the owner owed her no duty. Grayson v. High Point Dev. Ltd. P'ship, 175 N.C. App. 786, 625 S.E.2d 591, 2006 N.C. App. LEXIS 270 (2006).

No Showing of Breach of Legal Duty or Proximate Causation in a Wrongful Death Claim. —

Where a personal representative could not show that an assistant coach breached a legal duty or proximately caused a decedent’s death from heatstroke during a football practice, the personal representative could not prove a wrongful death claim; therefore, the assistant coach was entitled to summary judgment under G.S. 1A-1 , Rule 56(c). Draughon v. Harnett County Bd. of Educ., 158 N.C. App. 705, 582 S.E.2d 343, 2003 N.C. App. LEXIS 1227 (2003), aff'd, 358 N.C. 137 , 591 S.E.2d 520, 2004 N.C. LEXIS 8 (2004).

In an action for negligent misrepresentation filed by employees of a corporation who lost their jobs when the plant where they worked was closed, the trial court properly granted summary judgment in favor of the corporation that owned the plant and its former parent corporation because the corporation’s chief executive officer did not breach a fiduciary duty to the employees when he told them their jobs were secure, the employees failed to show that the CEO knew the plant would close when he made that statement or that the employees relied on the statement to their detriment, and as a result, the essential elements of negligent misrepresentation were missing. Jordan v. Earthgrains Baking Cos., 155 N.C. App. 762, 576 S.E.2d 336, 2003 N.C. App. LEXIS 25 (2003).

Evidence Not Sufficient. —

Where plaintiff’s evidence was properly excluded because service was not timely and plaintiff offered nothing to counter defendant’s evidence, summary judgment for the defendant was proper. Precision Fabrics Group, Inc. v. Transformer Sales & Serv., Inc., 120 N.C. App. 866, 463 S.E.2d 787, 1995 N.C. App. LEXIS 931 (1995), rev'd, 344 N.C. 713 , 477 S.E.2d 166, 1996 N.C. LEXIS 519 (1996).

Quantum Meruit. —

Trial court properly granted the owners’ summary judgment motion as to a subcontractor’s claim for damages under quantum meruit; even though the owners were enriched by the work performed by the subcontractor, a genuine issue of material fact did not exist as to whether any such enrichment was unjust because the owners made regular payments to the contractor. Watson Elec. Constr. Co. v. Summit Cos., LLC, 160 N.C. App. 647, 587 S.E.2d 87, 2003 N.C. App. LEXIS 1930 (2003).

In a landowner’s action to compel construction of a grade crossing, In a landowner’s action to compel construction of a grade crossing, summary judgment was properly granted because a railroad company was not required to construct a grade between the landowner’s tracts of land for the landowner’s sole access under G.S. 136-194 where the landowner’s property was not fenced or enclosed. Summerlin v. Norfolk S. Ry. Co., 161 N.C. App. 170, 588 S.E.2d 30, 2003 N.C. App. LEXIS 2000 (2003).

Premarital Agreement Barred Claims for Postseparation Support, Alimony And Equitable Distribution. —

Summary judgment was appropriate where a premarital agreement signed by the parties irrefutably barred the wife’s claims for postseparation support, alimony and equitable distribution; the language in the subject Agreement—drafted by the wife’s attorney—was sufficiently “express” to constitute a valid and enforceable waiver of the wife’s claims for postseparation support pursuant to G.S. 50-16.2 A and alimony pursuant to G.S. 50-16.3 A. Stewart v. Stewart, 141 N.C. App. 236, 541 S.E.2d 209, 2000 N.C. App. LEXIS 1439 (2000).

Negligent Sale of Alcohol. —

The trial court properly granted summary judgment in favor of defendant-store on plaintiff’s negligence claim where the record did not contain substantial evidence that the minor who purchased beer for his friends was “noticeably intoxicated” at the time of his purchase; the sole fact that the minor entered the defendant’s store and purchased alcoholic beverages twice on the same afternoon did not give rise to an inference that the minor was “noticeably intoxicated” at the time of the second purchase. Smith v. Winn-Dixie Charlotte, Inc., 142 N.C. App. 255, 542 S.E.2d 288, 2001 N.C. App. LEXIS 87 (2001).

No Issue As To Train Depot. —

The trial court properly granted summary judgment for defendants-railroad et al where no genuine issue existed as to whether a disputed depot was located within an easement granted by an 1847 deed which was not extinguished and where the land, therefore, did not revert to the plaintiffs. Fisher v. Carolina S. R.R., 141 N.C. App. 73, 539 S.E.2d 337, 2000 N.C. App. LEXIS 1282 (2000).

Action Under Americans With disabilities Act and Rehabilitation Act. —

Summary judgment was properly granted in favor of two employers in a case brought under the Americans with Disabilities Act, 42 U.S.C.S § 12101 et seq., and the Rehabilitation Act of 1973 because a former employee was unable to show that the side effects of medication for attention deficit disorder substantially impaired the employee’s ability to work; the evidence showed that the employee did not complain of any side effects, and an accommodation was only requested on the date of termination. Wilkins v. Guilford County, 158 N.C. App. 661, 582 S.E.2d 74, 2003 N.C. App. LEXIS 1224 (2003).

Summary judgment was properly granted in favor of two former employers in an action brought under 42 U.S.C.S. § 1983 based on a violation of procedural due process because there was no property interest in employment where the evidence showed that a personnel rule was not adopted with the same formalities and characteristics of an ordinance. Wilkins v. Guilford County, 158 N.C. App. 661, 582 S.E.2d 74, 2003 N.C. App. LEXIS 1224 (2003).

Trial court did not err in granting the employer summary judgment on a quid pro quo claim where the employee failed to establish that her reaction to the harassment affected a tangible aspect of her employment. Norman v. N.C. Dep't of Admin., 257 N.C. App. 673, 811 S.E.2d 177, 2018 N.C. App. LEXIS 123 (2018).

Hostile Work Environment. —

Trial court did not err in granting the employer summary judgment on a Title VII hostile work environment claim where the employee was aware of the agency’s sexual harassment policy, but failed to take advantage of provided corrective opportunities, and there was no evidence that the supervisor threatened to retaliate against the employee for either denying his unwelcome advances or for reporting his conduct to management. Norman v. N.C. Dep't of Admin., 257 N.C. App. 673, 811 S.E.2d 177, 2018 N.C. App. LEXIS 123 (2018).

Summary judgment was properly granted to the employer on a retaliation claim where she had not engaged in a protected activity at any time prior to the exact moment in which adverse employment action was being taken against her. Norman v. N.C. Dep't of Admin., 257 N.C. App. 673, 811 S.E.2d 177, 2018 N.C. App. LEXIS 123 (2018).

Unlicensed Contractor. —

In an action in which a construction company sued property owners to collect the amount of a lien against the owners’ property, the trial court properly entered summary judgment in favor of the owners; the company was barred from recovering on a contract to build a house on the property because the company did not have a valid license at the time the contract was formed. Currin & Currin Constr., Inc. v. Lingerfelt, 158 N.C. App. 711, 582 S.E.2d 321, 2003 N.C. App. LEXIS 1228 (2003).

Trial court improperly dismissed, upon the City’s N.C. Civ. P. 12(b)(1), (b)(6), and (b)(2) motion to dismiss for lack of subject matter jurisdiction, an employee’s appeal of a decision by the Asheville Civil Service Board as the employee had a right to de novo review of the Board’s decision; however, the appellate court considered the City’s summary judgment motion and the evidence presented to the Board, as there were no factual issues and whether the Board had subject matter jurisdiction was a question of law, and concluded that the employee had not met his burden to prove subject matter jurisdiction as he resigned and had not been fired. Harper v. City of Asheville, 160 N.C. App. 209, 585 S.E.2d 240, 2003 N.C. App. LEXIS 1760 (2003).

Obstruction of Justice. —

Summary judgment in favor of a newspaper corporation, a publishing company, the publishing company’s president, a newspaper editor, and a newspaper staff writer in a litigant’s action for, inter alia, obstruction of justice was proper because there was no evidence that defendants’ acts, including the writer’s article about the litigant’s protracted litigation with a former spouse, had judicially impeded the litigant’s lawsuit. Broughton v. McClatchy Newspapers, Inc., 161 N.C. App. 20, 588 S.E.2d 20, 2003 N.C. App. LEXIS 1983 (2003).

Summary Judgment Proper Where There Was No Right to Contribution. —

In plaintiff general contractor’s complaint against defendant architect, the only negligence alleged flowed from the architect to the contractor; since there were no joint tort-feasors, there was no right to contribution under G.S. 1B-1 against the architect; the trial court properly granted summary judgment to the architect under G.S. 1A-1 , Rule 56. Kaleel Builders, Inc. v. Ashby, 161 N.C. App. 34, 587 S.E.2d 470, 2003 N.C. App. LEXIS 1993 (2003).

Failure to Provide Lienholder With Notice of Tax Sale. —

Notice that a county would conduct a tax sale at a “storage location” to collect taxes due on a mobile home did not provide specificity required by G.S. 1-339.51 , and the trial court properly invalidated the sale of a mobile home that was valued at $50,000, but was sold for $5,000. Oakwood Acceptance Corp., LLC v. Massengill, 162 N.C. App. 199, 590 S.E.2d 412, 2004 N.C. App. LEXIS 118 (2004).

Department of Revenue Granted Summary Judgment on its Claim That Transfer Considered a Taxable Gift. —

As a property owner’s deed of property to his uncle was an unconditional transfer in fee simple, and the owner did not show any exception to the parol evidence rule, his claim that he transferred it in trust for his own benefit failed and the defendant North Carolina Department of Revenue was properly granted summary judgment on its claim that the transfer was a taxable gift. Joines v. Anderson, 161 N.C. App. 321, 587 S.E.2d 926, 2003 N.C. App. LEXIS 2053 (2003).

County, municipalities, and a contractor were entitled to summary judgment on a utility’s claims of wrongful interference with easement, trespass to chattels, and negligence all resulting from damage occuring to the utility’s underground pipelines during excavation; the evidence failed to establish a genuine issue of material fact regarding the county’s and the municipalities’ direct liability for the utility’s damages and failed to demonstrate that the contractor was an agent of the county or the municipalities so as to support liability under respondeat superior. Coastal Plains Utils., Inc. v. New Hanover County, 166 N.C. App. 333, 601 S.E.2d 915, 2004 N.C. App. LEXIS 1745 (2004).

Continuing Trespass. —

Electric membership corporation’s acts in erecting power poles, lowering a power line, and removing vegetation from a property owner’s land were not authorized by the property owner’s request to repair a downed line, or by his membership in the corporation, and thus amounted to a continuing trespass; a trial court’s denial of the corporation’s summary judgment motion in the property owner’s trespass action, as well as the trial court’s grant of partial summary judgment in favor of the property owner, were affirmed. Singleton v. Haywood Elec. Mbrshp. Corp., 357 N.C. 623 , 588 S.E.2d 871, 2003 N.C. LEXIS 1418 (2003).

Summary Judgment Proper in Trust Case. —

Trustee properly administered a couple’s separate trusts and distributed the residue of the surviving spouse’s trust to two universities rather than to a heir because the conditions stated in the trust for the heir to receive the residue had not occurred; thus, a grant of summary judgment in favor of the trustee was proper. Davenport v. Cent. Carolina Bank & Trust Co., 161 N.C. App. 666, 589 S.E.2d 367, 2003 N.C. App. LEXIS 2275 (2003).

In an action challenging collection of landfill fees by a county, summary judgment was properly granted for the county on the basis of res judicata where campground owners had paid the county in full for the landfill fees when faced with a prior suit for collection of those fee. The county’s voluntary dismissal of the suit upon payment of the fees was res judicata to the owners’ later attempt to challenge the constitutionality of charging the fees. Stafford v. County of Bladen, 163 N.C. App. 149, 592 S.E.2d 711, 2004 N.C. App. LEXIS 305 (2004).

Interpretation of a holographic will. —

In a dispute arising out of a holographic will drafted by the first decedent’s adoptive father, because the heirs of the second of two decedents, who was the first decedent’s grantee, failed to present any evidence that the land described in a holographic will and deeded to a grantee, was the land that they were entitled to as that grantee’s heirs, summary judgment was properly granted against them. Cameron v. Bissette, 190 N.C. App. 614, 661 S.E.2d 32, 2008 N.C. App. LEXIS 1017 (2008).

Violation of Contracts Clause. —

Trial court properly granted the tenured teachers summary judgment on a claim that the enactment of legislation repealing career status teachers’ benefits under former G.S. 115C-325 violated the Contracts Clause as career status rights were a valuable employment benefit that had vested in the teachers when they satisfied the law’s requirements, the repeal of that benefit substantially impaired contractual obligations by limiting the duration of the contracts to four years, and the State’s purported rationale, improving public schools, was flatly contradicted by the law’s terms and the parties’ affidavits. N.C. Ass'n of Educators, Inc. v. State, 241 N.C. App. 284, 776 S.E.2d 1, 2015 N.C. App. LEXIS 453 (2015), aff'd in part, modified, 368 N.C. 777 , 786 S.E.2d 255, 2016 N.C. LEXIS 314 (2016).

Automobile Accident. —

In a case dealing with an accident between defendant’s vehicle and the pedestrian, the trial court properly granted summary judgment in favor of defendant as no duty was imposed on defendant requiring her to yield her right-of-way merely because the pedestrian was oblivious to her danger; defendant was driving 35 miles per hour and only saw the pedestrian immediately before the collision, and without enough time to slow down; and the last clear chance doctrine was inapplicable because defendant could not see the pedestrian or predict her movement as the pedestrian was standing out of view in front of another vehicle just before she darted into the street. Patterson v. Worley, 265 N.C. App. 626, 828 S.E.2d 744, 2019 N.C. App. LEXIS 518 (2019).

D.Cases in Which Summary Judgment Held Improper

Additional Discovery Needed. —

Denial of motion for declaratory judgment, without prejudice, as premature was appropriate because, while the court did not foreclose the possibility that summary judgment was ultimately appropriate in the matter, the court concluded that such a determination was not to be made at that time in light of the incomplete factual record that then existed. Woodcock v. Cumberland County Hosp. Sys., 2022 NCBC 2, 2022 NCBC LEXIS 3 (N.C. Super. Ct. Jan. 20, 2022).

Explosion of Water Heater. —

Defendants were not entitled to judgment as a matter of law where the record did not clearly establish the inapplicability of the doctrine of res ipsa loquitur, where the evidentiary materials tended to show that the water heater in question was under the exclusive control and management of the defendants, as explosion of a water heater does not ordinarily happen if those who have the management of it use proper care. Under those circumstances the explosion itself would be some evidence of negligence on the part of those in control and would tend to establish a prima facie case requiring its submission to the jury. Evidence tending to explain the cause of the explosion merely accentuated the jury’s role in the controversy and the unwisdom of summary judgment. Page v. Sloan, 281 N.C. 697 , 190 S.E.2d 189, 1972 N.C. LEXIS 1162 (1972).

Medical Malpractice. —

In an action for medical malpractice, alleging that defendant negligently caused and continued plaintiff’s addiction to narcotics, there was sufficient evidence presented at the hearing to raise material issues of fact as to whether standard practice still regarded addiction as necessary in the treatment of plaintiff’s disease, and whether defendant knew or should have known that narcotics were not necessary to control plaintiff’s pain, so as to overcome a motion for summary judgment on the grounds that there was no negligence as a matter of law. Ballenger v. Crowell, 38 N.C. App. 50, 247 S.E.2d 287, 1978 N.C. App. LEXIS 2084 (1978).

In an action for medical malpractice, alleging that defendant negligently caused and continued plaintiff ’s addiction to narcotics, the evidence was sufficient to withstand defendant’s motion for summary judgment based on contributory negligence, even though plaintiff knowingly continued his addiction, where plaintiff believed it was necessary to be addicted for the rest of his life because defendant had told him so. Ballenger v. Crowell, 38 N.C. App. 50, 247 S.E.2d 287, 1978 N.C. App. LEXIS 2084 (1978).

Trial court erred by finding that a healthcare company which bought a hospital from a county was immune from suit by a minor who claimed that he suffered serious permanent injuries when he was born at the hospital, at a time when the hospital was owned and operated by the county. Odom v. Lane, 161 N.C. App. 534, 588 S.E.2d 548, 2003 N.C. App. LEXIS 2180 (2003).

Trial court erred in granting summary judgment pursuant to G.S. 1A-1 , N.C. R. Civ. P. 56, to defendants in a patient’s medical malpractice action; contrary to the findings of the trial court, the doctrine of res ipsa loquitur applied to the action, in which a doctor allegedly left a surgical sponge in the patient’s body following child birth. Fox v. Green, 161 N.C. App. 460, 588 S.E.2d 899, 2003 N.C. App. LEXIS 2193 (2003).

Professional Negligence. —

Client was not collaterally estopped from asserting a professional negligence claim against an attorney predicated on his failure to seek a directed verdict in the client’s favor at the trial of the underlying case as the issue decided in the earlier case was not identical to the issue in the instant case. The determination in the earlier case, alleging fraud against the client and three others, that sufficient evidence supported the jury’s verdict against the “defendants” was not a determination that sufficient evidence supported a finding that the client defrauded the customer; thus, summary judgment was improperly granted to the attorney. Royster v. McNamara, 218 N.C. App. 520, 723 S.E.2d 122, 2012 N.C. App. LEXIS 218 (2012).

Trial court erred in granting the tax preparers summary judgment on the ground that her professional negligence claims were barred by G.S. 1-15(c) where genuine issues of fact existed as to whether they were responsible for delivering, mailing, or providing plaintiff with her tax returns and whether and when they did so.

Summary judgment was improper on the merits of a professional negligence claim where genuine issues of fact existed as to whether the tax preparers were responsible for delivering, mailing, or providing plaintiff with her tax returns and whether and when they did so.

Intentional Tort. —

Summary judgment was inappropriate where the defendant’s act of shooting the plaintiff, although she intended only to hit his tire, was not only an intentional tort but also gave rise to a claim of negligence, which was not barred by the one year statute of limitation. Lynn v. Burnette, 138 N.C. App. 435, 531 S.E.2d 275, 2000 N.C. App. LEXIS 618 (2000).

Alienation of Affections. —

Summary judgment was improperly granted dismissing a former wife’s claim for alienation of affections filed in April 2003 on the ground that it was barred by the statute of limitations in G.S. 1-52(5) because, while the husband and the wife separated in 1998, the wife’s allegations in her sworn affidavit and verified complaint, to the effect that the husband expressed his desire to return to the marriage multiple times in October 1999 and September 2000, that the couple purchased a car together in May 1999, that the couple maintained joint finances after their separation, that they participated in marriage counseling until February 2001, and that the husband told the wife during their last counseling session that he was not planning on divorcing her. presented a genuine issue of material fact as to whether there was love and affection following the wife’s separation from the husband. Since a jury could determine that alienation did not occur until as late as February 2001 when the husband made the final decision to end the marriage and because the wife filed her complaint within three years of his decision, her claim for alienation of affections was not barred by G.S. 1-52(5) . McCutchen v. McCutchen, 360 N.C. 280 , 624 S.E.2d 620, 2006 N.C. LEXIS 2 (2006).

Trial court erred in dismissing a former wife’s claim of alienation of affections for lack of subject matter jurisdiction. There was an issue of fact as to the whether the alienation of affections occurred in North Carolina, which recognized the tort, or South Carolina, which did not, as the evidence showed that the paramour made clandestine phone calls from North Carolina to the husband in South Carolina, that sexual acts occurred at the paramour’s North Carolina condominium, and that the paramour and the husband took a trip to North Carolina during which they admitted to engaging in sexual intercourse. Jones v. Skelley, 195 N.C. App. 500, 673 S.E.2d 385, 2009 N.C. App. LEXIS 212 (2009).

Criminal Conversation. —

Former wife’s criminal conversation claim filed against the paramour of the wife’s former husband was improperly dismissed on summary judgment. Instead, the trial court should have granted summary judgment in the wife’s favor as the evidence conclusively showed that the paramour engaged in sexual intercourse with the wife’s husband in North Carolina while the wife and the husband were still married and prior to the execution of a separation agreement. Jones v. Skelley, 195 N.C. App. 500, 673 S.E.2d 385, 2009 N.C. App. LEXIS 212 (2009).

Annulment. —

In a case in which plaintiff, in her capacity as the personal representative of the estate of the decedent, sought to annul the decedent’s marriage to defendant, arguing that the marriage was invalid because the officiant was not legally authorized to perform a wedding ceremony in North Carolina, the trial court erred in granting summary judgment to plaintiff because, under this statute, marriages in North Carolina could not be annulled at the summary judgment stage. Hill v. Durrett, 264 N.C. App. 367, 826 S.E.2d 470, 2019 N.C. App. LEXIS 266 (2019).

Deed of Trust. —

Where there was a genuine issue of fact as to the extent to which deed of trust secured amounts additional to purchase price of shopping center property summary judgment was improper. Dalton Moran Shook, Inc. v. Pitt Dev. Co., 113 N.C. App. 707, 440 S.E.2d 585, 1994 N.C. App. LEXIS 209 (1994).

Deed Interpretation. —

Order denying part of a soccer field developer’s summary judgment motion was reversed, given that pursuant to the unambiguous language of the deed, in which he was a successor or assign of the grantor, he could use both easements to access an extension of the subdivision, of which the soccer fields were included. Terres Bend Homeowners Ass'n v. Overcash, 185 N.C. App. 45, 647 S.E.2d 465, 2007 N.C. App. LEXIS 1686 (2007).

Gift Tax. —

Summary judgment was improperly granted in favor of taxpayers who sought refunds of gift taxes they paid under protest on their transfers of interests in their residences to irrevocable trusts, retaining the rights to occupy the residences for five years or their lifetimes, whichever was shorter, as the Secretary of Revenue had, under G.S. 105-195 [repealed], discretion to determine how to value the interests retained by the taxpayers, and there was no showing that this discretion was abused, nor was it shown, under G.S. 105-267 [repealed] that the taxpayers were entitled to refunds because the taxes were assessed for improper purposes or were otherwise invalid or excessive. Downs v. State, 159 N.C. App. 220, 582 S.E.2d 638, 2003 N.C. App. LEXIS 1440 (2003), aff'd, 358 N.C. 213 , 593 S.E.2d 763, 2004 N.C. LEXIS 205 (2004).

Insurance Claim. —

In the declaratory judgment action, an issue of material fact pursuant to G.S. 1A-1 , Rule 56, remained as to whether the pilot was an insured party under the airport policies issued by the insurer to the pilot’s corporations; coverage was dependent upon the pilot acting on behalf of the corporations while flying the plane, and it was not clear if he was acting on the corporations’ behalf or as an independent contractor. Carlson v. Old Republic Ins. Co., 160 N.C. App. 399, 585 S.E.2d 497, 2003 N.C. App. LEXIS 1796 (2003).

When an insured was sued for refusing to give a party to whom it had rented a beach house access to the house, insurance policy coverage for the insured’s “invasion of the right of private occupancy” covered the insured’s conduct, as the phrase was ambiguous and would be interpreted against the insurer, even though the party to whom the house was rented had not taken possession of the house: thus, in the insured’s suit to require its insurer to defend and indemnify it, the insurer was improperly granted summary judgment. Hobbs Realty & Constr. Co. v. Scottsdale Ins. Co., 163 N.C. App. 285, 593 S.E.2d 103, 2004 N.C. App. LEXIS 373 , cert. dismissed, 358 N.C. 543 , 599 S.E.2d 47, 2004 N.C. LEXIS 832 (2004), cert. denied, 599 S.E.2d 907, 2004 N.C. LEXIS 898 (N.C. 2004).

Action Seeking to Void Deeds to Land. —

Trial court erred in granting partial summary judgment to plaintiffs pursuant to G.S. 1A-1 , N.C. R. Civ. P. 56(c), and in voiding defendants’ deeds to land; while it was true that a power of attorney granted to one of the defendants, a decedent’s niece, did not expressly grant her the right to make gifts of real property on behalf of the decedent, and the deeds would be void pursuant to G.S. 32A-14.1(b) if the conveyances were determined to be gifts, genuine issues of material fact existed on whether the conveyances were gifts or were transferred for consideration in the form of services to the decedent as recited in the deeds, as the trial court failed to consider those issues during the summary judgment hearing. Estate of Graham v. Morrison, 156 N.C. App. 154, 576 S.E.2d 355, 2003 N.C. App. LEXIS 81 (2003).

Easement by Prescription. —

The absence of evidence establishing the requisite hostile nature of the use of the extensions over the defendants’ lands entitled the defendants to summary judgment. Yadkin Valley Land Co. v. Baker, 141 N.C. App. 636, 539 S.E.2d 685, 2000 N.C. App. LEXIS 1406 (2000).

Because the evidence was in conflict as to the use and as to whether the alleged use of the land in question was hostile, property owners were not entitled to summary judgment under G.S. 1A-1 , N.C. R. Civ. P. 56(c) based on an easement by prescription. Keener v. Arnold, 161 N.C. App. 634, 589 S.E.2d 731, 2003 N.C. App. LEXIS 2278 (2003).

Trial court improperly granted summary judgment to defendants, adjoining property owners and a water company, under G.S. 1A-1-56, holding that they held an underground easement for a waterline on plaintiff property owner’s land because, inter alia: (1) defendants did not satisfy the requisite period for an easement by prescription and were not entitled to rely upon the shorter period provided by the doctrine of color of title, which would have reduced the period of adverse possession from 20 to seven years under G.S. 1-38(a) ; and (2) defendants failed to forecast sufficient evidence that they were entitled to an easement by estoppel. Woodring v. Swieter, 180 N.C. App. 362, 637 S.E.2d 269, 2006 N.C. App. LEXIS 2387 (2006).

Dispute Over Width of Easement. —

While the location of an easement was known, the precise width of the easement was not defined in the deeds; thus, the reasonableness of the amount of space needed to effectuate the easement’s purpose as set forth in the deeds raised a question of fact that precluded summary judgment under G.S. 1A-1 , N.C. R. Civ. P. 56(c) in favor of property owners who claimed the easement. Keener v. Arnold, 161 N.C. App. 634, 589 S.E.2d 731, 2003 N.C. App. LEXIS 2278 (2003).

Property Listed in Settlement Agreement. —

Summary judgment for plaintiff ex-wife granting her certain disputed property was inappropriate where husband died before bequeathing the property to the children as promised, and the settlement agreement specifically provided for this scenario by allowing her, her father or her brother the option to purchase it should he fail to will it. Williamson v. Bullington, 139 N.C. App. 571, 534 S.E.2d 254, 2000 N.C. App. LEXIS 987 (2000), aff'd, 353 N.C. 363 , 544 S.E.2d 221, 2001 N.C. LEXIS 277 (2001).

Specific Performance. —

Summary judgment in an action seeking specific performance of vendor’s offer to purchase property was precluded by an issue of material fact as to whether an agreement was reached between the parties for the sale of two lots. Williford v. Atlantic Am. Properties, Inc., 129 N.C. App. 409, 498 S.E.2d 852, 1998 N.C. App. LEXIS 558 (1998), rev'd, 350 N.C. 58 , 510 S.E.2d 376, 1999 N.C. LEXIS 11 (1999).

Trial court erred in granting summary judgment to estate representative and second wife on the first wife and minor grandchild’s breach of contract action to execute a will because decedent’s failure to execute a will as he agreed to do in his separation agreement meant that part of the farm property that the decedent was going to pass to the son went to the second wife instead; had decedent done what he promised to do, that interest would have passed to the minor grandchild upon the death of the decedent who died after the son, and, thus, the minor grandchild had an action for specific performance of decedent’s promise to execute a will devising that property to the son, and summary judgment should have been granted in favor of the first wife and the minor grandchild. Tyndall-Taylor v. Tyndall, 157 N.C. App. 689, 580 S.E.2d 58, 2003 N.C. App. LEXIS 926 (2003).

In an action to determine whether plaintiff lender was entitled to possession of personal property, used to secure a loan, which was subsequently sold to a third party, the trial court erred in granting summary judgment for plaintiff where a genuine issue of fact existed as to whether plaintiff and defendant borrower intended their loan transaction of June, 1977, to renew, enlarge or extinguish note executed in April, 1976, by borrower which was secured by the property in question, since the nature of the second loan determined whether it was a future advance within the meaning of G.S. 25-9-307(3) and thus whether defendant purchaser from defendant borrower took the property in question free from plaintiff lender’s security interest. Spector United Employees Credit Union v. Smith, 45 N.C. App. 432, 263 S.E.2d 319, 1980 N.C. App. LEXIS 2650 (1980).

Promissory Note. —

Where, in an action to recover on a promissory note, defendant’s affidavit in support of her motion for summary judgment merely reiterated the allegations in her answer, and plaintiff ’s note verified the complaint, the evidence, when viewed in the light most favorable to the plaintiff, showed the existence of a triable issue, and defendant was not entitled to judgment as a matter of law. Liberty Loan Corp. v. Miller, 15 N.C. App. 745, 190 S.E.2d 672, 1972 N.C. App. LEXIS 2020 (1972).

Parol Agreement as to Payment of Notes. —

Where defendant’s evidence, taken in the light most favorable to him, established the execution of certain notes and security instruments accompanied by a prior or contemporaneous parol agreement as to the mode of payment and the fund from which it would be paid, evidence tending to show a continued course of dealings pursuant to this oral agreement was sufficient to have affected the result of the action, thereby creating a conflict between plaintiff ’s evidence and defendant’s evidence as to a material fact; a jury question was thus presented and the trial judge erred when he granted plaintiff ’s motion for summary judgment. North Carolina Nat'l Bank v. Gillespie, 291 N.C. 303 , 230 S.E.2d 375, 1976 N.C. LEXIS 975 (1976).

Certificate of Satisfaction. —

Court of Appeals of North Carolina is constrained to hold that an instrument erroneously satisfied of record under G.S. 45-36.6(b) is one for which the certificate of satisfaction was erroneously or mistakenly filed for any reason, even a unilateral mistake having nothing to do with whether the underlying obligation actually was fully paid off. Wells Fargo Bank, N.A. v. Am. Nat'l Bank & Trust Co., 250 N.C. App. 280, 791 S.E.2d 906, 2016 N.C. App. LEXIS 1104 (2016).

Insurance Claim. —

Summary judgment in favor of plaintiff/insurer was appropriate where the plaintiff’s policy language excluded coverage for injury or damage “which may reasonably be expected to result from the intentional act ....” and the evidence showed that the defendant fired multiple shots from a rifle at night in the direction of a prowler, approximately fifty feet away. A person, under such circumstances, could reasonably expect injury or damage to result from the intentional act. North Carolina Farm Bureau Mut. Ins. Co. v. Mizell, 138 N.C. App. 530, 530 S.E.2d 93, 2000 N.C. App. LEXIS 625 (2000).

Summary judgment was inappropriate where a genuine issue of material fact existed as to whether the policy covering a dump truck met any of the statutory definitions of a “private passenger motor vehicle” under G.S. 58-40-10(b) and could be stacked with the other policies under G.S. 20-279.21(b)(4). Erwin v. Tweed, 142 N.C. App. 643, 544 S.E.2d 803, 2001 N.C. App. LEXIS 175 (2001).

Antistacking Provision in Insurance Policy. —

Trial court erred in granting an insurer summary judgment on the issue of interpolicy stacking, under G.S. 58-40-10(1)(b)(1) , as a genuine issue of material fact existed as to whether a truck’s gross vehicle weight as specified by the manufacturer was less than 10,000 pounds. Erwin v. Tweed, 159 N.C. App. 579, 583 S.E.2d 717, 2003 N.C. App. LEXIS 1532 (2003), aff'd, 359 N.C. 64 , 602 S.E.2d 359, 2004 N.C. LEXIS 1127 (2004).

Immunity Waived through Insurance Purchase. —

To the extent that defendant town waived its immunity through the purchase of liability insurance, defendant town, and defendant police officer, as sued in his official capacity, were not immune from suit for his alleged negligent acts, and summary judgment was properly denied for such claims. Thompson v. Town of Dallas, 142 N.C. App. 651, 543 S.E.2d 901, 2001 N.C. App. LEXIS 191 (2001).

Subrogation Claim. —

In an insurance case, the trial court incorrectly granted summary judgment dismissing an insurance company’s subrogation claim against an alleged bailee, finding there was no bailment, because there was a genuine issue as to the existence of a bailment, given the alleged bailee’s testimony that he was in the process of performing work on the allegedly bailed vehicle at the time of its loss. Barnes v. Erie Ins. Exch., 156 N.C. App. 270, 576 S.E.2d 681, 2003 N.C. App. LEXIS 103 (2003).

School board was considered a “person” for purposes of an action brought by a student and her parents against it, pursuant to 42 U.S.C.S. § 1983, wherein it was claimed that the board had paid some claims while asserting immunity on others in violation of equal protection and due process rights, and accordingly, the board could not assert immunity against that claim; although such was not a determination that the student and her parents were necessarily entitled to relief in the action, the trial court’s grant of summary judgment was error. Ripellino v. N.C. Sch. Bds. Ass'n, 158 N.C. App. 423, 581 S.E.2d 88, 2003 N.C. App. LEXIS 1184 (2003), cert. denied, 358 N.C. 156 , 592 S.E.2d 694, 2004 N.C. LEXIS 103 (2004), cert. denied, 358 N.C. 156 , 2004 N.C. LEXIS 515 (2004).

Foreclosure. —

Where trial judge’s resolution against plaintiffs of the issue of fact as to whether or not they were in default in their payments under a deed of trust at the time of foreclosure made it impossible for plaintiffs to prevail and clearly affected the result of their action, summary judgment in favor of defendants would be reversed. Lowman v. Huffman, 15 N.C. App. 700, 190 S.E.2d 700, 1972 N.C. App. LEXIS 2008 (1972).

Summary judgment was inappropriate where the evidence was sufficient to create an issue of fact with respect to the delivery date of the foreclosure deeds; the plaintiff submitted affidavits indicating that the action was timely under G.S. 1-54(6) and the defendants submitted affidavits indicating that it was not, but neither submitted dated copies of the foreclosure deeds. Lexington State Bank v. Miller, 137 N.C. App. 748, 529 S.E.2d 454, 2000 N.C. App. LEXIS 501 (2000).

City’s Demolition of a House. —

Trial court erred in granting summary judgment to the city on the homeowner’s claim for violation of her due process rights because, although the homeowner’s house was in severe disrepair, the city violated her due process rights by demolishing the home without giving her notice, as the condition of the house did not pose an imminent threat to the public warranting its immediate demolition. Monroe v. City of New Bern, 158 N.C. App. 275, 580 S.E.2d 372, 2003 N.C. App. LEXIS 1053 (2003).

Municipality was not entitled to partial summary judgment on a utility’s nuisance claim against the municipality for drilling wells that allegedly adversely affected the utility’s wells because the documents expressing an intent to convey ownership of all of the assets of the waterworks, specifically including the wells, were sufficient to give rise to a genuine issue of material fact as to whether the utility had the necessary property interest to assert a nuisance claim. Coastal Plains Utils., Inc. v. New Hanover County, 166 N.C. App. 333, 601 S.E.2d 915, 2004 N.C. App. LEXIS 1745 (2004).

Evidence of Negotiations with Defendant Insurer. —

Evidence tending to show that insurer offered to pay for loss, continually negotiated with plaintiff as to the amount thereof, and repeatedly assured plaintiff that her claim would be paid, was sufficient to show that there was a genuine triable issue as to whether defendants waived the requirements of the insurance policy relating to filing formal proof of loss and institution of the action within 12 months. Pennell v. Security Ins. Co., 18 N.C. App. 465, 197 S.E.2d 240, 1973 N.C. App. LEXIS 1904 (1973).

Where a question of fact existed as to when a breach of an agreement occurred and the statute of limitations began to run, summary judgment on the basis of the statute of limitations was inappropriate. Snyder v. Freeman, 300 N.C. 204 , 266 S.E.2d 593, 1980 N.C. LEXIS 1067 (1980).

Conversion. —

Summary judgment is inappropriately granted in an action for conversion when the evidence raises a genuine issue as to whether defendant’s possession of plaintiff’s property is authorized or wrongful. Gadson v. Toney, 69 N.C. App. 244, 316 S.E.2d 320, 1984 N.C. App. LEXIS 3386 (1984).

Trespass to Chattel. —

No genuine issue of material fact existed where plaintiff logger, who held an option to purchase lumber, admitted intentional interference with the defendants loggers’ valid possessory interest by entering the property and removing the timber without authorization; thus, plaintiff was not entitled to summary judgment on defendants’ counter-claim for trespass. Fordham v. Eason, 351 N.C. 151 , 521 S.E.2d 701, 1999 N.C. LEXIS 1252 (1999).

Burden of Resale. —

In an action by sellers of securities under a contract for sale to recover the purchase price of securities not accepted by buyer, the question of whether efforts to resell the securities would be unduly burdensome, or whether there was a readily available market for resale required weighing facts, rather than solely applying legal principles. Such facts do not lend themselves to disposition by summary judgment and must be resolved by a trier of fact. Atkins v. Mitchell, 91 N.C. App. 730, 373 S.E.2d 152, 1988 N.C. App. LEXIS 913 (1988).

Dispute over Validity of Contractor’s License. —

On appeal from summary judgment, where plaintiff contractor was licensed up to $175,000.00 when contract was executed and two months later secured an unlimited license, but plaintiff began construction during the two-month period, and where he presented his affidavit that he had passed the unlimited general contractor examination when the contract with the defendants was executed and that he had done approximately $2,800.00 worth of work before he was issued his unlimited license, so that the value of the work done by plaintiff was never in excess of his license limit and plaintiff was not, as evidenced by his license, incompetent to perform the work, plaintiff should have been allowed to prove his case if he could and was entitled if successful to recover to the extent of his unlimited license and defend the counterclaim. Dellinger v. Michal, 92 N.C. App. 744, 375 S.E.2d 698, 1989 N.C. App. LEXIS 53 (1989).

Breach of Contract Action. —

Summary judgment was improperly granted in favor of the real estate agents on the purchasers’ breach of contract claim where the purchasers presented sufficient evidence that the contract included a promise by the agents to provide access to the lake so as to withstand summary judgment. Wall v. Fry, 162 N.C. App. 73, 590 S.E.2d 283, 2004 N.C. App. LEXIS 61 (2004).

Trial court erred in granting summary judgment to the creditor on a breach of contract claim against the vehicle buyers where there was a genuine issue of material fact as to the condition of the vehicle at the time of sale. Ford Motor Credit Co. LLC v. McBride, 257 N.C. App. 590, 811 S.E.2d 640, 2018 N.C. App. LEXIS 106 (2018).

Trial court erred in granting summary judgment to seller on the buyers’ claim that a sales contract was based mistake of fact; the buyers could assert claims of mutual and unilateral mistake because the seller supplied a flawed survey that erroneously stated that the land sold to the buyers was not in flood zone, and the mistake of one party was sufficient to avoid a contract when the other party caused the mistake. Taylor v. Gore, 161 N.C. App. 300, 588 S.E.2d 51, 2003 N.C. App. LEXIS 2054 (2003).

Breach of Bailment Relationship. —

Where a paving company left equipment with a lot owner under an agreement for the lot owner to store the equipment, but the company did not have access to the equipment without the owner’s presence, the company relinquished exclusive possession of the equipment to the lot owner, and the lot owner moved the equipment without notice to the company and damaged it, summary judgment was inappropriate on the company’s bailment claim since the company showed that a bailment relationship may have existed and may have been breached. Atl. Contr. & Material Co. v. Adcock, 161 N.C. App. 273, 588 S.E.2d 36, 2003 N.C. App. LEXIS 2046 (2003).

Construction Contract. —

Where plaintiff asserted that it was entitled to summary judgment because it had substantially performed its contract but had not been paid as agreed, but even if all the claims made by plaintiff in support of his motion were accepted as true, questions of whether the incomplete performance by plaintiff was substantial performance and of the amount plaintiff was entitled to recover remained, summary judgment for plaintiff as to its claim against defendant would be reversed. Almond Grading Co. v. Shaver, 74 N.C. App. 576, 329 S.E.2d 417, 1985 N.C. App. LEXIS 3517 (1985).

Because the language of the agreement is susceptible to differing yet, reasonable interpretations, the one broad, the other narrow, the contract was ambiguous and summary judgment was inappropriate. To resolve this ambiguity, the case was remanded to the superior court for the trier of fact to determine the intent of the parties. Schenkel & Shultz, Inc. v. Hermon F. Fox & Assocs., P.C., 362 N.C. 269 , 658 S.E.2d 918, 2008 N.C. LEXIS 337 (2008).

Dispute over Broker’s Commission. —

In a dispute over a broker’s entitlement to a commission, where the subject property was not actually leased until after the expiration of the listing and grace periods, even though the broker’s efforts procured the lease, while it was apparent that the broker and the property owner intended to contract around the general rule that a broker was entitled to a commission upon procuring a willing and able lessee for the property, summary judgment was not proper because there were genuine fact questions as to the property owner’s waiver of the listing period and the broker’s entitlement to a commission on a quantum meruit basis. Carolantic Realty, Inc. v. Matco Group, Inc., 151 N.C. App. 464, 566 S.E.2d 134, 2002 N.C. App. LEXIS 767 (2002).

Covenant Not to Compete. —

Where there was a genuine issue as to whether a covenant not to compete between the parties was supported by valuable consideration, summary judgment was improvidently entered. Stevenson v. Parsons, 96 N.C. App. 93, 384 S.E.2d 291, 1989 N.C. App. LEXIS 925 (1989).

Use of Road Where Dedication in Issue. —

Where plaintiff brought an action against her neighbor to enjoin his use of a road which ran against plaintiff’s property to defendant’s property, the material issue of whether road dedication had ever been accepted or rejected by an appropriate authority precluded summary judgment as a matter of law. Cavin v. Ostwalt, 76 N.C. App. 309, 332 S.E.2d 509, 1985 N.C. App. LEXIS 3850 (1985).

Town’s Duty to Maintain Annexed Roads. —

The trial court erred in granting summary judgment as to whether defendant-town had fulfilled its duty to maintain a street it annexed where the record was undeveloped as to the current state of repair of the street and the customary maintenance provided by defendant on similar streets. Buckland v. Town of Haw River, 141 N.C. App. 460, 541 S.E.2d 497, 2000 N.C. App. LEXIS 1307 (2000).

Sovereign Immunity of Housing Authority. —

Court of appeals found that the trial court erroneously granted summary judgment in favor of the housing authority where the operation of low-income housing was a proprietary function and the housing authority could not assert sovereign immunity. Fisher v. Hous. Auth., 155 N.C. App. 189, 573 S.E.2d 678, 2002 N.C. App. LEXIS 1607 (2002), rev'd, 359 N.C. 59 , 602 S.E.2d 359, 2004 N.C. LEXIS 1128 (2004).

Separation Agreement Did Not Bar Divorce Action Where Issue of Duress Raised. —

Since plaintiff’s affidavit, averring duress or fear, raised a genuine issue of material fact as to the validity of a separation agreement asserted by defendant in bar of action for absolute divorce and an equitable distribution of marital property, the court improvidently granted defendant’s motion for summary judgment. Cox v. Cox, 75 N.C. App. 354, 330 S.E.2d 506, 1985 N.C. App. LEXIS 3637 (1985).

Evidence Sufficient to Show Voluntary Assumption of Marital Rights, Duties, and Obligations, Which Could be Sufficient to Show Cohabitation. —

Summary judgment under G.S. 1A-1 , Rule 56(e) was not proper with regard to an ex-husband’s motion to terminate an alimony order pursuant to G.S. 50-16.9 because the forecast of the evidence was sufficient to show the voluntary assumption of marital rights, duties, and obligations by a man and an ex-wife, which could be sufficient to establish cohabitation. Bird v. Bird, 363 N.C. 774 , 688 S.E.2d 420, 2010 N.C. LEXIS 34 (2010).

Action for Fraud. —

Summary judgment pursuant to G.S. 1A-1 , N.C. R. Civ. P. 56(c) was improperly granted in a child’s claim against the father alleging fraud, among other things, as the action was not barred by res judicata and collateral estoppel, and the youngest child filed the action within three years of when the child reached the age of majority, as was required under G.S. 1-52 and G.S. 1-17(a). Beall v. Beall, 156 N.C. App. 542, 577 S.E.2d 356, 2003 N.C. App. LEXIS 188 (2003).

Fraudulent Inducement of Real Estate Purchase. —

Where evidence was introduced to indicate that plaintiff purchasers of real estate had been induced through defendant’s fraudulent actions to forego inquiry regarding the property’s condition, it was improper for the trial court to grant defendant real estate company’s motion for summary judgment. Bolick v. Townsend Co., 94 N.C. App. 650, 381 S.E.2d 175, 1989 N.C. App. LEXIS 621 (1989).

Summary judgment was improperly granted against a buyer alleging fraudulent inducement where the buyer’s motion to compel discovery was pending before the trial court, and the depositions the buyer had noticed had not been held, because the buyer’s pursuit of discovery was not dilatory and could lead to relevant evidence. Ussery v. Taylor, 156 N.C. App. 684, 577 S.E.2d 159, 2003 N.C. App. LEXIS 326 (2003).

In a fraudulent concealment claim, conclusionary, self-serving denials of fraud contained in the defendant’s affidavits were clearly insufficient to show that the defendant was entitled to summary judgment. Watts v. Cumberland County Hosp. Sys., 75 N.C. App. 1, 330 S.E.2d 242, 1985 N.C. App. LEXIS 3577 (1985), rev'd, 317 N.C. 321 , 345 S.E.2d 201, 1986 N.C. LEXIS 2791 (1986).

Automobile Accident. —

In action for damages arising out of automobile accident, trial court erred in granting defendant’s motion for summary judgment. Mobley v. Estate of Johnson, 111 N.C. App. 422, 432 S.E.2d 425, 1993 N.C. App. LEXIS 793 (1993).

Plaintiff’s evidence set out a prima facie case of negligence against the defendant, and summary judgment in favor of the latter was inappropriate, where a reasonable jury could find that plaintiff entered the intersection first and obtained the right-of-way, that the defendant breached the duty to yield to plaintiff or to keep a proper lookout by proceeding through the intersection, and that such breach was a proximate cause of injury to plaintiff. Cucina v. City of Jacksonville, 138 N.C. App. 99, 530 S.E.2d 353, 2000 N.C. App. LEXIS 547 (2000).

Although it found that the maintenance of stop signs constituted a discretionary function, thereby entitling the city to the defense of governmental immunity, the court reversed the grant of summary judgment in the city’s favor where it appeared from the record the city was covered by a liability insurance policy at the time of the collision at issue, thereby waiving immunity from suit. Cucina v. City of Jacksonville, 138 N.C. App. 99, 530 S.E.2d 353, 2000 N.C. App. LEXIS 547 (2000).

Summary judgment was inappropriate where a reasonable jury could find that plaintiff entered the intersection first and obtained the right-of-way, that defendant breached the duty to yield to plaintiff or to keep a proper lookout by proceeding through the intersection, and that such breach was a proximate cause of injury to plaintiff; similarly, question as to plaintiff’s contributory negligence because she knew that the stop sign controlling defendant’s direction of travel had been knocked down in an accident earlier that morning was for the jury. Cucina v. City of Jacksonville, 2000 N.C. App. LEXIS 310 (N.C. Ct. App. Apr. 4, 2000), sub. op., 138 N.C. App. 99, 530 S.E.2d 353, 2000 N.C. App. LEXIS 547 (2000).

Trial court erred in granting defendant’s motion for summary judgment based on a finding as a matter of law that plaintiff was contributorily negligent, where plaintiff’s evidence, considered in the light most favorable to her, indicated that: (1) plaintiff was driving at a reasonable speed; (2) the weather conditions were rainy, cloudy, with poor visibility; (3) the road was wet, hilly and curvy; (4) plaintiff observed defendant’s vehicle in the road when she was some 400-500 feet away; however, there was another car moving between them and she believed defendant’s vehicle to be moving; (5) when the vehicle between them turned off the road, and plaintiff realized she was much closer to defendant’s vehicle, she applied her brakes but could not stop; (6) plaintiff would have gone around defendant’s vehicle to the left, but there was oncoming traffic; (7) defendant’s vehicle had no lights burning to warn approaching traffic that it was stopped in the middle of the road; (8) when plaintiff attempted to go to the right, she ran into the truck parked there; and, (9) defendant was behind the wheel of his vehicle while plaintiff’s vehicle was approaching. Blue v. Canela, 139 N.C. App. 191, 532 S.E.2d 830, 2000 N.C. App. LEXIS 813 (2000).

The trial court erred in granting summary judgment for plaintiff-insurer where the statute of limitations for tort claims had no impact on the notification provisions of G.S. 20-279.21(b)(4), and the defendants, therefore, were not required to notify the insurer within that SOL, and where questions existed for the jury as to (1) whether the accident victims-defendants acted in good faith when they failed to give timely notice of their claim for underinsured motorist benefits and (2) whether the insurer’s ability to investigate and defend was materially prejudiced by the delay. Liberty Mut. Ins. Co. v. Pennington, 141 N.C. App. 495, 541 S.E.2d 503, 2000 N.C. App. LEXIS 1441 (2000), aff'd, 356 N.C. 571 , 573 S.E.2d 118, 2002 N.C. LEXIS 1252 (2002).

Injured motorcyclist’s attempt to avoid crashing into an alleged tortfeasor’s car was foreseeable after the alleged tortfeasor abruptly came to a standstill as the action would have likely resulted in some injury to the injured motorcyclist; thus, summary judgment in favor of the alleged tortfeasor was inappropriate. Pintacuda v. Zuckeberg, 159 N.C. App. 617, 583 S.E.2d 348, 2003 N.C. App. LEXIS 1512 (2003), rev'd, 358 N.C. 211 , 593 S.E.2d 776, 2004 N.C. LEXIS 197 (2004).

Trial court erred in granting injured persons’ summary judgment motion (and in denying an insurance company’s summary judgment motion) in a case seeking a declaration that the injured persons were allowed to stack the UIM coverage of their two policies; stacking of underinsured motorist (UIM) coverages is permitted where each of the multiple policies providing stackable UIM coverages were written at limits that exceeded the statutorily-required minimum liability amount, but where one of two policies at issue provided liability coverage with limits equal to the statutorily-required minimum amount of $25,000/$50,000, under G.S. 20-279.21(b)(4), no UIM coverage was available with that policy — thus, there was no additional UIM coverage available to be stacked with the $100,000 UIM coverage provided by the first policy, which was equal to the amount already paid under the tortfeasor’s exhausted liability policy. Purcell v. Downey, 162 N.C. App. 529, 591 S.E.2d 556, 2004 N.C. App. LEXIS 186 (2004).

Notice of Involvement of Underinsured Motorist. —

Summary judgment was inappropriate as to whether an insured’s late notice to an insurer of a possible underinsured motorist coverage claim barred recovery because there was a genuine issue of material fact as to whether the insured’s failure to timely notify the insurer was in good faith, as the insured was not aware that a tortfeasor was underinsured until shortly before notifying the insurer. Liberty Mut. Ins. Co. v. Pennington, 356 N.C. 571 , 573 S.E.2d 118, 2002 N.C. LEXIS 1252 (2002).

Single-Car Automobile Accident Which Only Driver Survived. —

Summary judgment was inappropriate although the defendant testified that decedent put his foot on hers, pushed the accelerator down and, thus, caused the accident that killed him, because a genuine issue of material fact existed as to whether the defendant’s driving, specifically her steering overcorrection, was willful and wanton and because it was inappropriate for the court to assign credibility to defendant’s sworn statements as a matter of law where the jury should have been allowed to consider the credibility of the accident reconstructionist. Thompson v. Bradley, 142 N.C. App. 636, 544 S.E.2d 258, 2001 N.C. App. LEXIS 169 (2001).

Summary judgment was improper under the theory of negligent entrustment where the evidence of son’s moving violation and three accidents created a material issue of fact as to whether his parents/defendants knew or should have known that their son was an unsafe driver. Tart v. Martin, 137 N.C. App. 371, 527 S.E.2d 708, 2000 N.C. App. LEXIS 326 , rev'd, 353 N.C. 252 , 540 S.E.2d 332, 2000 N.C. LEXIS 900 (2000).

Construction of Subdivision Access Roads. —

The trial court’s grant of summary judgment for defendant, implicitly finding as a matter of law that defendant could compel plaintiffs to construct access roads, was error where defendant had no authority under this section to require plaintiffs to pave, curb and gutter streets abutting their subdivision because these streets were not within plaintiffs’ subdivision, where plaintiffs were not fee simple owners of the roads deeded as a right-of-way to the State Highway Commission, and where there was no evidence that the defendants sought funds from the plaintiffs for road construction although they had that option. Buckland v. Town of Haw River, 141 N.C. App. 460, 541 S.E.2d 497, 2000 N.C. App. LEXIS 1307 (2000).

Slip and Fall Accident. —

Summary judgment was inappropriate for defendant-store where the plaintiff, a slip-and-fall victim, presented sufficient evidence to raise an inference that the liquid detergent had been leaking for such a length of time that defendant should have known of its existence in time to have removed the danger or to have given proper warning of its presence; the plaintiff presented evidence that the liquid on which he slipped was detergent that had leaked from a container onto a shelf, down the side of the shelving structure, and onto the floor and that the liquid on the tops and sides of the shelves had already dried and become pink at the time of his fall. Furr v. K-Mart Corp., 142 N.C. App. 325, 543 S.E.2d 166, 2001 N.C. App. LEXIS 86 (2001).

Premises Liability. —

Summary judgment was improperly granted to a store, dismissing a customer’s suit to recover for injuries she sustained when she was struck by a buffer machine being operated in the store, because there were genuine issues of fact pertaining to whether the store properly warned the customer of the presence of the machine and whether the customer exercised care for her own safety. Freeman v. Food Lion, LLC, 173 N.C. App. 207, 617 S.E.2d 698, 2005 N.C. App. LEXIS 1919 (2005).

Summary judgment was properly granted to two contractors, dismissing a store customer’s suit to recover for injuries sustained when she was struck by a buffer machine being operated in the store by an employee of a floor cleaning company, because neither contractor owned or operated the store in which the customer’s injury occurred and because the customer failed to allege that the contractors were agents of the store; thus, the contractors had no duty to the customer and could not be held liable under a theory of premises liability. Freeman v. Food Lion, LLC, 173 N.C. App. 207, 617 S.E.2d 698, 2005 N.C. App. LEXIS 1919 (2005).

Negligence Action. —

Trial court erred in granting summary judgment to a retailer in a personal injury action where there was an issue of fact as to whether an employee of a floor maintenance subcontractor created a dangerous condition which caused the injured party’s fall. Robinson v. Wal-Mart Stores, Inc., 158 N.C. App. 299, 580 S.E.2d 426, 2003 N.C. App. LEXIS 1040 (2003).

Failure to Erect Traffic Sign. —

Summary judgment was inappropriate where genuine issues existed as to whether third-party defendants/Department of Transportation breached a duty by failing to have an advisory speed sign attached to the post of a “left lane closed ahead” sign and whether the signage was a proximate cause of the accident. Davis v. J.M.X., Inc., 137 N.C. App. 267, 528 S.E.2d 56, 2000 N.C. App. LEXIS 309 , aff'd, 352 N.C. 662 , 535 S.E.2d 356, 2000 N.C. LEXIS 752 (2000).

Negligently Erected Traffic Sign. —

North Carolina Industrial Commission erred in granting partial summary judgment to an injured party and in failing to remand the case to a deputy commissioner for an evidentiary hearing once the Commission determined that genuine issues of material fact remained as to whether the North Carolina Department of Transportation negligently erected a confusing stop sign at a railroad intersection. Norman v. N.C. DOT, 161 N.C. App. 211, 588 S.E.2d 42, 2003 N.C. App. LEXIS 2043 (2003), cert. denied, 358 N.C. 545 , 599 S.E.2d 404, 2004 N.C. LEXIS 813 (2004).

Permission to Drive Vehicle. —

Although driver of truck involved in accident did not have owner’s permission to drive truck and did not have a valid driver’s license, and owner’s insurance policy excluded coverage for persons using insured vehicle without reasonable belief that he or she was entitled to do so, insurance company was not entitled to summary judgment on its claim denying coverage as there was a question as to the driver’s subjective belief of being entitled to drive the vehicle. Aetna Cas. & Sur. Co. v. Nationwide Mut. Ins. Co., 95 N.C. App. 178, 381 S.E.2d 874, 1989 N.C. App. LEXIS 659 (1989), aff'd, 326 N.C. 771 , 392 S.E.2d 377, 1990 N.C. LEXIS 287 (1990).

Negligence of Fire Truck Driver. —

Summary judgment was improper in case based upon fire truck driver’s alleged negligence, where there was conflicting evidence as to whether or not the siren was on, whether or not the driver’s election of traffic lanes was prudent, and whether or not the speed at which the fire truck was travelling was excessive. Lopez v. Snowden, 96 N.C. App. 480, 386 S.E.2d 65, 1989 N.C. App. LEXIS 1032 (1989).

Suits Against Public Officials. —

Insurance policy purchased by Chatham County, North Carolina did not allow law enforcement employees to recover damages from the County, and because the County had not waived immunity from suit by law enforcement employees, the trial court properly ruled that a school resource officer (SRO) who worked for a sheriff’s department could not sue the sheriff or a chief deputy sheriff in their official capacities. However, the SRO engaged in a protected activity when he cooperated with federal agents who were investigating the sheriff, and the trial court erred when it dismissed a claim for wrongful discharge which the SRO filed against the sheriff in his individual capacity. Phillips v. Gray, 163 N.C. App. 52, 592 S.E.2d 229, 2004 N.C. App. LEXIS 248 (2004).

Fire Chief. —

Summary judgment in favor of defendant fire chief, in his official capacity, was inappropriate as the public duty doctrine is not available as a defense for a fire chief in his official capacity. Willis v. Town of Beaufort, 143 N.C. App. 106, 544 S.E.2d 600, 2001 N.C. App. LEXIS 227 (2001).

Wrongful Acts of Law Enforcement Officer. —

Language of the insuring agreement section of a law enforcement liability policy defined coverage for “wrongful acts” which were caused by an occurrence and arising out of the performance of an insured officer’s duties to provide law enforcement activities; since any ambiguity in the policy was to have been resolved in favor of the insured, claims based on sexual assaults committed by an insured police officer which arose out of his performance of law enforcement duties were covered under the policy, and a trial court’s summary judgment in favor of the insurance company was reversed. Young v. Great Am. Ins. Co., 162 N.C. App. 87, 590 S.E.2d 4, 2004 N.C. App. LEXIS 6 , rev'd, 359 N.C. 58 , 602 S.E.2d 673, 2004 N.C. LEXIS 1119 (2004).

Failure to Repair Garbage Truck. —

Trial court erred in granting summary judgment to municipal defendants in an action by the administrator’s of a decedent’s estate alleging gross negligence and wanton misconduct in the death of the decedent while employed by defendants; the decedent was killed when a dumpster on a garbage truck came partially detached and swung loose and pinned the decedent against the side of the garbage truck. Whitaker v. Town of Scot. Neck, 154 N.C. App. 660, 572 S.E.2d 812, 2002 N.C. App. LEXIS 1526 (2002), rev'd, 357 N.C. 552 , 597 S.E.2d 665, 2003 N.C. LEXIS 1263 (2003).

Burning Boat. —

Summary judgment in favor of defendant town was inappropriate, as the public duty doctrine no longer applies as a defense for the municipal provision of fire protection services. Willis v. Town of Beaufort, 143 N.C. App. 106, 544 S.E.2d 600, 2001 N.C. App. LEXIS 227 (2001).

Equitable Distribution. —

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 N.C. App. LEXIS 59 (1989).

Resulting Trust. —

The trial court erred in granting summary judgment for the plaintiff heirs of nonpaying cotenant, where a genuine issue of material fact existed as to whether plaintiffs were entitled to a beneficial interest in property held jointly by their father and paying defendant tenants. Keistler v. Keistler, 135 N.C. App. 767, 522 S.E.2d 338, 1999 N.C. App. LEXIS 1226 (1999).

Wills. —

Where the caveators could not produce the revocatory writing, and where the decedent’s attorney could not recall writing the will, the trial court erred in granting the caveators summary judgment on the ground that the will revoked an earlier will that had excluded the caveators as beneficiaries. In re Will of McCauley, 356 N.C. 91 , 565 S.E.2d 88, 2002 N.C. LEXIS 550 (2002).

Although the evidence, when viewed in a light most favorable to the nonmoving parties, clearly indicated that the will, including the handwritten provisions, was found among the testator’s valuable papers and effects, that the handwritten notation evinced a clear intent regarding the desired disposition for the items contained in Article IV, and that those words explicitly showed that the will should be modified to eliminate Article IV, summary judgment was inappropriate because the phrase in the holographic codicil “begin[n]ing 7-7-03” was sufficiently ambiguous to create a genuine issue of material fact as to whether that provision indicated the required present testamentary intent. In re Will of Allen, 371 N.C. 665 , 821 S.E.2d 396, 2018 N.C. LEXIS 1030 (2018).

Conflict in Forecasts of Evidence as to Causation. —

In a private nuisance action, where there was a conflict in the forecasts of evidence as to causation offered by the parties’ affidavits, the question of causation was a question of fact and the court erred in granting summary judgment. Bjornsson v. Mize, 75 N.C. App. 289, 330 S.E.2d 520, 1985 N.C. App. LEXIS 3614 (1985).

While it is not advisable to make findings of fact in a summary judgment proceeding, such findings do not render summary judgment invalid. Summey Outdoor Adv., Inc. v. County of Henderson, 96 N.C. App. 533, 386 S.E.2d 439, 1989 N.C. App. LEXIS 1116 (1989).

Validity of Right of First Refusal Provision as Question for Court. —

On a motion for summary judgment, whether a right of first refusal provision is valid or void is a question of law for the trial court. Pinehurst v. Regional Invs., 97 N.C. App. 114, 387 S.E.2d 222, 1990 N.C. App. LEXIS 27 (1990), aff'd, 330 N.C. 725 , 412 S.E.2d 645, 1992 N.C. LEXIS 57 (1992).

In an action for constructive fraud and constructive trust, summary judgment for defendant attorney was precluded by a genuine issue of material fact as to the existence of an attorney-client relationship at the time a referral fee arrangement was made. Booher v. Frue, 98 N.C. App. 585, 392 S.E.2d 105, 1990 N.C. App. LEXIS 435 (1990).

Intentional Infliction of Emotional Distress. —

Where plaintiff’s allegations were sufficient to establish that defendant’s behavior constituted more than insults or unflattering opinions the trial court erred in granting summary judgment in favor of defendant with regard to suit alleging intentional inflictions of emotional distress, as there were sufficient facts alleged to raise a question of whether defendant’s conduct was extreme and outrageous. Waddle v. Sparks, 100 N.C. App. 129, 394 S.E.2d 683, 1990 N.C. App. LEXIS 903 (1990), aff'd in part, rev'd, 331 N.C. 73 , 414 S.E.2d 22, 1992 N.C. LEXIS 152 (1992).

Libel and Slander. —

There was ample evidence to withstand summary judgment in the record of libel and slander case that defendant’s statement was false and made with actual malice; defendant’s firing of plaintiff within days after newspaper published a letter from plaintiff ’s mother in support of defendant’s political opponent, and the vehement character of the statement to the newspaper were some evidence of defendant’s ill-will toward plaintiff. Plaintiff also introduced evidence that he was competent at his job as assistant district attorney. Clark v. Brown, 99 N.C. App. 255, 393 S.E.2d 134, 1990 N.C. App. LEXIS 512 , writ denied, 327 N.C. 426 , 395 S.E.2d 675, 1990 N.C. LEXIS 781 (1990).

Genuine issues of material fact remained to be decided in a nurse’s claim for slander against her co-worker, where the co-worker filed a sexual harassment suit against her and there was conflicting evidence as to whether the nurse had harassed the co-worker; therefore, summary judgment was improperly granted. Smith-Price v. Charter Behavioral Health Sys., 164 N.C. App. 349, 595 S.E.2d 778, 2004 N.C. App. LEXIS 816 (2004).

Oral Guaranty. —

Trial court erred in granting the owners’ summary judgment motion as to an oral guaranty, as there were genuine issues of material fact concerning whether an oral guaranty was given and whether the main purpose rule was applicable, which would take the agreement out of the North Carolina Statute of Frauds, G.S. 22-1 . Watson Elec. Constr. Co. v. Summit Cos., LLC, 160 N.C. App. 647, 587 S.E.2d 87, 2003 N.C. App. LEXIS 1930 (2003).

Summary judgment was improper where plaintiffs forecast evidence that purchasing corporation was a “mere continuation” of the old corporation. Bryant v. Adams, 116 N.C. App. 448, 448 S.E.2d 832, 1994 N.C. App. LEXIS 1047 (1994).

Electronic Surveillance. —

Summary judgment was improperly granted on the husband’s claim that the wife illegally videotaped the husband’s in-home actions; because the husband did not establish that the videotaping included sound recordings, an issue of fact remained, as only oral communications were covered by G.S. 15A-287 . Kroh v. Kroh, 152 N.C. App. 347, 567 S.E.2d 760, 2002 N.C. App. LEXIS 915 (2002).

Where plaintiffs had reasonable notice that their agreement to charge pharmaceuticals to defendant’s open account was terminated, defendant was entitled to judgment as a matter of law; thus, the order of the trial court granting summary judgment in plaintiff’s favor was reversed. J.M. Smith Corp. v. Matthews, 123 N.C. App. 771, 474 S.E.2d 798, 1996 N.C. App. LEXIS 940 (1996).

Mitigation of Damages. —

Defendant’s affidavit presented a genuine issue of material fact as to the adequacy of plaintiff’s attempted mitigation of damages; therefore, the trial court incorrectly granted summary judgment on the issue of damages. RC Assocs. v. Regency Ventures, Inc., 111 N.C. App. 367, 432 S.E.2d 394, 1993 N.C. App. LEXIS 788 (1993).

Piercing the Corporate Veil. —

Because only one of several factors that can justify a court in piercing the corporate veil and treating a corporation as the alter ego of its officers or stockholders was established without contradiction by the materials in the record, the court correctly denied plaintiff ’s motion for summary judgment on the issue of piercing the corporate veil. Hoots v. Toms & Bazzle, 100 N.C. App. 412, 396 S.E.2d 820, 1990 N.C. App. LEXIS 1040 (1990).

In former board members’ derivative action suit against a non-profit corporation and current members of its board of directors, summary judgment in the current members’ favor was proper as G.S. 55A-7-40(a) did not include language allowing former directors to file a derivative action. Morris v. Thomas, 161 N.C. App. 680, 589 S.E.2d 419, 2003 N.C. App. LEXIS 2271 (2003).

Partnership Agreements. —

Trial court properly denied one partner’s motion for summary judgment as the other partners presented sufficient evidence of the partner’s breach of a partnership agreement, breach of fiduciary duty, constructive fraud, and unfair and deceptive trade practices to withstand the motion. Compton v. Kirby, 157 N.C. App. 1, 577 S.E.2d 905, 2003 N.C. App. LEXIS 369 (2003).

Grant of summary judgment was reversed and remanded because (1) it was unclear whether the trial court applied the newly adopted appropriate standard for judicial estoppel in determining that a partnership was judicially estopped from asserting ownership in stock based on a position taken by one of the partners in a bankruptcy proceeding; and (2) the trial court needed to address whether there was privity between the partner and the partnership. Whitacre P'ship v. BioSignia, Inc., 358 N.C. 1 , 591 S.E.2d 870, 2004 N.C. LEXIS 16 (2004).

Contributory Negligence of Paper Mill Operator. —

Genuine issues of fact, precluding summary judgment, existed as to whether a paper mill owner was contributorily negligent in operating a continuous digester system which the owner alleged had been improperly designed and installed by the system’s manufacturer. Federal Paper Bd. Co. v. Kamyr, Inc., 101 N.C. App. 329, 399 S.E.2d 411, 1991 N.C. App. LEXIS 11 (1991).

Action for Attorney’s Fees. —

Where there was a genuine issue of material fact as to whether a nurse anesthetist’s attorney fees were actually and necessarily incurred in connection with any threatened action seeking to hold her liable, summary judgment was not proper. Gregorino v. Charlotte-Mecklenburg Hosp. Auth., 121 N.C. App. 593, 468 S.E.2d 432, 1996 N.C. App. LEXIS 120 (1996).

Summary judgment was inappropriate where there were genuine issues of material fact with respect to plaintiff’s claim for attorney’s fees, specifically, the forecast of evidence produced by both parties did not establish whether plaintiff complied with the statutory notice requirement in G.S. 6-21.2(5) . Davis Lake Community Ass'n v. Feldmann, 138 N.C. App. 292, 530 S.E.2d 865, 2000 N.C. App. LEXIS 598 (2000).

Trial court erred in entering summary judgment in favor of ex-wife defendant on her cross-claim against ex-husband defendant for indemnity for plaintiffs’s attorneys’ fees in an underlying equitable distribution matter and for the expenses of litigation where genuine issues existed as to whether the ex-wife breached an agreement by failing to cooperate in the culmination of a settlement and whether she was solely liable for the contingency fee contract fees. Robinson, Bradshaw & Hinson, P.A. v. Smith, 139 N.C. App. 1, 532 S.E.2d 815, 2000 N.C. App. LEXIS 812 (2000).

For additional case in which summary judgment was held improper, see Wilkes County Vocational Workshop, Inc. v. United Sleep Prods., Inc., 321 N.C. 735 , 365 S.E.2d 292, 1988 N.C. LEXIS 236 (1988).

On State Constitutional Claims Not Included in Complaint. —

It was improper for the trial court to include a reference to plaintiff/bus driver’s state constitutional claims in its order granting summary judgment in favor of defendant/police officer where her amended complaint alleged North Carolina constitutional claims against the defendant/city through the police officer in his official capacity, not against him in his individual capacity. Glenn-Robinson v. Acker, 140 N.C. App. 606, 538 S.E.2d 601, 2000 N.C. App. LEXIS 1258 (2000).

False Arrest and Excessive Force. —

Summary judgment was improper on the plaintiff/bus driver’s claims of false arrest and excessive force where, although the defendant/police officer exited her bus and did not take her into custody, his “application of physical force,” coupled with his proclamation that she was under arrest, and her allegations that her exit was blocked, raise at least a genuine issue of material fact as to whether plaintiff was “arrested” for purposes of the Fourth Amendment. Glenn-Robinson v. Acker, 140 N.C. App. 606, 538 S.E.2d 601, 2000 N.C. App. LEXIS 1258 (2000).

Probable Cause. —

The defendant/police officer who stated that the plaintiff/bus driver was under arrest for violating G.S. 20-90(11) (now repealed) could later justify that arrest by reference to G.S. 20-114.1 because the offenses were sufficiently related; nevertheless, summary judgment was still not proper where he may have lacked probably cause to arrest her, even under this section; the facts tended to show that plaintiff was approached by an “angry,” “out of control” man wearing shorts, a plain t-shirt, and boots who “flashed something” at her “quickly;” asserted he was both a truck driver and a police officer; boarded her bus; ordered her to move her bus; grabbed her arm, unfastened her seatbelt, and told her she was under arrest; then exited her bus without writing her a citation or formally taking her into custody; furthermore, at no point did plaintiff acknowledge his status as a police officer nor was she even looking in his direction when he attempted to show her his badge at the window of the bus. Glenn-Robinson v. Acker, 140 N.C. App. 606, 538 S.E.2d 601, 2000 N.C. App. LEXIS 1258 (2000).

Assault, Battery and Negligence. —

Summary judgement was inappropriate for defendant-nephew who shoved and injured plaintiff-uncle where the record plainly reflected that defendant (through his attorney) approached plaintiff during the criminal suit stating that he did not intend the injurious act against plaintiff while, in the civil suit, defendant argued that he did intend the actions against plaintiff. Keech v. Hendricks, 141 N.C. App. 649, 540 S.E.2d 71, 2000 N.C. App. LEXIS 1399 (2000).

Assault and Battery. —

Summary judgment was not warranted on the basis that plaintiff’s suit was barred by the G.S. 1-54 statute of limitations for assault and battery where a genuine issue of material fact existed as to whether defendant intended to injure the plaintiff when he backed his vehicle into plaintiff’s truck on the highway. Britt v. Hayes, 142 N.C. App. 190, 541 S.E.2d 761, 2001 N.C. App. LEXIS 31 (2001).

Operation of a Coliseum. —

The defendant was not entitled to summary judgment on the basis of governmental immunity where, when viewed in the light most favorable to plaintiffs, the evidence demonstrates that defendant’s operation of a coliseum was a commercial enterprise and the operation of the Coliseum was a proprietary function. Pierson v. Cumberland County Civic Ctr. Comm'n, 141 N.C. App. 628, 540 S.E.2d 810, 2000 N.C. App. LEXIS 1394 (2000).

Claims Involving Multiple Defendants. —

In an action which an investor filed against an accountant, who worked for the investor’s former wife’s corporation, alleging that the accountant led him to believe the corporation was profitable so he would sign personal guarantees in favor of a bank that loaned the corporation money, the appellate court reversed the trial court’s judgment in favor of the accountant because there were questions of fact about whether a settlement the investor negotiated in a separate action against his former wife fully compensated the investor for his losses such that he was no longer entitled to recover damages from the accountant. Kogut v. Rosenfeld, 157 N.C. App. 487, 579 S.E.2d 400, 2003 N.C. App. LEXIS 741 (2003).

Employment. —

Trial court erred in granting an aggrieved employee summary judgment on a claim that G.S. 126-34.02 was unconstitutional as applied to him where he was an employee of the North Carolina Department of Public Safety, that agency was expressly exempt from the administrative hearing provisions of the APA, but the plain language of G.S. 126-5(h) provided the employee with a statutory right to a hearing before the Office of Administrative Hearings as to whether he was subject to the APA, and that right allowed him to address whether his exempt designation was proper via a contested case. Vincoli v. State, 250 N.C. App. 269, 792 S.E.2d 813, 2016 N.C. App. LEXIS 1102 (2016).

Breach of Contract Claim in Employment Case. —

Motion for partial summary judgment was properly denied in a breach of contract case because an at-will employee was permitted to bring a breach of contract action against an employer and its surety for deciding to terminate the employee in violation of public policy; the employee could have also brought a tort action for wrongful discharge if the employer had waived sovereign immunity. Hill v. Medford, 158 N.C. App. 618, 582 S.E.2d 325, 2003 N.C. App. LEXIS 1225 , rev'd, 357 N.C. 650 , 588 S.E.2d 467, 2003 N.C. LEXIS 1412 (2003).

Unsafe Employment Conditions. —

Trial court did not err in denying the owner and operator’s motions for summary judgment and directed verdict regarding the case of the worker who fell while working at their facility; since the owners controlled the facility they owed the employee a duty to see to it that the place where she fell was safe for passage, they did not show that she was contributorily negligent, and they did not show that the water on which she fell was an “open and obvious” condition that she should have discovered and avoided. Nelson v. Novant Health Triad Region, 159 N.C. App. 440, 583 S.E.2d 415, 2003 N.C. App. LEXIS 1492 (2003).

Validity of Separation Agreement. —

Because the allegations in plaintiff’s verified complaint challenged the validity of the separation agreement on grounds of lack of mental capacity, duress, and unconscionability, and defendant denied those allegations in his first verified responsive pleading and moved to dismiss plaintiff’s complaint by asserting the affirmative defenses that the separation agreement resolved the parties’ marital estate and waived their statutory rights to seek equitable distribution (ED) and spousal support, those pleadings raised genuine issues about the validity of the separation agreement, and defendant was not entitled to judgment as a matter of law on the ground that plaintiff’s ED and spousal support claims were waived in the separation agreement. Holton v. Holton, 258 N.C. App. 408, 813 S.E.2d 649, 2018 N.C. App. LEXIS 297 (2018).

IV.Burden on Motion for Summary Judgment

Movant Must Establish Lack of a Triable Issue. —

The burden is on the moving party to establish the lack of a triable issue of fact. Pridgen v. Hughes, 9 N.C. App. 635, 177 S.E.2d 425, 1970 N.C. App. LEXIS 1425 (1970); Haithcock v. Chimney Rock Co., 10 N.C. App. 696, 179 S.E.2d 865, 1971 N.C. App. LEXIS 1700 (1971); Moore v. Bryson, 11 N.C. App. 260, 181 S.E.2d 113, 1971 N.C. App. LEXIS 1502 (1971); Robinson v. McMahan, 11 N.C. App. 275, 181 S.E.2d 147, 1971 N.C. App. LEXIS 1504 , cert. denied, 279 N.C. 395 , 183 S.E.2d 243, 1971 N.C. LEXIS 825 (1971); Lineberger v. Colonial Life & Accident Ins. Co., 12 N.C. App. 135, 182 S.E.2d 643, 1971 N.C. App. LEXIS 1302 (1971); Brevard v. Barkley, 12 N.C. App. 665, 184 S.E.2d 370, 1971 N.C. App. LEXIS 1429 (1971); Millsaps v. Wilkes Contracting Co., 14 N.C. App. 321, 188 S.E.2d 663, 1972 N.C. App. LEXIS 2125 , cert. denied, 281 N.C. 623 , 190 S.E.2d 466, 1972 N.C. LEXIS 1129 (1972); Koontz v. City of Winston-Salem, 280 N.C. 513 , 186 S.E.2d 897, 1972 N.C. LEXIS 1276 (1972); Hinson v. Jefferson, 20 N.C. App. 204, 200 S.E.2d 812, 1973 N.C. App. LEXIS 1517 (1973); Zimmerman v. Hogg & Allen, 286 N.C. 24 , 209 S.E.2d 795, 1974 N.C. LEXIS 1175 (1974); Dendy v. Watkins, 288 N.C. 447 , 219 S.E.2d 214, 1975 N.C. LEXIS 1010 (1975); Shook Bldrs. Supply Co. v. Eastern Assocs., 24 N.C. App. 533, 211 S.E.2d 472, 1975 N.C. App. LEXIS 2422 (1975); Freeman v. Sturdivant Dev. Co., 25 N.C. App. 56, 212 S.E.2d 190, 1975 N.C. App. LEXIS 2168 (1975); Kidd v. Early, 289 N.C. 343 , 222 S.E.2d 392, 1976 N.C. LEXIS 1290 (1976); North Carolina Nat'l Bank v. Gillespie, 291 N.C. 303 , 230 S.E.2d 375, 1976 N.C. LEXIS 975 (1976); Cameron-Brown Capital Corp. v. Spencer, 31 N.C. App. 499, 229 S.E.2d 711, 1976 N.C. App. LEXIS 2025 (1976), cert. denied, 291 N.C. 710 , 232 S.E.2d 203, 1977 N.C. LEXIS 1240 (1977); Five Star Enters., Inc. v. Russell, 34 N.C. App. 275, 237 S.E.2d 859, 1977 N.C. App. LEXIS 1654 (1977); Wachovia Mtg. Co. v. Autry-Barker-Spurrier Real Estate, Inc., 39 N.C. App. 1, 249 S.E.2d 727, 1978 N.C. App. LEXIS 2330 (1978), aff'd, 297 N.C. 696 , 256 S.E.2d 688, 1979 N.C. LEXIS 1267 (1979); Baumann v. Smith, 298 N.C. 778 , 260 S.E.2d 626, 1979 N.C. LEXIS 1419 (1979); Moye v. Thrifty Gas Co., 40 N.C. App. 310, 252 S.E.2d 837, 1979 N.C. App. LEXIS 2251 , cert. denied, 297 N.C. 611 , 257 S.E.2d 219, 1979 N.C. LEXIS 1503 (1979); Lula Conrad Hoots Mem. Hosp. v. Hoots, 40 N.C. App. 595, 253 S.E.2d 330, 1979 N.C. App. LEXIS 2291 , cert. denied, 297 N.C. 609 , 257 S.E.2d 218, 1979 N.C. LEXIS 1495 (1979); Smith v. Currie, 40 N.C. App. 739, 253 S.E.2d 645, 1979 N.C. App. LEXIS 2327 , cert. denied, 297 N.C. 612 , 257 S.E.2d 219, 1979 N.C. LEXIS 1509 (1979); English v. Holden Beach Realty Corp., 41 N.C. App. 1, 254 S.E.2d 223, 1979 N.C. App. LEXIS 2386 , cert. denied, 297 N.C. 609 , 257 S.E.2d 217, 1979 N.C. LEXIS 1493 (1979); Baumann v. Smith, 41 N.C. App. 223, 254 S.E.2d 627, 1979 N.C. App. LEXIS 2438 , rev'd, 298 N.C. 778 , 260 S.E.2d 626, 1979 N.C. LEXIS 1419 (1979); Oliver v. Roberts, 49 N.C. App. 311, 271 S.E.2d 399, 1980 N.C. App. LEXIS 3402 (1980), cert. denied, 276 S.E.2d 283, 1981 N.C. LEXIS 1559 (N.C. 1981); Brenner v. Little Red Sch. House, Ltd., 302 N.C. 207 , 274 S.E.2d 206, 1981 N.C. LEXIS 1044 (1981); Stanback v. Stanback, 53 N.C. App. 243, 280 S.E.2d 498, 1981 N.C. App. LEXIS 2576 (1981); Moore v. Crumpton, 306 N.C. 618 , 295 S.E.2d 436, 1982 N.C. LEXIS 1550 (1982); Sharpe v. Quality Educ., Inc., 59 N.C. App. 304, 296 S.E.2d 661, 1982 N.C. App. LEXIS 3113 (1982); Seay v. Allstate Ins. Co., 59 N.C. App. 220, 296 S.E.2d 30, 1982 N.C. App. LEXIS 3075 (1982); Murphrey v. Winslow, 70 N.C. App. 10, 318 S.E.2d 849, 1984 N.C. App. LEXIS 3607 (1984), rev'd, 313 N.C. 320 , 327 S.E.2d 878, 1985 N.C. LEXIS 1536 (1985); Carlton v. Carlton, 74 N.C. App. 690, 329 S.E.2d 682, 1985 N.C. App. LEXIS 3572 (1985); Overstreet v. City of Raleigh, 75 N.C. App. 351, 330 S.E.2d 643, 1985 N.C. App. LEXIS 3639 (1985); Sanyo Elec., Inc. v. Albright Distrib. Co., 76 N.C. App. 115, 331 S.E.2d 738, 1985 N.C. App. LEXIS 3814 (1985); Lessard v. Lessard, 77 N.C. App. 97, 334 S.E.2d 475, 1985 N.C. App. LEXIS 4022 (1985), aff'd, 316 N.C. 546 , 342 S.E.2d 522, 1986 N.C. LEXIS 2146 (1986); Land-of-Sky Regional Council v. County of Henderson, 78 N.C. App. 85, 336 S.E.2d 653, 1985 N.C. App. LEXIS 4246 (1985); Hatfield v. Jefferson Std. Life Ins. Co., 85 N.C. App. 438, 355 S.E.2d 199, 1987 N.C. App. LEXIS 2616 (1987); Hall v. Post, 85 N.C. App. 610, 355 S.E.2d 819, 1987 N.C. App. LEXIS 2646 (1987), rev'd, 323 N.C. 259 , 372 S.E.2d 711, 1988 N.C. LEXIS 611 (1988); Higgins v. Higgins, 86 N.C. App. 513, 358 S.E.2d 553, 1987 N.C. App. LEXIS 2736 (1987), aff'd, 321 N.C. 482 , 364 S.E.2d 426, 1988 N.C. LEXIS 106 (1988); Brawley v. Brawley, 87 N.C. App. 545, 361 S.E.2d 759, 1987 N.C. App. LEXIS 3274 (1987); White v. Hunsinger, 88 N.C. App. 382, 363 S.E.2d 203, 1988 N.C. App. LEXIS 1197 (1988); Boudreau v. Baughman, 322 N.C. 331 , 368 S.E.2d 849, 1988 N.C. LEXIS 366 (1988).

The party moving for summary judgment has the burden of showing that there is no genuine issue as to any material fact. Miller v. Snipes, 12 N.C. App. 342, 183 S.E.2d 270, 1971 N.C. App. LEXIS 1356 , cert. denied, 279 N.C. 619 , 184 S.E.2d 883, 1971 N.C. LEXIS 901 (1971); Liberty Loan Corp. v. Miller, 15 N.C. App. 745, 190 S.E.2d 672, 1972 N.C. App. LEXIS 2020 (1972); Brawley v. Heymann, 16 N.C. App. 125, 191 S.E.2d 366, 1972 N.C. App. LEXIS 1653 , cert. denied, 282 N.C. 425 , 192 S.E.2d 835, 1972 N.C. LEXIS 976 (1972); Butler v. Berkeley, 25 N.C. App. 325, 213 S.E.2d 571, 1975 N.C. App. LEXIS 2261 (1975); Frank H. Conner Co. v. Spanish Inns Charlotte, Ltd., 294 N.C. 661 , 242 S.E.2d 785, 1978 N.C. LEXIS 1295 (1978); Carson v. Sutton, 35 N.C. App. 720, 242 S.E.2d 535, 1978 N.C. App. LEXIS 3067 (1978); Dixie Chem. Corp. v. Edwards, 68 N.C. App. 714, 315 S.E.2d 747, 1984 N.C. App. LEXIS 3432 (1984); Campbell v. Board of Educ., 76 N.C. App. 495, 333 S.E.2d 507, 1985 N.C. App. LEXIS 3908 (1985); Uzzell v. Integon Life Ins. Corp., 78 N.C. App. 458, 337 S.E.2d 639, 1985 N.C. App. LEXIS 4285 (1985), cert. denied, 317 N.C. 341 , 346 S.E.2d 149, 1986 N.C. LEXIS 2342 (1986).

When the party bringing the cause of action moves for summary judgment, he must establish that all of the facts on all of the essential elements of his claim are in his favor and that there is no genuine issue of material fact with respect to any one of the essential elements of his claim. Steel Creek Dev. Corp. v. Smith, 300 N.C. 631 , 268 S.E.2d 205, 1980 N.C. LEXIS 1137 (1980).

In order to bear its burden of showing that it was entitled to summary judgment, a defendant is required to present a forecast of the evidence which is available at trial and which shows that there is no material issue of fact concerning an essential element of the plaintiff’s claim and that such element could not be proved by the plaintiff through the presentation of substantial evidence. Jenkins v. Stewart & Everett Theatres, Inc., 41 N.C. App. 262, 254 S.E.2d 776, 1979 N.C. App. LEXIS 2439 , cert. denied, 297 N.C. 698 , 259 S.E.2d 295, 1979 N.C. LEXIS 1535 (1979).

A defendant must show as a matter of law that he is entitled to summary judgment in his favor by showing that there is no genuine issue of material fact concerning an essential element of the plaintiff’s claim for relief and that the plaintiff cannot prove the existence of that element. Blue Ridge Sportcycle Co. v. Schroader, 60 N.C. App. 578, 299 S.E.2d 303, 1983 N.C. App. LEXIS 2499 (1983).

A defendant is entitled to summary judgment only when he can produce a forecast of evidence, which when viewed most favorably to plaintiff would, if offered by plaintiff at trial, without more, compel a directed verdict in defendant’s favor, or if defendant can show through discovery that plaintiff cannot support his claim. Coats v. Jones, 63 N.C. App. 151, 303 S.E.2d 655, 1983 N.C. App. LEXIS 3029 , aff'd, 309 N.C. 815 , 309 S.E.2d 253, 1983 N.C. LEXIS 1468 (1983).

The moving party has the burden of establishing that there is no genuine issue as to any material fact, entitling him to judgment as a matter of law. This motion requires the movant and the opponent to produce a forecast of the evidence he will present at trial. Normile v. Miller, 63 N.C. App. 689, 306 S.E.2d 147, 1983 N.C. App. LEXIS 3195 (1983), modified, 313 N.C. 98 , 326 S.E.2d 11, 1985 N.C. LEXIS 1521 (1985).

The party moving for summary judgment has the burden of establishing the absence of any triable issue of fact. His papers are meticulously scrutinized and all inferences are resolved against him. Joel T. Cheatham, Inc. v. Hall, 64 N.C. App. 678, 308 S.E.2d 457, 1983 N.C. App. LEXIS 3355 (1983); Boyce v. Meade, 71 N.C. App. 592, 322 S.E.2d 605, 1984 N.C. App. LEXIS 3902 (1984).

The party moving for summary judgment ultimately has the burden of establishing the lack of any triable issue of fact. Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488 , 329 S.E.2d 350, 1985 N.C. LEXIS 1555 (1985).

The party moving for summary judgment has the burden of clearly establishing a lack of any triable issue of fact by the record proper before the court. Jennings Communications Corp. v. PCG of Golden Strand, Inc., 126 N.C. App. 637, 486 S.E.2d 229, 1997 N.C. App. LEXIS 610 (1997).

The moving party has the burden of clearly establishing the lack of any triable issue of fact; his papers are carefully scrutinized while those of the nonmoving party are indulgently regarded. Town of West Jefferson v. Edwards, 74 N.C. App. 377, 329 S.E.2d 407, 1985 N.C. App. LEXIS 3542 (1985); Almond Grading Co. v. Shaver, 74 N.C. App. 576, 329 S.E.2d 417, 1985 N.C. App. LEXIS 3517 (1985).

The party moving for summary judgment has the burden of showing the lack of any genuine issue of material fact. If the movant is also the party bringing the action, he must establish his claim beyond any genuine dispute with respect to any material fact. Lambe-Young, Inc. v. Austin, 75 N.C. App. 569, 331 S.E.2d 293, 1985 N.C. App. LEXIS 3673 (1985).

A party moving for summary judgment must establish that there is no genuine issue of material fact or that it has a complete defense as a matter of law. Walker v. Westinghouse Elec. Corp., 77 N.C. App. 253, 335 S.E.2d 79, 1985 N.C. App. LEXIS 4104 (1985).

As the movants for summary judgment, plaintiffs had the burden of clearly establishing by the record presented to the court that there was no triable issue of fact in regard to defendants’ counterclaim. Rose v. Lang, 85 N.C. App. 690, 355 S.E.2d 795, 1987 N.C. App. LEXIS 2651 (1987).

Insurance and securities broker was properly granted summary judgment on investors’ vicarious liability claims against the broker because, assuming arguendo that an agent and a subagent committed torts in selling investments to the investors, the investors could not show that the broker was vicariously liable for the torts as the agent and subagent were independent contractors of the broker, and the investors knew that the agent and the subagent were not acting as agents of the broker. Estate of Redding v. Welborn, 170 N.C. App. 324, 612 S.E.2d 664, 2005 N.C. App. LEXIS 1001 (2005).

By the Record Before the Court. —

The party moving for summary judgment has the burden of clearly establishing the lack of any triable issue of fact by the record properly before the court. Singleton v. Stewart, 280 N.C. 460 , 186 S.E.2d 400, 1972 N.C. LEXIS 1265 (1972); Page v. Sloan, 281 N.C. 697 , 190 S.E.2d 189, 1972 N.C. LEXIS 1162 (1972); Wall v. Flack, 15 N.C. App. 747, 190 S.E.2d 671, 1972 N.C. App. LEXIS 2021 (1972); Houck v. Overcash, 282 N.C. 623 , 193 S.E.2d 905, 1973 N.C. LEXIS 1134 (1973); Kiser v. Snyder, 17 N.C. App. 445, 194 S.E.2d 638, 1973 N.C. App. LEXIS 1380 , cert. denied, 283 N.C. 257 , 195 S.E.2d 689, 1973 N.C. LEXIS 943 (1973); Norfolk & W. Ry. v. Werner Indus., Inc., 286 N.C. 89 , 209 S.E.2d 734, 1974 N.C. LEXIS 1181 (1974); Caldwell v. Deese, 288 N.C. 375 , 218 S.E.2d 379, 1975 N.C. LEXIS 986 (1975); Reavis v. Campbell, 27 N.C. App. 231, 218 S.E.2d 873, 1975 N.C. App. LEXIS 1804 (1975); Furst v. Loftin, 29 N.C. App. 248, 224 S.E.2d 641, 1976 N.C. App. LEXIS 2454 (1976); Executive Leasing Assocs. v. Rowland, 30 N.C. App. 590, 227 S.E.2d 642, 1976 N.C. App. LEXIS 2309 (1976); Pitts v. Village Inn Pizza, Inc., 296 N.C. 81 , 249 S.E.2d 375, 1978 N.C. LEXIS 1162 (1978); Robinson v. Duszynski, 36 N.C. App. 103, 243 S.E.2d 148, 1978 N.C. App. LEXIS 2412 (1978); Johnson v. Phoenix Mut. Life Ins. Co., 300 N.C. 247 , 266 S.E.2d 610, 1980 N.C. LEXIS 1069 (1980); Branch Banking & Trust Co. v. Creasy, 301 N.C. 44 , 269 S.E.2d 117, 1980 N.C. LEXIS 1142 (1980); Cockerham v. Ward, 44 N.C. App. 615, 262 S.E.2d 651, 1980 N.C. App. LEXIS 2548 , cert. denied, 300 N.C. 195 , 269 S.E.2d 622, 1980 N.C. LEXIS 1489 (1980); Heritage Communities of N.C. Inc. v. Powers, Inc., 49 N.C. App. 656, 272 S.E.2d 399, 1980 N.C. App. LEXIS 3441 (1980); Miller v. Triangle Volkswagen, Inc., 55 N.C. App. 593, 286 S.E.2d 608, 1982 N.C. App. LEXIS 2252 (1982).

And Must Show Entitlement to Judgment. —

The moving party must clearly establish that there is no triable issue of fact and that it is entitled to judgment as a matter of law. Edwards v. Akion, 52 N.C. App. 688, 279 S.E.2d 894, 1981 N.C. App. LEXIS 2542 , aff'd, 304 N.C. 585 , 284 S.E.2d 518, 1981 N.C. LEXIS 1370 (1981); Derrick v. Ray, 61 N.C. App. 218, 300 S.E.2d 721, 1983 N.C. App. LEXIS 2652 (1983).

Every party moving for summary judgment has the burden of proving that it is entitled to judgment in its favor. Olney Paint Co. v. Zalewski, 29 N.C. App. 149, 223 S.E.2d 573, 1976 N.C. App. LEXIS 2398 (1976).

A party moving for summary judgment must show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Oestreicher v. American Nat’l Stores, Inc., 290 N.C. 118 , 225 S.E.2d 797 (1976); Hicks v. Old Republic Life Ins. Co., 29 N.C. App. 561, 225 S.E.2d 164 (1976); Stancill v. City of Washington, 29 N.C. App. 707, 225 S.E.2d 834 (1976); Boone v. Fuller, 30 N.C. App. 107, 226 S.E.2d 191 (1976); Econo-Travel Motor Hotel Corp. v. Taylor, 301 N.C. 200 , 271 S.E.2d 54 (1980); Rockingham Square Shopping Center, Inc. v. Town of Madison, 45 N.C. App. 249, 262 S.E.2d 705 (1980); Southern Nat’l Bank v. B & E Constr. Co., 46 N.C. App. 736, 266 S.E.2d 1 (1980); General Greene Inv. Co. v. Greene, 48 N.C. App. 29, 268 S.E.2d 810, cert. denied, 301 N.C. 235 , 283 S.E.2d 132 (1980); Mace v. Bryant Constr. Corp., 48 N.C. App. 297, 269 S.E.2d 191 (1980); O’Neal v. Kellett, 55 N.C. App. 225, 284 S.E.2d 707 (1981); Ind-Com Elec. Co. v. First Union Nat’l Bank, 58 N.C. App. 215, 293 S.E.2d 215 (1982); Kaimowitz v. Duke L.J., 68 N.C. App. 463, 315 S.E.2d 82 (1984); Cox v. Cox, 75 N.C. App. 354, 330 S.E.2d 506 (1985); Bjornsson v. Mize, 75 N.C. App. 289, 330 S.E.2d 520, cert. denied, 314 N.C. 537 , 335 S.E.2d 13 (1985); Branch Banking & Trust Co. v. Kenyon Inv. Corp., 76 N.C. App. 1, 332 S.E.2d 186; Pardue v. Northwestern Bank, 77 N.C. App. 834, 336 S.E.2d 456 (1985); Surrette v. Duke Power Co., 78 N.C. App. 647, 338 S.E.2d 129 (1986). In accord with third paragraph in bound volume. See Lyles v. City of Charlotte, 120 N.C. App. 96, 461 S.E.2d 347, 1995 N.C. App. LEXIS 698 (1995), rev'd, 344 N.C. 676 , 477 S.E.2d 150, 1996 N.C. LEXIS 523 (1996).

Once movant establishes that there is no genuine issue of material fact, he must further prove that he is entitled to judgment as a matter of law. In re Will of Edgerton, 29 N.C. App. 60, 223 S.E.2d 524, 1976 N.C. App. LEXIS 2377 , cert. denied, 290 N.C. 308 , 225 S.E.2d 832, 1976 N.C. LEXIS 1062 (1976).

Because the burden is on the moving party to establish the lack of a triable issue of fact, the motion may only be granted where he shows that he is entitled to a judgment as a matter of law. Long v. Long, 15 N.C. App. 525, 190 S.E.2d 415, 1972 N.C. App. LEXIS 1956 (1972).

Movant for summary judgment must make it perfectly clear that he was entitled to judgment as a matter of law. Shook Bldrs. Supply Co. v. Eastern Assocs., 24 N.C. App. 533, 211 S.E.2d 472, 1975 N.C. App. LEXIS 2422 (1975); Lambert v. Duke Power Co., 32 N.C. App. 169, 231 S.E.2d 31, 1977 N.C. App. LEXIS 1877 , cert. denied, 292 N.C. 265 , 233 S.E.2d 392, 1977 N.C. LEXIS 1069 (1977).

In order to prevail on a summary judgment motion, defendant must carry the burden of establishing the lack of a genuine issue as to any material fact and entitlement to judgment as a matter of law. Clodfelter v. Bates, 44 N.C. App. 107, 260 S.E.2d 672, 1979 N.C. App. LEXIS 3182 (1979), cert. denied, 299 N.C. 329 , 265 S.E.2d 394, 1980 N.C. LEXIS 1004 (1980); Bernick v. Jurden, 306 N.C. 435 , 293 S.E.2d 405, 1982 N.C. LEXIS 1448 (1982).

Regardless of Who Has Burden of Proof at Trial. —

Irrespective of who has the burden of proof at trial upon issues raised by the pleadings, upon a motion for summary judgment the burden is upon the party moving therefor to establish that there is no genuine issue of fact remaining for determination and that he is entitled to judgment as a matter of law. First Fed. Sav. & Loan Ass'n v. Branch Banking & Trust Co., 282 N.C. 44 , 191 S.E.2d 683, 1972 N.C. LEXIS 885 (1972); Whitley v. Cubberly, 24 N.C. App. 204, 210 S.E.2d 289, 1974 N.C. App. LEXIS 1963 (1974); Keith v. S.S. Kresge Co., 29 N.C. App. 579, 225 S.E.2d 135, 1976 N.C. App. LEXIS 2571 (1976).

The burden is on the party moving for summary judgment to show that there is no genuine issue of material fact, regardless of who will have the burden of proof on the issue at trial. In re Will of Edgerton, 29 N.C. App. 60, 223 S.E.2d 524, 1976 N.C. App. LEXIS 2377 , cert. denied, 290 N.C. 308 , 225 S.E.2d 832, 1976 N.C. LEXIS 1062 (1976).

The burden to show that there is no genuine issue of material fact rests on the party moving for summary judgment, whether he or his opponent would at trial have the burden of proof on the issue concerned, and rests on him whether he is by it required to show the existence or nonexistence of facts. Whitley v. Cubberly, 24 N.C. App. 204, 210 S.E.2d 289, 1974 N.C. App. LEXIS 1963 (1974).

The movant must meet his burden of proof even when he does not have the burden of proof at trial. Norfolk & W. Ry. v. Werner Indus., Inc., 286 N.C. 89 , 209 S.E.2d 734, 1974 N.C. LEXIS 1181 (1974).

When the party with the burden of proof moves for summary judgment, he must show that there are no genuine issues of fact, that there are no gaps in his proof, that no inferences inconsistent with his recovery arise from the evidence, and that there is no standard that must be applied to the facts by the jury. The party with the burden of proof who moves for summary judgment supported only by his own affidavits will ordinarily not be able to meet these requirements and thus will not be entitled to summary judgment. Parks Chevrolet, Inc. v. Watkins, 74 N.C. App. 719, 329 S.E.2d 728, 1985 N.C. App. LEXIS 3563 (1985).

If a defendant moves for summary judgment, he assumes the burden of producing evidence of the necessary certitude which negatives plaintiff’s claim. The burden of proof is reversed from what it would be if the case were at the trial stage. Clodfelter v. Bates, 44 N.C. App. 107, 260 S.E.2d 672, 1979 N.C. App. LEXIS 3182 (1979), cert. denied, 299 N.C. 329 , 265 S.E.2d 394, 1980 N.C. LEXIS 1004 (1980).

A defendant who moves for summary judgment assumes the burden of positively and clearly showing that there is no genuine issue as to any material fact and that he or she is entitled to judgment as a matter of law. A defendant may meet this burden by (1) proving that an essential element of the plaintiff’s case is nonexistent; or (2) showing through discovery that the plaintiff cannot produce evidence to support an essential element of his or her claim; or (3) showing that the plaintiff cannot surmount an affirmative defense which would bar the claim. Once the defendant satisfies his or her burden of proof, the burden shifts to the plaintiff to present a forecast of evidence which shows that a genuine issue of fact exists, or to provide an excuse for not so doing. Watts v. Cumberland County Hosp. Sys., 75 N.C. App. 1, 330 S.E.2d 242, 1985 N.C. App. LEXIS 3577 (1985), rev'd, 317 N.C. 321 , 345 S.E.2d 201, 1986 N.C. LEXIS 2791 (1986).

A defendant who moves for summary judgment may meet his burden by showing either that (1) an essential element of plaintiff’s claim is nonexistent; (2) plaintiff cannot produce evidence to support an essential element of its claim; or (3) plaintiff cannot surmount an affirmative defense raised in bar of its claim. Lyles v. City of Charlotte, 120 N.C. App. 96, 461 S.E.2d 347, 1995 N.C. App. LEXIS 698 (1995), rev'd, 344 N.C. 676 , 477 S.E.2d 150, 1996 N.C. LEXIS 523 (1996).

Party moving for summary judgment must establish the lack of any triable issue of material fact by proving that an essential element of the opposing party’s claim is non-existent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim or cannot surmount an affirmative defense which would bar the claim; the burden then shifts to the nonmoving party to produce a forecast of evidence demonstrating that the nonmoving party will be able to make out at least a prima facie case at trial. Smith-Price v. Charter Behavioral Health Sys., 164 N.C. App. 349, 595 S.E.2d 778, 2004 N.C. App. LEXIS 816 (2004).

Movant Must Negative Opponent’s Claim in Its Entirety. —

The party moving for summary judgment carries the burden of producing evidence of the necessary certitude to negative plaintiff’s claim in its entirety and thereby demonstrate a lack of genuine issues of material fact. Caldwell v. Deese, 26 N.C. App. 435, 216 S.E.2d 452, 1975 N.C. App. LEXIS 2070 , rev'd, 288 N.C. 375 , 218 S.E.2d 379, 1975 N.C. LEXIS 986 (1975).

And Establish Own Claim Beyond Dispute. —

The moving party must establish his claim beyond any genuine dispute with respect to any of the material facts. Steel Creek Dev. Corp. v. Smith, 300 N.C. 631 , 268 S.E.2d 205, 1980 N.C. LEXIS 1137 (1980).

Movant Shifted Burden by Showing Opponent Lacked Standing. —

Because defendant met its summary judgment burden by showing that there was no genuine issue of material fact due to lack of standing, the burden shifted to plaintiff. Landfall Group Against Paid Transferability v. Landfall Club, Inc., 117 N.C. App. 270, 450 S.E.2d 513, 1994 N.C. App. LEXIS 1208 (1994).

Burden of Proof on Movant. —

The burden on the party moving for summary judgment may be carried by proving that an essential element of the opposing party’s claim is nonexistent. Executive Leasing Assocs. v. Rowland, 30 N.C. App. 590, 227 S.E.2d 642, 1976 N.C. App. LEXIS 2309 (1976).

When the party without the burden of proof on the substantive claim or defense moves for summary judgment he is entitled to it if he can meet the burden of proving that any one or more of the essential elements of the opposing party’s claim or defense is nonexistent. Steel Creek Dev. Corp. v. Smith, 300 N.C. 631 , 268 S.E.2d 205, 1980 N.C. LEXIS 1137 (1980).

A defendant-movant must produce evidence of the necessary certitude which negatives any one or more of the essential elements of plaintiff’s claim. Edwards v. Northwestern Bank, 39 N.C. App. 261, 250 S.E.2d 651, 1979 N.C. App. LEXIS 2501 (1979).

In order to prevail, a movant must establish the absence of any material issue of fact. One way he can meet this burden is by showing the nonexistence of an essential element of the plaintiff’s claim for relief. Southerland v. Kapp, 59 N.C. App. 94, 295 S.E.2d 602, 1982 N.C. App. LEXIS 2854 (1982).

The party moving for summary judgment meets its burden by proving that an essential element of the opposing party’s claim is non-existent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of the claim. Estate of Mullis v. Monroe Oil Co., 349 N.C. 196 , 505 S.E.2d 131, 1998 N.C. LEXIS 592 (1998).

Showing That Opponent Cannot Produce Evidence to Support Its Claim Satisfies Burden. —

The movant can satisfy his burden either by proving that an essential element of the opposing party’s claim is nonexistent or by showing, through discovery, that the opposing party cannot produce evidence to support an essential element of its claim. Zimmerman v. Hogg & Allen, 286 N.C. 24 , 209 S.E.2d 795, 1974 N.C. LEXIS 1175 (1974); Harris v. Barham, 35 N.C. App. 13, 239 S.E.2d 717, 1978 N.C. App. LEXIS 2854 (1978); Wachovia Mtg. Co. v. Autry-Barker-Spurrier Real Estate, Inc., 39 N.C. App. 1, 249 S.E.2d 727, 1978 N.C. App. LEXIS 2330 (1978), aff'd, 297 N.C. 696 , 256 S.E.2d 688, 1979 N.C. LEXIS 1267 (1979); Durham v. Vine, 40 N.C. App. 564, 253 S.E.2d 316, 1979 N.C. App. LEXIS 2303 (1979); Roumillat v. Simplistic Enters., 331 N.C. 57 , 414 S.E.2d 339, 1992 N.C. LEXIS 149 (1992); City of Thomasville v. Lease-Afex, Inc., 300 N.C. 651 , 268 S.E.2d 190, 1980 N.C. LEXIS 1130 (1980); Cockerham v. Ward, 44 N.C. App. 615, 262 S.E.2d 651, 1980 N.C. App. LEXIS 2548 , cert. denied, 300 N.C. 195 , 269 S.E.2d 622, 1980 N.C. LEXIS 1489 (1980); Spivey v. White Motor Corp., 46 N.C. App. 313, 264 S.E.2d 772, 1980 N.C. App. LEXIS 2824 (1980); Gregory v. Perdue, Inc., 47 N.C. App. 655, 267 S.E.2d 584, 1980 N.C. App. LEXIS 3163 (1980); Oliver v. Roberts, 49 N.C. App. 311, 271 S.E.2d 399, 1980 N.C. App. LEXIS 3402 (1980), cert. denied, 276 S.E.2d 283, 1981 N.C. LEXIS 1559 (N.C. 1981); Gelder & Assocs. v. Huggins, 52 N.C. App. 336, 278 S.E.2d 295, 1981 N.C. App. LEXIS 2441 (1981); Tyson v. North Carolina Nat'l Bank, 53 N.C. App. 189, 280 S.E.2d 478, 1981 N.C. App. LEXIS 2571 (1981), modified, 305 N.C. 136 , 286 S.E.2d 561, 1982 N.C. LEXIS 1250 (1982); Asheville Contracting Co. v. City of Wilson, 62 N.C. App. 329, 303 S.E.2d 365, 1983 N.C. App. LEXIS 2929 (1983); Byrd Motor Lines v. Dunlop Tire & Rubber Corp., 63 N.C. App. 292, 304 S.E.2d 773, 1983 N.C. App. LEXIS 3050 (1983); Herbert v. Browning-Ferris Indus. of S. Atl., Inc., 90 N.C. App. 339, 368 S.E.2d 416, 1988 N.C. App. LEXIS 555 (1988); Evans v. Appert, 91 N.C. App. 362, 372 S.E.2d 94, 1988 N.C. App. LEXIS 878 (1988).

A party moving for summary judgment may prevail if it meets the burden (1) of proving that an essential element of the opposing party’s claim is nonexistent, or (2) of showing through discovery that the opposing party cannot produce evidence to support an essential element of his or her claim. Taylor v. Greensboro News Co., 57 N.C. App. 426, 291 S.E.2d 852, 1982 N.C. App. LEXIS 2679 (1982); 53 N.C. App. 492, 281 S.E.2d 86 (1981); Kidd v. Early, 289 N.C. 343 , 222 S.E.2d 392, 1976 N.C. LEXIS 1290 (1976); Olney Paint Co. v. Zalewski, 29 N.C. App. 149, 223 S.E.2d 573, 1976 N.C. App. LEXIS 2398 (1976); Carson v. Sutton, 35 N.C. App. 720, 242 S.E.2d 535, 1978 N.C. App. LEXIS 3067 (1978).

To succeed in a summary judgment motion, the movant has the burden of showing, based on pleadings, depositions, answers, admissions, and affidavits, there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Defendant may meet this burden by showing either (1) an essential element of the nonmovant’s claim is nonexistent, (2) the nonmovant cannot produce evidence to support an essential element of his claim, (3) or the nonmovant cannot surmount an affirmative defense which would bar his claim. Taylor v. Ashburn, 112 N.C. App. 604, 436 S.E.2d 276, 1993 N.C. App. LEXIS 1195 (1993), cert. denied, 336 N.C. 77 , 445 S.E.2d 46, 1994 N.C. LEXIS 192 (1994).

The party seeking summary judgment must establish the absence of any triable issue; this burden may be met by (1) proving the nonexistence of an essential element of the opposing party’s claim, (2) establishing through discovery that the opponent cannot produce evidence supporting an essential element, or (3) showing that the opposing party cannot overcome an affirmative defense that would bar the claim. N.C. Farm Bureau Mut. Ins. Co. v. Allen, 146 N.C. App. 539, 553 S.E.2d 420, 2001 N.C. App. LEXIS 988 (2001).

Or to Surmount an Affirmative Defense. —

A defending party is entitled to summary judgment if he can show that the claimant cannot prove the existence of an essential element of his claim or cannot surmount an affirmative defense which would bar the claim. Dickens v. Puryear, 302 N.C. 437 , 276 S.E.2d 325, 1981 N.C. LEXIS 1073 (1981); Town of West Jefferson v. Edwards, 74 N.C. App. 377, 329 S.E.2d 407, 1985 N.C. App. LEXIS 3542 (1985); Walker v. Durham Life Ins. Co., 90 N.C. App. 191, 368 S.E.2d 43, 1988 N.C. App. LEXIS 448 (1988).

Defendant may meet its burden by proving that an essential element of the opposing party’s claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his or her claim or cannot surmount an affirmative defense which would bar the claim. Bernick v. Jurden, 306 N.C. 435 , 293 S.E.2d 405, 1982 N.C. LEXIS 1448 (1982); Sanyo Elec., Inc. v. Albright Distrib. Co., 76 N.C. App. 115, 331 S.E.2d 738, 1985 N.C. App. LEXIS 3814 (1985); Boudreau v. Baughman, 322 N.C. 331 , 368 S.E.2d 849, 1988 N.C. LEXIS 366 (1988).

Denials In Unverified Answer Insufficient To Withstand Motion For Summary Judgment. —

As defendant’s answer to the complaint was not verified, the denials contained in that answer were insufficient to defeat plaintiffs’ motion for summary judgment. Dixon v. Hill, 174 N.C. App. 252, 620 S.E.2d 715, 2005 N.C. App. LEXIS 2393 (2005), cert. denied, 548 U.S. 906, 126 S. Ct. 2972, 165 L. Ed. 2d 954, 2006 U.S. LEXIS 4950 (2006).

Question of when the burden will shift to the opposing party may depend on the type of proof utilized by the moving party. Old S. Life Ins. Co. v. Bank of N.C. 36 N.C. App. 18, 244 S.E.2d 264, 1978 N.C. App. LEXIS 2401 (1978).

Failure to Respond Not Always Fatal. —

Not every failure of the opposing party to respond to a motion for summary judgment will require the entry of summary judgment. Kidd v. Early, 289 N.C. 343 , 222 S.E.2d 392, 1976 N.C. LEXIS 1290 (1976).

Under some circumstances the trial judge may properly deny the motion for summary judgment even when the nonmoving party fails to offer competent counter-affidavits or other evidence. Baumann v. Smith, 298 N.C. 778 , 260 S.E.2d 626, 1979 N.C. LEXIS 1419 (1979).

Granting of summary judgment where the adverse party does not respond to the motion “by affidavits or as otherwise provided in this rule” is proper only “if appropriate” under all of the circumstances of the case. Robinson v. McMahan, 11 N.C. App. 275, 181 S.E.2d 147, 1971 N.C. App. LEXIS 1504 , cert. denied, 279 N.C. 395 , 183 S.E.2d 243, 1971 N.C. LEXIS 825 (1971); Brevard v. Barkley, 12 N.C. App. 665, 184 S.E.2d 370, 1971 N.C. App. LEXIS 1429 (1971).

On a motion for summary judgment the moving party has the burden of establishing that there is no genuine issue as to any material fact. Once the moving party has met its burden, the opposing party may not rest on the mere allegations or denials of his pleading. Instead, the opposing party must set forth specific facts showing that there is a genuine issue for trial, either by affidavits or as otherwise provided in this rule. If the opposing party is unable to present the necessary opposing material he may seek the protection of section (f) of this rule, which gives the trial court the discretion to refuse the motion for judgment or order a continuance. Gillis v. Whitley's Disct. Auto Sales, Inc., 70 N.C. App. 270, 319 S.E.2d 661, 1984 N.C. App. LEXIS 3643 (1984).

Mere failure of the nonmoving party to respond with opposing affidavits or depositions does not automatically mean that summary judgment is appropriate. The moving party must still succeed on the strength of its evidence, and when that evidence contains material contradictions or leaves questions of credibility unanswered the movant has failed to satisfy its burden. Perry v. Aycock, 68 N.C. App. 705, 315 S.E.2d 791, 1984 N.C. App. LEXIS 3426 (1984).

The mere failure of the nonmoving party to respond with opposing affidavits or depositions does not automatically mean that summary judgment is appropriate, and the moving party must still succeed on the strength of its evidence. Cellu Prods. Co. v. G.T.E. Prods. Corp., 81 N.C. App. 474, 344 S.E.2d 566, 1986 N.C. App. LEXIS 2321 (1986).

If movant fails to carry his burden of proof, the opposing party does not have to respond and summary judgment is not proper regardless of whether he responds or not. Steel Creek Dev. Corp. v. Smith, 300 N.C. 631 , 268 S.E.2d 205, 1980 N.C. LEXIS 1137 (1980); Almond Grading Co. v. Shaver, 74 N.C. App. 576, 329 S.E.2d 417, 1985 N.C. App. LEXIS 3517 (1985).

If the moving party fails in his showing, summary judgment is not proper regardless of whether the opponent responds. Bernick v. Jurden, 306 N.C. 435 , 293 S.E.2d 405, 1982 N.C. LEXIS 1448 (1982); Brown v. Fulford, 311 N.C. 205 , 316 S.E.2d 220, 1984 N.C. LEXIS 1711 (1984).

On motion for summary judgment, movant has the burden of showing the absence of a genuine issue as to any material fact. When movant fails to carry this burden, summary judgment should be denied, even though no opposing evidence is presented. Durham v. Vine, 40 N.C. App. 564, 253 S.E.2d 316, 1979 N.C. App. LEXIS 2303 (1979); Atkins v. Beasley, 53 N.C. App. 33, 279 S.E.2d 866, 1981 N.C. App. LEXIS 2534 (1981).

If the movant’s forecast of evidence which he has available for presentation at trial fails to establish that there is no genuine issue of fact remaining for determination, summary judgment is not proper, whether or not the opponent responds. First Fed. Sav. & Loan Ass'n v. Branch Banking & Trust Co., 282 N.C. 44 , 191 S.E.2d 683, 1972 N.C. LEXIS 885 (1972).

Until defendant-movant meets his initial burden, the opposing party, even though he may bear the burden of proof at trial, need not respond with evidence showing further support for his claim and a grant of summary judgment in defendant’s favor is improper. Edwards v. Northwestern Bank, 39 N.C. App. 261, 250 S.E.2d 651, 1979 N.C. App. LEXIS 2501 (1979).

Motion for summary judgment should ordinarily be denied even though the opposing party makes no response, if: (1) the movant’s supporting evidence is self-contradictory or circumstantially suspicious or the credibility of a witness is inherently suspect either because he is interested in the outcome of the case and the facts are peculiarly within his knowledge or because he has testified as to matters of opinion involving a substantial margin for honest error, (2) there are significant gaps in the movant’s evidence or it is circumstantial and reasonably allows inferences inconsistent with the existence of an essential element, or (3) although all the evidentiary or historical facts are established, reasonable minds may still differ over their application to some principle such as the prudent man standard for negligence cases. Kidd v. Early, 289 N.C. 343 , 222 S.E.2d 392, 1976 N.C. LEXIS 1290 (1976); Carson v. Sutton, 35 N.C. App. 720, 242 S.E.2d 535, 1978 N.C. App. LEXIS 3067 (1978).

Nonmovant does not have burden of coming forward until movant produces evidence of the necessary certitude which negatives the claim of the party opposing the motion against it in its entirety. Whitley v. Cubberly, 24 N.C. App. 204, 210 S.E.2d 289, 1974 N.C. App. LEXIS 1963 (1974); Butler v. Berkeley, 25 N.C. App. 325, 213 S.E.2d 571, 1975 N.C. App. LEXIS 2261 (1975); Mace v. Bryant Constr. Corp., 48 N.C. App. 297, 269 S.E.2d 191, 1980 N.C. App. LEXIS 3245 (1980).

The burden rests on the movant to make a conclusive showing; until then, the nonmovant has no burden to produce evidence. VEPCO v. Tillett, 80 N.C. App. 383, 343 S.E.2d 188, 1986 N.C. App. LEXIS 2212 , cert. denied, 317 N.C. 715 , 347 S.E.2d 457, 1986 N.C. LEXIS 2452 (1986).

If the moving party satisfies its burden of proof, then the burden shifts to the nonmoving party to set forth specific facts showing that there is a genuine issue for trial. The nonmoving party may not rest upon the mere allegations of his pleadings. Taylor v. Greensboro News Co., 57 N.C. App. 426, 291 S.E.2d 852, 1982 N.C. App. LEXIS 2679 (1982); 316 N.C. 374 , 342 S.E.2d 889 (1986); White v. Hunsinger, 88 N.C. App. 382, 363 S.E.2d 203, 1988 N.C. App. LEXIS 1197 (1988).

Once the movant for summary judgment demonstrates that no material issues of fact exist, the burden shifts to the nonmovant to set forth specific facts showing that genuine issues of fact remain for trial. Orient Point Assocs. v. Plemmons, 68 N.C. App. 472, 315 S.E.2d 366, 1984 N.C. App. LEXIS 3303 (1984); Little v. National Servs. Indus., Inc., 79 N.C. App. 688, 340 S.E.2d 510, 1986 N.C. App. LEXIS 2114 (1986); Walker v. Durham Life Ins. Co., 90 N.C. App. 191, 368 S.E.2d 43, 1988 N.C. App. LEXIS 448 (1988); Ward v. Durham Life Ins. Co., 90 N.C. App. 286, 368 S.E.2d 391, 1988 N.C. App. LEXIS 539 (1988), aff'd, 325 N.C. 202 , 381 S.E.2d 698, 1989 N.C. LEXIS 375 (1989).

When a party moves for summary judgment on a claim and properly supports all the essentials of that claim with evidence, it falls to the opposing party to present contradictory evidence or to show by facts that the movant’s evidence is insufficient or unreliable. And when the opposing party fails to do that and it plainly appears from the pleadings and evidence presented that the movant is entitled to recover on the claim, summary judgment is proper. Blackwell v. Massey, 69 N.C. App. 240, 316 S.E.2d 350, 1984 N.C. App. LEXIS 3400 (1984).

The moving party has the burden of showing that no material issues of fact exist. In rebuttal, the nonmovant must then set forth specific facts showing that genuine issues of fact remain for trial. Southeastern Asphalt & Concrete Co. v. American Defender Life Ins. Co., 69 N.C. App. 185, 316 S.E.2d 311, 1984 N.C. App. LEXIS 3394 (1984).

If the movant’s burden is carried, the burden is on the opposing party to show that there is a question of material fact that can only be resolved by proceeding to trial. Branch Banking & Trust Co. v. Kenyon Inv. Corp., 76 N.C. App. 1, 332 S.E.2d 186, 1985 N.C. App. LEXIS 3720 (1985).

The burden is upon the party moving for summary judgment to show that there is no genuine issue of law. If the movant meets this burden, the burden then shifts to the nonmovant to set forth specific facts showing that there is a genuine issue of material fact for trial. BM & W of Fayetteville, Inc. v. Barnes, 75 N.C. App. 600, 331 S.E.2d 308, 1985 N.C. App. LEXIS 3667 (1985).

Once the moving party has submitted materials in support of the motion the burden shifts to the opposing party to produce evidence establishing that the motion should not be granted. Campbell v. Board of Educ., 76 N.C. App. 495, 333 S.E.2d 507, 1985 N.C. App. LEXIS 3908 (1985).

When Nonmovant Must Come Forward with Forecast of Evidence. —

On a motion for summary judgment, it is only when the movant’s evidence, considered alone, is sufficient to establish his right to judgment as a matter of law that the nonmovant must come forward with a forecast of his own evidence. Durham v. Vine, 40 N.C. App. 564, 253 S.E.2d 316, 1979 N.C. App. LEXIS 2303 (1979).

When movant presents an argument or defense supported by facts which would entitle him to judgment as a matter of law, the party opposing the motion must present a forecast of the evidence which will be available for presentation at trial and which will tend to support his claim for relief. Cone v. Cone, 50 N.C. App. 343, 274 S.E.2d 341, 1981 N.C. App. LEXIS 2119 , cert. denied, 302 N.C. 629 , 280 S.E.2d 440, 1981 N.C. LEXIS 1243 (1981).

If the moving party forecasts such evidence as would require a directed verdict for the movant at trial, the party opposing the motion must file papers which forecast evidence which would prevent a directed verdict at trial in order to prevent summary judgment in favor of the movant. Buck v. Tweetsie R.R., 44 N.C. App. 588, 261 S.E.2d 517, 1980 N.C. App. LEXIS 2492 (1980).

Until defendant has forecast evidence tending to establish his right to judgment as a matter of law, claimant is not required to present any evidence to support his claim for relief. However, once defendant forecasts evidence which will be available to him at trial and which tends to establish his right to judgment as a matter of law, claimant must present a forecast of the evidence which will be available for presentation at trial and which will tend to support his claim for relief. If claimant does not respond at that time with a forecast of evidence which will be available at trial to show that defendant is not entitled to judgment as a matter of law, summary judgment should be entered in favor of defendant. Best v. Perry, 41 N.C. App. 107, 254 S.E.2d 281, 1979 N.C. App. LEXIS 2389 (1979).

If the party moving for summary judgment successfully carries its burden of proof of showing that there is no genuine issue as to any material fact, the opposing party, by affidavits or otherwise, as provided by this rule, must set forth specific facts showing that there is a genuine issue for trial. Hillman v. United States Liab. Ins. Co., 59 N.C. App. 145, 296 S.E.2d 302, 1982 N.C. App. LEXIS 3078 (1982).

In addition to no issue of fact being present, to grant summary judgment a court must find “that on the undisputed aspects of the opposing evidential forecasts the party given judgment is entitled to it as a matter of law.” Sauls v. Charlotte Liberty Mut. Ins. Co., 62 N.C. App. 533, 303 S.E.2d 358, 1983 N.C. App. LEXIS 2927 (1983); Elmore's Feed & Seed, Inc. v. Patrick, 62 N.C. App. 715, 303 S.E.2d 394, 1983 N.C. App. LEXIS 2995 (1983).

Once a defendant has properly pleaded the statute of limitations, the burden is then placed upon the plaintiff to offer a forecast of evidence showing that the action was instituted within the permissible period after the accrual of the cause of action. Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488 , 329 S.E.2d 350, 1985 N.C. LEXIS 1555 (1985); Boundreau v. Baughman, 86 N.C. App. 165, 356 S.E.2d 907, 1987 N.C. App. LEXIS 2680 (1987), aff'd in part and rev'd in part, 322 N.C. 331 , 368 S.E.2d 849, 1988 N.C. LEXIS 366 (1988).

When the moving party presents an adequately supported motion, the opposing party must come forward with facts, not mere allegations, which controvert the facts set forth in the moving party’s case, or otherwise suffer a summary judgment. Campbell v. Board of Educ., 76 N.C. App. 495, 333 S.E.2d 507, 1985 N.C. App. LEXIS 3908 (1985).

Once plaintiff has made and supported its motion for summary judgment, under section (e) of this rule, the burden is then on the defendant to introduce evidence in opposition to the motion setting forth specific facts showing that there is a genuine issue for trial. The defendant then must come forward with a forecast of his own evidence. Amoco Oil Co. v. Griffin, 78 N.C. App. 716, 338 S.E.2d 601, 1986 N.C. App. LEXIS 1999 (1986).

When defendant has adduced evidence negating an essential element of plaintiff’s proof, plaintiff must at a minimum come forward with competent evidence that raises a genuine issue of material fact on that element. White v. Hunsinger, 88 N.C. App. 382, 363 S.E.2d 203, 1988 N.C. App. LEXIS 1197 (1988).

By making a motion for summary judgment, a defendant may force a plaintiff to produce a forecast of evidence demonstrating that the plaintiff will be able to make out at least a prima facie case at trial. Boudreau v. Baughman, 322 N.C. 331 , 368 S.E.2d 849, 1988 N.C. LEXIS 366 (1988).

Court of appeals erred in reversing an order granting summary judgment in favor of a bank in its action to collect a deficiency because the borrowers failed to forecast substantial competent evidence sufficient to create a genuine issue of material fact as to the foreclosed property’s “true value”; merely reciting the statutory language or asserting an unsubstantiated opinion regarding the foreclosed property’s value is insufficient. United Cmty. Bank (Ga.) v. Wolfe, 369 N.C. 555 , 799 S.E.2d 269, 2017 N.C. LEXIS 280 (2017).

Where the moving party offers facts and the opposing party offers mere allegations, there is no genuine issue as to a material fact. Moore v. Fieldcrest Mills, Inc., 36 N.C. App. 350, 244 S.E.2d 208, 1978 N.C. App. LEXIS 2480 (1978), aff'd, 296 N.C. 467 , 251 S.E.2d 419, 1979 N.C. LEXIS 1186 (1979).

Unsupported allegations in pleadings are insufficient to create a genuine issue as to a material fact where the moving adverse party supports his motion by allowable evidentiary matter showing the facts to be contrary to that alleged in the pleadings. Pridgen v. Hughes, 9 N.C. App. 635, 177 S.E.2d 425, 1970 N.C. App. LEXIS 1425 (1970); Gudger v. Transitional Furn., Inc., 30 N.C. App. 387, 226 S.E.2d 835, 1976 N.C. App. LEXIS 2262 (1976).

Section (e) of this rule clearly precludes any party from prevailing against a motion for summary judgment through reliance on conclusory allegations unsupported by facts. Nasco Equip. Co. v. Mason, 291 N.C. 145 , 229 S.E.2d 278, 1976 N.C. LEXIS 941 (1976).

Hence when a motion for summary judgment is properly supported, the adverse party may not rest upon the mere allegations or denials of his pleading. Five Star Enters., Inc. v. Russell, 34 N.C. App. 275, 237 S.E.2d 859, 1977 N.C. App. LEXIS 1654 (1977).

If the defendant moving for summary judgment successfully carries his burden of proof, the plaintiff may not rely upon the bare allegations of his complaint to establish triable issues of fact. Haithcock v. Chimney Rock Co., 10 N.C. App. 696, 179 S.E.2d 865, 1971 N.C. App. LEXIS 1700 (1971); Brevard v. Barkley, 12 N.C. App. 665, 184 S.E.2d 370, 1971 N.C. App. LEXIS 1429 (1971); Jarrell v. Samsonite Corp., 12 N.C. App. 673, 184 S.E.2d 376, 1971 N.C. App. LEXIS 1431 (1971), cert. denied, 280 N.C. 180 , 185 S.E.2d 704, 1972 N.C. LEXIS 1218 (1972); Millsaps v. Wilkes Contracting Co., 14 N.C. App. 321, 188 S.E.2d 663, 1972 N.C. App. LEXIS 2125 , cert. denied, 281 N.C. 623 , 190 S.E.2d 466, 1972 N.C. LEXIS 1129 (1972); Moore v. Galloway, 35 N.C. App. 394, 241 S.E.2d 386, 1978 N.C. App. LEXIS 2980 (1978); Cockerham v. Ward, 44 N.C. App. 615, 262 S.E.2d 651, 1980 N.C. App. LEXIS 2548 , cert. denied, 300 N.C. 195 , 269 S.E.2d 622, 1980 N.C. LEXIS 1489 (1980).

Plaintiff may not rely on the bare allegations of his complaint where defendants’ motions for summary judgment are supported as provided in this rule. Peterson v. Winn-Dixie of Raleigh, Inc., 14 N.C. App. 29, 187 S.E.2d 487, 1972 N.C. App. LEXIS 2029 (1972).

Upon a motion for summary judgment the adverse party may not rest upon his complaint and wait for trial to present his evidence, if any, when the moving party has presented affidavits or other matter indicating that summary judgment is appropriate. First Fed. Sav. & Loan Ass'n v. Branch Banking & Trust Co., 14 N.C. App. 567, 188 S.E.2d 661, 1972 N.C. App. LEXIS 2177 , rev'd, 282 N.C. 44 , 191 S.E.2d 683, 1972 N.C. LEXIS 885 (1972).

Section (e) of this rule requires an adverse party to do more than merely rely on his pleading if the movant supports his motion by affidavit or otherwise. Old S. Life Ins. Co. v. Bank of N.C. 36 N.C. App. 18, 244 S.E.2d 264, 1978 N.C. App. LEXIS 2401 (1978).

If the party moving for summary judgment successfully carries his burden of proof, the opposing party must, by affidavits or otherwise, set forth specific facts showing that there is a genuine issue for trial, and he cannot rest upon the bare allegations or denials of his pleading. Hillman v. United States Liab. Ins. Co., 59 N.C. App. 145, 296 S.E.2d 302, 1982 N.C. App. LEXIS 3078 (1982).

When the party moving for summary judgment presents an adequately supported motion, the opposing party must come forward with facts, not mere allegations, which controvert the facts set forth in the moving party’s case, or otherwise suffer a summary judgment. Wachovia Bank & Trust Co. v. Grose, 64 N.C. App. 289, 307 S.E.2d 216, 1983 N.C. App. LEXIS 3269 (1983).

Not every failure to respond to a motion for summary judgment will require the entry of summary judgment. The moving party must satisfy his burden of proving that there is no genuine issue of any material fact. However, when the moving party presents an adequately supported motion, the opposing party must come forward with facts, not mere allegations, which controvert the facts set forth in the moving party’s case, or otherwise suffer a summary judgment. Whitley v. Coltrane, 65 N.C. App. 679, 309 S.E.2d 712, 1983 N.C. App. LEXIS 3558 (1983).

The moving party has the burden of establishing a lack of triable issues of fact but the nonmoving party may not rest upon mere allegations of his pleadings. Cashion v. Texas Gulf, Inc., 79 N.C. App. 632, 339 S.E.2d 797, 1986 N.C. App. LEXIS 2107 (1986).

The moving party, through his forecast of the evidence, has the burden of establishing a lack of triable issues of fact, but the nonmoving party may not rest upon the mere allegations of his pleadings. Johnson v. Builder's Transp., Inc., 79 N.C. App. 721, 340 S.E.2d 515, 1986 N.C. App. LEXIS 2118 (1986).

A party may not withstand a motion for summary judgment by simply relying on its pleadings; the non-moving party must set forth specific facts by affidavits or as otherwise provided by G.S. 1A-1 , N.C. R. Civ. P. 56(e), showing that there is a genuine issue of material fact for trial. The other methods for setting forth specific facts under Rule 56 are through depositions, answers to interrogatories, admissions on file, documentary materials, further affidavits, or oral testimony in some circumstances. If a party does not so respond, summary judgment, if appropriate, shall be entered against him. Strickland v. Doe, 156 N.C. App. 292, 577 S.E.2d 124, 2003 N.C. App. LEXIS 115 (2003).

But Must Demonstrate Existence of a Genuine Issue. —

A party against whom the motion for summary judgment is made may not rest upon the allegations or denials of his pleadings, but must demonstrate that there is a genuine issue for trial. Coakley v. Ford Motor Co., 11 N.C. App. 636, 182 S.E.2d 260, 1971 N.C. App. LEXIS 1602 , cert. denied, 279 N.C. 393 , 183 S.E.2d 244, 1971 N.C. LEXIS 815 (1971); Pierce Concrete, Inc. v. Cannon Realty & Constr. Co., 75 N.C. App. 411, 335 S.E.2d 30 (1985).

When a movant makes out a convincing showing that genuine issues of fact are lacking, it is required that the adversary adequately demonstrate by receivable facts that a real, not formal, controversy exists, and he does not do that by mere denial or holding back evidence. Patrick v. Hurdle, 16 N.C. App. 28, 190 S.E.2d 871, 1972 N.C. App. LEXIS 1635 , cert. denied, 282 N.C. 304 , 192 S.E.2d 195, 1972 N.C. LEXIS 942 (1972).

If the moving party files papers, including testimonial affidavits, which show there is not a triable issue, the opposing party, pursuant to sections (e) and (f) of this rule, must file papers which show that there is a triable issue, or the moving party will be entitled to summary judgment. Nye v. Lipton, 50 N.C. App. 224, 273 S.E.2d 313, 1981 N.C. App. LEXIS 2101 (1980), cert. denied, 302 N.C. 630 , 280 S.E.2d 441, 1981 N.C. LEXIS 1246 (1981); Town of Atlantic Beach v. Young, 58 N.C. App. 597, 293 S.E.2d 821, 1982 N.C. App. LEXIS 2793 (1982), rev'd, 307 N.C. 422 , 298 S.E.2d 686, 1983 N.C. LEXIS 1093 (1983).

Where a party has shown that he is entitled to relief and the opposing party offers not even the slightest suggestion of a genuine issue of fact, a motion for summary judgment should be granted. Carson v. Sutton, 35 N.C. App. 720, 242 S.E.2d 535, 1978 N.C. App. LEXIS 3067 (1978).

Once the moving party meets his burden, the burden is then on the opposing party to show that a genuine issue of material fact exists. If the opponent fails to forecast such evidence, then the trial court’s entry of summary judgment is proper. White v. Hunsinger, 88 N.C. App. 382, 363 S.E.2d 203, 1988 N.C. App. LEXIS 1197 (1988).

Internet company failed to demonstrate a genuine issue of material fact for trial under G.S. 1A-1 , N.C. R. Civ. P. 56(e), so the trial court did not err in granting summary judgment for a publishing company on the publishing company’s claim for possession of computer servers that were in the internet company’s possession. Fayetteville Publ. Co. v. Advanced Internet Techs., Inc., 192 N.C. App. 419, 665 S.E.2d 518, 2008 N.C. App. LEXIS 1610 (2008).

Or Provide an Excuse for Not So Showing. —

If the movant carries his burden of establishing prima facie that he is entitled to summary judgment, then his motion should be granted, unless the opposing party responds and shows either that a genuine issue of material fact exists or that he has an excuse for not so showing. Steel Creek Dev. Corp. v. Smith, 300 N.C. 631 , 268 S.E.2d 205, 1980 N.C. LEXIS 1137 (1980).

If the moving party meets his burden of proof, the party who opposes the motion for summary judgment must either show that a genuine issue of material fact for trial does exist or provide an excuse for not so doing. Zimmerman v. Hogg & Allen, 286 N.C. 24 , 209 S.E.2d 795, 1974 N.C. LEXIS 1175 (1974); Vassey v. Burch, 301 N.C. 68 , 269 S.E.2d 137, 1980 N.C. LEXIS 1145 (1980); Econo-Travel Motor Hotel Corp. v. Taylor, 301 N.C. 200 , 271 S.E.2d 54, 1980 N.C. LEXIS 1152 (1980); Spivey v. White Motor Corp., 46 N.C. App. 313, 264 S.E.2d 772, 1980 N.C. App. LEXIS 2824 (1980); Quality Inns Int'l, Inc. v. Booth, Fish, Simpson, Harrison & Hall, 58 N.C. App. 1, 292 S.E.2d 755, 1982 N.C. App. LEXIS 2736 (1982); Bernick v. Jurden, 306 N.C. 435 , 293 S.E.2d 405, 1982 N.C. LEXIS 1448 (1982); Town of West Jefferson v. Edwards, 74 N.C. App. 377, 329 S.E.2d 407, 1985 N.C. App. LEXIS 3542 (1985).

On motion for summary judgment, the burden on the moving party is to establish that there is no genuine issue as to any material fact remaining to be determined, and if the movant carries this burden by showing that an essential element of the opposing party’s claim is nonexistent, then the burden shifts to the nonmoving party to either show that a genuine issue of material fact does exist or provide an excuse for not so doing. Blue Jeans Corp. v. Pinkerton, Inc., 51 N.C. App. 137, 275 S.E.2d 209, 1981 N.C. App. LEXIS 2184 (1981).

Nonmovant Must Evince Existence of Triable Issue of Material Fact. —

The party opposing summary judgment is not entitled to have the motion denied on the mere hope that at trial he will be able to discredit the movant’s evidence; he must, at the hearing upon the motion for summary judgment, be able to evince the existence of a triable issue of material fact. Wachovia Bank & Trust Co. v. Grose, 64 N.C. App. 289, 307 S.E.2d 216, 1983 N.C. App. LEXIS 3269 (1983).

Trial court did not err by granting summary judgment in favor of the defendants because, viewing the evidence in the light most favorable to the plaintiffs, there were no issues of material fact regarding the plaintiffs’ claims. Furthermore, the plaintiffs offered only cursory legal support for the arguments but did not address how the evidence supported the elements of each of their claims. Kitchin v. Halifax County, 192 N.C. App. 559, 665 S.E.2d 760, 2008 N.C. App. LEXIS 1624 (2008).

Nonmovant Must Set Forth Specific Facts. —

This rule provides that the adverse party, when responding to a motion for summary judgment, must set forth specific facts showing that there is a genuine issue for trial. Beeson v. Moore, 31 N.C. App. 507, 229 S.E.2d 703, 1976 N.C. App. LEXIS 2027 (1976), cert. denied, 291 N.C. 710 , 232 S.E.2d 203, 1977 N.C. LEXIS 1239 (1977).

An adequately supported motion for summary judgment triggers the opposing party’s responsibility to come forward with facts, as distinguished from allegations, sufficient to indicate that he will be able to sustain his claim at trial. Dickens v. Puryear, 302 N.C. 437 , 276 S.E.2d 325, 1981 N.C. LEXIS 1073 (1981).

When the moving party presents an adequately supported motion, the opposing party must come forward with facts, not mere allegations, which controvert the facts set forth in the moving party’s case, or otherwise suffer a summary judgment. Frank H. Conner Co. v. Spanish Inns Charlotte, Ltd., 294 N.C. 661 , 242 S.E.2d 785, 1978 N.C. LEXIS 1295 (1978); Ballinger v. North Carolina Dep't of Revenue, 59 N.C. App. 508, 296 S.E.2d 836, 1982 N.C. App. LEXIS 3153 (1982), cert. denied, 307 N.C. 576 , 299 S.E.2d 645, 1983 N.C. LEXIS 1176 (1983).

Outdoor advertising companies appealing the revocations of their permits for certain billboards, who were opposing a motion for summary judgment, did not meet the requirement of G.S. 1A-1 , Rule 56(e) that they set forth specific facts because they made only extremely conclusory statements about their expenses to repair and improve their signs, their long-term contracts with customers wishing to rent space on the billboards, and unspecified business decisions made in reliance on the billboards being legal. Capital Outdoor, Inc. v. Tolson, 159 N.C. App. 55, 582 S.E.2d 717, 2003 N.C. App. LEXIS 1417 (2003).

By Affidavits or Otherwise. —

Once a motion for summary judgment has been made and supported as provided by this rule, the opposing party may not rest upon the mere allegations and denials of his pleadings, but must come forth, by affidavits or as otherwise provided in this rule, with specific facts showing that a genuine issue for trial exists. Brice v. Moore, 30 N.C. App. 365, 226 S.E.2d 882, 1976 N.C. App. LEXIS 2255 (1976); Cameron-Brown Capital Corp. v. Spencer, 31 N.C. App. 499, 229 S.E.2d 711, 1976 N.C. App. LEXIS 2025 (1976), cert. denied, 291 N.C. 710 , 232 S.E.2d 203, 1977 N.C. LEXIS 1240 (1977); First Citizens Bank & Trust Co. v. Holland, 51 N.C. App. 529, 277 S.E.2d 108, 1981 N.C. App. LEXIS 2270 (1981); Atkins v. Beasley, 53 N.C. App. 33, 279 S.E.2d 866, 1981 N.C. App. LEXIS 2534 (1981).

When a motion for summary judgment is made and supported as provided in this rule, the response of an adverse party, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. Brevard v. Barkley, 12 N.C. App. 665, 184 S.E.2d 370, 1971 N.C. App. LEXIS 1429 (1971); Millsaps v. Wilkes Contracting Co., 14 N.C. App. 321, 188 S.E.2d 663, 1972 N.C. App. LEXIS 2125 , cert. denied, 281 N.C. 623 , 190 S.E.2d 466, 1972 N.C. LEXIS 1129 (1972); Five Star Enters., Inc. v. Russell, 34 N.C. App. 275, 237 S.E.2d 859, 1977 N.C. App. LEXIS 1654 (1977).

If the defendant moving for summary judgment successfully carries his burden of proof, the plaintiff must, by affidavits or otherwise, set forth specific facts showing that there is a genuine issue for trial. Patterson v. Reid, 10 N.C. App. 22, 178 S.E.2d 1, 1970 N.C. App. LEXIS 1181 (1970); Haithcock v. Chimney Rock Co., 10 N.C. App. 696, 179 S.E.2d 865, 1971 N.C. App. LEXIS 1700 (1971); Jarrell v. Samsonite Corp., 12 N.C. App. 673, 184 S.E.2d 376, 1971 N.C. App. LEXIS 1431 (1971), cert. denied, 280 N.C. 180 , 185 S.E.2d 704, 1972 N.C. LEXIS 1218 (1972); Caldwell v. Deese, 26 N.C. App. 435, 216 S.E.2d 452, 1975 N.C. App. LEXIS 2070 , rev'd, 288 N.C. 375 , 218 S.E.2d 379, 1975 N.C. LEXIS 986 (1975); Brooks v. Smith, 27 N.C. App. 223, 218 S.E.2d 489, 1975 N.C. App. LEXIS 1802 (1975); Bentley v. Langley, 39 N.C. App. 20, 249 S.E.2d 481, 1978 N.C. App. LEXIS 2332 (1978), cert. denied, 296 N.C. 735 , 254 S.E.2d 176, 1979 N.C. LEXIS 1428 (1979); Neihage v. Kittrell Auto Parts, Inc., 41 N.C. App. 538, 255 S.E.2d 315, 1979 N.C. App. LEXIS 2665 , cert. denied, 298 N.C. 298 , 259 S.E.2d 914, 1979 N.C. LEXIS 1593 (1979); Cockerham v. Ward, 44 N.C. App. 615, 262 S.E.2d 651, 1980 N.C. App. LEXIS 2548 , cert. denied, 300 N.C. 195 , 269 S.E.2d 622, 1980 N.C. LEXIS 1489 (1980).

Where a defendant seeking summary judgment carries his burden of proving a lack of genuine issue of fact for trial by evidentiary presumption or otherwise, the plaintiff may not rely on his bare allegations to the contrary but must, by affidavits or otherwise, set forth specific facts showing a genuine issue of fact for trial to defeat defendants’ motion. Clifton v. Fesperman, 50 N.C. App. 178, 272 S.E.2d 624, 1980 N.C. App. LEXIS 3466 (1980).

General Denial by Nonmovant Is Insufficient. —

Once plaintiff has made and supported its motion for summary judgment, under section (e) of this rule the burden is on defendant to introduce evidence in opposition to the motion setting forth “specific facts showing that there is a genuine issue for trial.” An answer filed by defendant which only generally denies the allegations of the complaint fails to do this. Stroup Sheet Metal Works, Inc. v. Heritage, Inc., 43 N.C. App. 27, 258 S.E.2d 77, 1979 N.C. App. LEXIS 3031 (1979).

In order to resist a motion for summary judgment, it is incumbent upon the opposing party to show that he has, or will have, evidence sufficient to raise an issue of fact. This rule does not contemplate the use of affidavits merely to deny allegations in the pleadings. N.C. Monroe Constr. Co. v. Coan, 30 N.C. App. 731, 228 S.E.2d 497, 1976 N.C. App. LEXIS 2344 , cert. denied, 291 N.C. 323 , 230 S.E.2d 676, 1976 N.C. LEXIS 979 (1976).

An answer filed by defendant as nonmovant which only generally denies the allegations of the complaint fails to raise a genuine issue of fact. An affidavit which merely reaffirms the allegations of the defendant’s answer is also insufficient. Amoco Oil Co. v. Griffin, 78 N.C. App. 716, 338 S.E.2d 601, 1986 N.C. App. LEXIS 1999 (1986).

Unverified Responses to Request for Admissions Do Not Constitute Affidavit. —

Where defendant’s responses to plaintiffs’ request for admissions were not verified, they could not be deemed to be an affidavit; and as they were not in the category of “depositions, answers to interrogatories, and admissions on file” specified in G.S. 1A-1 , Rule 56 as material that could be considered, they were insufficient to defeat plaintiffs’ motion for summary judgment. Dixon v. Hill, 174 N.C. App. 252, 620 S.E.2d 715, 2005 N.C. App. LEXIS 2393 (2005), cert. denied, 548 U.S. 906, 126 S. Ct. 2972, 165 L. Ed. 2d 954, 2006 U.S. LEXIS 4950 (2006).

But party opposing motion for summary judgment does not have to establish that he would prevail on the issue involved, but merely that the issue exists. In re Will of Edgerton, 29 N.C. App. 60, 223 S.E.2d 524, 1976 N.C. App. LEXIS 2377 , cert. denied, 290 N.C. 308 , 225 S.E.2d 832, 1976 N.C. LEXIS 1062 (1976); Cox v. Cox, 75 N.C. App. 354, 330 S.E.2d 506, 1985 N.C. App. LEXIS 3637 (1985); Ward v. Durham Life Ins. Co., 90 N.C. App. 286, 368 S.E.2d 391, 1988 N.C. App. LEXIS 539 (1988), aff'd, 325 N.C. 202 , 381 S.E.2d 698, 1989 N.C. LEXIS 375 (1989).

And Nonmovant Is Not Required to Make Out Prima Facie Case for Jury. —

On a motion for summary judgment, the nonmovant is not required to come forward and make a prima facie case for the jury, as he would on a motion for directed verdict at trial. He is only required to show that he has evidence to contest such evidentiary matters as the movant may have produced in support of the motion that would, standing alone, defeat the action. Durham v. Vine, 40 N.C. App. 564, 253 S.E.2d 316, 1979 N.C. App. LEXIS 2303 (1979); Rorrer v. Cooke, 69 N.C. App. 305, 317 S.E.2d 34, 1984 N.C. App. LEXIS 3471 (1984), rev'd, 313 N.C. 338 , 329 S.E.2d 355, 1985 N.C. LEXIS 1543 (1985).

Summary judgment is a device by which a defending party may force the claimant to produce a forecast of the claimant’s evidence demonstrating that the claimant will, at trial, be able to make out at least a prima facie case, or that he will be able to surmount an affirmative defense; the claimant need not present all the evidence available in his favor, but only that necessary to rebut the defendant’s showing that an essential element of his claim is nonexistent or that he cannot surmount an affirmative defense. Dickens v. Puryear, 302 N.C. 437 , 276 S.E.2d 325, 1981 N.C. LEXIS 1073 (1981).

In a hearing on a motion for summary judgment the nonmovant, unlike a plaintiff at trial, does not have to automatically make out a prima facie case, but only has to refute any showing made that his case is fatally deficient. Riddle v. Nelson, 84 N.C. App. 656, 353 S.E.2d 866, 1987 N.C. App. LEXIS 2547 (1987).

Nor to Present Evidence as to All Elements of Claim. —

As nonmovants at a hearing on a motion for summary judgment, defendants did not have to automatically present evidence as to all the elements of their counterclaim as they would at trial; they only had to refute any showing by plaintiffs that the claim was fatally deficient. Rose v. Lang, 85 N.C. App. 690, 355 S.E.2d 795, 1987 N.C. App. LEXIS 2651 (1987).

Burden on Defendant-Movant in Cases Dependent on State of Mind. —

Defendant-movant has a particularly difficult burden to carry in a case in which plaintiff’s claim is dependent on proof that defendant acted with a particular state of mind, e.g., cases involving fraud, conspiracy, or bad faith. In such a case defendant-movant, in order to meet his initial burden on a motion for summary judgment, must at least produce more than a mere denial by affidavits that he acted with the state of mind alleged by plaintiff. His evidence in support of his motion must be of the necessary certitude to negative any one or more of the essential elements of plaintiff’s claim. Edwards v. Northwestern Bank, 39 N.C. App. 261, 250 S.E.2d 651, 1979 N.C. App. LEXIS 2501 (1979).

Defendant’s Response Held Inadequate. —

In a suit against defendant as guarantor of payment on a promissory note, where defendant filed an affidavit in opposition to plaintiff’s motion for summary judgment, but in it merely referred to the question of a material change made in the terms of the note, which issue had been raised in his answer, and did not set forth any specific facts to support his allegation of material alteration, his response to plaintiff’s motion for summary judgment was inadequate. Better Adv., Inc. v. Peace, 43 N.C. App. 534, 259 S.E.2d 359, 1979 N.C. App. LEXIS 3093 (1979), cert. denied, 299 N.C. 328 , 265 S.E.2d 393, 1980 N.C. LEXIS 999 (1980).

Where in opposition to plaintiff’s evidence, defendant’s sole and only support was verified denial upon information and belief of forgery allegations in complaint, this was not sufficient to rebut affidavits based on personal knowledge, and since no excuse was offered for defendant’s failure of proof, and the court was given no reason to believe that her position in the case would ever be stronger than it then was, judgment against her was correctly entered. Blackwell v. Massey, 69 N.C. App. 240, 316 S.E.2d 350, 1984 N.C. App. LEXIS 3400 (1984).

Defendant’s affidavit, which only restated the unsupported allegations previously made by the defendant in his answer and in his answers to plaintiff’s interrogatories, was insufficient to withstand plaintiff’s motion for summary judgment. Dixie Chem. Corp. v. Edwards, 68 N.C. App. 714, 315 S.E.2d 747, 1984 N.C. App. LEXIS 3432 (1984).

Affiliated corporations’ general denial as to the amount owed to a services provider contained in their answer, coupled with their general denial in their affidavit that they owed the provider anything, was insufficient to raise a genuine issue of material fact as to the amount of the debt; the trial court, therefore, did not err in granting partial summary judgment in favor of the services provider on its breach of contract claim and awarding damages. Excel Staffing Serv. v. HP Reidsville, Inc., 172 N.C. App. 281, 616 S.E.2d 349, 2005 N.C. App. LEXIS 1582 (2005).

Party may succeed on summary judgment motion upon the strength of his own evidence or the weakness of the opposing party’s evidence when such a forecast of that evidence can be obtained in discovery or in response to movant’s prima facie showing on the motion. Steel Creek Dev. Corp. v. Smith, 300 N.C. 631 , 268 S.E.2d 205, 1980 N.C. LEXIS 1137 (1980).

For summary judgment to be appropriate for the party with the burden of persuasion he must still succeed on the strength of his own evidence, even though his affidavits and supporting material are not challenged as provided by sections (e) and (f) of this rule. Kidd v. Early, 289 N.C. 343 , 222 S.E.2d 392, 1976 N.C. LEXIS 1290 (1976).

V.Function of Trial Court

Court Is Not Authorized to Decide Issues of Fact. —

This rule does not authorize the court to decide an issue of fact. Caldwell v. Deese, 288 N.C. 375 , 218 S.E.2d 379, 1975 N.C. LEXIS 986 (1975).

Under section (c) of this rule the trial judge does not sit as fact finder as is true under G.S. 1A-1 , Rule 52. Billings v. Joseph Harris Co., 27 N.C. App. 689, 220 S.E.2d 361, 1975 N.C. App. LEXIS 1949 (1975), aff'd, 290 N.C. 502 , 226 S.E.2d 321, 1976 N.C. LEXIS 1091 (1976).

In ruling on a motion for summary judgment, the court should not decide issues of fact. However, summary judgments should be looked upon with favor where no genuine issue of material fact is presented. Joel T. Cheatham, Inc. v. Hall, 64 N.C. App. 678, 308 S.E.2d 457, 1983 N.C. App. LEXIS 3355 (1983).

The court is not authorized to decide an issue of fact but to determine if such an issue exists. Campbell v. Board of Educ., 76 N.C. App. 495, 333 S.E.2d 507, 1985 N.C. App. LEXIS 3908 (1985).

In ruling on a motion for summary judgment, the court does not resolve issues of fact, and must deny the motion if there is any genuine issue of material fact. Warren v. Rosso & Mastracco, Inc., 78 N.C. App. 163, 336 S.E.2d 699, 1985 N.C. App. LEXIS 4260 (1985).

Nor to Make Findings of Facts and Conclusions of Law. —

It is not a part of the function of the court on a motion for summary judgment to make findings of fact and conclusions of law. Capps v. City of Raleigh, 35 N.C. App. 290, 241 S.E.2d 527, 1978 N.C. App. LEXIS 2961 (1978); Sainz v. Sainz, 36 N.C. App. 744, 245 S.E.2d 372, 1978 N.C. App. LEXIS 2619 (1978); Marshall v. Keaveny, 38 N.C. App. 644, 248 S.E.2d 750, 1978 N.C. App. LEXIS 2301 (1978).

There is no necessity for findings of fact where facts are not at issue, and summary judgment presupposes that there are no triable issues of material fact. Hyde Ins. Agency, Inc. v. Dixie Leasing Corp., 26 N.C. App. 138, 215 S.E.2d 162, 1975 N.C. App. LEXIS 1990 (1975).

The court went far beyond the purview of summary judgment when it treated the hearing on the motion as a nonjury trial of the case on the merits, found facts on conflicting evidence, made conclusions of law, and entered final judgment between the parties. Stonestreet v. Compton Motors, Inc., 18 N.C. App. 527, 197 S.E.2d 579, 1973 N.C. App. LEXIS 1928 (1973).

Findings of fact in a summary judgment order are ill advised because they indicate that a question of fact was presented and resolved by the trial court. Amoco Oil Co. v. Griffin, 78 N.C. App. 716, 338 S.E.2d 601, 1986 N.C. App. LEXIS 1999 (1986).

A trial judge is not required to make findings of fact for summary judgment. Amoco Oil Co. v. Griffin, 78 N.C. App. 716, 338 S.E.2d 601, 1986 N.C. App. LEXIS 1999 (1986).

A trial judge is not required to make findings of fact and conclusions of law in determining a motion for summary judgment, and if he does make some, they are disregarded on appeal. White v. Town of Emerald Isle, 82 N.C. App. 392, 346 S.E.2d 176, 1986 N.C. App. LEXIS 2443 (1986).

When the trial court granted a motion for summary judgment, it was inappropriate for the trial court to set forth findings addressing issues upon which evidence was conflicting. Upon a motion for summary judgment it was no part of the trial court’s function to decide issues of fact but solely to determine whether there was an issue of fact to be tried. Craddock v. Craddock, 188 N.C. App. 806, 656 S.E.2d 716, 2008 N.C. App. LEXIS 273 (2008).

But to Determine Whether Genuine Issues of Material Fact Exist. —

It is not the duty of the court hearing a motion for summary judgment to decide an issue of fact, but rather to determine whether a genuine issue as to any material fact exists. Lee v. Shor, 10 N.C. App. 231, 178 S.E.2d 101, 1970 N.C. App. LEXIS 1242 (1970); Moore v. Bryson, 11 N.C. App. 260, 181 S.E.2d 113, 1971 N.C. App. LEXIS 1502 (1971); Clear Fir Sales Co. v. Carolina Plywood Distrib., Inc., 13 N.C. App. 429, 185 S.E.2d 737, 1972 N.C. App. LEXIS 2257 (1972); Keith v. G.D. Reddick, Inc., 15 N.C. App. 94, 189 S.E.2d 775, 1972 N.C. App. LEXIS 1830 (1972); Long v. Long, 15 N.C. App. 525, 190 S.E.2d 415, 1972 N.C. App. LEXIS 1956 (1972); Lowman v. Huffman, 15 N.C. App. 700, 190 S.E.2d 700, 1972 N.C. App. LEXIS 2008 (1972); Graham v. Northwestern Bank, 16 N.C. App. 287, 192 S.E.2d 109, 1972 N.C. App. LEXIS 1689 , cert. denied, 282 N.C. 426 , 192 S.E.2d 836, 1972 N.C. LEXIS 977 (1972); Houck v. Overcash, 282 N.C. 623 , 193 S.E.2d 905, 1973 N.C. LEXIS 1134 (1973); Stonestreet v. Compton Motors, Inc., 18 N.C. App. 527, 197 S.E.2d 579, 1973 N.C. App. LEXIS 1928 (1973); Nationwide Mut. Ins. Co. v. Chantos, 25 N.C. App. 482, 214 S.E.2d 438, 1975 N.C. App. LEXIS 2308 , cert. denied, 287 N.C. 465 , 215 S.E.2d 624, 1975 N.C. LEXIS 1140 (1975); Reavis v. Campbell, 27 N.C. App. 231, 218 S.E.2d 873, 1975 N.C. App. LEXIS 1804 (1975); Lambert v. Duke Power Co., 32 N.C. App. 169, 231 S.E.2d 31, 1977 N.C. App. LEXIS 1877 , cert. denied, 292 N.C. 265 , 233 S.E.2d 392, 1977 N.C. LEXIS 1069 (1977); Vassey v. Burch, 301 N.C. 68 , 269 S.E.2d 137, 1980 N.C. LEXIS 1145 (1980); Flippin v. Jarrell, 301 N.C. 108 , 270 S.E.2d 482, 1980 N.C. LEXIS 1160 (1980); Thompson v. Northwestern Sec. Life Ins. Co., 44 N.C. App. 668, 262 S.E.2d 397, 1980 N.C. App. LEXIS 2584 , cert. denied, 300 N.C. 202 , 269 S.E.2d 620, 1980 N.C. LEXIS 1521 (1980); Bone Int'l, Inc. v. Brooks, 51 N.C. App. 183, 275 S.E.2d 556, 1981 N.C. App. LEXIS 2210 , rev'd, 304 N.C. 371 , 283 S.E.2d 518, 1981 N.C. LEXIS 1351 (1981); Gore v. Hill, 52 N.C. App. 620, 279 S.E.2d 102, 1981 N.C. App. LEXIS 2452 (1981); Texaco, Inc. v. Creel, 57 N.C. App. 611, 292 S.E.2d 130, 1982 N.C. App. LEXIS 2694 (1982), aff'd, 310 N.C. 695 , 314 S.E.2d 506, 1984 N.C. LEXIS 1698 (1984); Shew v. Southern Fire & Cas. Co., 58 N.C. App. 637, 294 S.E.2d 233, 1982 N.C. App. LEXIS 2810 (1982), rev'd, 307 N.C. 438 , 298 S.E.2d 380, 1983 N.C. LEXIS 1096 (1983); Godwin Sprayers, Inc. v. Utica Mut. Ins. Co., 59 N.C. App. 497, 296 S.E.2d 843, 1982 N.C. App. LEXIS 3155 (1982); Narron v. Hardee's Food Sys., 75 N.C. App. 579, 331 S.E.2d 205, 1985 N.C. App. LEXIS 3718 (1985); Lessard v. Lessard, 77 N.C. App. 97, 334 S.E.2d 475, 1985 N.C. App. LEXIS 4022 (1985), aff'd, 316 N.C. 546 , 342 S.E.2d 522, 1986 N.C. LEXIS 2146 (1986); Barnes v. Wilson Hdwe. Co., 77 N.C. App. 773, 336 S.E.2d 457, 1985 N.C. App. LEXIS 4376 (1985); Johnson v. Builder's Transp., Inc., 79 N.C. App. 721, 340 S.E.2d 515, 1986 N.C. App. LEXIS 2118 (1986).

In ruling on a motion for summary judgment, the court does not resolve issues of fact, but goes beyond the pleadings to determine whether there is a genuine issue of material fact. Zimmerman v. Hogg & Allen, 286 N.C. 24 , 209 S.E.2d 795, 1974 N.C. LEXIS 1175 (1974).

It is not the province of the court to find the facts upon a motion for summary judgment. Its province is to determine whether there are genuine issues of material fact in dispute. Eggiman v. Wake County Bd. of Educ., 22 N.C. App. 459, 206 S.E.2d 754, 1974 N.C. App. LEXIS 2357 , cert. denied, 285 N.C. 756 , 209 S.E.2d 280, 1974 N.C. LEXIS 1140 (1974).

In passing upon a motion for summary judgment, the court does not decide facts, but makes a determination as to whether an issue exists which is germane to the action. Furst v. Loftin, 29 N.C. App. 248, 224 S.E.2d 641, 1976 N.C. App. LEXIS 2454 (1976); Nytco Leasing, Inc. v. Dan-Cleve Corp., 31 N.C. App. 634, 230 S.E.2d 559, 1976 N.C. App. LEXIS 2078 (1976), cert. denied, 292 N.C. 265 , 233 S.E.2d 393, 1977 N.C. LEXIS 1070 (1977); Wachovia Bank & Trust Co. v. Peace Broadcasting Corp., 32 N.C. App. 655, 233 S.E.2d 687, 1977 N.C. App. LEXIS 2033 , cert. denied, 292 N.C. 734 , 235 S.E.2d 788, 1977 N.C. LEXIS 1207 (1977); Reid v. Reid, 32 N.C. App. 750, 233 S.E.2d 620, 1977 N.C. App. LEXIS 2053 (1977).

The judge’s role in ruling on a motion for summary judgment is to determine whether any material issues of fact exist that require trial. Wachovia Mtg. Co. v. Autry-Barker-Spurrier Real Estate, Inc., 39 N.C. App. 1, 249 S.E.2d 727, 1978 N.C. App. LEXIS 2330 (1978), aff'd, 297 N.C. 696 , 256 S.E.2d 688, 1979 N.C. LEXIS 1267 (1979); Stroup Sheet Metal Works, Inc. v. Heritage, Inc., 43 N.C. App. 27, 258 S.E.2d 77, 1979 N.C. App. LEXIS 3031 (1979); Reed's Jewelers, Inc. v. ADT Co., 43 N.C. App. 744, 260 S.E.2d 107, 1979 N.C. App. LEXIS 3173 (1979); DeCarlo v. Gerryco, Inc., 46 N.C. App. 15, 264 S.E.2d 370, 1980 N.C. App. LEXIS 2740 (1980); Stanback v. Stanback, 53 N.C. App. 243, 280 S.E.2d 498, 1981 N.C. App. LEXIS 2576 (1981); Land-of-Sky Regional Council v. County of Henderson, 78 N.C. App. 85, 336 S.E.2d 653, 1985 N.C. App. LEXIS 4246 (1985).

Summary judgment does not authorize the court to decide an issue of fact. It authorizes the court to determine whether a genuine issue of fact exists. Sauls v. Charlotte Liberty Mut. Ins. Co., 62 N.C. App. 533, 303 S.E.2d 358, 1983 N.C. App. LEXIS 2927 (1983); Elmore's Feed & Seed, Inc. v. Patrick, 62 N.C. App. 715, 303 S.E.2d 394, 1983 N.C. App. LEXIS 2995 (1983); Justus v. Deutsch, 62 N.C. App. 711, 303 S.E.2d 571, 1983 N.C. App. LEXIS 2973 (1983).

The judge’s role is to determine from the forecast of the evidence if there is a material issue of fact that is triable. Lawson v. Lawson, 84 N.C. App. 51, 351 S.E.2d 794, 1987 N.C. App. LEXIS 2470 , rev'd, 321 N.C. 274 , 362 S.E.2d 269, 1987 N.C. LEXIS 2552 (1987).

In determining whether summary judgment is appropriate, the judge’s function is not to decide the truth of issues raised by the pleadings and other materials of record, but to determine whether any genuine issue of material fact exists that requires adjudication. Avriett v. Avriett, 88 N.C. App. 506, 363 S.E.2d 875, 1988 N.C. App. LEXIS 110 , aff'd, 322 N.C. 468 , 368 S.E.2d 377, 1988 N.C. LEXIS 240 (1988).

Appellate court’s standard to review the grant of a motion for summary judgment is whether any genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law, in accordance with G.S. 1A-1 , N.C. R. Civ. P. 56(c). McGlynn v. Duke Univ., 165 N.C. App. 250, 598 S.E.2d 424, 2004 N.C. App. LEXIS 1151 (2004).

And Whether a Party Is Entitled to Judgment as a Matter of Law. —

Function of trial judge is to examine the materials, determine what facts are established and conclude whether there is a genuine issue as to any material fact and if a party is entitled to judgment as a matter of law. Billings v. Joseph Harris Co., 27 N.C. App. 689, 220 S.E.2d 361, 1975 N.C. App. LEXIS 1949 (1975), aff'd, 290 N.C. 502 , 226 S.E.2d 321, 1976 N.C. LEXIS 1091 (1976).

G.S. 1A-1 , Rule 52(a)(2) does not apply to the decision on a summary judgment motion, because if findings of fact are necessary to resolve an issue summary judgment is improper. Mosley v. National Fin. Co., 36 N.C. App. 109, 243 S.E.2d 145, 1978 N.C. App. LEXIS 2413 , cert. denied, 295 N.C. 467 , 246 S.E.2d 9, 1978 N.C. LEXIS 908 (1978); Stone v. Conder, 46 N.C. App. 190, 264 S.E.2d 760, 1980 N.C. App. LEXIS 2821 (1980); White v. Town of Emerald Isle, 82 N.C. App. 392, 346 S.E.2d 176, 1986 N.C. App. LEXIS 2443 (1986).

Unless Hearing Is Extended into Court Trial. —

If the summary judgment hearing is a protracted hearing, in effect a trial to determine that a trial must be held, and if all the parties desire to and do turn the summary judgment into a court trial, they cannot be heard to object. In that event the court should make findings of fact and conclusions of law in accordance with G.S. 1A-1 , Rule 52. Walton v. Meir, 14 N.C. App. 183, 188 S.E.2d 56, 1972 N.C. App. LEXIS 2085 , cert. denied, 281 N.C. 515 , 189 S.E.2d 35, 1972 N.C. LEXIS 1100 (1972).

When Hearing Not Required. —

Distinction between a motion for judgment on the pleadings and a motion for summary judgment is that the latter may require an evidentiary hearing; in the situation where the trial court takes judicial notice of an established fact, such as the record of the prior proceeding, no hearing is required. QUB Studios, LLC v. Marsh, 262 N.C. App. 251, 822 S.E.2d 113, 2018 N.C. App. LEXIS 1082 (2018).

If findings of fact are necessary to resolve an issue as to a material fact, summary judgment is improper. Hyde Ins. Agency, Inc. v. Dixie Leasing Corp., 26 N.C. App. 138, 215 S.E.2d 162, 1975 N.C. App. LEXIS 1990 (1975); Nytco Leasing, Inc. v. Dan-Cleve Corp., 31 N.C. App. 634, 230 S.E.2d 559, 1976 N.C. App. LEXIS 2078 (1976), cert. denied, 292 N.C. 265 , 233 S.E.2d 393, 1977 N.C. LEXIS 1070 (1977); Moore v. Galloway, 35 N.C. App. 394, 241 S.E.2d 386, 1978 N.C. App. LEXIS 2980 (1978); PMB, Inc. v. Rosenfeld, 48 N.C. App. 736, 269 S.E.2d 748, 1980 N.C. App. LEXIS 3302 (1980).

If the facts are not in dispute, there is no need to “find facts.” If there is a need to “find facts,” then summary judgment will not be appropriate if those facts are material. Capps v. City of Raleigh, 35 N.C. App. 290, 241 S.E.2d 527, 1978 N.C. App. LEXIS 2961 (1978); Strickland v. Tant, 41 N.C. App. 534, 255 S.E.2d 325, 1979 N.C. App. LEXIS 2662 , cert. denied, 298 N.C. 304 , 259 S.E.2d 917, 1979 N.C. LEXIS 1619 (1979).

However, findings of fact and conclusions of law do not render a summary judgment void or voidable, and may be helpful, if the facts are not at issue and support the judgment. Mosley v. National Fin. Co., 36 N.C. App. 109, 243 S.E.2d 145, 1978 N.C. App. LEXIS 2413 , cert. denied, 295 N.C. 467 , 246 S.E.2d 9, 1978 N.C. LEXIS 908 (1978); Stone v. Conder, 46 N.C. App. 190, 264 S.E.2d 760, 1980 N.C. App. LEXIS 2821 (1980); PMB, Inc. v. Rosenfeld, 48 N.C. App. 736, 269 S.E.2d 748, 1980 N.C. App. LEXIS 3302 (1980).

Although a trial judge was not required to make and enter into the record detailed findings of fact in ruling on a motion for summary judgment, it was not error for the court to do so, where there was plenary evidence in the record to support his findings. Singleton v. Stewart, 280 N.C. 460 , 186 S.E.2d 400, 1972 N.C. LEXIS 1265 (1972).

Although trial court’s detailed findings of fact on granting summary judgment were irregular and unnecessary, nevertheless plaintiff was not prejudiced by such findings, even assuming arguendo that some of them were erroneous, where the materials before the court established without contradiction that plaintiff’s action was fatally deficient. Avriett v. Avriett, 88 N.C. App. 506, 363 S.E.2d 875, 1988 N.C. App. LEXIS 110 , aff'd, 322 N.C. 468 , 368 S.E.2d 377, 1988 N.C. LEXIS 240 (1988).

As a Summary of Undisputed Facts Justifying Entry of Judgment. —

Although findings of fact are not necessary on a motion for summary judgment, it is helpful to the parties and the courts for the trial judge to articulate a summary of the material facts which he considers are not at issue and which justify entry of judgment. Hyde Ins. Agency, Inc. v. Dixie Leasing Corp., 26 N.C. App. 138, 215 S.E.2d 162, 1975 N.C. App. LEXIS 1990 (1975).

The action by the trial judge in making findings of fact was without error where his stated findings were merely a summary of the material facts not at issue which he thought justified entry of judgment. Wachovia Bank & Trust Co. v. Peace Broadcasting Corp., 32 N.C. App. 655, 233 S.E.2d 687, 1977 N.C. App. LEXIS 2033 , cert. denied, 292 N.C. 734 , 235 S.E.2d 788, 1977 N.C. LEXIS 1207 (1977).

In rare situations it can be helpful for the trial court to set out the undisputed facts which form the basis for his summary judgment. When that appears helpful or necessary, the court should let the judgment show that the facts set out therein are the undisputed facts. Capps v. City of Raleigh, 35 N.C. App. 290, 241 S.E.2d 527, 1978 N.C. App. LEXIS 2961 (1978).

In ruling on a motion for summary judgment the trial judge does not make findings of fact, which are decisions upon conflicting evidence, but he may properly list the uncontroverted material facts which are the basis of his conclusions of law and judgment. Rodgerson v. Davis, 27 N.C. App. 173, 218 S.E.2d 471, 1975 N.C. App. LEXIS 1789 (1975); A-S-P Assocs. v. City of Raleigh, 38 N.C. App. 271, 247 S.E.2d 800, 1978 N.C. App. LEXIS 2167 (1978), rev'd, 298 N.C. 207 , 258 S.E.2d 444, 1979 N.C. LEXIS 1362 (1979).

Orders granting summary judgment under this rule do not normally contain detailed findings of fact. However, if the findings of fact are actually the trial court’s summation of the undisputed facts which support the judgment, findings of fact and conclusions of law do not render a summary judgment void or voidable. Noel Williams Masonry, Inc. v. Vision Contractors, 103 N.C. App. 597, 406 S.E.2d 605, 1991 N.C. App. LEXIS 867 (1991).

Granting of a Continuance. —

Review of the record failed to reveal an abuse of discretion on the part of the trial court in denying defendants’ motion for continuance. HSI N.C. LLC v. Diversified Fire Prot. of Wilmington, Inc., 169 N.C. App. 767, 611 S.E.2d 224, 2005 N.C. App. LEXIS 805 (2005).

Consideration of Findings on Appeal. —

Findings of fact on summary judgment entered by the trial judge, insofar as they may resolve issues as to a material fact, have no effect on appeal and are irrelevant to appeal decision. Hyde Ins. Agency, Inc. v. Dixie Leasing Corp., 26 N.C. App. 138, 215 S.E.2d 162, 1975 N.C. App. LEXIS 1990 (1975).

A trial judge is not required to make findings of fact and conclusions of law in determining a motion for summary judgment, and if he does make some, they are disregarded on appeal. Mosley v. National Fin. Co., 36 N.C. App. 109, 243 S.E.2d 145, 1978 N.C. App. LEXIS 2413 , cert. denied, 295 N.C. 467 , 246 S.E.2d 9, 1978 N.C. LEXIS 908 (1978).

VI.Evidence on Motion
A.In General

What Evidence May Be Considered on Motion for Summary Judgment. —

Evidence which may be considered under this rule includes admissions in the pleadings, depositions on file, answers to interrogatories under G.S. 1A-1 , Rule 33, admissions on file whether obtained under G.S. 1A-1 , Rule 36 or in any other way, affidavits, and any other material which would be admissible in evidence or of which judicial notice may properly be taken. Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971); Blades v. City of Raleigh, 280 N.C. 531 , 187 S.E.2d 35, 1972 N.C. LEXIS 1277 (1972); Riggins v. County of Mecklenburg, 14 N.C. App. 624, 188 S.E.2d 749, 1972 N.C. App. LEXIS 2197 (1972); Jernigan v. State Farm Mut. Auto. Ins. Co., 16 N.C. App. 46, 190 S.E.2d 866, 1972 N.C. App. LEXIS 1637 (1972).

On a motion for summary judgment the court may consider admissions in the pleadings, depositions, answers to interrogatories, affidavits, admissions on file, oral testimony, documentary materials, facts which are subject to judicial notice, such presumptions as would be available upon trial, and any other materials which would be admissible in evidence at trial. Singleton v. Stewart, 280 N.C. 460 , 186 S.E.2d 400, 1972 N.C. LEXIS 1265 (1972); Koontz v. City of Winston-Salem, 280 N.C. 513 , 186 S.E.2d 897, 1972 N.C. LEXIS 1276 (1972); Booe v. Hall, 24 N.C. App. 276, 210 S.E.2d 293, 1974 N.C. App. LEXIS 1977 (1974); Butler v. Berkeley, 25 N.C. App. 325, 213 S.E.2d 571, 1975 N.C. App. LEXIS 2261 (1975); Old S. Life Ins. Co. v. Bank of N.C. 36 N.C. App. 18, 244 S.E.2d 264, 1978 N.C. App. LEXIS 2401 (1978).

When the motion for summary judgment comes on to be heard, the court may consider the pleadings, depositions, admissions, affidavits, answers to interrogatories, oral testimony and documentary materials; and the court may also consider facts which are subject to judicial notice and any presumptions that would be available at trial. Dendy v. Watkins, 288 N.C. 447 , 219 S.E.2d 214, 1975 N.C. LEXIS 1010 (1975); Gebb v. Gebb, 67 N.C. App. 104, 312 S.E.2d 691, 1984 N.C. App. LEXIS 3011 (1984).

On a motion for summary judgement the court may consider affidavits, depositions, answers to interrogatories, admissions, documentary materials, facts which are subject to judicial notice and any other materials which would be admissible in evidence at trial. Huss v. Huss, 31 N.C. App. 463, 230 S.E.2d 159, 1976 N.C. App. LEXIS 2018 (1976).

The court may consider, at the hearing on the motion for summary judgment, pleadings, affidavits which meet the requirements of section (e) of this rule, depositions, answers to interrogatories, admissions, oral testimony, documentary material, facts subject to judicial notice and such presumptions as would be available at trial. Mozingo v. North Carolina Nat'l Bank, 31 N.C. App. 157, 229 S.E.2d 57, 1976 N.C. App. LEXIS 1945 (1976), cert. denied, 291 N.C. 711 , 232 S.E.2d 204, 1977 N.C. LEXIS 1246 (1977).

This rule does not limit consideration of a motion for summary judgment to the pleadings; the court may consider depositions, answers to interrogatories, admissions on file and affidavits. Ridings v. Ridings, 55 N.C. App. 630, 286 S.E.2d 614, 1982 N.C. App. LEXIS 2250 (1982).

As a document properly served and filed in a case, the trial court was entitled to consider a memorandum in which the plaintiff withdrew one of its causes of action as a matter outside the pleading when it ruled on a motion for summary judgment. Shroyer v. County of Mecklenburg, 154 N.C. App. 163, 571 S.E.2d 849, 2002 N.C. App. LEXIS 1402 (2002).

Affidavits submitted at summary judgment must meet the requirements of G.S. 1A-1 , N.C. R. Civ. P. 56(e). Strickland v. Doe, 156 N.C. App. 292, 577 S.E.2d 124, 2003 N.C. App. LEXIS 115 (2003).

Bank submitted verified responses to borrowers’ interrogatories and requests for admission, which evidenced transfer of a note and deed of trust, and which were also appropriate for the court’s consideration in ruling on summary judgment. In re Dispute over the Sum of $375,757.47, 240 N.C. App. 505, 771 S.E.2d 800, 2015 N.C. App. LEXIS 322 (2015).

Bank’s verified third party complaint was properly treated as an affidavit for summary judgment by the trial court because the complaint incorporated a promissory note and deed of trust, and alleged that the bank was not the holder of the note when a certificate of satisfaction was recorded, and that it was without authority to execute and record the satisfaction. In re Dispute over the Sum of $375,757.47, 240 N.C. App. 505, 771 S.E.2d 800, 2015 N.C. App. LEXIS 322 (2015).

Facts required to support summary judgment must be established by pleadings, depositions, answers to interrogatories, admissions or affidavits. Cieszko v. Clark, 92 N.C. App. 290, 374 S.E.2d 456, 1988 N.C. App. LEXIS 1047 (1988).

Verified Pleadings. —

Complaint by former county sheriff’s employees was not verified, so it could not be considered in the course of the trial court’s deliberations concerning the sheriff’s summary judgment motion. McLaughlin v. Bailey, 240 N.C. App. 159, 771 S.E.2d 570, 2015 N.C. App. LEXIS 283 (2015), aff'd, 368 N.C. 618 , 781 S.E.2d 23, 2016 N.C. LEXIS 28 (2016).

Deposition Denied Where Not Relevant to Limited Issues of Immunity of School Board. —

Where a trial court had bifurcated issues in an action by a student and her parents against a school board and other school board entities, arising from a traffic control gate having come down on the student’s car as she was departing the school, such that the initial issues on a motion for summary judgment by the school boards related to whether they had immunity and, if so, whether such immunity was waived, it was proper to deny the parents’ and student’s request to depose an individual, pursuant to subsection (f) of this rule; the deposition was sought for purposes of showing the extent of claims made and paid against the school boards, but since the boards had already provided that information through other discovery devices, no new information relevant to the limited issues was presented that justified the deposition. Ripellino v. N.C. Sch. Bds. Ass'n, 158 N.C. App. 423, 581 S.E.2d 88, 2003 N.C. App. LEXIS 1184 (2003), cert. denied, 358 N.C. 156 , 592 S.E.2d 694, 2004 N.C. LEXIS 103 (2004), cert. denied, 358 N.C. 156 , 2004 N.C. LEXIS 515 (2004).

Consideration of Deposition from Another Proceeding in Ruling on Summary Judgment. —

Trial court properly considered depositions taken in another proceeding in ruling on a city’s summary judgment motion in a landowner’s inverse condemnation and negligence action against the city, because the depositions were sworn and were at least as reliable as affidavits. Although the city did not have the opportunity to cross-examine the witnesses, the same could be said of affidavit witnesses. First Gaston Bank of N.C. v. City of Hickory, 203 N.C. App. 195, 691 S.E.2d 715, 2010 N.C. App. LEXIS 544 (2010).

A motion for summary judgment allows one party to force his opponent to produce a forecast of evidence which he has available for presentation at trial to support his claim or defense. Dixie Chem. Corp. v. Edwards, 68 N.C. App. 714, 315 S.E.2d 747, 1984 N.C. App. LEXIS 3432 (1984).

Summary judgment is a device by which a defending party may force the claimant to produce a forecast of claimant’s evidence demonstrating that claimant will, at trial, be able to make out at least a prima facie case or that he will be able to surmount an affirmative defense. Snipes v. Jackson, 69 N.C. App. 64, 316 S.E.2d 657, 1984 N.C. App. LEXIS 3383 (1984).

Affidavits Must Be Served Prior to Hearing. —

Because affidavit was not served prior to the day of hearing, the trial court abused its discretion in failing to exclude it. Wells v. Consolidated Judicial Retirement Sys., 136 N.C. App. 671, 526 S.E.2d 486, 2000 N.C. App. LEXIS 162 (2000), aff'd, 354 N.C. 313 , 553 S.E.2d 877, 2001 N.C. LEXIS 1098 (2001).

Trial court did not abuse its discretion by excluding an affidavit that was submitted less than two business days before the hearing on the summary judgment motion. HSI N.C. LLC v. Diversified Fire Prot. of Wilmington, Inc., 169 N.C. App. 767, 611 S.E.2d 224, 2005 N.C. App. LEXIS 805 (2005).

But Other Evidence Need Not Be Served Prior to Hearing. —

Because this rule does not specify that forms of evidence, other than affidavits, be presented at any particular time, much less prior to the hearing, the court could not conclude that plaintiffs violated this section by presenting excerpts from a publication in opposition to the motion while the summary judgment hearing was underway. Pierson v. Cumberland County Civic Ctr. Comm'n, 141 N.C. App. 628, 540 S.E.2d 810, 2000 N.C. App. LEXIS 1394 (2000).

Affidavits, etc., Setting Forth Inadmissible Facts Not to Be Considered. —

The converse of the requirement set forth in section (e) of this rule is that affidavits or other material offered which set forth facts which would not be admissible in evidence should not be considered when passing on the motion for summary judgment. Borden, Inc. v. Brower, 17 N.C. App. 249, 193 S.E.2d 751, 1973 N.C. App. LEXIS 1332 , rev'd, 284 N.C. 54 , 199 S.E.2d 414, 1973 N.C. LEXIS 775 (1973).

Unless Unchallenged. —

Uncertified or otherwise inadmissible documents may be considered by the court if not challenged by means of a timely objection. Old S. Life Ins. Co. v. Bank of N.C. 36 N.C. App. 18, 244 S.E.2d 264, 1978 N.C. App. LEXIS 2401 (1978).

Affidavits Must Be Based on “Personal Knowledge.” —

Affidavits submitted by senior vice president for medical staff affairs in support of defendant/hospital’s motion for summary judgment were based on a review of facts with which he was familiar, not on the requisite “personal knowledge,” and their admission was, therefore, error. Hylton v. Koontz, 138 N.C. App. 511, 530 S.E.2d 108, 2000 N.C. App. LEXIS 629 (2000).

Supporting and opposing affidavits at summary judgment shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. G.S. 1A-1 , N.C. R. Civ. P. 56(e). The converse of this requirement is that affidavits or other material offered which set forth facts which would not be admissible in evidence should not be considered when passing on a motion for summary judgment. Strickland v. Doe, 156 N.C. App. 292, 577 S.E.2d 124, 2003 N.C. App. LEXIS 115 (2003).

Affidavit statements based on hearsay would not be admissible in evidence and should not be considered in passing on a motion for summary judgment. Patterson v. Reid, 10 N.C. App. 22, 178 S.E.2d 1, 1970 N.C. App. LEXIS 1181 (1970).

If an affidavit at summary judgment contains hearsay matters or statements not based on an affiant’s personal knowledge, a court should not consider those portions of the affidavit. Similarly, if an affidavit sets forth facts that would be inadmissible in evidence, such portions should be struck by the trial court. Strickland v. Doe, 156 N.C. App. 292, 577 S.E.2d 124, 2003 N.C. App. LEXIS 115 (2003).

Legal Conclusions are Inadmissible. —

An affiant’s legal conclusions, as opposed to facts as would be admissible in evidence, are not to be considered by a trial court on a motion for summary judgment. Strickland v. Doe, 156 N.C. App. 292, 577 S.E.2d 124, 2003 N.C. App. LEXIS 115 (2003).

Trial court correctly struck plaintiff’s affidavits supporting her motion for summary judgment where portions of each of her affidavits were inadmissible hearsay, irrelevant, or violative of the parole evidence rule, while the portions that would remain after striking the improper statements provided no support to the motion for summary judgment. Williamson v. Bullington, 139 N.C. App. 571, 534 S.E.2d 254, 2000 N.C. App. LEXIS 987 (2000), aff'd, 353 N.C. 363 , 544 S.E.2d 221, 2001 N.C. LEXIS 277 (2001).

Statements by a private investigator as to what a witness to an accident told him about the accident did not meet the requirements of G.S. 1A-1 , N.C. R. Civ. P. 56(e); therefore, these portions of the plaintiff’s affidavits were properly stricken as inadmissible hearsay, irrelevant, or violative of the parole evidence rule, and the portions of the affidavits that remained provided no support to the plaintiff at summary judgment. Furthermore, the plaintiff offered no evidence that the proffered statement possessed certain circumstantial guarantees of trustworthiness that would justify its admission. Therefore, the trial court properly granted summary judgment to the defendants. Strickland v. Doe, 156 N.C. App. 292, 577 S.E.2d 124, 2003 N.C. App. LEXIS 115 (2003).

Oral Testimony Is Admissible. —

Oral testimony at a hearing on a motion for summary judgment is admissible by virtue of G.S. 1A-1 , Rule 43(e). Walton v. Meir, 14 N.C. App. 183, 188 S.E.2d 56, 1972 N.C. App. LEXIS 2085 , cert. denied, 281 N.C. 515 , 189 S.E.2d 35, 1972 N.C. LEXIS 1100 (1972).

Oral testimony on a motion for summary judgment may be admissible in proper cases under G.S. 1A-1 , Rule 43(e). Huss v. Huss, 31 N.C. App. 463, 230 S.E.2d 159, 1976 N.C. App. LEXIS 2018 (1976).

Oral testimony may be introduced into the record at the summary judgment hearing as long as it is not used overzealously. Propst Constr. Co. v. North Carolina Dep't of Transp., 56 N.C. App. 759, 290 S.E.2d 387, 1982 N.C. App. LEXIS 2539 , modified, 307 N.C. 124 , 296 S.E.2d 295, 1982 N.C. LEXIS 1604 (1982).

While under G.S. 1A-1 , Rule 43(e) oral testimony is permissible on a motion for summary judgment, the admission of such testimony is in the court’s discretion. Hillman v. United States Liab. Ins. Co., 59 N.C. App. 145, 296 S.E.2d 302, 1982 N.C. App. LEXIS 3078 (1982).

In limited cases, oral testimony at a hearing on a motion for summary judgment may be offered; however, a trial court is only to rely on such testimony in a supplementary capacity, to provide a small link of required evidence, but not as the main evidentiary body of the hearing. A trial court may also consider arguments of counsel as long as the arguments are not considered as facts or evidence. Strickland v. Doe, 156 N.C. App. 292, 577 S.E.2d 124, 2003 N.C. App. LEXIS 115 (2003).

But Should Be Used Only in Supplementary Capacity. —

Under G.S. 1A-1 , Rule 43(e), oral testimony offered at a hearing on a motion for summary judgment should be used only in a supplementary capacity, to provide a small link of required evidence, and not as the main evidentiary body of the hearing. Nationwide Mut. Ins. Co. v. Chantos, 21 N.C. App. 129, 203 S.E.2d 421, 1974 N.C. App. LEXIS 1736 (1974).

Although G.S. 1A-1 , Rule 43(e) permits the court to hear oral testimony in ruling on a motion for summary judgment, this procedure should normally be utilized only if a small link of evidence is needed, and not for a long drawn out hearing to determine whether there is to be a trial. Chandler v. Cleveland Sav. & Loan Ass'n, 24 N.C. App. 455, 211 S.E.2d 484, 1975 N.C. App. LEXIS 2404 (1975).

Nonexpert opinion on ultimate issues may not be relied on to defend against summary judgment. Whether expert opinion on ultimate issues so presented may be relied on is not clear. Estrada v. Jaques, 70 N.C. App. 627, 321 S.E.2d 240, 1984 N.C. App. LEXIS 3880 (1984), limited, Osburn v. Danek Med., Inc., 135 N.C. App. 234, 520 S.E.2d 88, 1999 N.C. App. LEXIS 1045 (1999).

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 N.C. App. LEXIS 3643 (1984).

The nature of summary judgment procedure coupled with the generally liberal rules relating to amendment of pleadings, require that unpleaded affirmative defenses be deemed part of the pleadings where such defenses are raised in a hearing on motion for summary judgment. C.C. Walker Grading & Hauling, Inc. v. S.R.F. Mgt. Corp., 66 N.C. App. 170, 310 S.E.2d 615, 1984 N.C. App. LEXIS 2830 , rev'd, 311 N.C. 170 , 316 S.E.2d 298, 1984 N.C. LEXIS 1733 (1984).

Arguments of Counsel. —

On a motion for summary judgment the court may consider the arguments of counsel as long as the arguments are not considered as facts or evidence. Gebb v. Gebb, 67 N.C. App. 104, 312 S.E.2d 691, 1984 N.C. App. LEXIS 3011 (1984).

Information adduced from counsel during oral arguments cannot be used to support a motion for summary judgment. Huss v. Huss, 31 N.C. App. 463, 230 S.E.2d 159, 1976 N.C. App. LEXIS 2018 (1976).

A certified arbitration award and confirmation order may be considered by the trial judge in ruling on plaintiff’s motion for summary judgment on the amount of its lien in an action to enforce a mechanics’ lien, and absent any evidence to the contrary, would be sufficient to show that there is no material issue of fact as regards the amount owing plaintiff under the contract. Frank H. Conner Co. v. Spanish Inns Charlotte, Ltd., 294 N.C. 661 , 242 S.E.2d 785, 1978 N.C. LEXIS 1295 (1978).

Court Must Consider All Evidence Before It. —

The procedure under this rule being designed to allow a preview or forecast of evidence or proof of the parties in order to determine whether a jury trial is necessary and to allow the trial court to “pierce the pleadings” to determine whether any genuine factual controversy exists, it is therefore incumbent on the trial court to consider all of the papers before it on hearing the motion in order to make an appropriate disposition of the motion. Seay v. Allstate Ins. Co., 59 N.C. App. 220, 296 S.E.2d 30, 1982 N.C. App. LEXIS 3075 (1982).

Striking of Inadmissible Evidence Because of Parole Evidence Rule. —

Where pleadings, affidavits, and deposition offered by defendant did not set forth facts that would be admissible in evidence because of the parole evidence rule, such evidence was properly stricken. Borden, Inc. v. Brower, 284 N.C. 54 , 199 S.E.2d 414, 1973 N.C. LEXIS 775 (1973); North Carolina Nat'l Bank v. Gillespie, 291 N.C. 303 , 230 S.E.2d 375, 1976 N.C. LEXIS 975 (1976).

Where the record did not show that plaintiff objected to parol evidence in the form of affidavits submitted by the defendants, the facts set out in these affidavits were competent evidence to be considered by the trial court in ruling upon motions for summary judgment. Lindsey v. North Carolina Farm Bureau Mut. Ins. Co., 103 N.C. App. 432, 405 S.E.2d 803, 1991 N.C. App. LEXIS 793 (1991).

Unopposed Evidence Supporting Motion May Not Be Sufficient. —

The evidentiary matter supporting the moving party’s motion may not be sufficient to satisfy his burden of proof, even though the opposing party fails to present any competent counteraffidavits or other materials. Pridgen v. Hughes, 9 N.C. App. 635, 177 S.E.2d 425, 1970 N.C. App. LEXIS 1425 (1970); Millsaps v. Wilkes Contracting Co., 14 N.C. App. 321, 188 S.E.2d 663, 1972 N.C. App. LEXIS 2125 , cert. denied, 281 N.C. 623 , 190 S.E.2d 466, 1972 N.C. LEXIS 1129 (1972).

Acceptance of Statements in Affidavits Dependent on Credibility. —

Affidavits in a motion for summary judgment do not supply all the needed proof. The statements in the affidavits may not suffice, because their acceptance as proof depends on credibility. Lee v. Shor, 10 N.C. App. 231, 178 S.E.2d 101, 1970 N.C. App. LEXIS 1242 (1970).

And Court Need Not Find Uncontradicted Affidavits and Proof Credible. —

The trial court is not required to assign credibility to a party’s affidavits merely because they are uncontradicted. Kidd v. Early, 289 N.C. 343 , 222 S.E.2d 392, 1976 N.C. LEXIS 1290 (1976).

Movant’s uncontradicted and unimpeached proofs in support of his motion for summary judgment do not import veracity merely because they are uncontradicted by the opposing party. Kidd v. Early, 289 N.C. 343 , 222 S.E.2d 392, 1976 N.C. LEXIS 1290 (1976).

Courts are slow to grant summary judgment when movant presents his own affidavit concerning facts peculiarly within his knowledge. Kidd v. Early, 289 N.C. 343 , 222 S.E.2d 392, 1976 N.C. LEXIS 1290 (1976).

Summary judgment may not be granted in favor of the party having the burden of proof when his right to recover depends upon credibility of his witnesses. Shearin v. National Indem. Co., 27 N.C. App. 88, 218 S.E.2d 207, 1975 N.C. App. LEXIS 1761 (1975).

When Motion May Be Granted on Basis of Party’s Own Affidavits. —

Summary judgment may be granted for a party with the burden of proof on the basis of his own affidavits: (1) When there are only latent doubts as to affiant’s credibility; (2) when the opposing party has failed to introduce any materials supporting his opposition, failed to point to specific areas of impeachment and contradiction, and failed to utilize section (f) of this rule; and (3) when summary judgment is otherwise appropriate. Kidd v. Early, 289 N.C. 343 , 222 S.E.2d 392, 1976 N.C. LEXIS 1290 (1976); Taylor v. City of Raleigh, 290 N.C. 608 , 227 S.E.2d 576, 1976 N.C. LEXIS 1123 (1976); Wachovia Bank & Trust Co. v. Peace Broadcasting Corp., 32 N.C. App. 655, 233 S.E.2d 687, 1977 N.C. App. LEXIS 2033 , cert. denied, 292 N.C. 734 , 235 S.E.2d 788, 1977 N.C. LEXIS 1207 (1977); Frank H. Conner Co. v. Spanish Inns Charlotte, Ltd., 294 N.C. 661 , 242 S.E.2d 785, 1978 N.C. LEXIS 1295 (1978); Carson v. Sutton, 35 N.C. App. 720, 242 S.E.2d 535, 1978 N.C. App. LEXIS 3067 (1978); Fitzgerald v. Wolf, 40 N.C. App. 197, 252 S.E.2d 523, 1979 N.C. App. LEXIS 2596 (1979); Courtney v. Courtney, 40 N.C. App. 291, 253 S.E.2d 2, 1979 N.C. App. LEXIS 2253 (1979); Lula Conrad Hoots Mem. Hosp. v. Hoots, 40 N.C. App. 595, 253 S.E.2d 330, 1979 N.C. App. LEXIS 2291 , cert. denied, 297 N.C. 609 , 257 S.E.2d 218, 1979 N.C. LEXIS 1495 (1979); Stroup Sheet Metal Works, Inc. v. Heritage, Inc., 43 N.C. App. 27, 258 S.E.2d 77, 1979 N.C. App. LEXIS 3031 (1979); Brooks v. Mount Airy Rainbow Farms Center, Inc., 48 N.C. App. 726, 269 S.E.2d 704, 1980 N.C. App. LEXIS 3320 (1980).

Summary judgment may be proper even where based in part upon the affidavits of the movant and his witnesses where there are only latent doubts as to the credibility of the affiants. North Carolina State Bd. of Registration v. IBM Corp., 31 N.C. App. 599, 230 S.E.2d 552, 1976 N.C. App. LEXIS 2074 (1976).

Effect of Prior Judicial Admissions by Party. —

Vehicular passenger’s prior testimony in two lawsuits, in which the passenger stated that the driver of another vehicle was at fault for an auto accident, unequivocally and unambiguously repudiated the allegations in the passenger’s complaint and affidavit against the driver of the vehicle in which the passenger was riding. Therefore, the passenger’s prior statements constituted judicial admissions by which the passenger was bound. Hash v. Estate of Henley, 190 N.C. App. 645, 661 S.E.2d 52, 2008 N.C. App. LEXIS 1229 (2008).

Reliance on Uncontradicted Affidavit as to Nonexistence of Genuine Issue. —

Party with the burden of proof may be entitled to summary judgment where he relies on the uncontradicted affidavit of a witness to establish that a genuine issue does not exist as to a material fact. If the circumstances show, however, that a material issue exists, the motion should be denied. Lacy J. Miller Mach. Co. v. Miller, 58 N.C. App. 300, 293 S.E.2d 622, 1982 N.C. App. LEXIS 2767 (1982).

Court should not resolve an issue of credibility or conduct a “trial by affidavits” at a hearing on a motion for summary judgment, especially in cases where knowledge of the fact is largely under the control of the movants. Lee v. Shor, 10 N.C. App. 231, 178 S.E.2d 101, 1970 N.C. App. LEXIS 1242 (1970).

A “trial by affidavits” at a hearing on a motion for summary judgment is clearly impermissible. Wall v. Flack, 15 N.C. App. 747, 190 S.E.2d 671, 1972 N.C. App. LEXIS 2021 (1972).

The trial court, upon motion for summary judgment under this rule, should not undertake to resolve an issue of credibility. Commercial Credit Corp. v. McCorkle, 19 N.C. App. 397, 198 S.E.2d 736, 1973 N.C. App. LEXIS 1666 (1973).

If there is any question as to the credibility of witnesses or the weight of evidence, a summary judgment should be denied. Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971); City of Thomasville v. Lease-Afex, Inc., 300 N.C. 651 , 268 S.E.2d 190, 1980 N.C. LEXIS 1130 (1980).

Credibility Not to Be Determined by Paper Affirmations or Denials. —

Absent an unequivocal waiver of a trial on oral testimony, credibility ought not, when witnesses are available, be determined by mere paper affirmations or denials that inherently lack the important element of witness’ demeanor. Lee v. Shor, 10 N.C. App. 231, 178 S.E.2d 101, 1970 N.C. App. LEXIS 1242 (1970).

Credibility of Testimony of Interested Witnesses to Be Submitted to Jury. —

The fact that a witness is interested in the result of the suit has been held to be sufficient to require the credibility of his testimony to be submitted to the jury. Lee v. Shor, 10 N.C. App. 231, 178 S.E.2d 101, 1970 N.C. App. LEXIS 1242 (1970).

Where plaintiffs’ interest necessarily raises a question of the credibility of their testimony in support of their motion for summary judgment, and their testimony cannot, under any circumstances, be accorded credibility as a matter of law, summary judgment would be inappropriate. Kidd v. Early, 289 N.C. 343 , 222 S.E.2d 392, 1976 N.C. LEXIS 1290 (1976).

Party may not defeat summary judgment by presenting deposition testimony which contradicts prior judicial admissions of his pleadings. Rollins v. Junior Miller Roofing Co., 55 N.C. App. 158, 284 S.E.2d 697, 1981 N.C. App. LEXIS 2992 (1981).

Testimony contained in an affidavit of nonmovant which contradicts his prior sworn testimony may not be used by him to defeat a summary judgment motion where the only issue of fact raised by the affidavit is the credibility of the affiant. Wachovia Mtg. Co. v. Autry-Barker-Spurrier Real Estate, Inc., 39 N.C. App. 1, 249 S.E.2d 727, 1978 N.C. App. LEXIS 2330 (1978), aff'd, 297 N.C. 696 , 256 S.E.2d 688, 1979 N.C. LEXIS 1267 (1979).

Prima Facie Evidence of Negligent Supervision. —

Plaintiff’s forecast of evidence was sufficient to demonstrate that she could make out a prima facie case of negligent supervision. Rouse v. Pitt County Mem. Hosp., 116 N.C. App. 241, 447 S.E.2d 505, 1994 N.C. App. LEXIS 905 (1994), aff'd, 343 N.C. 186 , 470 S.E.2d 44, 1996 N.C. LEXIS 266 (1996).

If different material conclusions can be drawn from the evidence, summary judgment should be denied, even though the evidence is uncontradicted. Durham v. Vine, 40 N.C. App. 564, 253 S.E.2d 316, 1979 N.C. App. LEXIS 2303 (1979); Spector United Employees Credit Union v. Smith, 45 N.C. App. 432, 263 S.E.2d 319, 1980 N.C. App. LEXIS 2650 (1980).

Where the evidence of the party to be awarded summary judgment is self-contradictory or allows reasonable inferences inconsistent with conclusions necessary to entitle that party to summary judgment, the trial court should not enter summary judgment and should allow the case to proceed to trial. A-S-P Assocs. v. City of Raleigh, 38 N.C. App. 271, 247 S.E.2d 800, 1978 N.C. App. LEXIS 2167 (1978), rev'd, 298 N.C. 207 , 258 S.E.2d 444, 1979 N.C. LEXIS 1362 (1979).

Summary judgment should be denied if different material conclusions can be drawn from the evidence. Godwin Sprayers, Inc. v. Utica Mut. Ins. Co., 59 N.C. App. 497, 296 S.E.2d 843, 1982 N.C. App. LEXIS 3155 (1982); Carlton v. Carlton, 74 N.C. App. 690, 329 S.E.2d 682, 1985 N.C. App. LEXIS 3572 (1985); Warren v. Rosso & Mastracco, Inc., 78 N.C. App. 163, 336 S.E.2d 699, 1985 N.C. App. LEXIS 4260 (1985); Herbert v. Browning-Ferris Indus. of S. Atl., Inc., 90 N.C. App. 339, 368 S.E.2d 416, 1988 N.C. App. LEXIS 555 (1988).

As Where Moving Papers Affirmatively Disclose a Material Controversy. —

Where the moving papers affirmatively disclose that the nature of the controversy presents a good faith and actual, as distinguished from formal, dispute on one or more material issues, summary judgment cannot be used. Page v. Sloan, 281 N.C. 697 , 190 S.E.2d 189, 1972 N.C. LEXIS 1162 (1972); Pitts v. Village Inn Pizza, Inc., 296 N.C. 81 , 249 S.E.2d 375, 1978 N.C. LEXIS 1162 (1978).

Motion for summary judgment must be denied if the opposing party submits material which casts doubts upon the existence of a material fact or upon the credibility of a material witness, or if such doubts are raised by movant’s own evidentiary material. Kidd v. Early, 289 N.C. 343 , 222 S.E.2d 392, 1976 N.C. LEXIS 1290 (1976).

Summary judgment is appropriate when movant shows through discovery that the opposing party cannot produce evidence to support an essential element of his claim. Dellinger v. Belk, 34 N.C. App. 488, 238 S.E.2d 788, 1977 N.C. App. LEXIS 1725 (1977), cert. denied, 294 N.C. 182 , 241 S.E.2d 517, 1978 N.C. LEXIS 1198 (1978).

When an insured sued an insurer for negotiating his life insurance premium payment and then refunding that payment and stating that coverage had never existed, and the insured moved for summary judgment, the insurer’s affidavit under G.S. 1A-1 , N.C. R. Civ. P. 56(f) that discovery was incomplete did not preclude the trial court from granting summary judgment because nothing sought by the insurer in its pending discovery requests bore on the questions of its waiver of the “good health” provision of the policy, whether the insurer completed an accord and satisfaction by negotiating the insurer’s refund check, or whether the insurer had committed unfair and deceptive practices. Cullen v. Valley Forge Life Ins. Co., 161 N.C. App. 570, 589 S.E.2d 423, 2003 N.C. App. LEXIS 2273 (2003).

Lack of Cause of Action or Defense Supports Grant of Judgment. —

Where the pleadings or proof disclose that no cause of action or defense exists, summary judgment may be granted. Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971); Nat Harrison Assocs. v. North Carolina State Ports Auth., 280 N.C. 251 , 185 S.E.2d 793, 1972 N.C. LEXIS 1225 (1972); Norfolk & W. Ry. v. Werner Indus., Inc., 286 N.C. 89 , 209 S.E.2d 734, 1974 N.C. LEXIS 1181 (1974); Barrett v. Phillips, 29 N.C. App. 220, 223 S.E.2d 918, 1976 N.C. App. LEXIS 2446 (1976).

Where the pleadings or proof disclose that no cause of action exists, summary judgment may be granted. Davenport v. Davenport, 25 N.C. App. 621, 214 S.E.2d 294, 1975 N.C. App. LEXIS 2341 (1975); Williams v. Congdon, 43 N.C. App. 53, 257 S.E.2d 677, 1979 N.C. App. LEXIS 3023 (1979); Rockingham Square Shopping Center, Inc. v. Town of Madison, 45 N.C. App. 249, 262 S.E.2d 705, 1980 N.C. App. LEXIS 2619 (1980).

Summary judgment is appropriately entered if the movant establishes that an essential part or element of the opposing party’s claim is nonexistent. Rorrer v. Cooke, 313 N.C. 338 , 329 S.E.2d 355, 1985 N.C. LEXIS 1543 (1985).

Where the pleadings or proof of the plaintiff disclose that no claim exists, summary judgment for defendant is proper. Colonial Bldg. Co. v. Justice, 83 N.C. App. 643, 351 S.E.2d 140, 1986 N.C. App. LEXIS 2744 (1986).

When the only issues to be decided are issues of law, summary judgment is proper. Wachovia Mtg. Co. v. Autry-Barker-Spurrier Real Estate, Inc., 39 N.C. App. 1, 249 S.E.2d 727, 1978 N.C. App. LEXIS 2330 (1978), aff'd, 297 N.C. 696 , 256 S.E.2d 688, 1979 N.C. LEXIS 1267 (1979); Brawley v. Brawley, 87 N.C. App. 545, 361 S.E.2d 759, 1987 N.C. App. LEXIS 3274 (1987).

And Presence of Difficult Questions of Law Is No Barrier. —

Where there is no genuine issue as to the facts, the presence of important or difficult questions of law is no barrier to the granting of summary judgment. Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971); Wachovia Mtg. Co. v. Autry-Barker-Spurrier Real Estate, Inc., 39 N.C. App. 1, 249 S.E.2d 727, 1978 N.C. App. LEXIS 2330 (1978), aff'd, 297 N.C. 696 , 256 S.E.2d 688, 1979 N.C. LEXIS 1267 (1979).

Summary judgment is appropriate where there is no genuine issue of material fact and the case presents only questions of law. This is true even if the questions of law are complex. VEPCO v. Tillett, 80 N.C. App. 383, 343 S.E.2d 188, 1986 N.C. App. LEXIS 2212 , cert. denied, 317 N.C. 715 , 347 S.E.2d 457, 1986 N.C. LEXIS 2452 (1986).

Movant Entitled to Summary Judgment Where Directed Verdict Would Be Required. —

If the materials before the court at the summary judgment hearing would require a directed verdict for defendants at trial, defendants are entitled to summary judgment. Whitaker v. Blackburn, 47 N.C. App. 144, 266 S.E.2d 763, 1980 N.C. App. LEXIS 2995 (1980).

If a verdict would be directed for the movant on the evidence presented at the hearing on the motion for summary judgment, the motion for summary judgment may properly be granted. Dendy v. Watkins, 288 N.C. 447 , 219 S.E.2d 214, 1975 N.C. LEXIS 1010 (1975); Haskins v. Carolina Power & Light Co., 47 N.C. App. 664, 267 S.E.2d 587, 1980 N.C. App. LEXIS 3164 (1980).

On motion for summary judgment, the test is whether the moving party presents materials which would require a directed verdict in his favor if offered as evidence at trial. Haithcock v. Chimney Rock Co., 10 N.C. App. 696, 179 S.E.2d 865, 1971 N.C. App. LEXIS 1700 (1971); Coakley v. Ford Motor Co., 11 N.C. App. 636, 182 S.E.2d 260, 1971 N.C. App. LEXIS 1602 , cert. denied, 279 N.C. 393 , 183 S.E.2d 244, 1971 N.C. LEXIS 815 (1971); Millsaps v. Wilkes Contracting Co., 14 N.C. App. 321, 188 S.E.2d 663, 1972 N.C. App. LEXIS 2125 , cert. denied, 281 N.C. 623 , 190 S.E.2d 466, 1972 N.C. LEXIS 1129 (1972); Fitzgerald v. Wolf, 40 N.C. App. 197, 252 S.E.2d 523, 1979 N.C. App. LEXIS 2596 (1979).

Unless Nonmovant Shows a Triable Issue of Fact. —

Where a motion for summary judgment is supported by proof which would require a directed verdict in his favor at trial, movant is entitled to summary judgment, unless the opposing party comes forward to show a triable issue of material fact. In re Will of Edgerton, 29 N.C. App. 60, 223 S.E.2d 524, 1976 N.C. App. LEXIS 2377 , cert. denied, 290 N.C. 308 , 225 S.E.2d 832, 1976 N.C. LEXIS 1062 (1976); Old S. Life Ins. Co. v. Bank of N.C. 36 N.C. App. 18, 244 S.E.2d 264, 1978 N.C. App. LEXIS 2401 (1978); Watson v. Watson, 49 N.C. App. 58, 270 S.E.2d 542, 1980 N.C. App. LEXIS 3360 (1980).

The opposing party is not entitled to have the motion for summary judgment denied on the mere hope that at trial he will be able to discredit movant’s evidence; he must, at the hearing, be able to point out to the court something indicating the existence of a triable issue of material fact. Kidd v. Early, 289 N.C. 343 , 222 S.E.2d 392, 1976 N.C. LEXIS 1290 (1976).

Or Shows Unavailability of Affidavits. —

If the party moving for summary judgment by affidavit or otherwise presents materials which would require a directed verdict in his favor if presented at trial, he is entitled to summary judgment unless the opposing party either shows that affidavits are then unavailable to him or comes forward with affidavits or other materials that show there is a triable issue of fact. Pridgen v. Hughes, 9 N.C. App. 635, 177 S.E.2d 425, 1970 N.C. App. LEXIS 1425 (1970); First Fed. Sav. & Loan Ass'n v. Branch Banking & Trust Co., 14 N.C. App. 567, 188 S.E.2d 661, 1972 N.C. App. LEXIS 2177 , rev'd, 282 N.C. 44 , 191 S.E.2d 683, 1972 N.C. LEXIS 885 (1972); Millsaps v. Wilkes Contracting Co., 14 N.C. App. 321, 188 S.E.2d 663, 1972 N.C. App. LEXIS 2125 , cert. denied, 281 N.C. 623 , 190 S.E.2d 466, 1972 N.C. LEXIS 1129 (1972); Brooks v. Smith, 27 N.C. App. 223, 218 S.E.2d 489, 1975 N.C. App. LEXIS 1802 (1975).

If plaintiff’s claim is barred by the statute of limitations, defendant is entitled to judgment as a matter of law and summary judgment is appropriate. Brantley v. Dunstan, 10 N.C. App. 706, 179 S.E.2d 878, 1971 N.C. App. LEXIS 1703 (1971); Poston v. Morgan-Schultheiss, Inc., 46 N.C. App. 321, 265 S.E.2d 615, 1980 N.C. App. LEXIS 2816 (1980).

Ordinarily, the question of whether a cause of action is barred by the statute of limitations is a mixed question of law and fact. However, when the bar is properly pleaded and the facts are admitted or are not in conflict, the question of whether the action is barred becomes one of law, and summary judgment is appropriate. Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488 , 329 S.E.2d 350, 1985 N.C. LEXIS 1555 (1985).

The statute of limitations, if properly pled, and if all the facts with reference thereto are admitted or established, may act as an affirmative defense, barring plaintiff’s claims and entitling defendants to summary judgment as a matter of law. Lackey v. Bressler, 86 N.C. App. 486, 358 S.E.2d 560, 1987 N.C. App. LEXIS 2745 (1987); Rowan County Bd. of Educ. v. United States Gypsum Co., 87 N.C. App. 106, 359 S.E.2d 814, 1987 N.C. App. LEXIS 3072 (1987).

When the statute of limitations is properly pleaded and the facts of the case are not in dispute, resolution of the question becomes a matter of law, and summary judgment may be appropriate. Marshburn v. Associated Indem. Corp., 84 N.C. App. 365, 353 S.E.2d 123, 1987 N.C. App. LEXIS 2508 (1987); Boundreau v. Baughman, 86 N.C. App. 165, 356 S.E.2d 907, 1987 N.C. App. LEXIS 2680 (1987), aff'd in part and rev'd in part, 322 N.C. 331 , 368 S.E.2d 849, 1988 N.C. LEXIS 366 (1988).

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 N.C. App. LEXIS 818 (1990).

When defendant establishes a complete defense to plaintiff’s claim, he is entitled to the quick and final disposition of that claim which summary judgment provides. Ballinger v. North Carolina Dep't of Revenue, 59 N.C. App. 508, 296 S.E.2d 836, 1982 N.C. App. LEXIS 3153 (1982), cert. denied, 307 N.C. 576 , 299 S.E.2d 645, 1983 N.C. LEXIS 1176 (1983).

The court may grant summary judgment if the movant conclusively establishes every element of its claim or conclusively establishes a complete defense or legal bar to the nonmovant’s claim. VEPCO v. Tillett, 80 N.C. App. 383, 343 S.E.2d 188, 1986 N.C. App. LEXIS 2212 , cert. denied, 317 N.C. 715 , 347 S.E.2d 457, 1986 N.C. LEXIS 2452 (1986).

A defending party is entitled to summary judgment if he can show that no claim for relief exists or that the claimant cannot overcome an affirmative defense to the claim. Rolling Fashion Mart, Inc. v. Mainor, 80 N.C. App. 213, 341 S.E.2d 61, 1986 N.C. App. LEXIS 2162 (1986).

A defending party is entitled to summary judgment if it can establish that no claim for relief exists or that the claimant cannot overcome an affirmative defense or legal bar to the claim. Wilder v. Hobson, 101 N.C. App. 199, 398 S.E.2d 625, 1990 N.C. App. LEXIS 1209 (1990).

Motive, like intent or other states of mind, is rarely susceptible to direct proof and almost always depends on inferences drawn from circumstantial evidence. Consequently, summary judgment should rarely be granted in cases in which it is at issue. Burrow v. Westinghouse Elec. Corp., 88 N.C. App. 347, 363 S.E.2d 215, 1988 N.C. App. LEXIS 31 (1988).

Constitutional Arguments Susceptible to Summary Judgment. —

Since the general rule is that the constitutionality of a statute is to be determined merely from an examination of the statute itself and of only those matters of which the court may take judicial notice, plaintiff ’s constitutional arguments presented a question of law and were properly susceptible to summary judgment. Baugh v. Woodard, 56 N.C. App. 180, 287 S.E.2d 412, 1982 N.C. App. LEXIS 2346 (1982).

Summary judgment is not a proper remedy for failure to join a necessary party. Dildy v. Southeastern Fire Ins. Co., 13 N.C. App. 66, 185 S.E.2d 272, 1971 N.C. App. LEXIS 1158 (1971).

Summary judgment procedure is available to both plaintiff and defendant. Pridgen v. Hughes, 9 N.C. App. 635, 177 S.E.2d 425, 1970 N.C. App. LEXIS 1425 (1970); Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971); Clear Fir Sales Co. v. Carolina Plywood Distrib., Inc., 13 N.C. App. 429, 185 S.E.2d 737, 1972 N.C. App. LEXIS 2257 (1972); McNair v. Boyette, 282 N.C. 230 , 192 S.E.2d 457, 1972 N.C. LEXIS 930 (1972).

A defending party may show as a matter of law that he is entitled to summary judgment in his favor by showing that there is no genuine issue of material fact concerning an essential element of the claimant’s claim for relief and that the claimant cannot prove the existence of that element. Best v. Perry, 41 N.C. App. 107, 254 S.E.2d 281, 1979 N.C. App. LEXIS 2389 (1979); Ramsey v. Rudd, 49 N.C. App. 670, 272 S.E.2d 162, 1980 N.C. App. LEXIS 3437 (1980).

If defendants clearly establish that there is no genuine issue as to the nonexistence of material facts which are necessary as an essential element of any cause of action against them, then they are entitled to summary judgment on that action. Clodfelter v. Bates, 44 N.C. App. 107, 260 S.E.2d 672, 1979 N.C. App. LEXIS 3182 (1979), cert. denied, 299 N.C. 329 , 265 S.E.2d 394, 1980 N.C. LEXIS 1004 (1980).

A defending party is entitled to summary judgment if he can show that the claimant cannot prove the existence of an essential element of his claim or cannot surmount an affirmative defense which would bar the claim. Little v. National Servs. Indus., Inc., 79 N.C. App. 688, 340 S.E.2d 510, 1986 N.C. App. LEXIS 2114 (1986).

Party Need Not Move for Judgment in Order to Be Entitled to It. —

Section (c) of this rule does not require that a party move for summary judgment in order to be entitled to it. Greenway v. North Carolina Farm Bureau Mut. Ins. Co., 35 N.C. App. 308, 241 S.E.2d 339, 1978 N.C. App. LEXIS 2963 (1978); McNair Constr. Co. v. Fogle Bros. Co., 64 N.C. App. 282, 307 S.E.2d 200, 1983 N.C. App. LEXIS 3264 (1983).

Summary judgment may be granted in favor of a nonmoving party in proper cases. A-S-P Assocs. v. City of Raleigh, 38 N.C. App. 271, 247 S.E.2d 800, 1978 N.C. App. LEXIS 2167 (1978), rev'd, 298 N.C. 207 , 258 S.E.2d 444, 1979 N.C. LEXIS 1362 (1979).

Summary judgment in favor of the nonmovant is appropriate when the evidence presented demonstrates that no material issues of fact are in dispute, and the nonmovant is entitled to entry of judgment as a matter of law. A-S-P Assocs. v. City of Raleigh, 298 N.C. 207 , 258 S.E.2d 444, 1979 N.C. LEXIS 1362 (1979).

In an appropriate case, summary judgment may be rendered against the moving party. Candid Camera Video World, Inc. v. Mathews, 76 N.C. App. 634, 334 S.E.2d 94, 1985 N.C. App. LEXIS 3931 (1985).

After Movant Is Given Opportunity to Show Existence of a Genuine Issue. —

Summary judgment for the nonmoving party should be granted only when the moving party has been given adequate opportunity to show in opposition that there is a genuine issue of fact to be resolved. A-S-P Assocs. v. City of Raleigh, 298 N.C. 207 , 258 S.E.2d 444, 1979 N.C. LEXIS 1362 (1979).

Granting of Summary Judgment by Judge on Own Motion. —

The granting of summary judgment or judgment on the pleadings by the trial judge on his own motion is a practice not to be commended, and is clearly erroneous where there is a factual question to be answered. Crews v. Taylor, 21 N.C. App. 296, 204 S.E.2d 193, 1974 N.C. App. LEXIS 1784 (1974).

Rarely is it proper to enter summary judgment in favor of the party having the burden of proof. Blackwell v. Massey, 69 N.C. App. 240, 316 S.E.2d 350, 1984 N.C. App. LEXIS 3400 (1984).

Summary judgment may be granted for a party with the burden of proof on his own affidavits (1) when there are only latent doubts as to the affiant’s credibility; (2) when the opposing party has failed to introduce any materials supporting his opposition, failed to point to specific areas of impeachment and contradiction, and failed to utilize section (f) of this rule; and (3) when summary judgment is otherwise appropriate. Almond Grading Co. v. Shaver, 74 N.C. App. 576, 329 S.E.2d 417, 1985 N.C. App. LEXIS 3517 (1985); Valdese Gen. Hosp. v. Burns, 79 N.C. App. 163, 339 S.E.2d 23, 1986 N.C. App. LEXIS 2052 (1986).

Plaintiff’s bare assertions in unverified complaint, which were denied by defendant, held insufficient to support entry of summary judgment for plaintiff. Smith v. Rushing Constr. Co., 84 N.C. App. 692, 353 S.E.2d 692, 1987 N.C. App. LEXIS 2540 (1987).

Where plaintiff made a motion for summary judgment, which was denied, and later plaintiff filed a second motion for summary judgment involving the same issue as presented by the initial motion, the trial court erred by granting plaintiff’s second motion for summary judgment. Taylorsville Fed. Savs. & Loan Ass'n v. Keen, 110 N.C. App. 784, 431 S.E.2d 484, 1993 N.C. App. LEXIS 691 (1993).

Appellate Conclusion Improper. —

Where Court of Appeals majority opinion included a paragraph that concluded that a balancing of the equities favored denial of relief to plaintiff, such a conclusion was improper at the summary judgment stage. Roberts v. Madison County Realtors Ass'n, 344 N.C. 394 , 474 S.E.2d 783, 1996 N.C. LEXIS 485 (1996).

Not All Parts of Distributer’s Affidavits and Complaint Were Based on Personal Knowledge. —

Despite a distributor’s claims that his manufacturer’s export agent, who lived in Great Britain, had tortiously interfered with the distributor-manufacturer relationship, in that the agent hired the distributor’s salesman with the intention of establishing his own distributorship, a trial court did not err in ruling that under the Due Process Clause, no personal jurisdiction existed over the manager. The personal knowledge requirement for documents and affidavits, as contained in G.S. 1A-1 , N.C. R. Civ. P. 56(e), applied to motions to dismiss under G.S. 1A-1 , N.C. R. Civ. P. 12(b)(2), not all parts of the distributor’s affidavits and complaint were based on personal knowledge, and only those parts based on personal knowledge, which were insufficient to show personal jurisdiction, could be considered. Deer Corp. v. Carter, 177 N.C. App. 314, 629 S.E.2d 159, 2006 N.C. App. LEXIS 968 (2006).

Affidavit Statements Based on Hearsay Would Not be Admissible. —

Trial court erred in granting summary judgment to an employer because the statements in the affidavits made by three affiants to establish an employee’s on-call pay rate, and in the exhibits submitted in support of their affidavits, were hearsay under G.S. 8C-1 , N.C. R. Evid. 801(c) and were inadmissible under G.S. 1A-1 , N.C. R. Civ. P. 56(e) to prove the employee’s on-call pay rate. Further, none of the affidavits addressed the foundational requirements for the admission of evidence through a business record, and thus did not present personal knowledge setting forth facts admissible in evidence under G.S. 8C-1 , N.C. R. Evid. 803(6). Gilreath v. N.C. HHS, 177 N.C. App. 499, 629 S.E.2d 293, 2006 N.C. App. LEXIS 1077 , cert. denied, 360 N.C. 576 , 635 S.E.2d 595, 2006 N.C. LEXIS 925 (2006), aff'd, 361 N.C. 109 , 637 S.E.2d 537, 2006 N.C. LEXIS 1295 (2006).

Deposition Testimony Contradicting Affidavit. —

Summary judgment for defendants in a medical negligence action was affirmed; plaintiffs’ expert witness affidavit could not be considered to establish any material facts in support of proximate cause because it was contradicted by the expert’s deposition testimony that whether particular acts caused particular injuries could not be determined. Cousart v. Charlotte-Mecklenburg Hosp. Auth., 209 N.C. App. 299, 704 S.E.2d 540, 2011 N.C. App. LEXIS 66 (2011).

Inadmissible Averments in Affidavit Properly Disregarded. —

Decedent’s estate’s contention that the trial court erred by allegedly considering an affidavit because it contained statements made by a decedent and her deceased sister was without merit since to the extent the challenged affidavit contained averments that would violate N.C. R. Evid. 601(c) if admitted as evidence at a later trial, the appellate court assumed the trial court properly disregarded them. Forbis v. Neal, 361 N.C. 519 , 649 S.E.2d 382, 2007 N.C. LEXIS 813 (2007).

Striking of Affidavits and Deposition. —

Testimony contained in four affidavits and a deposition submitted by the decedent’s son regarding the intent of the decedent to disinherit one of the other beneficiaries in a will was properly stricken under G.S. 1A-1 because the declarations in the affidavits were incompetent to establish the decedent’s intent and were inadmissible for that purpose. Hammer v. Hammer, 179 N.C. App. 408, 633 S.E.2d 878, 2006 N.C. App. LEXIS 1906 (2006).

Rule 57. Declaratory judgments.

The procedure for obtaining a declaratory judgment pursuant to Article 26, Chapter 1, General Statutes of North Carolina, shall be in accordance with these rules, and the right to trial by jury may be demanded under the circumstances and in the manner provided in Rules 38 and 39. The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. The court may order a prompt hearing of an action for a declaratory judgment and may advance it on the calendar.

History. 1967, c. 954, s. 1.

Comment

This rule tracks the language of federal Rule 57, changed only by reference to the state statutory law, which spells out in detail the scope, procedure for obtaining, and effect of declaratory judgment. The comparable federal statutory law is 28 U.S.C.A. §§ 2201, 2202, a much more general statute than the state statute. The North Carolina Declaratory Judgment Act, to which reference is made, is essentially the Uniform Declaratory Judgment Act. The Commission felt that except for one minor change in respect of jury trial, the need for which is developed below, it should retain this basic statutory law and not substitute the more general federal type formulation. Professor Borchard, father of both, felt that state declaratory judgment acts should be more specific and detailed than the basic federal statutory authority needed to be. This separate practice rule simply refers to the basic act and in effect says (what is perhaps not strictly necessary in view of the coverage rule, Rule 1) that action for this relief as other actions shall be governed by these rules.

This rule does also make specific the right to jury trial as in other actions. Although this reflects a background of separate law and equity administration with resulting problems of jury right in the federal system in “new” kinds of actions, problems not presented in the North Carolina completely fused code practice, it does no harm to leave in this reference. Indeed, the North Carolina act itself, in § 1-261, states the basic right to jury trial of fact issues in this type of action.

The provision that, “The existence of another adequate remedy does not preclude a judgment for declaratory relief . . .” merely states more plainly and bolsters what is implicit in the act itself when in § 1-253 it is provided that the power to grant declaratory relief exists “whether or not further relief is or could be claimed.” The federal act contains similar language in § 2201, but the federal rules draftsman thought it expedient to solidify this in the rule itself. No reason appears to depart from this. The critical substantive point here is that this language preserves the discretionary right of the court when asked to declare rights to decline to do so, possibly on the basis of existence of another remedy, but not necessarily to do so.

The provision for advancing trial of declaratory actions seems wise and would not apparently violate any State procedural customs or rules, within which peremptory settings are familiar practice.

Legal Periodicals.

For an article discussing “reverse bad faith,” the concept of allowing an insurer to assert a counterclaim for affirmative relief against an insured who brings a frivolous, bad faith action, see 19 Campbell L. Rev. 43 (1996).

CASE NOTES

Basic Statutory Provisions Retained. —

The basic statutory provisions for obtaining declaratory judgments have been retained. This rule simply provides that the procedure for this remedy shall be in accordance with the new Rules of Civil Procedure. Reeves Bros. v. Town of Rutherfordton, 15 N.C. App. 385, 190 S.E.2d 345, 1972 N.C. App. LEXIS 1923 (1972), rev'd, 282 N.C. 559 , 194 S.E.2d 129, 1973 N.C. LEXIS 1108 (1973).

Scope of Relief in Declaratory Judgment Actions Not Limited by G.S. 110-104 . —

The spirit and intent of G.S. 110-104 , relating to injunctive relief against continuing operation of day-care facilities, do not permit, much less compel, a conclusion that the Day-Care Facilities Act is intended to restrict the general statewide jurisdiction of the superior court or to limit the scope of relief normally available in declaratory judgment actions. The mere existence of an alternate adequate remedy under G.S. 110-104 will not be held to bar an appropriate action for declaratory judgment. State, Child Day-Care Licensing Comm'n v. Fayetteville St. Christian School, 299 N.C. 351 , 261 S.E.2d 908, 1980 N.C. LEXIS 930 (1980).

Declaratory Judgment Held Proper. —

Trial court properly entered declaratory judgment in favor of a corporation and found that the sale of pre-paid phone cards with game pieces was not an illegal lottery where the inclusion of game pieces was merely a marketing system, the phone card was sufficiently compatible with the price being charged and had sufficient value and utility to support the conclusion that it, and not the associated game of chance, was the object being purchased, and consumers could receive free game pieces via written request without purchasing the phone card. Am. Treasures, Inc. v. State, 173 N.C. App. 170, 617 S.E.2d 346, 2005 N.C. App. LEXIS 1928 (2005).

Summary judgment is an appropriate procedure in a declaratory judgment action. Montgomery v. Hinton, 45 N.C. App. 271, 262 S.E.2d 697, 1980 N.C. App. LEXIS 2627 (1980).

The propriety of a summary judgment in declaratory judgment actions is governed by the same rules applicable to other actions. North Carolina Life & Accident & Health Ins. Guar. Ass'n v. Underwriters Nat'l Assurance Co., 48 N.C. App. 508, 269 S.E.2d 688, 1980 N.C. App. LEXIS 3257 (1980), cert. denied, 301 N.C. 527 , 273 S.E.2d 453, 1980 N.C. LEXIS 1592 (1980), rev'd, 455 U.S. 691, 102 S. Ct. 1357, 71 L. Ed. 2d 558, 1982 U.S. LEXIS 88 (1982).

Rule 58. Entry of judgment.

Subject to the provisions of Rule 54(b), a judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court pursuant to Rule 5. The party designated by the judge or, if the judge does not otherwise designate, the party who prepares the judgment, shall serve a copy of the judgment upon all other parties within three days after the judgment is entered. Service and proof of service shall be in accordance with Rule 5. If service is by mail, three days shall be added to the time periods prescribed by Rule 50(b), Rule 52(b), and Rule 59. All time periods within which a party may further act pursuant to Rule 50(b), Rule 52(b), or Rule 59 shall be tolled for the duration of any period of noncompliance with this service requirement, provided however that no time period under Rule 50(b), Rule 52(b), or Rule 59 shall be tolled longer than 90 days from the date the judgment is entered. Subject to the provisions of Rule 7(b)(4), consent for the signing and entry of a judgment out of term, session, county, and district shall be deemed to have been given unless an express objection to such action was made on the record prior to the end of the term or session at which the matter was heard.

Notwithstanding any other law to the contrary, any judgment entered by a magistrate in a small claims action pursuant to Article 19 of Chapter 7A shall be entered in accordance with this Rule except judgments announced and signed in open court at the conclusion of a trial are considered to be served on the parties, and copies of any judgment not announced and signed in open court at the conclusion of a trial shall be served by the magistrate on all parties in accordance with this Rule, within three days after the judgment is entered. If service is by mail, three days shall be added to the time periods prescribed by G.S. 7A-228 . All time periods within which a party may further act pursuant to G.S. 7A-228 shall be tolled for the duration of any period of noncompliance of this service requirement, provided that no time period shall be tolled longer than 90 days from the date judgment is entered.

History. 1967, c. 954, s. 1; 1993 (Reg. Sess., 1994), c. 594, s. 1; 2005-163, s. 2; 2017-158, s. 2.

Editor’s Note.

The “Comment” under this Rule has been omitted at the direction of the Revisor of Statutes because it is no longer relevant in light of the extensive rewriting of this Rule by Session Laws 1993 (Reg. Sess., 1994), c. 594, s. 1.

Effect of Amendments.

Session Laws 2017-158, s. 2, effective July 21, 2017, added “pursuant to Rule 5” at the end of the first sentence of the first paragraph.

CASE NOTES

Editor’s Note. —

Many of the cases below were decided prior to the 1993 (Reg. Sess., 1994) amendment, which rewrote this section.

Entry of Judgments After Oct. 1, 1994. —

Amended version of rule applies to all judgments subject to entry on or after October 1, 1994 and applies to orders as well as judgments. West v. Marko, 130 N.C. App. 751, 504 S.E.2d 571, 1998 N.C. App. LEXIS 1165 (1998).

Contention that the Federal Rules should be consulted in defining “entry of judgment” is without merit. Harrington v. Harrington, 38 N.C. App. 610, 248 S.E.2d 460, 1978 N.C. App. LEXIS 2253 (1978).

The purpose of requirements for notations required by this rule is to provide a basis for making the time of entry of judgment easily identifiable and to give fair notice to all the parties of the entry of judgment. Landin Ltd. v. Sharon Luggage, Ltd., 78 N.C. App. 558, 337 S.E.2d 685, 1985 N.C. App. LEXIS 4323 (1985).

Results of Failure to Meet Requirements of This Rule. —

A consent agreement entered into after a judge’s ruling denying the specific performance of a mediated settlement agreement took precedence over that ruling where the ruling was never entered in accordance with this section. Price v. Dobson, 141 N.C. App. 131, 539 S.E.2d 334, 2000 N.C. App. LEXIS 1285 (2000).

Appellate court lacked jurisdiction to review a judgment creditor’s notice of appeal because the creditor’s appeal was untimely since the creditor received actual notice of the trial court’s entry of summary judgment in the judgment debtor’s favor via e-mail, but failed to file the creditor’s notice of appeal within the statutory three-day period and no copy of the foreign judgment was included in the record. Magazian v. Creagh, 234 N.C. App. 511, 759 S.E.2d 130, 2014 N.C. App. LEXIS 683 (2014).

Objectives of Rule. —

This rule is designed to achieve the objectives of (1) making the moment of the entry of judgment easily identifiable, and (2) furnishing fair notice to all parties of the entry of judgment. Barringer & Gaither, Inc. v. Whittenton, 22 N.C. App. 316, 206 S.E.2d 301, 1974 N.C. App. LEXIS 2313 (1974); John T. Council, Inc. v. Balfour Prods. Group, Inc., 74 N.C. App. 668, 330 S.E.2d 6, 1985 N.C. App. LEXIS 3573 (1985).

The objectives of this rule are to make the moment of entry of judgment easily identifiable and to give fair notice to all parties. Rivers v. Rivers, 29 N.C. App. 172, 223 S.E.2d 568, 1976 N.C. App. LEXIS 2405 , cert. denied, 290 N.C. 309 , 225 S.E.2d 829, 1976 N.C. LEXIS 1066 (1976).

Since many rights relating to the appeals process are “keyed” to the time of “entry of judgment,” it is imperative that the judge’s decisions become part of the court’s records and that all interested persons know the exact date on which judgment is entered. State v. Boone, 310 N.C. 284 , 311 S.E.2d 552, 1984 N.C. LEXIS 1566 (1984).

There are no cases which have construed G.S. 15A-101(4a), which governs “entry of judgment” in criminal cases. However, this rule is sufficiently analogous to provide guidance in the area. State v. Boone, 310 N.C. 284 , 311 S.E.2d 552, 1984 N.C. LEXIS 1566 (1984).

The purpose of requirements for notations required by this rule is to provide a basis for making the time of entry of judgment easily identifiable and to give fair notice to all the parties of the entry of judgment. Landin Ltd. v. Sharon Luggage, Ltd., 78 N.C. App. 558, 337 S.E.2d 685, 1985 N.C. App. LEXIS 4323 (1985).

The purpose of this rule is to make the time of entry of judgment identifiable so that all parties are given notice of the entry of judgment. Behar v. Toyota of Fayetteville, Inc., 90 N.C. App. 603, 369 S.E.2d 618, 1988 N.C. App. LEXIS 645 (1988).

The purpose of this rule is to provide notice of the entry of judgment to all parties and to identify the moment of entry of judgment. Ives v. Real-Venture, Inc., 97 N.C. App. 391, 388 S.E.2d 573, 1990 N.C. App. LEXIS 136 (1990).

Employee’s appeal of an order and judgment dismissing his complaint against employers involuntarily, whereby the employee argued that the order and judgment was never served pursuant to G.S. 1A-1 , N.C. R. Civ. P. 58, was dismissed because the employee’s notice of appeal was untimely, and the employee waived the benefit of N.C. R. App. P. 3(c) by failing to take timely action with regard to his notice of appeal; the purposes of Rule 58 are not served by allowing a party with actual notice to file a notice of appeal and allege timeliness based on lack of proper service when almost three years have passed since the party had filed its G.S. 1A-1 , N.C. R. Civ. P. 60(b) motion and the entry of an order denying it. Huebner v. Triangle Research Collaborative, 193 N.C. App. 420, 667 S.E.2d 309, 2008 N.C. App. LEXIS 1805 (2008).

This rule applies to judgments and orders entered in civil cases in district and superior court. In re Estate of Trull, 86 N.C. App. 361, 357 S.E.2d 437, 1987 N.C. App. LEXIS 2708 (1987).

This rule has no application to a confession of judgment. Rivers v. Rivers, 29 N.C. App. 172, 223 S.E.2d 568, 1976 N.C. App. LEXIS 2405 , cert. denied, 290 N.C. 309 , 225 S.E.2d 829, 1976 N.C. LEXIS 1066 (1976).

Notice Filed Before Judgment. —

Defendant juvenile filed his notice of appeal before the judgment was filed, and although he did not file a petition for writ of certiorari, the court found defendant’s case worthy of treating his brief as a petition for writ of certiorari; the court saw no resulting prejudice to the State and thus invoked the rule to proceed to the merits of the appeal. In re E.A., 267 N.C. App. 396, 833 S.E.2d 630, 2019 N.C. App. LEXIS 759 (2019).

Rule Not Applicable Once Party Received Actual Notice Of Entry Of Judgment. —

Trial court did not err in dismissing defendant’s appeal of a custody order as not timely filed pursuant to N.C. R. App. P. 3(c)(1) because defendant did not file notice of appeal within thirty days from the date the order was entered; defendant received actual notice of the entry and content of the order when a staff member from defense counsel’s office picked up the order from the court house and faxed a copy of the custody order to plaintiff’s attorney, and once defendant received actual notice, the portion of Rule 3(c) requiring service pursuant to G.S. 1A-1 , N.C. R. Civ. P. 58, was not applicable to her. Manone v. Coffee, 217 N.C. App. 619, 720 S.E.2d 781, 2011 N.C. App. LEXIS 2599 (2011).

When a party receives actual notice of the entry and content of a judgment, the service requirements of N.C. R. App. P. 3(c) are not applicable because at that point, the party has been given fair notice that judgment has been entered, and the party’s actual notice essentially substitutes for the service requirements; although the service requirements of Rule 3(c) are not applicable, the remainder of Rule 3(c) shall continue to apply. Manone v. Coffee, 217 N.C. App. 619, 720 S.E.2d 781, 2011 N.C. App. LEXIS 2599 (2011).

Requirements for Completed Entry of Judgment. —

Paragraph three of this rule specifies three separate events which must occur before entry of judgment is complete. First, the clerk must receive an order from the trial judge for the entry of judgment. Second, the judgment must be filed. Third, the clerk must mail notice of filing to all parties. Darcy v. Osborne, 101 N.C. App. 546, 400 S.E.2d 95, 1991 N.C. App. LEXIS 84 (1991).

Pursuant to G.S. 1A-1 , Rule 58, a judgment is “entered” when it is reduced to writing, signed by the judge, and filed with the clerk of court, and nothing in G.S. 1A-1 , Rule 65(b) suggests that “entry” has a different meaning for purposes of Rule 65; in fact, case law confirms that a temporary restraining order is not effective until filed by the clerk. In the instant case, the temporary restraining order was not filed with the clerk and entered of record until July 27, and would thus have expired by Rule on August 6, 2009, after debtor filed its bankruptcy petition. In re Highway 751 Partners, LLC, 2009 Bankr. LEXIS 3967 (Bankr. E.D.N.C. Dec. 3, 2009).

Order was not properly based upon G.S. 1A-1 , N.C. R. Civ. P.60, because the trial court had not yet entered a judgment or order as it had not yet reduced its findings and conclusions to writing. In re A.B., 239 N.C. App. 157, 768 S.E.2d 573, 2015 N.C. App. LEXIS 58 (2015).

Although a trial court’s first civil commitment order lacked substantive content, it was a final order in that the order was a written order that was signed and entered, as the file stamp indicated, and despite its lack of content, the order authorized the county sheriff to take immediate custody of defendant. Cty. of Durham v. Hodges, 257 N.C. App. 288, 809 S.E.2d 317, 2018 N.C. App. LEXIS 35 (2018).

Entry of Order Necessary to Vest Judge With Jurisdiction. —

Entry of the clerk’s order was necessary to vest a judge with jurisdiction to hear the appeal in superior court, and no entry of final judgment on the merits of prior motions occurred such that the issues before another judge were barred by res judicata. In re Thompson, 232 N.C. App. 224, 754 S.E.2d 168, 2014 N.C. App. LEXIS 152 (2014).

The Court of Appeals is without authority to entertain appeal of a case which lacks entry of judgment. Abels v. Renfro Corp., 126 N.C. App. 800, 486 S.E.2d 735, 1997 N.C. App. LEXIS 634 (1997).

Where defendants’ motion for directed verdict was not reduced to writing and filed with the clerk of the court as required by this section, the court of appeals had no jurisdiction to consider the merits of the appeal. Mastin v. Griffith, 133 N.C. App. 345, 515 S.E.2d 494, 1999 N.C. App. LEXIS 399 (1999).

Even if a mother’s letter was considered a proper motion to stay proceedings, because the trial court never entered an order ruling the mother’s “motion to stay” letter, the court of appeals not have jurisdiction to determine whether the trial court abused its discretion by not granting a stay under the Uniform Child Custody Jurisdiction and Enforcement Act; the letter was not filed stamped or served on the father’s counsel prior to the hearing and did not identify any legal basis for the stay. Waly v. Alkamary, 2021-NCCOA-429, 279 N.C. App. 73, 864 S.E.2d 763, 2021- NCCOA-429, 2021 N.C. App. LEXIS 439 (2021).

Termination Order Entered by Non-Presiding Judge. —

Since the judge did not preside over the termination hearing, the first set of termination orders had never been properly entered and were a nullity; thus, the mother’s appeal did not divest the district court of authority to enter additional orders correcting the error, and since the trial court had the authority to enter the challenged orders and the mother had not advanced any other challenges to the validity of the orders, the orders were affirmed. In re C.M.C., 373 N.C. 24 , 832 S.E.2d 681, 2019 N.C. LEXIS 906 (2019).

Mootness. —

When the trial court rendered judgment on the divorce from bed and board, no absolute divorce had occurred, and when the order based upon this rendition was entered, the absolute divorce had been granted and the divorce from bed and board no longer had any practical use, such that the order granting divorce from bed and board was now moot for purposes of appellate review. Oltmanns v. Oltmanns, 241 N.C. App. 326, 773 S.E.2d 347, 2015 N.C. App. LEXIS 441 (2015).

Filing of Injunction Required for Contempt Purposes. —

A party could not be held in contempt for violations of a preliminary injunction that occurred after the order for the injunction was issued, but before it was filed with the county clerk. Onslow County v. Moore, 129 N.C. App. 376, 499 S.E.2d 780, 1998 N.C. App. LEXIS 554 (1998).

Contrary Direction. —

An instruction by the court that the prevailing party’s attorney is to draft the order is a contrary direction. Therefore, because of the trial court’s contrary direction, the automatic entry provisions of paragraph one of this rule do not operate to determine when entry of judgment occurred. In re Hayes, 106 N.C. App. 652, 418 S.E.2d 304, 1992 N.C. App. LEXIS 552 (1992).

Application of Third Paragraph. —

The third paragraph of this rule applies to instances where the trial judge directs the clerk to prepare and file judgment. It is inapplicable when the trial judge prepares and signs the judgment. Barringer & Gaither, Inc. v. Whittenton, 22 N.C. App. 316, 206 S.E.2d 301, 1974 N.C. App. LEXIS 2313 (1974).

Better Practice for Trial Judge to Direct Clerk to Enter Judgment. —

The inattention of the trial bench to the directory mandate of the second paragraph of this rule has resulted in conflicting decisions on the dismissal of appeals for failure to give timely notice following entry of judgment. Obviously, the better practice is for the trial judge to specifically direct the clerk as to entry of judgment, and for the parties to ensure that the provisions of such direction are included in the record on appeal. Gates v. Gates, 69 N.C. App. 421, 317 S.E.2d 402, 1984 N.C. App. LEXIS 3492 (1984), aff'd, 312 N.C. 620 , 323 S.E.2d 920, 1985 N.C. LEXIS 1480 (1985).

It is essential that the notation of entry of judgment include at least the names of the parties, the prevailing party, the relief awarded, and the date the verdict was returned. The notation here lacks these specifics and is therefore insufficient to constitute entry of judgment under Rule 58. Reed v. Abrahamson, 331 N.C. 249 , 415 S.E.2d 549, 1992 N.C. LEXIS 200 (1992).

Inadequate Notation. —

In order to make a notation of “such verdict” as was returned in this case, the clerk had to specify more than the mere words “jury verdict.” An adequate notation would have reflected much of the information on the actual jury verdict form, including, at minimum, the names of the parties, the prevailing party, the relief awarded, and the date the verdict was returned. Reed v. Abrahamson, 331 N.C. 249 , 415 S.E.2d 549, 1992 N.C. LEXIS 200 (1992).

Entry of Magistrate’s Judgment. —

This rule specifically controls the determination of the magistrate’s “entry” of a small claims court judgment in the court minutes for purposes of appeal under G.S. 7A-228 . Under this rule, where the magistrate “rendered” his judgment in open court, and the evidence was clear that he announced the judgment in open court both dismissing plaintiff’s action and awarding defendants a sum certain on their counterclaim, entry of the magistrate’s judgment was deemed to occur at the time of rendition. Provident Fin. Co. v. Locklear, 89 N.C. App. 353, 366 S.E.2d 599 (1988).

Entry of magistrate’s judgment for purposes of this rule was not less automatic simply because the magistrate himself (rather than a clerk) noted the judgment in the court minutes. Provident Fin. Co. v. Locklear, 89 N.C. App. 353, 366 S.E.2d 599 (1988).

G.S. 7A-224 does not control the manner of “rendering” magistrate’s judgments under this rule; it merely requires the magistrate’s judgment to be rendered in writing in order to be deemed a judgment of the district court entitled to recording and indexing as any other district court judgment. The statement that “entry is made as soon as practicable after rendition” merely refers to the entry of that judgment in the records and indexes of the general courts. Thus, G.S. 7A-224 simply sets forth the requirements for filing a magistrate’s judgment as a judgment of the district court. Provident Fin. Co. v. Locklear, 89 N.C. App. 353, 366 S.E.2d 599 (1988).

Requirements for Entry of Judgments Not Rendered in Open Court. —

Under this rule there are three requirements necessary for the entry of judgments which are not rendered in open court. First, an order for the entry of judgment must be given to the clerk by the judge. Second, the judgment must be filed. Third, the clerk must mail notice to all parties, and entry of judgment is deemed to have been made at the time of the mailing of the notice. Rivers v. Rivers, 29 N.C. App. 172, 223 S.E.2d 568, 1976 N.C. App. LEXIS 2405 , cert. denied, 290 N.C. 309 , 225 S.E.2d 829, 1976 N.C. LEXIS 1066 (1976).

Although there are situations where it would be more convenient for a judge to mail his ruling to the clerk, and then allow the clerk to notify the respective parties of the judge’s decision, the better practice, in criminal cases, is for the judge to announce his rulings in open court and direct the clerk to note the ruling in the minutes of the court. When the judge’s ruling is not announced in open court, the order or judgment containing the ruling must be signed and filed with the clerk in the county, in the district and during the session when and where the question is presented. These rules serve to protect the interests of the defendant, the State, and the public, by allowing all interested persons to be informed as to when a judgment or order has been rendered in a particular matter. State v. Boone, 310 N.C. 284 , 311 S.E.2d 552, 1984 N.C. LEXIS 1566 (1984).

Applicability to Probate Matters Before Clerk. —

This rule had no application in a case involving the denial of a motion made before the clerk of superior court pursuant to G.S. 28A-9-1 to revoke the letters testamentary of an executor. In re Estate of Trull, 86 N.C. App. 361, 357 S.E.2d 437, 1987 N.C. App. LEXIS 2708 (1987).

Evidence of Mailing. —

The clerk’s notation on the judgment of the time of the mailing is prima facie evidence of the mailing and the time of the mailing. Rivers v. Rivers, 29 N.C. App. 172, 223 S.E.2d 568, 1976 N.C. App. LEXIS 2405 , cert. denied, 290 N.C. 309 , 225 S.E.2d 829, 1976 N.C. LEXIS 1066 (1976).

Mailing to Counsel as Effective Notice. —

Effective notice of the filing of judgment was afforded to defendants by the mailing to counsel of a true copy of the judgment. Barringer & Gaither, Inc. v. Whittenton, 22 N.C. App. 316, 206 S.E.2d 301, 1974 N.C. App. LEXIS 2313 (1974).

Where the trial court possessed no independent recollection of what had occurred at a hearing for alimony held more than a year earlier and no judgment had been entered at the conclusion of that hearing in accordance with the provisions of this rule, the trial court did not err in refusing to sign the judgment and order proposed and tendered by the plaintiff. Wise v. Wise, 42 N.C. App. 5, 255 S.E.2d 570, 1979 N.C. App. LEXIS 2757 (1979).

Effectiveness of Oral Notice of Appeal. —

Where written judgment did not determine any issue different from those dealt with in judgment announced in open court, defendant’s oral notice of appeal, though given in open court prior to the entry of judgment, was effective to give notice of appeal to the written judgment under G.S. 1-279 . Morris v. Bailey, 86 N.C. App. 378, 358 S.E.2d 120, 1987 N.C. App. LEXIS 2723 (1987).

Entry of judgment in open court by another district court judge without notice to the parties that the judgment was entered was error, but as the notice of appeal was timely filed, there was no prejudice. Brower v. Brower, 75 N.C. App. 425, 331 S.E.2d 170, 1985 N.C. App. LEXIS 3695 (1985).

Entry of Written Judgment After Notice of Appeal in Open Court. —

A notice of appeal entered in open court immediately after entry of oral judgment does not remove the authority of the trial court to enter its written judgment which conforms substantially with the court’s oral announcement. Morris v. Bailey, 86 N.C. App. 378, 358 S.E.2d 120, 1987 N.C. App. LEXIS 2723 (1987).

Written Order Differed from Oral Pronouncement. —

Trial court did not err by entering an order that reached a conclusion that differed from its oral pronouncement. Scoggin v. Scoggin, 250 N.C. App. 115, 791 S.E.2d 524, 2016 N.C. App. LEXIS 1065 (2016).

Party failed to show the existence of error based merely on the fact that there were differences between the findings orally rendered at the hearing and those set forth in the written order. In re A.U.D., 373 N.C. 3 , 832 S.E.2d 698, 2019 N.C. LEXIS 910 (2019).

Since only a stipulation without any adjudication or rendering of the order, any action by the chief district court judge to cause a later prepared and unsigned draft order to be entered was ministerial; the written disposition portion of the order went beyond the retired judge’s oral recitations, and because rendering and entering judgment was more than a ministerial task, the chief district court judge had no authority to sign the adjudication and disposition orders, which were a nullity. In re R.P., 856 S.E.2d 868 (Mar. 16, 2021).

Even assuming a trial court had determined that a parent provided a safe home during the termination of parental rights hearing, the trial court’s oral findings were subject to change until the final written order was entered. Furthermore, the parent’s assertion that the trial court’s findings were internally inconsistent was without merit. In re M.A. (Aug. 27, 2021).

Even assuming a trial court had determined that a parent provided a safe home during the termination of parental rights hearing, the trial court’s oral findings were subject to change until the final written order was entered. Furthermore, the parent’s assertion that the trial court’s findings were internally inconsistent was without merit. In re M.A., 2021-NCSC-99, 378 N.C. 462 , 862 S.E.2d 169, 2021- NCSC-99, 2021 N.C. LEXIS 852 (2021).

Written Order of Judgment in Compliance With Oral Order. —

Written order of a trial court was valid under G.S. 1A-1-58 because, as evidenced by the transcript, the written order conformed with the oral judgment pronounced in open court. Edwards v. Taylor, 182 N.C. App. 722, 643 S.E.2d 51, 2007 N.C. App. LEXIS 805 (2007).

Under this rule, a judge may make an oral entry of a juvenile order, provided the order is subsequently reduced to written form as required by G.S. 7A-651 [see now G.S. 7B-905 and 7B-2512]. In re Bullabough, 89 N.C. App. 171, 365 S.E.2d 642, 1988 N.C. App. LEXIS 279 (1988).

Written dispositional order entered by juvenile court, which conformed generally with oral announcement of the order in open court, was valid. In re Bullabough, 89 N.C. App. 171, 365 S.E.2d 642, 1988 N.C. App. LEXIS 279 (1988).

Announcement in Open Court Not Entry of Judgment Where Review of Written Judgment Anticipated. —

Trial judge did not render judgment in open court on June 13, 1988, for the purpose of entry of judgment under this rule when he indicated the nature of his decision and ordered counsel for third-party defendants to draft a judgment to be entered after both the judge and opposing counsel had opportunity to review it. Although the effect of the judgment was to dismiss the defendants’ claim against the third-party defendants and to award sums certain on all other claims, the parties were entitled to rely on the judge’s indication that he would not enter judgment until all parties had opportunity to review the written judgment. Thus, notice of appeal filed three days after judge’s written judgment of June 27, 1988, was timely. Ives v. Real-Venture, Inc., 97 N.C. App. 391, 388 S.E.2d 573, 1990 N.C. App. LEXIS 136 (1990).

Announcement in Open Court Is Not Entry of Judgment. —

Announcement of judgment in open court merely constitutes the rendition of judgment, not its entry; the court of appeals has no authority to hear an appeal where there has been no entry of judgment. In re Estate of Walker, 113 N.C. App. 419, 438 S.E.2d 426, 1994 N.C. App. LEXIS 15 (1994).

Trial court’s announcement of judgment in open court, where the judgment was rendered after October 1, 1994, was the mere rendering of judgment, not the entry of judgment. Entry of judgment occurred when the judgment was reduced to writing, signed by the judge, and filed with the clerk of court; thus, the judgment was not appealable and also not enforceable. Worsham v. Richbourg's Sales & Rentals, Inc., 124 N.C. App. 782, 478 S.E.2d 649, 1996 N.C. App. LEXIS 1300 (1996).

Announcement of judgment in open court merely constitutes “rendering” of judgment, not entry of judgment. Abels v. Renfro Corp., 126 N.C. App. 800, 486 S.E.2d 735, 1997 N.C. App. LEXIS 634 (1997).

Where, although a trial court announced its initial decision granting joint custody in open court, there was no written order signed before the wife filed her motion to modify custody, and the written order granting joint custody was eventually entered on the same day that the trial court heard the motion to modify, an appellate court reversed the order modifying custody because there was nothing to modify since there was no order when the mother filed her motion to modify; even if it were proper for the trial court to hear the motion, it was impossible for there to have been a change in circumstances between the time the order was entered and the time it was modified on the same day, and in deciding whether a change of circumstances had occurred, the trial court should not have considered the events that transpired between the time it announced its joint custody decision and the date of the entry of the order. Carland v. Branch, 164 N.C. App. 403, 595 S.E.2d 742, 2004 N.C. App. LEXIS 809 (2004).

Trial court erred in granting a husband’s motion to dismiss a wife’s motion for equitable distribution, pursuant to G.S. 50-20 , in a divorce action where the wife filed the motion on the day before the judgment was signed by the judge and filed, at which point the judgment became final pursuant to G.S. 1A-1-58; therefore, G.S. 50-11(e) did not destroy the wife’s right to seek equitable distribution as the motion was filed before an absolute divorce was granted. Santana v. Santana, 171 N.C. App. 432, 614 S.E.2d 438, 2005 N.C. App. LEXIS 1204 (2005).

Appellate court had jurisdiction over an appeal of the denial of a charity’s motion to intervene in an interpleader action as the approval of the named parties’ settlement was a final judgment and the named parties’ subsequent stipulation of voluntary dismissal under G.S. 1-A-1, N.C. R. Civ. P. 41(a)(1)(ii) had no bearing on a charity’s right to appeal; the charity’s appeal was timely under N.C. R. App. P. 3(c)(1) as the announcement of the judgment in open court merely constituted a rendering of the judgment, not the entry of the judgment under G.S. 1A-1 , N.C. R. Civ. P. 58. Charles Schwab & Co. v. McEntee, 225 N.C. App. 666, 739 S.E.2d 863, 2013 N.C. App. LEXIS 223 (2013).

Order finding a husband’s non-compliance with purge conditions was vacated because (1) the husband could not comply with the conditions in a written order, (2) the order was impermissibly vague as the order’s conditions had no end date, and, (3) despite the husband’s compliance with a condition to reduce tax withholding, a condition requiring the husband to consult with a tax professional to reduce withholdings to the maximum extent possible was wrongly added. Spears v. Spears, 245 N.C. App. 260, 784 S.E.2d 485, 2016 N.C. App. LEXIS 134 (2016).

Judgment creditor could execute on a husband’s interest in certain real property, despite a judge’s oral directive directing a clerk to transfer the interest to the husband’s former wife, because the oral directive was ineffective, as no judgment was entered. Dabbondanza v. Hansley, 249 N.C. App. 18, 791 S.E.2d 116, 2016 N.C. App. LEXIS 875 (2016).

Oral Order Was Not Judgment For Civil Contempt Purposes. —

When the trial court orally ordered defendants in a summary ejectment proceeding to pay a certain amount but did not reduce a judgment to writing as required by N.C. R. Civ. P. 58, it was error to hold defendants in civil contempt under G.S. 5A-21 , as there was no properly entered judgment of the trial court at the time defendants were found in civil contempt. Carter v. Hill, 186 N.C. App. 464, 650 S.E.2d 843, 2007 N.C. App. LEXIS 2189 (2007).

A custody order remained binding and effective, where the trial court entered a written order setting aside the entry of default obtained by the father of a minor child against the mother, but this order did not purport to set aside the subsequent default judgment that was entered against the mother awarding custody of their minor child to the father, and the trial court’s oral order purporting to set aside the default judgment was ineffective to do so. West v. Marko, 130 N.C. App. 751, 504 S.E.2d 571, 1998 N.C. App. LEXIS 1165 (1998).

Judgment Entered in Open Court Held Not Subject to Repudiation. —

Judgment entered on June 13, 1986, in open court, based on consent of the parties, and memorialized on September 8, 1986, when the judge signed the formal judgment, could not be repudiated by one of the parties on June 17, 1986. Blee v. Blee, 89 N.C. App. 289, 365 S.E.2d 679, 1988 N.C. App. LEXIS 292 (1988).

Order Dismissing Receiver Not Entered When Mere Instruction to Prepare Order Given. —

An order dismissing a receiver from his duties was entered and notice given when entry of the order was given to the clerk, the order filed, and notice of its filing mailed to all parties, and not when, at an earlier hearing, the court “merely instructed” the receiver to prepare an appropriate order. John T. Council, Inc. v. Balfour Prods. Group, Inc., 74 N.C. App. 668, 330 S.E.2d 6, 1985 N.C. App. LEXIS 3573 (1985).

Authority to Make Findings of Fact and Conclusions of Law. —

Pursuant to the provisions of this rule, after “entry” of judgment in open court, a trial court retains the authority to approve the judgment and direct its prompt preparation and filing. Such authority necessarily includes making appropriate findings of fact and entering appropriate conclusions of law, and the giving of notice of appeal in open court after “entry” of judgment does not divest the trial court of such authority. Hightower v. Hightower, 85 N.C. App. 333, 354 S.E.2d 743, 1987 N.C. App. LEXIS 2592 , cert. denied, 320 N.C. 792 , 361 S.E.2d 76, 1987 N.C. LEXIS 2462 (1987).

The stay under G.S. 1-294 does not prevent the trial court from approving the form of its judgment and making those findings and conclusions necessary to prepare and file its judgment under this rule. Truesdale v. Truesdale, 89 N.C. App. 445, 366 S.E.2d 512, 1988 N.C. App. LEXIS 252 (1988).

While counsel attempted to take responsibility for the trial court’s clearly improper conclusion of law, the argument could not remedy the problem because the order was the responsibility of the trial court, no matter who physically prepared the draft of the order. In re A.B., 239 N.C. App. 157, 768 S.E.2d 573, 2015 N.C. App. LEXIS 58 (2015).

This rule does not authorize the trial court to file findings and conclusions which contradict those rendered prior to the notice of appeal. Thus, the trial court had no authority to prepare and file an order increasing the amount of defendant’s alimony over that amount ordered in open court prior to plaintiff’s notice of appeal. Truesdale v. Truesdale, 89 N.C. App. 445, 366 S.E.2d 512, 1988 N.C. App. LEXIS 252 (1988).

Where court failed to make any findings as to whether the trial judge directed entry of judgment or if and when the clerk noted entry of judgment, and the record revealed that the clerk marked the judgment in her minutes but from the record it could not be ascertained whether the writings constituted a notation of the entry of judgment, when the notation was made, or whether it was directed by the trial judge, therefore the order dismissing the appeal had to be vacated and the case remanded to the trial court for further proceedings. Behar v. Toyota of Fayetteville, Inc., 90 N.C. App. 603, 369 S.E.2d 618, 1988 N.C. App. LEXIS 645 (1988).

Withdrawal of a motion under G.S. 1A-1 , Rule 59 did not entitle defendants to ten days from their withdrawal to file notice of appeal from judgment; to hold otherwise would thwart the tolling provision of N.C.R.A.P. Rule 3(c), and circumvent this rule, i.e., to give all interested parties a definite fixed time of a judicial determination they can point to as the time of entry of judgment. Landin Ltd. v. Sharon Luggage, Ltd., 78 N.C. App. 558, 337 S.E.2d 685, 1985 N.C. App. LEXIS 4323 (1985).

Judgment Deemed Entered. —

Where the trial judge announced his ruling in open court, which ruling was noted without instruction by the court, in the minutes by the clerk of court, in early April, and where the trial judge signed the written order that had been drafted by respondent’s counsel at the end of the month, the order was deemed entered when the judge signed the written order. Cobb v. Rocky Mount Bd. of Educ., 102 N.C. App. 681, 403 S.E.2d 538, 1991 N.C. App. LEXIS 490 (1991), aff'd, 331 N.C. 280 , 415 S.E.2d 554, 1992 N.C. LEXIS 203 (1992).

Transmission by Fax. —

After a judgment was reduced to writing, signed by the judge, and filed with the clerk, it was “entered”; the plaintiffs’ use of a fax to provide the defendant with a copy of the judgment did not render it void. Durling v. King, 146 N.C. App. 483, 554 S.E.2d 1, 2001 N.C. App. LEXIS 973 (2001).

Notice of Appeal. —

It was evident that the parties only had fair notice of the judgment at the time the written judgment was filed where only after that time did the parties take action to settle the record on appeal. In re Hawkins, 120 N.C. App. 585, 463 S.E.2d 268, 1995 N.C. App. LEXIS 906 (1995).

Timing of Notice of Appeal. —

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 N.C. App. LEXIS 503 (2016).

Father improperly appealed a domestic violence protective order because (1) the father filed a notice of appeal before an oral order was reduced to writing, signed, and filed with the clerk, and (2) the father filed no amended notice after the order’s entry. Mannise v. Harrell, 249 N.C. App. 322, 791 S.E.2d 653, 2016 N.C. App. LEXIS 925 (2016).

Wife’s notice of appeal of the trial court’s order finding for the husband on all claims was timely where the record included no certificate of service of the order, the appellate court refused to assume that the husband had served the order within three days as required N.C. R. App. P. 3(c)(1), the wife’s time to appeal did not begin to run until she received the order, and the notice was filed within 30 days of the date she received the order. Raymond v. Raymond, 257 N.C. App. 700, 811 S.E.2d 168, 2018 N.C. App. LEXIS 121 (2018).

Appeal Dismissed in Absence of Record of Notice. —

Where a judgment was prepared and filed in this case but there was no evidence in the record on appeal that notice of filing was mailed to the parties and the judgment does not exhibit a time of mailing constituting prima facie evidence of mailing notice, judgment was not properly entered and appeal was dismissed for lack of jurisdiction. Darcy v. Osborne, 101 N.C. App. 546, 400 S.E.2d 95, 1991 N.C. App. LEXIS 84 (1991).

Judgment Incomplete for Purposes of Appeal Until Entry. —

Not only does the trial court have the authority to subsequently enter a written judgment which conforms to its rendered judgment, entry of judgment by the trial court is the event which vests jurisdiction in the appellate court, and the judgment is not complete for the purpose of appeal until its entry. Searles v. Searles, 100 N.C. App. 723, 398 S.E.2d 55, 1990 N.C. App. LEXIS 1156 (1990); In re Estate of Walker, 113 N.C. App. 419, 438 S.E.2d 426, 1994 N.C. App. LEXIS 15 (1994).

Where the trial judge retired before the order in the custody modification case was signed, entered, or filed with the clerk of court, the judgment was not properly entered pursuant to this rule. Lange v. Lange, 157 N.C. App. 310, 578 S.E.2d 677, 2003 N.C. App. LEXIS 542 , vacated, 357 N.C. 645 , 588 S.E.2d 877, 2003 N.C. LEXIS 1419 (2003).

Homeowner’s appeal of orders purporting to hold the homeowner in civil contempt for violating no contact orders was dismissed because the orders were not properly entered, as the record did not show (1) an orally rendered judgment was entered or (2) another written order was filed with the clerk of court, so an appellate court had no subject matter jurisdiction to consider the appeal. McKinney v. Duncan, 256 N.C. App. 717, 808 S.E.2d 509, 2017 N.C. App. LEXIS 1014 (2017).

Notice of appeal given after the general terms of the judgment are announced in open court is, alone, not sufficient to vest jurisdiction in the appellate court. Searles v. Searles, 100 N.C. App. 723, 398 S.E.2d 55, 1990 N.C. App. LEXIS 1156 (1990).

Where the jury announced its verdict in open court, it “rendered judgment” according to G.S. 1A-1 , Rule 3(a) and this rule, and oral notice of appeal was a proper procedure. Stimpson Hosiery Mills, Inc. v. Pam Trading Corp., 98 N.C. App. 543, 392 S.E.2d 128, 1990 N.C. App. LEXIS 437 , writ denied, 327 N.C. 144 , 393 S.E.2d 909, 1990 N.C. LEXIS 595 (1990).

Factors in Analysis of Whether an Entry of Judgment Has Occurred. —

The language of this rule clearly establishes that entry of judgment occurs when the clerk makes some notation in the minutes. In cases where the procedures used do not fit within the express provisions of the rule or where there is no evidence to indicate when or whether such notation was made, the spirit and purpose of the rule should determine when entry of judgment occurs. Relevant factors in this analysis are: (1) an easily identifiable point at which entry occurred, such that (2) the parties have fair notice of the court’s judgment and the time thereof, and that (3) the matters for adjudication have been finally and completely resolved so that the case is suitable for appellate review. Stachlowski v. Stach, 328 N.C. 276 , 401 S.E.2d 638, 1991 N.C. LEXIS 186 (1991).

Interrelationship Between Rules. —

The importance of finality to the timing of entry of judgment is apparent more from the interrelationship between G.S. 1A-1 , Rule 54 and this rule than from the express language of this rule itself. The principal concern regarding finality is that all matters for determination be resolved. Stachlowski v. Stach, 328 N.C. 276 , 401 S.E.2d 638, 1991 N.C. LEXIS 186 (1991).

Rendering of Judgment Held Not Entry of Judgment. —

In a custody case, where the trial court announced in open court that the previous decree would receive full faith and credit and custody would not change, the court rendered judgment that day on the custody issue, but the court did not enter judgment, as the court directed counsel for defendant to draw the order and the parties continued to negotiate on visitation so the rendering of judgment did not constitute entry of judgment. Stachlowski v. Stach, 328 N.C. 276 , 401 S.E.2d 638, 1991 N.C. LEXIS 186 (1991).

Entry of judgment occurred when the trial court adopted and signed the proposed judgment submitted by plaintiff’s counsel, not when the jury returned its verdict and the assistant clerk wrote “jury verdict” on the court calendar. Reed v. Abrahamson, 331 N.C. 249 , 415 S.E.2d 549, 1992 N.C. LEXIS 200 (1992).

Where judge instructed clerk to note judgment on children’s paternity in minutes, valid entry of judgment occurred at this time, not at later date when judge signed written order of paternity. In re Estates of Barrow, 122 N.C. App. 717, 471 S.E.2d 669, 1996 N.C. App. LEXIS 544 (1996).

Adoption of Draft Order and Proposed Findings. —

In a custody case, where trial court directed counsel for defendant to draft an order reflecting its decision, this order required findings of fact supporting the court’s conclusion that there had been no material change of circumstances warranting a modification of the custody order. Fair notice concerns would dictate that entry of judgment occurred when the court adopted the draft order and proposed findings. Stachlowski v. Stach, 328 N.C. 276 , 401 S.E.2d 638, 1991 N.C. LEXIS 186 (1991).

Use Of Proposed Order Allowed. —

Trial court did not improperly considered ex parte communication with plaintiff’s counsel in using counsel’s proposed order as the final order in the case and relying on counsel’s argument to deny defendant’s request for change of venue because the allegedly improper ex parte communication was requested at the hearing by the trial court was also requested of both parties’ counsel; North Carolina statues and case law clearly allowed for the common trial court practice of requesting parties to prepare orders, and copies of the orders were provided to defendant via his trial counsel. Orange County ex rel. Pattison v. Hamilton, 213 N.C. App. 205, 714 S.E.2d 184, 2011 N.C. App. LEXIS 1372 (2011).

Each of the three paragraphs in this rule declares that entry of judgment occurs when the clerk makes some notation in the minutes. Stachlowski v. Stach, 328 N.C. 276 , 401 S.E.2d 638, 1991 N.C. LEXIS 186 (1991).

In cases where entry of judgment cannot be determined from the express language of this rule, fair notice concerns indicate that “entry” occurs only after draft orders or judgments are submitted to and adopted by the court. Stachlowski v. Stach, 328 N.C. 276 , 401 S.E.2d 638, 1991 N.C. LEXIS 186 (1991).

Trial court erred in sanctioning appellant, given that certain motions were never properly ruled on because orders had not been entered, and the failed entry of one order prevented appellant from timely filing a written notice of appeal, and appellant had a proper purpose and legal basis to file another motion. In re Thompson, 232 N.C. App. 224, 754 S.E.2d 168, 2014 N.C. App. LEXIS 152 (2014).

Entry of Judgment in a Divorce Action. —

Because the pronouncement of divorce judgment was not entered within the explicit meaning of this Rule, and judgment can be entered only after the requisite findings of fact have been adopted in a divorce action under G.S. 50-10 , entry of judgment of absolute divorce did not occur until counsel submitted the judgment to the court and the court signed the judgment. Bumgardner v. Bumgardner, 113 N.C. App. 314, 438 S.E.2d 471, 1994 N.C. App. LEXIS 24 (1994).

Trial court did not err when it used the 1998 version of the North Carolina Child Support Guidelines to determine the amount of child support a father owed because, even though it entered its judgment after the 2002 version of the Guidelines became effective on October 1, 2002, it announced its judgment in open court before October 1, 2002. State v. Williams, 163 N.C. App. 353, 593 S.E.2d 123, 2004 N.C. App. LEXIS 365 (2004).

Trial court properly granted a directed verdict pursuant to N.C. R. Civ. P. 58 to a former wife, and dismissed the former husband’s motion for modification of his child support obligation pursuant to G.S. 50-13.7(a), as the evidence supported the finding that the husband did not show a substantial material change in circumstances; the evidence supported the determination that the husband’s motivation in not looking for employment in good faith was to avoid child support obligations. Young v. Young, 224 N.C. App. 388, 736 S.E.2d 538, 2012 N.C. App. LEXIS 1437 (2012).

Incompetency Order Not Entered. —

Clerk orally rendered her decision finding respondent incompetent, and the order was reduced to writing and dated, but nothing indicated that the order was filed with the clerk of court, such that it was not entered. In re Thompson, 232 N.C. App. 224, 754 S.E.2d 168, 2014 N.C. App. LEXIS 152 (2014).

Because the order of incompetence was never entered, the clerk’s appointment of a guardian was without legal authority. In re Thompson, 232 N.C. App. 224, 754 S.E.2d 168, 2014 N.C. App. LEXIS 152 (2014).

Because the incompetency order was effective only after its entry, the order could not be the law of the case. In re Thompson, 232 N.C. App. 224, 754 S.E.2d 168, 2014 N.C. App. LEXIS 152 (2014).

Because the incompetency order was not filed, it was not entered, and the time period to file notice of appeal had not yet started. In re Thompson, 232 N.C. App. 224, 754 S.E.2d 168, 2014 N.C. App. LEXIS 152 (2014).

A memo of consent judgment, signed by the parties and judge and entered into the court record, was valid as a final judgment on the issue of child custody. Buckingham v. Buckingham, 134 N.C. App. 82, 516 S.E.2d 869, 1999 N.C. App. LEXIS 657 (1999).

Failure to Serve Written Judgment Constituted Noncompliance. —

Where a trial court directed defendants, as the prevailing party, to prepare the written judgment reflecting the court’s oral judgment and defendants prepared and filed the judgment but failed to serve plaintiff with a copy of the judgment, defendants were not in compliance with G.S. 1A-1 , N.C. R. Civ. P. 58 and, therefore, plaintiff had ninety days to file its G.S. 1A-1 , N.C. R. Civ. P. 59 motion. Consequently, the thirty day period for taking appeal was tolled as to all parties until entry of an order disposing of the Rule 59 motion. D.G. II, LLC v. Nix, 213 N.C. App. 220, 713 S.E.2d 140, 2011 N.C. App. LEXIS 1374 (2011).

Appellate court could consider orders barring a wife’s equitable distribution affidavit and imposing sanctions, despite the absence of these orders from the wife’s notice of appeal, because: (1) service of the orders on the wife was not shown; (2) neither order finally determined all issues; and (3) the orders affected the judgment by barring the wife from contesting the husband’s evidence. Green v. Green, 236 N.C. App. 526, 763 S.E.2d 540, 2014 N.C. App. LEXIS 1033 (2014).

Failure to Object to Entry of Order Out of Session. —

In a negligence action by plaintiff daughter, as the personal representative of her father’s estate and individually, there was no basis for the daughter’s argument on appeal that the trial court lacked subject matter jurisdiction to enter an order which required the daughter, as personal representative of the estate, to post $20,000 in prosecution bonds even though the trial court took the issue under advisement and later rendered its decision out of session because the daughter was deemed to have consented to the entry of the order out of session by failing to object when the trial court informed the parties of its intention to render a decision on the issue at a later date and out of session. Dalenko v. Wake County Dep't of Human Servs., 157 N.C. App. 49, 578 S.E.2d 599, 2003 N.C. App. LEXIS 371 (2003), cert. denied, 357 N.C. 458 , 585 S.E.2d 386, 2003 N.C. LEXIS 1074 (2003), cert. denied, 540 U.S. 1178, 124 S. Ct. 1411, 158 L. Ed. 2d 79, 2004 U.S. LEXIS 1057 (2004).

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 N.C. App. LEXIS 1372 (2011).

Order was not void for having been signed outside a county’s geographical limits because no objection was timely stated. Wilson v. SunTrust Bank, 257 N.C. App. 237, 809 S.E.2d 286, 2017 N.C. App. LEXIS 1053 (2017), cert. denied, 139 S. Ct. 2674, 204 L. Ed. 2d 1069, 2019 U.S. LEXIS 3810 (2019).

Consent Presumed When Inadequate Objection to Order Out of Session. —

Plaintiff filed an objection to the entry of a judgment out of session on April 20th, and the trial court found, on May 7th, that there was no objection. Because plaintiff did not raise that finding as error on appeal, the finding was binding on the appellate court; thus, plaintiff failed to lodge a timely objection to the entry of the order out of session, and her consent was presumed under G.S. 1A-1 , N.C. R. Civ. P. 58. Dalenko v. Collier, 191 N.C. App. 713, 664 S.E.2d 425, 2008 N.C. App. LEXIS 1500 (2008).

Objection Held Inadequate. —

Defendant debtors’ objection to certain language in a proposed order submitted by a creditor was not specific enough to comply with G.S. 1A-1 , Rule 58, as it did not object to the fact that the judgment was signed out of session, but rather, to its contents, and would therefore be rejected. Conseco Fin. Servicing Corp. v. Dependable Hous., Inc., 150 N.C. App. 168, 564 S.E.2d 241, 2002 N.C. App. LEXIS 368 (2002).

Objection Not Required. —

Court of appeals addressed a mother’s argument as to whether the trial court took improper judicial notice of the benefits of a program the father completed because the mother’s counsel did not object, and should not have objected, to the trial court’s order directing the father’s counsel to prepare the written order and announcing a general summary of the findings of fact, as there was no legal basis for an objection; judicial notice was not mentioned during the presentation of evidence. In re L.G.A., 277 N.C. App. 46, 857 S.E.2d 761, 2021- NCCOA-137, 2021 N.C. App. LEXIS 140 (2021).

Retention of Jurisdiction. —

Where, as here, a judge signs an otherwise valid written order or judgment prior to leaving office, the trial court, through the proper county clerk of court, retains jurisdiction to file that judgment, even after the trial judge retires, and thereby completes the steps required for entry; this holding is not in conflict with the purpose of the rule, and plaintiffs in the present case were provided timely notice and a definite date of entry for the order. Robertson v. Steris Corp., 237 N.C. App. 263, 765 S.E.2d 825, 2014 N.C. App. LEXIS 1179 (2014).

Rule 59. New trials; amendment of judgments.

  1. Grounds. —  A new trial may be granted to all or any of the parties and on all or part of the issues for any of the following causes or grounds:
    1. Any irregularity by which any party was prevented from having a fair trial;
    2. Misconduct of the jury or prevailing party;
    3. Accident or surprise which ordinary prudence could not have guarded against;
    4. Newly discovered evidence material for the party making the motion which he could not, with reasonable diligence, have discovered and produced at the trial;
    5. Manifest disregard by the jury of the instructions of the court;
    6. Excessive or inadequate damages appearing to have been given under the influence of passion or prejudice;
    7. Insufficiency of the evidence to justify the verdict or that the verdict is contrary to law;
    8. Error in law occurring at the trial and objected to by the party making the motion, or
    9. Any other reason heretofore recognized as grounds for new trial.On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.

      On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.

  2. Time for motion. —  A motion for a new trial shall be served not later than 10 days after entry of the judgment.
  3. Time for serving affidavits. —  When a motion for new trial is based upon affidavits they shall be served with the motion. The opposing party has 10 days after such service within which to serve opposing affidavits, which period may be extended for an additional period not exceeding 30 days either by the court for good cause shown or by the parties by written stipulation. The court may permit reply affidavits.
  4. On initiative of court. —  Not later than 10 days after entry of judgment the court of its own initiative, on notice to the parties and hearing, may order a new trial for any reason for which it might have granted a new trial on motion of a party, and in the order shall specify the grounds therefor.
  5. Motion to alter or amend a judgment. —  A motion to alter or amend the judgment under section (a) of this rule shall be served not later than 10 days after entry of the judgment.

History. 1967, c. 954, s. 1; 2014-115, s. 1.

Comment

Section (a). — Here, in listing the grounds for new trial, the rule goes beyond the prior statutory law as set forth in former § 1-207 to include all those grounds for new trial which have been approved by North Carolina case law. Former § 1-207 made express mention of only three grounds for new trial — exceptions, insufficient evidence, and excessive damages. But the court has approved new trial in a number of other situations: Where the damages are inadequate, Hinton v. Cline, 238 N.C. 136 , 76 S.E.2d 162 (1953); Where the verdict is defective, Vandiford v. Vandiford, 215 N.C. 461 , 2 S.E.2d 364 (1939); Where there is misconduct of or affecting the jury, Keener v. Beal, 246 N.C. 247 , 98 S.E.2d 19 (1957); In re Will of Hall, 252 N.C. 70 , 113 S.E.2d 1 (1960); Where there is newly discovered evidence, Crissman v. Palmer, 225 N.C. 472 , 35 S.E.2d 422 (1945); Where there are irregularities in the trial, Lupton v. Spencer, 173 N.C. 126 , 91 S.E. 718 (1917); Where there is surprise, Hardy v. Hardy, 128 N.C. 178 , 38 S.E. 815 (1901); When equity and justice so require, Walston v. Greene, 246 N.C. 617 , 99 S.E.2d 805 (1957).

Section (b). — Here there is a new requirement as to the time within which a motion for new trial must be made. It will be observed that the time is keyed to the “entry of judgment.” As to what constitutes “entry of judgment,” see Rule 58.

Section (c). — While the practice prescribed here did not previously enjoy statutory sanction, a similar practice had been approved by the court. See Brown v. Town of Hillsboro, 185 N.C. 368 , 117 S.E. 41 (1923); Allen v. Gooding, 174 N.C. 271 , 93 S.E. 740 (1917).

Section (d). — Again, no prior statute is comparable to the section, but the Commission believes the practice has been approved by the Supreme Court. See Walston v. Greene, 246 N.C. 617 , 99 S.E.2d 805 (1957).

Section (e). — This section would seem to be self-explanatory.

Editor’s Note.

Session Laws 2014-115, s. 1, provides “Subsection (c) of G.S. 1A-1 , Rule 59, is rewritten to read.” However, the text of subsection (c) as amended is identical to and is a restatement of the language that previously appeared in the published text of that subsection.

Legal Periodicals.

For survey of 1977 law on civil procedure, see 56 N.C.L. Rev. 874 (1978).

For survey of 1978 law on civil procedure, see 57 N.C.L. Rev. 891 (1979).

For survey of 1979 law on civil procedure, see 58 N.C.L. Rev. 1261 (1980).

For survey of 1980 law on civil procedure, see 59 N.C.L. Rev. 1062 (1981).

For comment discussing the abuse of discretion standard of appellate review in light of Worthington v. Bynum, 53 N.C. App. 409, 281 S.E.2d 170, rev’d, 305 N.C. 478 , 290 S.E.2d 599 (1982), see 18 Wake Forest L. Rev. 1111 (1982).

For survey of 1982 law on Civil Procedure, see 61 N.C.L. Rev. 991 (1983).

For note, “Invasion of the Jury’s Province: May the Court Determine Damages?,” see 68 N.C.L. Rev. (1990).

For article, “Functus Officio: Authority of the Trial Court after Notice of Appeal,” see 81 N.C.L. Rev. 2331 (2003).

CASE NOTES

Analysis

I.In General

FRCP, Rule 59 is comparable to this rule. Glen Forest Corp. v. Bensch, 9 N.C. App. 587, 176 S.E.2d 851, 1970 N.C. App. LEXIS 1412 (1970).

Applicability to Bench Trials. —

North Carolina courts have not adopted a narrow interpretation of the grounds listed in the first section when applied to motions to amend an order entered without a jury trial; although many of the grounds listed in the first section address errors that involve a jury, it also applies to bench trials. Baker v. Tucker, 239 N.C. App. 273, 768 S.E.2d 874, 2015 N.C. App. LEXIS 131 (2015).

What Judge Not Permitted to Do Under Rule.—

Trial judge has the authority and discretion to set aside a jury verdict and grant a new trial, in whole or in part; however, that rule does not allow a trial judge presiding over a jury trial to substitute its opinion for the verdict and change the amount of damages to be recovered. Justus v. Rosner, 254 N.C. App. 55, 802 S.E.2d 142, 2017 N.C. App. LEXIS 448 (2017), aff'd, 371 N.C. 818 , 821 S.E.2d 765, 2018 N.C. LEXIS 1136 (2018).

Reconsideration Motions. —

Litigants cannot bring a motion under N.C. R. Civ. P. 59(e) to seek reconsideration of a pre-trial ruling by the trial court, as Rule 59(e) is available only on the grounds enumerated in Rule 59(a) and they apply only after a trial on the merits; thus, even if a litigant cites the rule in making a motion to reconsider a pre-trial order, that motion will not toll the time to appeal. In this case, plaintiffs’ time to appeal was not tolled by their mistaken motion for relief and the appeal of the underlying summary judgment order was not timely. Doe v. City of Charlotte, 273 N.C. App. 10, 848 S.E.2d 1, 2020 N.C. App. LEXIS 611 (2020).

A motion for a new trial made under this rule is intended to serve as a substitute for the obligation of counsel to timely object to the jury instructions. Hanna v. Brady, 73 N.C. App. 521, 327 S.E.2d 22, 1985 N.C. App. LEXIS 3313 (1985).

A motion for a new trial is no substitute for timely motions for directed verdict and judgment n.o.v. In re Will of King, 80 N.C. App. 471, 342 S.E.2d 394, 1986 N.C. App. LEXIS 2211 (1986).

Motion Directed to Court’s Discretion While Motion Under G.S. 1A-1 , Rule 50 Presents Question of Law. —

A motion to set a verdict aside and for a new trial pursuant to this rule is directed to the discretion of the trial judge, while a motion for judgment notwithstanding the verdict pursuant to G.S. 1A-1 , Rule 50 is to be decided as a question of law. Penley v. Penley, 314 N.C. 1 , 332 S.E.2d 51, 1985 N.C. LEXIS 1706 (1985).

Grant of Motions for Judgment N.O.V. And New Trial Inconsistent. —

The trial court’s grant of the plaintiff’s motion for judgment notwithstanding the verdict as well as plaintiff’s motion for a new trial was inconsistent, where the judgment n.o.v. for the plaintiff after the jury returned a verdict for the defendant in a rear-end collision suit determined the defendant’s negligence as a matter of law, while the new trial reinstated the issue for a jury. Streeter v. Cotton, 133 N.C. App. 80, 514 S.E.2d 539, 1999 N.C. App. LEXIS 338 (1999).

Alternative Motion for New Trial. —

Under G.S. 1A-1 , N.C. R. Civ. P. 50(c)(1), if a motion for a judgment notwithstanding the verdict is granted, the court shall also rule on the motion for new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial. Cox v. Steffes, 161 N.C. App. 237, 587 S.E.2d 908, 2003 N.C. App. LEXIS 2037 (2003).

Healthcare providers’ alternative motion for a new trial under G.S. 1A-1 , N.C. R. Civ. P. 59, could not be considered on appeal as the healthcare providers failed to obtain a formal trial court ruling on their motion for a new trial under G.S. 1A-1 , N.C. R. Civ. P. 50(c)(1), after their motion for a judgment notwithstanding the verdict under Rule 50 was granted, and the healthcare providers did not make any cross-assignments of error as to the trial. Cox v. Steffes, 161 N.C. App. 237, 587 S.E.2d 908, 2003 N.C. App. LEXIS 2037 (2003).

Defendants Must Obtain Ruling on Conditional Motion for New Trial. —

It is the defendants’ obligation to ensure that they obtain a ruling on their motion for a conditional new trial; a party gaining judgment notwithstanding the verdict should also ask for a ruling pursuant to G.S. 1A-1 , N.C. R. Civ. P. 50(c)(1), on the motion for a new trial if he wishes to allege any error in the trial or to preserve any question other than the sufficiency of the evidence for appellate review. Cox v. Steffes, 161 N.C. App. 237, 587 S.E.2d 908, 2003 N.C. App. LEXIS 2037 (2003).

Judge’s Traditional Authority to Set Aside Verdict Was Not Diminished by the Rules. —

The legislative enactment of the Rules of Civil Procedure in 1967 did not diminish the inherent and traditional authority of the trial judges of the State to set aside a verdict whenever in their sound discretion they believe it necessary to attain justice for all concerned, and the adoption of those rules did not enlarge the scope of appellate review of a trial judge’s exercise of that power. Worthington v. Bynum, 305 N.C. 478 , 290 S.E.2d 599, 1982 N.C. LEXIS 1345 (1982); Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362 , 329 S.E.2d 333, 1985 N.C. LEXIS 1541 (1985).

But Was Merely Formalized. —

The repeal of G.S. 1-207 did not diminish the trial judge’s traditional discretionary authority to set aside a verdict. The procedure for exercising this traditional power was merely formalized in this rule, which lists eight specific grounds and one “catch-all” ground found in subsection (a)(9) of this rule on which the judge may grant a new trial. Britt v. Allen, 291 N.C. 630 , 231 S.E.2d 607, 1977 N.C. LEXIS 1227 (1977).

The court is not empowered to change a verdict. Industrial Circuits Co. v. Terminal Communications, Inc., 26 N.C. App. 536, 216 S.E.2d 919, 1975 N.C. App. LEXIS 2110 (1975).

This section provides wide latitude for the trial judge to award new trials, and it does not require that he set out grounds to support his order. Philco Fin. Corp. v. Mitchell, 26 N.C. App. 264, 215 S.E.2d 823, 1975 N.C. App. LEXIS 2020 (1975).

A timely motion for new trial is addressed to the sound judicial discretion of the trial court. Glen Forest Corp. v. Bensch, 9 N.C. App. 587, 176 S.E.2d 851, 1970 N.C. App. LEXIS 1412 (1970).

Grounds for New Trial. —

Under this rule, a party may obtain a new trial either for errors of law committed during trial or for a verdict not sufficiently supported by the evidence. Eason v. Barber, 89 N.C. App. 294, 365 S.E.2d 672, 1988 N.C. App. LEXIS 302 (1988).

Grounds Apply Only After Trial. —

Everything about N.C. R. Civ. P. 59(a), from its introduction governing new trials, to the nine enumerated grounds, to the concluding text addressing an action tried without a jury, indicates that this rule applies only after a trial on the merits; a plain reading of the grounds listed unambiguously demonstrates that those grounds apply only after trial. Doe v. City of Charlotte, 273 N.C. App. 10, 848 S.E.2d 1, 2020 N.C. App. LEXIS 611 (2020).

Remedy for Errors of Law. —

G.S. 1A-1 , Rule 60(b) provides no specific relief for “errors of law” and even the broad general language of G.S. 1A-1 , Rule 60(b)(6) does not include relief for “errors of law.” The appropriate remedy for errors of law committed by the court is either appeal or a timely motion for relief under subsection (a)(8) of this rule. Hagwood v. Odom, 88 N.C. App. 513, 364 S.E.2d 190, 1988 N.C. App. LEXIS 101 (1988).

When debtors’ motion for attorney’s fees, pursuant to G.S. 75-16.1 , was denied, it was error for a trial court to grant attorney’s fees pursuant to a reconsideration of the court’s prior denial, under G.S. 1A-1 , N.C. R. Civ. P. 60(b)(6), because the motion to reconsider raised alleged errors of law by claiming the trial court applied the wrong legal standard in denying the attorney’s fees motion, and such errors could not properly be considered under a motion to reconsider, but, rather, had to be considered either on appeal or pursuant to a new trial motion under G.S. 1A-1 , N.C. R. Civ. P. 59. Catawba Valley Bank v. Porter, 188 N.C. App. 326, 655 S.E.2d 473, 2008 N.C. App. LEXIS 77 (2008).

Where errors of law were committed, the trial court is required to grant a new trial. Eason v. Barber, 89 N.C. App. 294, 365 S.E.2d 672, 1988 N.C. App. LEXIS 302 (1988).

And the Court’s Decision Is Not Reviewable Absent Abuse. —

The court’s decision on a motion for a new trial under this rule is not reviewable on appeal, absent manifest abuse of discretion. Mumford v. Hutton & Bourbonnais Co., 47 N.C. App. 440, 267 S.E.2d 511, 1980 N.C. App. LEXIS 3130 (1980); Blow v. Shaughnessy, 88 N.C. App. 484, 364 S.E.2d 444, 1988 N.C. App. LEXIS 102 (1988).

A motion for a new trial under this rule is addressed to the sound discretion of the trial judge, whose ruling is not reviewable on appeal absent an abuse of discretion. Hoover v. Kleer-Pak of N.C. Inc., 33 N.C. App. 661, 236 S.E.2d 386, 1977 N.C. App. LEXIS 2320 , cert. denied, 293 N.C. 360 , 237 S.E.2d 848, 1977 N.C. LEXIS 947 (1977); Hord v. Atkinson, 68 N.C. App. 346, 315 S.E.2d 339, 1984 N.C. App. LEXIS 3291 (1984); Watts v. Schult Homes Corp., 75 N.C. App. 110, 330 S.E.2d 41, 1985 N.C. App. LEXIS 3599 (1985); State v. Hanes, 77 N.C. App. 222, 334 S.E.2d 444, 1985 N.C. App. LEXIS 4044 (1985); Yeargin v. Spurr, 78 N.C. App. 243, 336 S.E.2d 680, 1985 N.C. App. LEXIS 4283 (1985).

The decision whether to grant a new trial rests in the sound discretion of the trial judge. Absent record disclosure of abuse of discretion, the order is not subject to review on appeal. Sizemore v. Raxter, 58 N.C. App. 236, 293 S.E.2d 294, 1982 N.C. App. LEXIS 2733 (1982).

A motion under sections (a) and (e) of this rule is addressed to the sound discretion of the trial judge, whose ruling, in the absence of abuse of discretion, is not reviewable on appeal. Hamlin v. Austin, 49 N.C. App. 196, 270 S.E.2d 558, 1980 N.C. App. LEXIS 3326 (1980).

A trial court’s discretionary order, pursuant to this rule, for or against a new trial upon any ground may be reversed on appeal only when abuse of discretion is clearly shown. State ex rel. Gilchrist v. Cogdill, 74 N.C. App. 133, 327 S.E.2d 647, 1985 N.C. App. LEXIS 3394 (1985).

A trial judge’s discretionary order made pursuant to this rule for or against a new trial may be reversed only when an abuse of discretion is clearly shown. Hanna v. Brady, 73 N.C. App. 521, 327 S.E.2d 22, 1985 N.C. App. LEXIS 3313 (1985).

An order made under the discretionary power of this rule shall stand unless the reviewing court is reasonably convinced by the cold record that the trial judge’s ruling probably amounted to a substantial miscarriage of justice. Hanna v. Brady, 73 N.C. App. 521, 327 S.E.2d 22, 1985 N.C. App. LEXIS 3313 (1985).

Absent a valid motion pursuant to subsection (a)(8) of this rule and an order granting such motion for errors of law specifically identified, the Court of Appeals erred in reversing the trial judge’s conditional grant of a new trial where there was no manifest abuse of discretion on the part of the trial judge. Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362 , 329 S.E.2d 333, 1985 N.C. LEXIS 1541 (1985).

A trial court’s order under this rule is not to be disturbed absent an affirmative showing of manifest abuse of discretion by the judge or a substantial miscarriage of justice. Branch Banking & Trust Co. v. Home Fed. Sav. & Loan Ass'n, 85 N.C. App. 187, 354 S.E.2d 541, 1987 N.C. App. LEXIS 2575 (1987).

Discretion of Trial Judge. —

A motion to set aside the verdict and for a new trial is addressed to the sound discretion of the trial judge, whose ruling, in the absence of abuse of discretion, is not reviewable on appeal. Glen Forest Corp. v. Bensch, 9 N.C. App. 587, 176 S.E.2d 851, 1970 N.C. App. LEXIS 1412 (1970); Mangum v. Surles, 12 N.C. App. 547, 183 S.E.2d 839, 1971 N.C. App. LEXIS 1400 (1971), rev'd, 281 N.C. 91 , 187 S.E.2d 697, 1972 N.C. LEXIS 1008 (1972); City of Winston-Salem v. Rice, 16 N.C. App. 294, 192 S.E.2d 9, 1972 N.C. App. LEXIS 1690 , cert. denied, 282 N.C. 425 , 192 S.E.2d 835, 1972 N.C. LEXIS 973 (1972); Townsend v. Norfolk & S. Ry., 35 N.C. App. 482, 241 S.E.2d 859, 1978 N.C. App. LEXIS 3010 , aff'd, 296 N.C. 246 , 249 S.E.2d 801, 1978 N.C. LEXIS 933 (1978); Currence v. Hardin, 36 N.C. App. 130, 243 S.E.2d 172, 1978 N.C. App. LEXIS 2418 , aff'd, 296 N.C. 95 , 249 S.E.2d 387, 1978 N.C. LEXIS 1164 (1978); Coletrane v. Lamb, 42 N.C. App. 654, 257 S.E.2d 445, 1979 N.C. App. LEXIS 3194 (1979); Horne v. Trivette, 58 N.C. App. 77, 293 S.E.2d 290, 1982 N.C. App. LEXIS 2731 (1982).

The courts have held repeatedly since 1820 in case after case, and no principle is more fully settled in this jurisdiction, that the action of the trial judge in setting aside a verdict in his discretion is not subject to review on appeal in the absence of an abuse of discretion. Worthington v. Bynum, 53 N.C. App. 409, 281 S.E.2d 166, 1981 N.C. App. LEXIS 2627 (1981), rev'd, 305 N.C. 478 , 290 S.E.2d 599, 1982 N.C. LEXIS 1345 (1982).

A motion under section (a) of this rule is addressed to the sound discretion of the trial judge. Such a ruling raises no question of law. Frye v. Anderson, 86 N.C. App. 94, 356 S.E.2d 370, 1987 N.C. App. LEXIS 2672 (1987).

Generally, a motion for new trial is addressed to the sound discretion of the trial court, and its ruling will not be disturbed absent a manifest abuse of that discretion. Griffis v. Lazarovich, 161 N.C. App. 434, 588 S.E.2d 918, 2003 N.C. App. LEXIS 2200 (2003).

Trial court did not err in denying the airport operators’ post-trial motions claiming that they had newly-discovered evidence that the adjoining property owners, who had brought a private nuisance claim against the airport operators, bought additional property adjoining their property and the airport following the jury trial in the private nuisance case; the fact that the adjoining property owners purchased additional property could not be the basis for a new trial because the purchase did not occur until after the trial was completed and, thus, the trial court’s denial of the post-trial motions was not an abuse of discretion. Broadbent v. Allison, 176 N.C. App. 359, 626 S.E.2d 758, 2006 N.C. App. LEXIS 524 (2006).

Same Scope of Review Applies to Grants and Denials of New Trial. —

Under subdivision (a)(7) of this rule, appellate courts must apply the same standard, namely, whether the record affirmatively demonstrates an abuse of discretion, for reviewing a motion for a new trial for “insufficiency of the evidence to justify the jury verdict” when the trial court grants a new trial as when it denies a new trial; the higher court scrutinizes the discretionary decision of the trial court whose primary focus remains, in either case, whether the verdict represents an injustice and is against the greater weight of the evidence. In re Will of Buck, 350 N.C. 612 , 516 S.E.2d 858 (1999).

New Trial Not Ordered. —

Because the trial court did not order a new trial, a property owner and owners’ association were not entitled to an interlocutory appeal of the trial court’s order requiring other lot owners in a subdivision to be joined as necessary parties; the trial court’s decree to rehear evidence was not an order for a new trial because a judgment had not been rendered in the case. Regency Lake Owners' Ass'n v. Regency Lake, LLC, 258 N.C. App. 636, 814 S.E.2d 121, 2018 N.C. App. LEXIS 311 (2018).

Refusal to Award New Trial Upheld. —

In a civil action in which buyer claimed that sellers committed fraud and unfair or deceptive trade in their sale of a condominium to buyer, award of damages of $33,074.30, which essentially restored buyer to her condition prior to sale, was not excessive, and the trial court did not abuse its discretion in refusing to set aside the award and declare a new trial. Douglas v. Doub, 95 N.C. App. 505, 383 S.E.2d 423, 1989 N.C. App. LEXIS 831 (1989).

Where there was nothing in the record to indicate that jury award was influenced by passion or prejudice, it was not a manifest abuse of discretion for the trial judge to uphold the jury’s verdict and to deny plaintiff’s motion for a new trial. McFarland v. Cromer, 117 N.C. App. 678, 453 S.E.2d 527, 1995 N.C. App. LEXIS 63 , cert. denied, 340 N.C. 114 , 458 S.E.2d 183, 1995 N.C. LEXIS 206 (1995).

The plaintiff could not rely on this section to get a new trial where his damages were disputed and even his own witness testified that many of his injuries did not result from the accident at issue. Warren v. GMC, 142 N.C. App. 316, 542 S.E.2d 317, 2001 N.C. App. LEXIS 80 (2001).

Trial court did not abuse its discretion in denying a new trial in a condemnation action where the corporate landowner’s evidence as to the value of the property that was to be taken, presented in the testimony of two expert appraisers and the president of the corporate landowner, supported the jury’s determination of the value of the property, even though the city presented testimony from two expert appraiser’s that placed a much lower value on the property. City of Charlotte v. Whippoorwill Lake, Inc., 150 N.C. App. 579, 563 S.E.2d 297, 2002 N.C. App. LEXIS 575 (2002).

In a husband’s action against his separated wife’s boyfriend for criminal conversation and for alienation of his wife’s affections, a jury could have found that the boyfriend’s conduct was the effective cause of the alienation of the wife’s affections, and his motions for directed verdict, judgment notwithstanding the verdict, and to set aside the compensatory damage verdict for alienation of affection were properly denied; nor did the existence of a separation agreement between the husband and the wife shield the boyfriend from liability for criminal conversation. Nunn v. Allen, 154 N.C. App. 523, 574 S.E.2d 35, 2002 N.C. App. LEXIS 1522 (2002).

Injured party was not entitled to a new trial based on the alleged erroneous admission of photographs of her vehicle or the jury’s failure to award damages where the photographs were properly admitted after the injured party verified that they depicted her vehicle and were made a day after accident, and the evidence regarding the injured party’s injuries was not unequivocal, her assertions to the contrary; thus, credibility of the evidence was exclusively for the jury. Horne v. Vassey, 157 N.C. App. 681, 579 S.E.2d 924, 2003 N.C. App. LEXIS 950 (2003).

Denial of plaintiffs’ motion for a new trial in a case against a husband and wife alleging a fraudulent transfer of property was affirmed because the sufficiency of evidence issues presented to the appellate court on appeal were not the issues presented to the trial court in plaintiffs’ motion for directed verdict or their motion for judgment notwithstanding the verdict. Tiber Holding Corp. v. DiLoreto, 160 N.C. App. 583, 586 S.E.2d 538, 2003 N.C. App. LEXIS 1823 (2003).

In a trial court’s dismissal of a litigant’s action against a newspaper staff writer and related defendants by way of summary judgment, there was no error where the trial court denied the litigant’s request for a new trial because the trial court properly held against the litigant on her claims of libel per se, invasion of privacy, fraud and misrepresentation, trespass to real property, slander of title, and obstruction of justice. Broughton v. McClatchy Newspapers, Inc., 161 N.C. App. 20, 588 S.E.2d 20, 2003 N.C. App. LEXIS 1983 (2003).

Trial court did not abuse its discretion in denying an injured automobile passenger’s motion for a new trial as the passenger failed to successfully identify an error in her trial. Griffis v. Lazarovich, 161 N.C. App. 434, 588 S.E.2d 918, 2003 N.C. App. LEXIS 2200 (2003).

Denial of defendants’ motion for a new was upheld where the admission of evidence concerning the injured party’s employment was admissible, the injured party’s testimony regarding his own injuries was relevant and the injured party’s regarding the level of pain that injured party was experiencing was admissible opinion testimony by a nonexpert. Dunn v. Custer, 162 N.C. App. 259, 591 S.E.2d 11, 2004 N.C. App. LEXIS 112 (2004).

When a trial court entered judgment setting aside an execution sale, the court did not abuse its discretion when it denied a motion under G.S. 1A-1 , N.C. R. Civ. P. 59(a)(9) for a new trial or, in the alternative, amendment or alteration of judgment. Beneficial Mortg. Co. v. Peterson, 163 N.C. App. 73, 592 S.E.2d 724, 2004 N.C. App. LEXIS 292 (2004).

Trial court did not abuse its discretion in submitting the issue of contributory negligence to the jury because even though the victim had a green light, she was required to maintain a reasonable and proper lookout for other vehicles in or approaching the intersection. The victim admitted that she did not look left or right before approaching the intersection, there was no obstruction of the victim’s view of the intersection, and the victim was unable to provide a reason why she did not notice the driver’s car until it was directly in front of her. Kummer v. Lowry, 165 N.C. App. 261, 598 S.E.2d 223, 2004 N.C. App. LEXIS 1146 (2004).

Trial judge’s discretionary order made pursuant to G.S. 1A-1 , N.C. R. Civ. P. 59 for or against a new trial may be reversed only when an abuse of discretion is clearly shown; a trial court’s exclusion of the testimony of four witnesses as to the value of property in a condemnation proceeding was proper, and so the trial court did not abuse its discretion by denying the landowners’ motion for a new trial. City of Charlotte v. Ertel, 170 N.C. App. 346, 612 S.E.2d 438, 2005 N.C. App. LEXIS 1009 (2005).

In determining whether a school board properly determined not to renew a teacher’s contract under G.S. 115C-325(m)(2), the trial court had looked at all of the evidence and determined that there was substantial evidence to support the board’s determination, even without inaccurate information contained in a memorandum; in doing so, it had properly applied the whole record test to the evidence presented to the board, and this justified its later denial of the teacher’s motion for reconsideration. Davis v. Macon County Bd. of Educ., 178 N.C. App. 646, 632 S.E.2d 590, 2006 N.C. App. LEXIS 1644 (2006).

Trial court properly denied a plaintiff individual’s G.S. 1A-1-59 motion where it was clear that the cases referenced by the individual’s counsel contained arguments what were not made but could have been at the trial court level and the individual’s unclean hands barred her from recovering property from the owner. Sellers v. Ochs, 180 N.C. App. 332, 638 S.E.2d 1, 2006 N.C. App. LEXIS 2305 (2006).

Trial court did not abuse its discretion in denying a realtor’s motion for a new trial or to alter or amend the verdict because the jury’s failure to follow the court’s instructions did not render the verdict improper as the jury was clear that it was rejecting a company’s liability and there was competent evidence to support the verdict that the company’s vice president was not operating as an agent of the company. Strum v. Greenville Timberline, LLC, 186 N.C. App. 662, 652 S.E.2d 307, 2007 N.C. App. LEXIS 2307 (2007).

Evidence supported punitive damages in a car buyer’s fraud action against defendants, a dealership, its owners, and it employees, when defendants: (1) sold a buyer a car that was unfit for operation, in violation of state law by placing a VIN plate, the driver’s door with the federal identification decal and an odometer from a newer car into a car sold to the buyer; (2) made considerable efforts to conceal facts of similar conduct; (3) were well-aware that they were selling unfit vehicles; (4) deliberately concealed information concerning their net worth; and (5) undaunted by the revocation of their motor vehicle dealers’ license, reformed their business as a different corporate entity and continued to sell cars; and the jury was properly instructed about the reprehensibility of defendants’ motives and conduct, their awareness of their conduct’s probable consequences, their conduct’s duration, the concealment, similar past conduct, and their profit from the conduct. That the jury concluded its deliberations quickly was hardly evidence of passion and prejudice per se to justify a new trial; thus, defendants were not entitled to a new trial under N.C. R. Civ. P. 59(a)(5), (6). Greene v. Royster, 187 N.C. App. 71, 652 S.E.2d 277, 2007 N.C. App. LEXIS 2261 (2007).

Trial court did not abuse its discretion in denying defendant former employer’s motion for a new trial based on excessive damages under N.C. R. Civ. P. 59, because the jury’s award was below the damages estimate given by expert witnesses, whose testimony was competent on the issue of damages. Cameron v. Merisel Props., 187 N.C. App. 40, 652 S.E.2d 660, 2007 N.C. App. LEXIS 2318 (2007).

In a personal injury action, the trial court erred in denying an employer’s motion for a new trial. The trial court provided an incorrect instruction regarding the family-purpose doctrine which likely misled the jury; thus, this instruction was erroneous and the trial court’s failure to grant a new trial constituted a substantial miscarriage of justice. Jackson v. Carland, 192 N.C. App. 432, 665 S.E.2d 553, 2008 N.C. App. LEXIS 1623 (2008).

Trial court did not abuse its discretion when it denied an accident victim a new trial on the grounds that there was insufficient evidence to support the jury’s verdict or that there was err when it failed to grant the victim a new trial on evidentiary grounds. The testimony of the accident victim’s doctor was equivocal and the victim did not make a sufficient offer of proof as to two evidentiary issues. Kor Xiong v. Marks, 193 N.C. App. 644, 668 S.E.2d 594, 2008 N.C. App. LEXIS 2016 (2008).

State’s argument that it was entitled to a new trial on the basis of alleged errors raised on appeal fails where it is determined on appeal that the trial court did not err in those rulings and therefore did not abuse its discretion in denying the motion for a new trial. City of Wilson Redevelopment Comm'n v. Boykin, 193 N.C. App. 20, 667 S.E.2d 282, 2008 N.C. App. LEXIS 1755 (2008).

With regard to a third civil action filed in Mecklenburg County, North Carolina, by a property association for unpaid maintenance fees against two property owners, the trial court did not err by denying the owners’ motion for a new trial since they did not file a timely motion for a new trial or advance any of the grounds for obtaining a new trial specified in G.S. 1A-1 , N.C. R. Civ. P. 59, or otherwise establish adequate grounds for an award of appellate relief. Carolina Forest Ass'n v. White, 198 N.C. App. 1, 678 S.E.2d 725, 2009 N.C. App. LEXIS 1066 (2009).

In a medical malpractice action, there was no support for a trial court’s G.S. 1A-1 , N.C. R. Civ. P. 59 order for a new trial, as its order ignored testimony from a defense expert that a nurse met the standard of care in treating the decedent; further, it failed to identify the unreliable defense evidence that allegedly misled a jury. Langwell v. Albemarle Family Practice, PLLC, 203 N.C. App. 666, 692 S.E.2d 476, 2010 N.C. App. LEXIS 725 (2010).

Trial court did not err in refusing to grant plaintiff’s motion for a new trial under G.S. 1A-1 , N.C. R. Civ. P. 59 on the ground that the jury issued a compromised verdict because pursuant to G.S. 8C-1 , N.C. R. Evid. 606(b), plaintiff could not use juror comments as evidence supporting his motion for a new trial; a juror’s statements may not be used in determining whether a compromise verdict was delivered. Smith v. White, 213 N.C. App. 189, 712 S.E.2d 717, 2011 N.C. App. LEXIS 1369 (2011).

Trial court did not err in refusing to grant plaintiff’s motion for a new trial under G.S. 1A-1 , N.C. R. Civ. P. 59 on the ground that the jury issued a compromised verdict because the jury’s award of medical expenses could indicate that the jury compensated plaintiff for some amount for his pain and suffering. Smith v. White, 213 N.C. App. 189, 712 S.E.2d 717, 2011 N.C. App. LEXIS 1369 (2011).

In a negligence action stemming from a collision wherein plaintiff was driving a motorcycle and defendant was driving a truck, a trial court did not err in denying plaintiff’s motion for judgment notwithstanding the verdict, nor abuse its discretion in denying plaintiff’s motion for a new trial, because from the evidence presented, a jury could have concluded circumstances existed that would have reasonably put plaintiff on notice that he could not assume defendant would yield at the intersection at which their accident occurred; thus, it was proper for the jury to consider whether plaintiff was negligent for failing to reduce his speed, keep a proper lookout, or maintain control of his motorcycle such that it contributed to his injuries. Fisk v. Murphy, 212 N.C. App. 667, 713 S.E.2d 100, 2011 N.C. App. LEXIS 1203 (2011).

Trial court did not abuse its discretion in denying an employer’s motion for relief or for a new trial after it granted an employee summary judgment in its breach of contract action because the employer admitted that it received the employee’s memorandum of law in opposition to the employer’s motion for summary judgment and in support of summary judgment for the employee, and there was no indication in the record that the employer made any showing to the trial court of what evidence it would have presented had it had the additional notice of a motion by the employee for summary judgment. Elliott v. Enka-Candler Fire & Rescue Dep't, Inc., 213 N.C. App. 160, 713 S.E.2d 132, 2011 N.C. App. LEXIS 1373 (2011).

Because both G.S. 1A-1 , N.C. R. Civ. P. 59(a)(8) and (9) were post-trial motions, and the case concluded at the summary judgment stage, the trial court did not err by concluding that it was not proper to set aside default against defendant and vacate the summary judgment pursuant to Rule 59(a)(8) and (9). Bodie Island Beach Club Ass'n v. Wray, 215 N.C. App. 283, 716 S.E.2d 67, 2011 N.C. App. LEXIS 1887 (2011).

Although defendant argued a trial court placed arbitrary time limits on the presentation of evidence, the trial court’s denial of defendant’s G.S. 1A-1 , N.C. R. Civ. P. 59 motion for a new trial was not an abuse of discretion because: (1) the length of the trial was discussed at pre-trial conferences and both parties agreed to a two-day trial; (2) the trial court made inquiry concerning the ability of both parties to present evidence within a two-day time frame and neither party objected during pre-trial conferences; (3) the trial court made several references to the time constraint during the trial; and (4) at the close of defendant’s evidence, defendant made no objection to time limits enforced by the trial court. Wolgin v. Wolgin, 217 N.C. App. 278, 719 S.E.2d 196, 2011 N.C. App. LEXIS 2422 (2011).

In a developer’s breach of contract action regarding the construction and sale of plasma centers to a buyer, a trial court properly denied the buyer’s motion for new trial as to damages, G.S. 1A-1 , N.C. R. Civ. P. 59, because the developer presented sufficient evidence to establish that it was reasonably certain the centers would be completed in time to satisfy the amended opening and production deadlines. Plasma Ctrs. of Am., LLC v. Talecris Plasma Res., Inc., 222 N.C. App. 83, 731 S.E.2d 837, 2012 N.C. App. LEXIS 930 (2012).

Trial court did not abuse its discretion in denying the town a new trial where actual damages included damages for emotional distress and lost wages, and the evidence was sufficient to go to the jury on whether the chief was discharged based on his refusal to provide confidential information on the status of ongoing drug cases. Blakeley v. Town of Taylortown, 233 N.C. App. 441, 756 S.E.2d 878, 2014 N.C. App. LEXIS 369 (2014).

Trial court did not err in denying the town’s motion to amend the verdict on a claim of wrongful discharge in violation of public policy where although it was unclear how the jury reached the overall figure, the verdict was consistent with the chief’s evidence. Blakeley v. Town of Taylortown, 233 N.C. App. 441, 756 S.E.2d 878, 2014 N.C. App. LEXIS 369 (2014).

Trial court did not err in denying the town’s motion to amend the verdict on a claim of wrongful discharge in violation of public policy where lost wages, future lost earnings, and emotional distress damages were appropriate for this type of claim. Blakeley v. Town of Taylortown, 233 N.C. App. 441, 756 S.E.2d 878, 2014 N.C. App. LEXIS 369 (2014).

Refusal to Award New Trial Held Erroneous. —

Bond forfeiture proceeding was a civil matter, and a trial court therefore erred in denying a school board’s motion for a new trial, after granting surety’s motion for relief from a forfeiture judgment, on the grounds that the board improperly attempted to proceed under the North Carolina Rules of Civil Procedure. State v. Pelletier, 168 N.C. App. 218, 606 S.E.2d 907, 2005 N.C. App. LEXIS 163 (2005).

In an owner’s action against joint tenants and their lender to quiet title to property, the trial court abused its discretion by denying a lender’s motion to reconsider under G.S. 1A-1 , N.C. R. Civ. P. 52(b) its order entering a default judgment against joint tenants because the underlying default judgment was based on erroneous findings of fact and a misapplication of law; the trial court stated that it reconsidered the pleadings of record and the lender’s brief but made no additional findings of fact or conclusions of law on which to base its denial of the motion to reconsider, and the trial court should have amended its findings, made additional findings, and amended its judgment because equity and justice required the trial court to allow the lender to defend its claim on the merits. Jackson v. Culbreth, 199 N.C. App. 531, 681 S.E.2d 813, 2009 N.C. App. LEXIS 1492 (2009).

Trial court abused its discretion in denying the town’s motion to amend the verdict on a claim of wrongful discharge in violation of public policy where it improperly calculated the amount the police chief earned. Blakeley v. Town of Taylortown, 233 N.C. App. 441, 756 S.E.2d 878, 2014 N.C. App. LEXIS 369 (2014).

Trial court erred in denying a mother’s G.S. 1A-1 , N.C. R. Civ. P. 59(a)(1), motion to re-open the evidence where she had to choose between attending the termination hearing or a previously scheduled and pending criminal trial in another county, she had no control over the continuation of the criminal case, and her criminal counsel ad confirmed that no further continuance was available and the mother was not free to leave the criminal court to attend the termination hearing. In re S.G.V.S., 258 N.C. App. 21, 811 S.E.2d 718, 2018 N.C. App. LEXIS 162 (2018).

Discretion Where No Question of Law or Legal Inference Involved. —

Where no question of law or legal inference is involved, a motion to set aside the verdict is addressed to the sound discretion of the trial court and its ruling is not subject to review in the absence of an abuse of discretion. In re Will of Herring, 19 N.C. App. 357, 198 S.E.2d 737, 1973 N.C. App. LEXIS 1650 (1973).

The trial judge has the discretionary power to set aside a verdict or grant a new trial when, in his opinion, it would work injustice to let the jury’s verdict stand; and if no question of law or legal inference is involved in the motion, his action in so doing is not subject to review on appeal in the absence of a clear abuse of discretion. Seaman v. McQueen, 51 N.C. App. 500, 277 S.E.2d 118, 1981 N.C. App. LEXIS 2267 (1981).

Appealability of Decision as to New Trial Based on Law or Legal Inference. —

When a judge presiding at a trial grants or refuses to grant a new trial because of some question of law or legal inference which the judge decides, the decision may be appealed and the appellate court will review it. In re Will of Herring, 19 N.C. App. 357, 198 S.E.2d 737, 1973 N.C. App. LEXIS 1650 (1973).

When a verdict is set aside for error in law, the decision is not a matter of discretion. In such a situation, the aggrieved party may appeal, provided the error is specifically designated. Britt v. Allen, 291 N.C. 630 , 231 S.E.2d 607, 1977 N.C. LEXIS 1227 (1977).

Scope of Review of Discretionary Ruling. —

An appellate court’s review of a trial judge’s discretionary ruling either granting or denying a motion to set aside a verdict and order a new trial is strictly limited to the determination of whether the record affirmatively demonstrates a manifest abuse of discretion. Worthington v. Bynum, 305 N.C. 478 , 290 S.E.2d 599, 1982 N.C. LEXIS 1345 (1982); Pearce v. Fletcher, 74 N.C. App. 543, 328 S.E.2d 889, 1985 N.C. App. LEXIS 3530 (1985); Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362 , 329 S.E.2d 333, 1985 N.C. LEXIS 1541 (1985); Yeargin v. Spurr, 78 N.C. App. 243, 336 S.E.2d 680, 1985 N.C. App. LEXIS 4283 (1985).

The decision whether to grant a new trial rests in the sound discretion of the trial judge. Absent record disclosure of abuse of discretion, the order is not subject to review on appeal. Sizemore v. Raxter, 58 N.C. App. 236, 293 S.E.2d 294, 1982 N.C. App. LEXIS 2733 (1982); Watkins v. Watkins, 83 N.C. App. 587, 351 S.E.2d 331, 1986 N.C. App. LEXIS 2742 (1986).

The standard for review of a trial court’s discretionary ruling either granting or denying a motion to set aside a verdict and order a new trial is virtually prohibitive of appellate intervention. Pearce v. Fletcher, 74 N.C. App. 543, 328 S.E.2d 889, 1985 N.C. App. LEXIS 3530 (1985).

An appellate court’s review of a trial judge’s discretionary ruling denying a motion to set aside a verdict and order a new trial is limited to a determination of whether the record clearly demonstrates a manifest abuse of discretion by the trial judge. Pittman v. Nationwide Mut. Fire Ins. Co., 79 N.C. App. 431, 339 S.E.2d 441, 1986 N.C. App. LEXIS 2061 (1986); Thomas v. Dixson, 88 N.C. App. 337, 363 S.E.2d 209, 1988 N.C. App. LEXIS 27 (1988).

Since under this rule motions are addressed to the sound discretion of the trial court, the only question before the court on appeal is whether the trial court abused its discretion in denying the motion. In re Will of King, 80 N.C. App. 471, 342 S.E.2d 394, 1986 N.C. App. LEXIS 2211 (1986).

When the trial court grants or denies a motion for a new trial without making findings of fact, appellate review is limited to determining whether the record indicates that the ruling amounts to a manifest abuse of discretion. Strickland v. Jacobs, 88 N.C. App. 397, 363 S.E.2d 229, 1988 N.C. App. LEXIS 4 (1988).

Trial court’s ruling on a motion for a new trial does not raise a question of law; because the trial court is vested with the discretionary authority to grant or deny a motion for a new trial pursuant to N.C. R. Civ. P. 59(a), the appellate court’s review is limited to whether the trial court has abused its discretion. Guox v. Satterly, 164 N.C. App. 578, 596 S.E.2d 452, 2004 N.C. App. LEXIS 973 (2004).

Utilizing an abuse of discretion standard in reviewing a decision denying an ex-wife’s Rule 59(a)(9) motion for a new trial, the court found that the “catch-all” provision did not justify a new trial and the setting aside of an equitable distribution judgment for the sole reason that there was a 16-month delay between a hearing on distribution and the distribution order; since the ex-wife suffered no prejudice from the delay, there was no reason to set aside the distribution order. Britt v. Britt, 168 N.C. App. 198, 606 S.E.2d 910, 2005 N.C. App. LEXIS 170 (2005).

Where defendants, a car dealership, its owners, and its employees moved for a new trial on the ground that the jury manifestly disregarded the instructions of the court about punitive damages in a car buyer’s fraud action, or alternatively, that the jury awarded excessive punitive damages under the influence of passion or prejudice pursuant to N.C. R. Civ. P. 59(a)(5) and (6), it was plain that the trial judge’s discretionary order denying a new trial could be reversed on appeal only in those exceptional cases where an abuse of discretion was clearly shown. Abuse of discretion results where the trial court’s ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision. Greene v. Royster, 187 N.C. App. 71, 652 S.E.2d 277, 2007 N.C. App. LEXIS 2261 (2007).

When Discretionary Order May Be Reversed. —

A trial judge’s discretionary order pursuant to this rule granting or denying a new trial upon any ground may be reversed on appeal only in those exceptional cases where an abuse of discretion is clearly shown. Worthington v. Bynum, 305 N.C. 478 , 290 S.E.2d 599, 1982 N.C. LEXIS 1345 (1982); Pearce v. Fletcher, 74 N.C. App. 543, 328 S.E.2d 889, 1985 N.C. App. LEXIS 3530 (1985); Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362 , 329 S.E.2d 333, 1985 N.C. LEXIS 1541 (1985); Blow v. Shaughnessy, 88 N.C. App. 484, 364 S.E.2d 444, 1988 N.C. App. LEXIS 102 (1988).

An appellate court should not disturb a discretionary order under this rule unless it is reasonably convinced by the cold record that the trial judge’s ruling probably amounted to a substantial miscarriage of justice. Worthington v. Bynum, 305 N.C. 478 , 290 S.E.2d 599, 1982 N.C. LEXIS 1345 (1982); Pearce v. Fletcher, 74 N.C. App. 543, 328 S.E.2d 889, 1985 N.C. App. LEXIS 3530 (1985); Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362 , 329 S.E.2d 333, 1985 N.C. LEXIS 1541 (1985); Blow v. Shaughnessy, 88 N.C. App. 484, 364 S.E.2d 444, 1988 N.C. App. LEXIS 102 (1988).

A discretionary ruling granting or denying a new trial is reversed only where an abuse of discretion is clearly shown resulting in a substantial miscarriage of justice. Travis v. Knob Creek, Inc., 84 N.C. App. 561, 353 S.E.2d 229, 1987 N.C. App. LEXIS 2518 , rev'd, 321 N.C. 279 , 362 S.E.2d 277, 1987 N.C. LEXIS 2550 (1987).

Because G.S. 45-21.38 specified that the foreclosing party was not entitled to a deficiency judgment if the underlying transaction was a purchase money transaction, the former owner drafted the contract, the purchase money promissory note, and the purchase money deed of trust, and the contract specifically provided that the purchase money promissory note was secured by a “purchase money deed of trust which shall be first lien on the Property,” thus, both parties had sufficient notice that the contract was to be construed as a purchase money transaction, and the buyer should have been allowed to amend as the benefits of G.S. 45-21.38 could not be waived and the trial court improperly granted partial summary judgment. Rutherford Plantation, LLC v. Challenge Golf Group of the Carolinas, LLC, 225 N.C. App. 79, 737 S.E.2d 409, 2013 N.C. App. LEXIS 64 (2013), aff'd, 367 N.C. 197 , 753 S.E.2d 152, 2014 N.C. LEXIS 22 (2014).

New Trial Improperly Granted Where Claim was Barred by Contributory Negligence. —

Trial court erred in granting the accident victim’s motions for judgment notwithstanding the verdict and for a new trial on a personal injury claim resulting from the property owner’s alleged negligence in maintaining a stairs because the issue of the accident victim’s contributory negligence was properly left to the jury, which found that the accident victim was contributorily negligent. Cameron v. Canady, 157 N.C. App. 132, 577 S.E.2d 700, 2003 N.C. App. LEXIS 382 (2003).

Trial court’s order granting a new trial which contained neither findings nor explication reflecting the grounds for the court’s action lacked any basis upon which to conduct appellate review and was reversed. Chiltoski v. Drum, 121 N.C. App. 161, 464 S.E.2d 701, 1995 N.C. App. LEXIS 1050 (1995).

Both a motion and an order for new trial filed under subsection (a)(8) of this rule have two basic requirements: First, the errors to which the trial judge refers must be specifically stated; second, the moving party must have objected to the error which is assigned as the basis for the new trial. Barnett v. Security Ins. Co., 84 N.C. App. 376, 352 S.E.2d 855, 1987 N.C. App. LEXIS 2499 (1987), limited, Carter v. West Am. Ins. Co., 190 N.C. App. 532, 661 S.E.2d 264, 2008 N.C. App. LEXIS 1021 (2008).

Motion for new trial on the grounds of newly discovered evidence is addressed to trial court’s sound discretion and is not subject to review absent a showing of an abuse of discretion. Horne v. Trivette, 58 N.C. App. 77, 293 S.E.2d 290, 1982 N.C. App. LEXIS 2731 (1982).

Because a mother raised only evidence that did not exist when a custody trial occurred, there was no abuse of discretion in a denial of her motion for a new trial under G.S. 1A-1 , N.C. R. Civ. P. 59(a)(4). Faulkenberry v. Faulkenberry, 169 N.C. App. 428, 610 S.E.2d 237, 2005 N.C. App. LEXIS 688 (2005).

Evidence Held Not “Newly Discovered.” —

Trial court did not err in dismissing plaintiffs’ motions for a new trial under N.C. R. Civ. P. 59 and for relief from judgment under N.C. R. Civ. P. 60 on the ground that an affidavit constituted newly discovered evidence since it was inadvertently not given to plaintiffs’ counsel because the document was not “newly discovered” after the summary judgment hearing in the case had concluded; plaintiffs’ counsel was served with the affidavit, and the affidavit was filed in the underlying case. Health Mgmt. Assocs. v. Yerby, 215 N.C. App. 124, 715 S.E.2d 513, 2011 N.C. App. LEXIS 1747 (2011).

Discretion of Court as to Motion Claiming Excessive or Inadequate Damages. —

A motion for a new trial on the grounds that damages awarded are inadequate or excessive and which appear to have been given under the influence of passion or prejudice is directed to the sound discretion of the trial court. The trial court’s decision will not be disturbed on appeal in the absence of a showing of abuse of discretion. Haas v. Kelso, 76 N.C. App. 77, 331 S.E.2d 759, 1985 N.C. App. LEXIS 3808 (1985).

A motion for a new trial on the grounds of inadequate damages is addressed to the sound discretion of the trial judge. Blow v. Shaughnessy, 88 N.C. App. 484, 364 S.E.2d 444, 1988 N.C. App. LEXIS 102 (1988).

But Court Must Make Appropriate Findings and Place Burden of Proof Correctly. —

Trial court erred in awarding plaintiff a new trial on the issue of damages for personal injury where it made the necessary finding that the damages awarded were inadequate, but failed to make the necessary additional finding that damages were awarded “under the influence of passion or prejudice”; in fact, it specifically deleted that finding from its order. Furthermore, although the court found that defendant did not offer evidence to refute the causal connection between the accident and the injury sustained, the burden should have been on plaintiff to prove the connection between boating accident, his alleged injuries, and his special damages. Page v. Boyles, 139 N.C. App. 809, 535 S.E.2d 561, 2000 N.C. App. LEXIS 1031 (2000), aff'd, 353 N.C. 361 , 543 S.E.2d 480, 2001 N.C. LEXIS 274 (2001).

Partial New Trial Proper Where Liability Uncontroverted. —

Trial court did not err in granting the injured party a partial new trial on the issue of damages only where the trial court’s finding was supported by uncontroverted evidence establishing the driver’s negligence. Loy v. Martin, 156 N.C. App. 622, 577 S.E.2d 407, 2003 N.C. App. LEXIS 235 (2003).

Evaluation of Jury Award. —

Because a motion for a new trial must be considered on the basis of the jury award, it is error to base an evaluation of the motion on an amount different from that award. Allen v. Beddingfield, 118 N.C. App. 100, 454 S.E.2d 287, 1995 N.C. App. LEXIS 78 (1995).

In deciding a party’s motion for a new trial under this Rule, the trial court is limited to a determination of whether the jury’s award of damages is inadequate or the jury’s verdict is otherwise in error. Allen v. Beddingfield, 118 N.C. App. 100, 454 S.E.2d 287, 1995 N.C. App. LEXIS 78 (1995).

Trial judge has discretionary power to set aside an award of damages if he believes that the damages were excessive and given under the influence of passion or prejudice, or if the evidence was insufficient to justify the verdict. A ruling that is within the discretion of a trial judge may not be set aside except upon a showing of abuse of discretion. Samons v. Meymandi, 9 N.C. App. 490, 177 S.E.2d 209 (1970), cert. denied, 277 N.C. 458 , 178 S.E.2d 225 (1972); Griffin v. Griffin, 45 N.C. App. 531, 263 S.E.2d 39 (1980). In accord with the main volume. See Maintenance Equip. Co. v. Godley Bldrs., 107 N.C. App. 343, 420 S.E.2d 199, 1992 N.C. App. LEXIS 695 (1992).

Remand for New Trial on Damage Issues. —

Where the trial judge remarked that the maximum amount of damages that could have been available under the evidence presented was $45,000, but he only remitted the award to $60,000, which was still excessive under the evidence presented and constituted a manifest abuse of discretion, a remand for a new trial on the issue of damages was required. Munie v. Tangle Oaks Corp., 109 N.C. App. 336, 427 S.E.2d 149, 1993 N.C. App. LEXIS 280 (1993).

While the evidence presented at trial set forth with sufficient particularity the compensatory damages suffered by the property owners, the property owners failed to show damages arising from the claim of lien the contractors filed on their real property. Also, the trial court erred in denying the motion for a new trial on the issue of unfair and deceptive trade practices damages and since the contractors did not have an opportunity to present evidence on the issue of punitive damages, they were entitled to a new trial on punitive damages as well. Decker v. Homes, Inc./Constr. Mgmt. & Fin. Group, 187 N.C. App. 658, 654 S.E.2d 495, 2007 N.C. App. LEXIS 2524 (2007).

New Trial Proper On Issue Of Diminution In Value. —

Trial court did not err in granting plaintiff’s motion for a new trial under G.S. 1A-1 , N.C. R. Civ. P. 59 on the issue of diminution in value of plaintiff’s motorcycle because the determination of damages for diminution in value of the motorcycle was for a jury to decide in a new trial; where repairs have been made and paid for, such evidence is admissible to show the measure of damages. Smith v. White, 213 N.C. App. 189, 712 S.E.2d 717, 2011 N.C. App. LEXIS 1369 (2011).

Damage Award Not Excessive. —

Defendants’ appeal of the court’s denial of their motion for a new trial on the basis that the jury’s $2.5 million damage award was excessive failed as there was no evidence that the jury’s verdict was the result of passion or prejudice and the driver suffered permanent brain damage. Hawley v. Cash, 155 N.C. App. 580, 574 S.E.2d 684, 2002 N.C. App. LEXIS 1616 (2002).

Failure to state a particular rule number as the basis for a motion is not a fatal error so long as the substantive grounds and relief desired are apparent and the nonmovant is not prejudiced thereby. Garrison v. Garrison, 87 N.C. App. 591, 361 S.E.2d 921, 1987 N.C. App. LEXIS 3272 (1987).

Failure to State Specific Grounds as Fatal. —

Defendants’ motion for a new trial did not meet the requirements of G.S. 1A-1 , Rule 7(b)(1) where the defendants merely stated that they were entitled to a new trial under subdivisions (a)(5), (a)(7) and (a)(8) of this rule 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 N.C. App. LEXIS 1373 (1999).

Court Not Required to State Reasons or Make Findings Absent Request Therefor. —

In ruling on a motion for a new trial under section (a) of this rule, absent a specific request made pursuant to G.S. 1A-1 , Rule 52(a)(2), a trial court is not required to either state the reasons for its decision or make findings of fact showing those reasons. Strickland v. Jacobs, 88 N.C. App. 397, 363 S.E.2d 229, 1988 N.C. App. LEXIS 4 (1988).

A motion for new trial on the grounds of inadequate damages is addressed to the discretion of the trial judge. Gwaltney v. Keaton, 29 N.C. App. 91, 223 S.E.2d 506, 1976 N.C. App. LEXIS 2382 (1976); Southern Ry. v. Jeffco Fibres, Inc., 41 N.C. App. 694, 255 S.E.2d 749, 1979 N.C. App. LEXIS 2752 , cert. denied, 298 N.C. 299 , 259 S.E.2d 302, 1979 N.C. LEXIS 1597 (1979); Moon v. Bostian Heights Volunteer Fire Dep't, 97 N.C. App. 110, 387 S.E.2d 225, 1990 N.C. App. LEXIS 33 (1990).

As Is a Motion to Limit New Trial to Issue of Damages. —

A motion to limit a new trial to the issue of damages is directed to the sound discretion of the trial judge and the appellate courts will not supervise the lower court’s judgment except in “extreme circumstances.” Lazenby v. Godwin, 40 N.C. App. 487, 253 S.E.2d 489, 1979 N.C. App. LEXIS 2298 (1979).

And a ruling by the trial judge on the damage issue will not be set aside except upon a showing of abuse of discretion. Southern Ry. v. Jeffco Fibres, Inc., 41 N.C. App. 694, 255 S.E.2d 749, 1979 N.C. App. LEXIS 2752 , cert. denied, 298 N.C. 299 , 259 S.E.2d 302, 1979 N.C. LEXIS 1597 (1979).

The courts of this State have no authority to grant remittiturs without consent of the prevailing party. Pittman v. Nationwide Mut. Fire Ins. Co., 79 N.C. App. 431, 339 S.E.2d 441, 1986 N.C. App. LEXIS 2061 (1986).

The practice of remittitur with the successful party’s consent is still permissible in our courts under this rule. Redevelopment Comm'n v. Holman, 30 N.C. App. 395, 226 S.E.2d 848, 1976 N.C. App. LEXIS 2265 , cert. denied, 290 N.C. 778 , 229 S.E.2d 33, 1976 N.C. LEXIS 1200 (1976).

Under North Carolina law, a trial court’s power to remit damages is not necessarily inherent, as the exercise of that power is specifically authorized and limited by G.S. 1A-1 , N.C. R. Civ. P. 59(a)(6). Rhyne v. K-Mart Corp., 358 N.C. 160 , 594 S.E.2d 1, 2004 N.C. LEXIS 193 (2004).

As to the constitutionality of remittitur, see Redevelopment Comm'n v. Holman, 30 N.C. App. 395, 226 S.E.2d 848, 1976 N.C. App. LEXIS 2265 , cert. denied, 290 N.C. 778 , 229 S.E.2d 33, 1976 N.C. LEXIS 1200 (1976).

When the jury’s verdict exceeds the evidence, the decision to grant a new trial is in the discretion of the trial judge, and the appellate court will review the trial judge only if it appears he grossly abused his discretion. Redevelopment Comm'n v. Holman, 30 N.C. App. 395, 226 S.E.2d 848, 1976 N.C. App. LEXIS 2265 , cert. denied, 290 N.C. 778 , 229 S.E.2d 33, 1976 N.C. LEXIS 1200 (1976).

Authority to Set Aside Verdict Contrary to Credible Testimony. —

The trial judge is vested with discretionary authority to set aside a verdict and order a new trial whenever in his opinion the verdict is contrary to the greater weight of the credible testimony, and since a motion to this effect requires the trial judge’s appraisal of the testimony, it necessarily invokes the exercise of his discretion and raises no question of law, so that his ruling thereon is irreviewable in the absence of manifest abuse of discretion. Britt v. Allen, 291 N.C. 630 , 231 S.E.2d 607, 1977 N.C. LEXIS 1227 (1977).

Trial court did not abuse its discretion in granting a new trial to passenger suing driver of motorcycle on which both parties were riding where the evidence did not support the jury’s verdict and the driver and the owner failed to present evidence of contributory negligence. Roary v. Bolton, 150 N.C. App. 193, 563 S.E.2d 21, 2002 N.C. App. LEXIS 367 (2002).

Showing Required for New Trial on Grounds of Irrelevant Testimony. —

In order to receive a new trial in a civil suit on the grounds that defense counsel improperly elicited irrelevant testimony on several occasions, the plaintiff must demonstrate (1) that the evidence did not have any logical tendency to prove a fact in issue, and (2) that its improper admission misled the jury or prejudiced his case. Fisher v. Thompson, 50 N.C. App. 724, 275 S.E.2d 507, 1981 N.C. App. LEXIS 2199 (1981).

Order entered by trial judge after verdict, due to his apprehension about the jury being affected by an exhibit that he had excluded, although improperly denominated a mistrial, would not fail merely because it was inadvertently given the wrong nomenclature, and would therefore be considered an order granting a new trial for misconduct by the jury or prevailing party under the provisions of section (a)(2) of this rule. Elks v. Hannan, 68 N.C. App. 757, 315 S.E.2d 553, 1984 N.C. App. LEXIS 3462 (1984).

Medical Negligence. —

Trial court did not abuse its discretion in denying a motion for a new trial filed by the guardian of an injured child in a medical negligence case because sufficient evidence existed to support the jury’s verdict. Suarez v. Wotring, 155 N.C. App. 20, 573 S.E.2d 746, 2002 N.C. App. LEXIS 1594 (2002).

It is not an abuse of discretion to require a new trial on all issues, even though the error giving rise to a new trial occurred in only one issue. Lazenby v. Godwin, 40 N.C. App. 487, 253 S.E.2d 489, 1979 N.C. App. LEXIS 2298 (1979).

Where the evidence showed that defendants were not misled by plaintiff about its possession of a certificate of authority to transact business in North Carolina, defendants’ failure to raise the issue of plaintiff’s authority to transact business in North Carolina in a motion prior to trial, as required by G.S. 55-15-02(a), precluded it from doing so in a motion after trial. Spivey & Self, Inc. v. Highview Farms, Inc., 110 N.C. App. 719, 431 S.E.2d 535, 1993 N.C. App. LEXIS 670 (1993).

Authority to Order New Trial on Only One Issue. —

Under section (a) of this rule, the courts of this State have authority to set aside a verdict as to one issue and order a new trial as to it while leaving the verdict for the remaining issues intact. Housing, Inc. v. Weaver, 52 N.C. App. 662, 280 S.E.2d 191, 1981 N.C. App. LEXIS 2532 (1981), aff'd, 305 N.C. 428 , 290 S.E.2d 642, 1982 N.C. LEXIS 1336 (1982).

Granting New Trial Based on Misapprehension of Law. —

If trial court granted a motion for new trial on the belief that by admitting fault, defendant had necessarily admitted plaintiff suffered damages which were the proximate result of defendant’s fault, the basis of its action would be a misapprehension of law and its order would constitute reversible error. Chiltoski v. Drum, 121 N.C. App. 161, 464 S.E.2d 701, 1995 N.C. App. LEXIS 1050 (1995).

Grant of Partial New Trial for Error in Charge on Damages. —

Where error in the charge of the court related only to the measure of damages recoverable by the plaintiff and had no bearing upon the jury’s determination of the negligence of the defendant as the proximate cause of the plaintiff ’s injury, only a partial new trial would be granted. Brown v. Neal, 283 N.C. 604 , 197 S.E.2d 505, 1973 N.C. LEXIS 1026 (1973).

Grant of New Trial Based on Erroneous Instruction of Lien Amount. —

Instruction of an erroneous amount for workers’ compensation lien was an irregularity which prevented defendant from having a fair trial and the court’s failure to grant a new trial on these grounds was a substantial miscarriage of justice. Edwards v. Hardy, 126 N.C. App. 69, 483 S.E.2d 724, 1997 N.C. App. LEXIS 317 (1997).

For case upholding court’s exercise of discretion, see City of Winston-Salem v. Rice, 16 N.C. App. 294, 192 S.E.2d 9, 1972 N.C. App. LEXIS 1690 , cert. denied, 282 N.C. 425 , 192 S.E.2d 835, 1972 N.C. LEXIS 973 (1972).

Section (d) of this rule, requiring a statement of reasons, applies only to cases in which the trial court orders a new trial on its own motion. Edge v. Metropolitan Life Ins. Co., 78 N.C. App. 624, 337 S.E.2d 672, 1985 N.C. App. LEXIS 4336 (1985).

Time in Which Court May Act. —

Subsection (d) does not require that sua sponte action by the trial court be accompanied by a statement of the reasons therefor only after entry of judgment, but rather sets forth the maximum time following entry of judgment within which the court is statutorily authorized to act upon its own initiative. Chiltoski v. Drum, 121 N.C. App. 161, 464 S.E.2d 701, 1995 N.C. App. LEXIS 1050 (1995).

Court Need Not Specify Grounds for Order Allowing Litigant’s Motion. —

The trial court is not required to specify the grounds for its order allowing a litigant’s motion to set aside a verdict and grant a new trial, where the order is not entered on the trial court’s own initiative. Glen Forest Corp. v. Bensch, 9 N.C. App. 587, 176 S.E.2d 851, 1970 N.C. App. LEXIS 1412 (1970).

But Must Specify Grounds for Order Made on Own Initiative. —

Order setting aside verdict and granting a new trial for errors of law committed during trial, made on the courts’ own initiative, was erroneous in failing to specify the errors upon which it was based. In re Will of Herring, 19 N.C. App. 357, 198 S.E.2d 737, 1973 N.C. App. LEXIS 1650 (1973).

The law does not require that trial judge specify his reasons for granting discretionary new trial in the absence of a specific request. Edge v. Metropolitan Life Ins. Co., 78 N.C. App. 624, 337 S.E.2d 672, 1985 N.C. App. LEXIS 4336 (1985).

Additional Findings Held Essential to Provide Basis for Review. —

Given the defendant’s motion specifically asking for findings of fact and conclusions of law on the decision of the plaintiff ’s motion for a new trial, the insufficiency in the findings of fact in the order granting the motion, and the conflicting evidence in the record, additional findings of fact were essential to provide the appellate court with a basis for a meaningful review. Andrews v. Peters, 75 N.C. App. 252, 330 S.E.2d 638, 1985 N.C. App. LEXIS 3640 (1985), aff'd, 318 N.C. 133 , 347 S.E.2d 409, 1986 N.C. LEXIS 2565 (1986).

Clerk and Court Had Jurisdiction. —

Trial court abused its discretion by denying a private-party condemnor’s motion to amend its petition to condemn easements for a power line across two counties because the clerk of court and the trial court very clearly had jurisdiction over at least the property located in the county where the court was located, the condemnor sought leave to amend to correct its misunderstanding of the statute, and the trial court did not address any of the applicable categories. Rutherford Elec. Mbrshp. Corp. v. 130 of Chatham, LLC, 236 N.C. App. 87, 763 S.E.2d 296, 2014 N.C. App. LEXIS 972 (2014).

Appeal Divests Trial Court of Jurisdiction. —

The general rule that an appeal takes a case out of the jurisdiction of the trial court was not changed by this rule or G.S. 1A-1 , Rule 60. Wiggins v. Bunch, 280 N.C. 106 , 184 S.E.2d 879, 1971 N.C. LEXIS 1098 (1971); Sink v. Easter, 288 N.C. 183 , 217 S.E.2d 532, 1975 N.C. LEXIS 893 (1975).

When an appeal is taken the trial court is divested of jurisdiction, except to aid in certifying a correct record. Wiggins v. Bunch, 280 N.C. 106 , 184 S.E.2d 879, 1971 N.C. LEXIS 1098 (1971).

The general rule that an appeal takes a case out of the jurisdiction of the trial court was not changed by the enactment of this rule and G.S. 1A-1 , Rule 60. Estrada v. Jaques, 70 N.C. App. 627, 321 S.E.2d 240, 1984 N.C. App. LEXIS 3880 (1984), limited, Osburn v. Danek Med., Inc., 135 N.C. App. 234, 520 S.E.2d 88, 1999 N.C. App. LEXIS 1045 (1999).

The trial court did not have jurisdiction to hear motions for new trial where defendants filed notices of appeal at the same time they filed their motions for new trial. Argument that the trial court retained jurisdiction because defendants had filed motions for stay of proceedings one minute before filing their notices of appeal had no merit. Seafare Corp. v. Trenor Corp., 88 N.C. App. 404, 363 S.E.2d 643, 1988 N.C. App. LEXIS 40 , writ denied, 321 N.C. 745 , 366 S.E.2d 871, 1988 N.C. LEXIS 221 (1988).

Where defendants moved for a new trial after giving notice of appeal and none of the exceptions set out in Bowen v. Hodge Motor Co., 292 N.C. 633 , 234 S.E.2d 748 (1977) applied, the trial court was without jurisdiction to hear the motion for new trial. American Aluminum Prods., Inc. v. Pollard, 97 N.C. App. 541, 389 S.E.2d 589, 1990 N.C. App. LEXIS 217 (1990).

Timing of Judgment on Motion. —

This rule requires that a motion for a new trial or to amend a judgment be made within ten days of the judgment, but does not prescribe the time for judicial action on the motion; therefore, when defendant moved to amend the judgment within the ten-day window provided by subsection (e), the trial court had authority to enter its supplemental judgment on that motion nearly a month later. Buford v. GMC, 339 N.C. 396 , 451 S.E.2d 293, 1994 N.C. LEXIS 731 (1994).

Timely Filing of Motions Tolls Time for Appeal. —

Under N.C.R.A.P., Rule 3, timely filing of a motion for judgment notwithstanding the verdict or for a new trial pursuant to G.S. 1A-1 , Rule 50(b) and this rule tolls the period for filing and serving written notice of appeal in civil actions. The full time for appeal commences to run and is to be computed from the entry of the order granting or denying the motions under G.S. 1A-1 , Rule 50(b) or this rule. Middleton v. Middleton, 98 N.C. App. 217, 390 S.E.2d 453, 1990 N.C. App. LEXIS 374 (1990).

Where a trial court directed defendants, as the prevailing party, to prepare the written judgment reflecting the court’s oral judgment and defendants prepared and filed the judgment but failed to serve plaintiff with a copy of the judgment, defendants were not in compliance with G.S. 1A-1 , N.C. R. Civ. P. 58 and, therefore, plaintiff had ninety days to file its G.S. 1A-1 , N.C. R. Civ. P. 59 motion. Consequently, the thirty day period for taking appeal was tolled as to all parties until entry of an order disposing of the Rule 59 motion. D.G. II, LLC v. Nix, 213 N.C. App. 220, 713 S.E.2d 140, 2011 N.C. App. LEXIS 1374 (2011).

After a trial court modified custody and awarded physical custody to plaintiff and defendant filed a G.S. 1A-1 , N.C. R. Civ. P. 59 motion for a new trial, which the trial court denied, an appellate court had jurisdiction over defendant’s appeal because once defendant filed the motion for a new trial, the time for filing notice of appeal was tolled, and defendant’s notice of appeal was timely. Wolgin v. Wolgin, 217 N.C. App. 278, 719 S.E.2d 196, 2011 N.C. App. LEXIS 2422 (2011).

But Written Motions Following Denial of Oral Motions Would Not Toll Time for Appeal. —

Plaintiffs, who entered their written notice of appeal within 10 days after the entry of June 6 order denying their April 22 written motions for judgment notwithstanding the verdict and for a new trial, were not entitled to make these written motions or to a hearing on these motions, because they had previously made oral motions for judgment notwithstanding the verdict and for a new trial in open court on April 14, and were afforded an opportunity to be heard, which they declined. Their motions under this rule and G.S. 1A-1 , Rule 50(b) having been denied in open court at that time, plaintiffs were not entitled to file written motions requesting the same relief and thereby toll the period for filing written notice of appeal. Since the June 13 written notice of appeal was not filed within 10 days of entry of judgment, which by the terms of the judgment was April 14, their appeal was untimely. Middleton v. Middleton, 98 N.C. App. 217, 390 S.E.2d 453, 1990 N.C. App. LEXIS 374 (1990).

And Court May Not Order New Trial While Appeal Is Pending. —

A trial court has no jurisdiction to enter an order granting defendant a new trial while an appeal of the cause is pending. Jim Walter Homes, Inc. v. Peartree, 24 N.C. App. 579, 211 S.E.2d 457, 1975 N.C. App. LEXIS 2439 , cert. denied, 286 N.C. 722 , 213 S.E.2d 722, 1975 N.C. LEXIS 1278 (1975).

Where, in support of its petition for certiorari, a bond company sought to include documents, which included a federal indictment and a county district attorney’s dismissal of state charges against defendant, that were never presented to the trial court until after it entered its bond forfeiture order, and the bonding company did not make a motion pursuant to either G.S. 1A-1 , N.C. R. Civ. P. 59 or 60 to bring the material to the trial court’s attention, but rather sought to bring the material to light for the first time while this case was already pending on appeal, the court found that it was further evidence of the bond company’s lack of diligence and denied its petition for writ of certiorari. State v. Gonzalez-Fernandez, 170 N.C. App. 45, 612 S.E.2d 148, 2005 N.C. App. LEXIS 900 (2005).

But General Rule Has Exceptions. —

The general rule that an appeal takes a case out of the jurisdiction of the trial court is subject to two exceptions and one qualification: The exceptions are that notwithstanding the pendency of an appeal the trial judge retains jurisdiction over the cause (1) during the session in which the judgment appealed from was rendered, and (2) for the purpose of settling the case on appeal. The qualification to the general rule is that “the trial judge, after notice and on proper showing, may adjudge the appeal has been abandoned” and thereby regain jurisdiction of the cause. Estrada v. Jaques, 70 N.C. App. 627, 321 S.E.2d 240, 1984 N.C. App. LEXIS 3880 (1984), limited, Osburn v. Danek Med., Inc., 135 N.C. App. 234, 520 S.E.2d 88, 1999 N.C. App. LEXIS 1045 (1999).

A discretionary new trial order, as opposed to an order granting a new trial as a matter of law, is not reviewable on appeal in the absence of manifest abuse. Edge v. Metropolitan Life Ins. Co., 78 N.C. App. 624, 337 S.E.2d 672, 1985 N.C. App. LEXIS 4336 (1985).

Withdrawal of a motion under this rule did not entitle defendants to ten days from their withdrawal to file notice of appeal from judgment; to hold otherwise would thwart the tolling provision of N.C.R.A.P., Rule 3(c), and circumvent the purpose of G.S. 1A-1 . Rule 58, i.e., to give all interested parties a definite fixed time of a judicial determination they can point to as the time of entry of judgment. Landin Ltd. v. Sharon Luggage, Ltd., 78 N.C. App. 558, 337 S.E.2d 685, 1985 N.C. App. LEXIS 4323 (1985).

Vacating of Dismissal for Failure to State Claim Not Binding on Later Appeal. —

The appellate court’s prior decision, in which it “vacated” an order dismissing the plaintiff ’s complaint for failure to state a claim, was not binding on the court on a later appeal of a judgment notwithstanding the verdict. While the appellate court, in the first appeal, held that the complaint disclosed no insurmountable bar to recover under at least one of the claims for relief, its inquiry in the second appeal was a very different one: Was the evidence introduced at trial, viewed in the light most favorable to the plaintiff, insufficient as a matter of law to support the jury’s verdict? Pearce v. American Defender Life Ins. Co., 74 N.C. App. 620, 330 S.E.2d 9, 1985 N.C. App. LEXIS 3564 (1985), aff'd in part and rev'd in part, 316 N.C. 461 , 343 S.E.2d 174, 1986 N.C. LEXIS 2156 (1986).

False Testimony. —

Trial court did not abuse its discretion in denying plaintiffs’ motion for a new trial because defendant’s witness’s alleged false testimony did not relate to a crucial issue in the case and did not prevent a fair trial. Krantz v. Owens, 168 N.C. App. 384, 607 S.E.2d 337, 2005 N.C. App. LEXIS 264 (2005).

New Trial Where Instructions Did Not Reflect Change in Law Only Hours Before. —

Although plaintiffs did not object to jury instructions, it was not error for the trial court to grant a new trial on the grounds that the jury had been erroneously charged, where both court and counsel were understandably unaware that the law had changed only hours before the jury was charged. Any objections lodged by the plaintiffs would have been unavailing where the trial judge instructed the jury in accordance with what to him was still established law. Hunnicutt v. Griffin, 76 N.C. App. 259, 332 S.E.2d 525, 1985 N.C. App. LEXIS 3870 (1985).

Trial Court’s Denial of Motion for New Trial Upheld. —

Where the court found no evidence of passion or prejudice in the jury’s assessment of the plaintiff’s injury and the amount of her damages, as evidenced by its award of medical costs of less than the amount she claimed, it upheld the trial court’s denial of plaintiff’s motion for a new trial. Blackmon v. Bumgardner, 135 N.C. App. 125, 519 S.E.2d 335, 1999 N.C. App. LEXIS 982 (1999).

A new trial was not warranted under G.S. 1A-1 , N.C. R. Civ. P. 59(a)(1) with respect to a judgment that was issued on the parties’ post-divorce equitable distribution claims, as there was no irregularity by the judge’s viewing and adopting an order submitted by the husband’s counsel that prevented a fair trial and no showing that the wife suffered any prejudice as a result thereof. Sisk v. Sisk, 221 N.C. App. 631, 729 S.E.2d 68, 2012 N.C. App. LEXIS 878 (2012).

A new trial was not warranted under G.S. 1A-1 , N.C. R. Civ. P. 59(a)(2) with respect to a judgment that was issued on the parties’ post-divorce equitable distribution claims, as there was no misconduct by the husband where a submission to the trial court was responsive to its request and was not an ex parte communication. Sisk v. Sisk, 221 N.C. App. 631, 729 S.E.2d 68, 2012 N.C. App. LEXIS 878 (2012).

A new trial was not warranted under G.S. 1A-1 , N.C. R. Civ. P. 59(a)(3) or (9) with respect to a judgment that was issued on the parties’ post-divorce equitable distribution claims, as the wife could not claim that she was surprised by a submission from the husband to the court, as she responded in detail thereto; further, no other valid reasons were shown for such relief. Sisk v. Sisk, 221 N.C. App. 631, 729 S.E.2d 68, 2012 N.C. App. LEXIS 878 (2012).

Order denying a motion for a new trial was reversed because it was based upon an error of law, to wit, that the evidence raised an issue of fact as to contributory negligence. The evidence was undisputed and susceptible of only one inference, i.e., no contributory negligence, and the question should have been withdrawn from the jury. Watts v. Schult Homes Corp., 75 N.C. App. 110, 330 S.E.2d 41, 1985 N.C. App. LEXIS 3599 (1985).

Trial court erred in denying a motion for a new trial on the ground of errors of law where encroachment and continuing trespass were shown, as a neighbor was not a quasi-public entity, and landowners were entitled to removal of the encroachment removal as a matter of law. Young v. Lica, 156 N.C. App. 301, 156 N.C. App. 301, 576 S.E.2d 421, 2003 N.C. App. LEXIS 133 (2003).

Order denying a motion for new trial was reversed because since the mother made a notable layman’s attempt to stop the proceedings once she realized that the trial had moved in a direction she was unprepared to defend, that of a change custody rather than visitation. Ruth v. Ruth, 158 N.C. App. 293, 580 S.E.2d 383, 2003 N.C. App. LEXIS 1042 (2003).

Trial court erred in denying the passenger’s motion for a new trial, pursuant to G.S. 1A-1-59 because the passenger produced more than sufficient evidence to allow a jury to determine whether either of the two defendants, the driver of the car the passenger was riding in or the second driver, were negligent. Campbell v. Ingram, 180 N.C. App. 239, 636 S.E.2d 847, 2006 N.C. App. LEXIS 2312 (2006).

Order disposing of an action for holding over at the end of an oral lease was reversed because nothing in the record indicated that the occupants were given, as required by U.S. Const. Amend. XIV and N.C. Const., Art. I, § 19, notice of the hearing resulting in the order, and neither they nor their counsel was present at the hearing; thus, the trial court should have granted the occupants’ G.S. 1A-1-59 request for a new trial. Otto v. Certo, 210 N.C. App. 468, 708 S.E.2d 183, 2011 N.C. App. LEXIS 453 (2011).

Trial court erred in failing to grant a child a new trial after it dismissed her action against a town to recover damages for injuries she sustained when she fell from a platform that overlooked a waterfall because the trial court’s jury instruction was erroneous; the issue of whether and how the child’s age had to be factored into the negligence calculus confused the jury, and in light of that confusion, it was likely that the jury was misled by the trial court’s failure to instruct the jury on that point. Cobb v. Town of Blowing Rock, 213 N.C. App. 88, 713 S.E.2d 732, 2011 N.C. App. LEXIS 1398 (2011), rev'd, 365 N.C. 414 , 722 S.E.2d 479, 2012 N.C. LEXIS 20 (2012).

Motion for New Trial Improperly Granted. —

Directed verdict was properly granted to a store in a customer’s suit against the store to recover for injuries sustained when he fell over a stock cart parked in a store aisle, and thus, the trial court improperly set aside its earlier order granting a directed verdict and, instead, granted the customer’s motion for a new trial, because the customer presented no evidence regarding who left the stock cart in the position which caused the customer to fall, when it was placed there, or how long it remained; additionally, the customer did not present evidence that the store failed to correct a dangerous condition after it received actual or constructive notice of the condition. Herring v. Food Lion, LLC, 175 N.C. App. 22, 623 S.E.2d 281, 2005 N.C. App. LEXIS 2754 (2005), aff'd, 360 N.C. 472 , 628 S.E.2d 761, 2006 N.C. LEXIS 43 (2006).

Issue of whether an anesthesiology provider breached the applicable standard of care to a decedent was not conclusively established at trial, and thus the trial court erred in granting judgment N.O.V. and a new trial on the issue of causation and damages to the decedent’s estate, because the statement of the provider’s anesthesiologist involved in the case, to the effect that she did not comply with the applicable standard of care, was an evidential admission, not a judicial admission, as the anesthesiologist equivocated on whether she had breached the standard of care. Jones v. Durham Anesthesia Assocs., P.A., 185 N.C. App. 504, 648 S.E.2d 531, 2007 N.C. App. LEXIS 1806 (2007).

New Trial on Basis of Improper Submission of Claims to Jury. —

While some of the contract claims raised by a contractor against a county were properly submitted to the jury, other contract claims the contractor raised, which were clearly governed by the terms of the contract, were improperly submitted; therefore, in light of the single-figure jury verdict, the appellate court granted a new trial under G.S. 1A-1 , N.C. R. Civ. P. 59 to determine both the question of liability and damages as to the contractor’s claims against the county that were properly submitted to the jury. Handex of the Carolinas, Inc. v. County of Haywood, 168 N.C. App. 1, 607 S.E.2d 25, 2005 N.C. App. LEXIS 148 (2005).

New Trial on Basis of Juror Misconduct. —

Prior to July 1, 1984, the effective date of the Rules of Evidence, a juror’s testimony could not be received even to show that extraneous prejudicial information was improperly brought to the jury’s attention. While such evidence could be received in a criminal case because of the constitutional right of confrontation, no such exception to the general anti-impeachment rule applied in civil cases. Therefore, it was error for judge to grant a conditional new trial on the basis of juror misconduct proved solely by the juror’s affidavit and testimony. Smith v. Price, 315 N.C. 523 , 340 S.E.2d 408, 1986 N.C. LEXIS 1905 (1986).

Affidavits showed that some jurors began discussing the merits of a medical malpractice case before deliberations began, against instructions of the court, and no juror reported any misconduct; these acts qualified as competent evidence to show misconduct of the jury or manifest disregard of instructions of the court under G.S. 1A-1 -P. 59(a). Cummings v. Ortega, 206 N.C. App. 432, 697 S.E.2d 513, 2010 N.C. App. LEXIS 1554 (2010), rev'd, 365 N.C. 262 , 716 S.E.2d 235, 2011 N.C. LEXIS 819 (2011).

Affidavits of Two Jurors as to Mistake in Recording Verdict Insufficient for New Trial. —

The evidence of only two of the jurors that there was a mistake in the recording of the verdict is, as a matter of law, insufficient to support an order for a new trial. Chandler v. U-Line Corp., 91 N.C. App. 315, 371 S.E.2d 717, 1988 N.C. App. LEXIS 866 (1988).

Punitive Damages Held Not Excessive. —

Where plaintiff clearly presented sufficient evidence to prove he was entitled to an award of punitive damages, upon a strict review of the record it could not be said as a matter of law that the trial court erred in denying defendant’s motion for a new trial on the grounds of excessive punitive damages. State v. Morrell, 108 N.C. App. 465, 424 S.E.2d 147, 1993 N.C. App. LEXIS 98 , cert. denied, 333 N.C. 465 , 427 S.E.2d 626, 1993 N.C. LEXIS 123 (1993).

Punitive damages award against a boyfriend in an alienation of affections claim was warranted pursuant to G.S. 1D-15 , where it was shown that the boyfriend had sexual relations on at least two occasions with the husband’s wife; additionally, the award was not deemed excessive where it did not go beyond the limits established by G.S. 1D-25(b), and accordingly, the trial court’s denial of the boyfriend’s motion for a new trial on that issue was proper. Oddo v. Presser, 158 N.C. App. 360, 581 S.E.2d 123, 2003 N.C. App. LEXIS 1196 (2003), aff'd in part and rev'd in part, 358 N.C. 128 , 592 S.E.2d 195, 2004 N.C. LEXIS 9 (2004).

No Abuse of Discretion Found. —

No abuse of discretion was found where a jury awarded $225,000.00 against an insurance company for bad faith refusal to settle. Lovell v. Nationwide Mut. Ins. Co., 108 N.C. App. 416, 424 S.E.2d 181, 1993 N.C. App. LEXIS 83 , aff'd in part, 334 N.C. 682 , 435 S.E.2d 71, 1993 N.C. LEXIS 466 (1993).

When the trial court fails to comply with G.S. 1A-1 , Rule 50 and this rule in ordering a new trial, the general course is to reverse and remand for reinstatement of the verdict. Barnett v. Security Ins. Co., 84 N.C. App. 376, 352 S.E.2d 855, 1987 N.C. App. LEXIS 2499 (1987), limited, Carter v. West Am. Ins. Co., 190 N.C. App. 532, 661 S.E.2d 264, 2008 N.C. App. LEXIS 1021 (2008).

Findings on Setting Aside Verdict on Damages. —

Findings, when requested, should be made in support of the ultimate conclusion that the damages appear to have been given under the influence of passion or prejudice in order to facilitate meaningful appellate review of an order setting aside a verdict on damages. Andrews v. Peters, 318 N.C. 133 , 347 S.E.2d 409, 1986 N.C. LEXIS 2565 (1986).

When Findings of Fact and Conclusions of Law Required. —

Plaintiff’s motion for a new trial pursuant to G.S. 1A-1-59(a)(7) and (8) presented questions of law that received de novo review on appeal, and accordingly findings of fact and conclusions of law would not aid appellate review and thus were not required; because the trial court’s rulings under Rule 59(a)(5), (6), and (9) were evaluated for an abuse of discretion, however, findings of fact and conclusions of law were necessary to effectuate meaningful appellate review, and therefore the trial court erred in failing to make findings and conclusions as requested by plaintiff. N.C. Indus. Capital, LLC v. Clayton, 185 N.C. App. 356, 649 S.E.2d 14, 2007 N.C. App. LEXIS 1825 (2007).

Evidence may be considered even though no objection at trial. —

Trial court that is ruling on a motion for a new trial on the grounds of inadequate damages in accordance with N.C. R. Civ. P. 59(a)(6) is not precluded from considering specific testimony and evidence presented at trial merely because the moving party did not object to that testimony or evidence during the course of the trial. Guox v. Satterly, 164 N.C. App. 578, 596 S.E.2d 452, 2004 N.C. App. LEXIS 973 (2004).

Failure of Court to Specify Errors Relied on in Granting Motion. —

Where the trial court allowed defendants’ motion for a new trial “for errors committed by the court during the course of the trial,” but the court’s order did not specify the errors, the trial court failed to fulfill the requirements of this rule. Barnett v. Security Ins. Co., 84 N.C. App. 376, 352 S.E.2d 855, 1987 N.C. App. LEXIS 2499 (1987), limited, Carter v. West Am. Ins. Co., 190 N.C. App. 532, 661 S.E.2d 264, 2008 N.C. App. LEXIS 1021 (2008).

New Judge Lacked Authority Over Motion. —

As a trial court judge did not try a case between the parties on their post-divorce equitable distribution claims, he could not rule on the wife’s motion for a new trial under G.S. 1A-1 , N.C. R. Civ. P. 59. Sisk v. Sisk, 221 N.C. App. 631, 729 S.E.2d 68, 2012 N.C. App. LEXIS 878 (2012).

Refusal to Consider Affidavit After Hearing on Motion to Amend. —

In action for modification of child custody and child support, the trial court did not abuse its discretion in refusing to consider the affidavit of the child, where the affidavit was offered after defendant’s motion under G.S. 1A-1 , Rule 52 to amend the judgment had been heard and without notice to plaintiff, and defendant sought only to amend the judgment based on the insufficiency of the evidence already offered and errors of law which occurred during trial, under subsections (a)(7) and (8) of this rule respectively. Payne v. Payne, 91 N.C. App. 71, 370 S.E.2d 428, 1988 N.C. App. LEXIS 718 (1988).

Request to Amend Order to Include Findings Not Timely. —

A request for the trial court to amend its order to include specific findings of fact after the order has already been issued is not a timely request for findings under G.S. 1A-1 , Rule 52(a)(2). Strickland v. Jacobs, 88 N.C. App. 397, 363 S.E.2d 229, 1988 N.C. App. LEXIS 4 (1988).

Notice of appeal from denial of a motion to set aside a judgment which does not also specifically appeal the underlying judgment does not properly present the underlying judgment for review. Von Ramm v. Von Ramm, 99 N.C. App. 153, 392 S.E.2d 422, 1990 N.C. App. LEXIS 479 (1990).

Child Custody Matters. —

Trial court properly granted a mother’s motion, pursuant to G.S. 50-13.7, to modify a custody order, and granted primary custody of the parties’ two children to the mother; the trial court properly found a substantial change in circumstances based on the father’s interference with the mother’s relationship with the children, the trial court had jurisdiction pursuant to G.S. 50A-202(a), and the trial court properly denied the father’s motions pursuant to G.S. 1A-1 , Rule 59 and G.S. 1A-1 , Rule 60 to stay the order and for a new trial. Senner v. Senner, 161 N.C. App. 78, 587 S.E.2d 675, 2003 N.C. App. LEXIS 1976 (2003).

Because a mother raised only evidence that did not exist when a custody trial occurred, there was no abuse of discretion in a denial of her motion for a new trial under G.S. 1A-1 , N.C. R. Civ. P. 59(a)(4). Faulkenberry v. Faulkenberry, 169 N.C. App. 428, 610 S.E.2d 237, 2005 N.C. App. LEXIS 688 (2005).

Private Nuisance. —

Trial court did not err in denying the airport operators’ post-trial motion based on the claim that the adjoining property owners did not admit sufficient evidence to prove their claim that operation of the airport was a private nuisance; the adjoining property owners admitted sufficient evidence that the airport had a substantial and unreasonable impact on the adjoining property owners’ enjoyment of their property. Broadbent v. Allison, 176 N.C. App. 359, 626 S.E.2d 758, 2006 N.C. App. LEXIS 524 (2006).

Contract Trials. —

Judge’s skepticism about contract trials, which was directed towards counsel for both parties, did not prevent a surety from having a fair trial under G.S. 1A-1 , N.C. R. Civ. P. 59(a)(1) in a subcontractor’s action on the payment bonds. Gemini Drilling & Found., LLC v. Nat'l Fire Ins. Co., 192 N.C. App. 376, 665 S.E.2d 505, 2008 N.C. App. LEXIS 1628 (2008).

II.Time for Serving Motions and Affidavits.

Service to Be Made Within 10 Days. —

Section (b) of this rule, when construed with G.S. 1A-1 , Rule 5(a), means that service must be made within 10 days when service is required. Hennessee v. Cogburn, 39 N.C. App. 627, 251 S.E.2d 623, 1979 N.C. App. LEXIS 2543 , cert. denied, 297 N.C. 300 , 254 S.E.2d 919, 1979 N.C. LEXIS 1307 (1979).

Because the father’s motion for a new trial, following the trial court’s award of sole custody to the father’s ex-wife, was untimely, as it was served and filed a month after the judgment was entered, rather than within 10 days of the judgment entry, the trial court properly denied the father’s motion. Trivette v. Trivette, 162 N.C. App. 55, 590 S.E.2d 298, 2004 N.C. App. LEXIS 40 (2004).

Service Rather Than Filing. —

This rule requires that the motion be served, not filed, within ten days after entry of judgment. Muse v. Charter Hosp., 117 N.C. App. 468, 452 S.E.2d 589, 1995 N.C. App. LEXIS 11 , aff'd, 342 N.C. 403 , 464 S.E.2d 44, 1995 N.C. LEXIS 686 (1995).

Timeliness Not Affected by Entry of Jury Verdict. —

The entry of the jury verdict is not mentioned in the provisions of section (b) of this rule which limit the time period within which motions for a new trial can be made. Sheehan v. Harper Bldrs., Inc., 83 N.C. App. 630, 351 S.E.2d 114, 1986 N.C. App. LEXIS 2749 (1986).

Filing of Motion Before Entry of Judgment. —

Though a motion for new trial may be filed before entry of judgment, a trial court does not have jurisdiction to hear and determine the motion until after entry of judgment. Kor Xiong v. Marks, 193 N.C. App. 644, 668 S.E.2d 594, 2008 N.C. App. LEXIS 2016 (2008).

Amendment of Divorce Judgment. —

Although not so designated, a motion to have separation agreement incorporated into divorce decree was essentially one made pursuant to this rule to alter or amend the divorce judgment. The trial court had no authority to alter or amend such judgment under this rule pursuant to a motion made more than 10 days after entry of the judgment sought to be altered or amended. Coats v. Coats, 79 N.C. App. 481, 339 S.E.2d 676, 1986 N.C. App. LEXIS 2075 (1986).

Second Motion Held Timely. —

The plaintiff’s appeal was timely filed under the tolling provision of the Rules of Appellate Procedure 3, where the plaintiff filed a timely second motion asserting four additional grounds for a new trial after the first motion was orally denied at the end of a medical malpractice trial, and the plaintiff’s appeal was filed within 30 days of the date the court entered an order ruling on the second motion. Sherrod v. Nash Gen. Hosp., 348 N.C. 526 , 500 S.E.2d 708, 1998 N.C. LEXIS 328 (1998).

Defendant’s Motion Held Untimely. —

Where, by the express terms of the parties’ divorce agreement, defendant had at least constructive knowledge that one of plaintiff’s possible alternatives to recover support payments included foreclosure on defendant’s property mentioned in the agreement, there was no merit in defendant’s contention that this constituted newly discovered evidence which by due diligence he could not have discovered in time to move for a new trial under section (b) of this Rule. Lang v. Lang, 108 N.C. App. 440, 424 S.E.2d 190, 1993 N.C. App. LEXIS 84 (1993).

Motion Untimely. —

Trial court properly denied a contractor’s motion for a new trial because the contractor exceeded the time permitted for serving and filing the motion by approximately nine months and motion was not an appropriate method of challenging the trial court’s summary judgment order; rather, in order to properly appeal the order dismissing his appeal, the contractor should have filed a petition for writ of certiorari. Mahaffey v. Boyd, 258 N.C. App. 281, 812 S.E.2d 198, 2018 N.C. App. LEXIS 230 (2018).

III.Altering or Amending Judgments

Purpose of Insuring Speedy Trial on Merits Served by Amendments. —

The rules achieve their purpose of insuring a speedy trial on the merits of a case by providing for and encouraging liberal amendments to conform the pleadings and evidence under G.S. 1A-1 , Rule 15(a), by pretrial order under G.S. 1A-1 , Rule 16, during and after reception of evidence under G.S. 1A-1, Rule 15(b), and after entry of judgment under G.S. 1A-1, Rules 15(b) and 60 and under this rule. Such amendments are made upon motion and with leave of court, by express consent, and by implied consent. Roberts v. William N. & Kate B. Reynolds Mem. Park, 281 N.C. 48 , 187 S.E.2d 721, 1972 N.C. LEXIS 1004 (1972).

Applicability of G.S. 1A-1 , Rule 7(b). —

In order to suspend the running of the appeal clock, a motion under section (e) of this rule must not only be timely served, but it must also meet the demands of G.S. 1A-1 , Rule 7(b). Dusenberry v. Dusenberry, 87 N.C. App. 490, 361 S.E.2d 605, 1987 N.C. App. LEXIS 3217 (1987).

If a motion under section (e) of this rule fails to comply with the requirements of G.S. 1A-1 , Rule 7(b), 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 N.C. App. LEXIS 3217 (1987).

Failure to State Grounds of Motion. —

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 N.C. App. LEXIS 1105 (2007).

Amendment Following Dismissal under G.S. 1A-1 , Rule 12(b)(6). —

A motion to dismiss under G.S. 1A-1 , Rule 12(b)(6) is not a “responsive pleading” under G.S. 1A-1 , Rule 15(a) and so does not itself terminate plaintiff’s unconditional right to amend a complaint under G.S. 1A-1, Rule 15(a). However, once the trial court enters its dismissal under G.S. 1A-1, Rule 12(b)(6), plaintiff’s right to amend under G.S. 1A-1, Rule 15(a) is terminated. Under certain limited circumstances set forth in section (e) of this rule and G.S. 1A-1, Rule 60(b), a plaintiff may, however, seek to reopen the trial court’s judgment and amend the complaint concurrently under G.S. 1A-1, Rule 15(a). Johnson v. Bollinger, 86 N.C. App. 1, 356 S.E.2d 378, 1987 N.C. App. LEXIS 2664 (1987).

Amendment upon Motion of the Court. —

A trial court has the power to amend its judgment on its own motion within the ten-day period provided by section (e) of this rule. Fox v. Fox, 103 N.C. App. 13, 404 S.E.2d 354, 1991 N.C. App. LEXIS 573 (1991).

Alteration or Amendment of Judgment After Adjournment of Term. —

The legislature, in delineating the precise time periods of G.S. 1A-1 , Rule 50(b) and section (e) of this rule, did not intend for these specific periods to be curtailed by the adjournment of the term of court at which judgment was rendered; thus a trial court may alter or amend a judgment pursuant to this rule and a trial court may enter judgment n.o.v. pursuant to G.S. 1A-1 , Rule 50 (including the alteration of a judgment entered upon such a verdict) after the adjournment of the term during which the judgment was entered. Housing, Inc. v. Weaver, 305 N.C. 428 , 290 S.E.2d 642, 1982 N.C. LEXIS 1336 (1982).

Defendant’s motion to amend divorce judgment to permit him to claim the two children of the parties as dependents on his State and federal tax returns was not properly made pursuant to subsection (b)(6) of this rule, which permits motions for relief from judgments, and should have been made pursuant to section (e) of this rule. Coleman v. Arnette, 48 N.C. App. 733, 269 S.E.2d 755, 1980 N.C. App. LEXIS 3300 (1980).

Motion under G.S. 1A-1 , Rule 59 to amend judgment filed 10 days after judgment by defendant tolled the time for filing and serving a cross-notice of appeal until entry of an order on the motion pursuant to N.C.R.A.P., Rule 3(c). However, where defendants later withdrew their motion under this rule, the 10-day time limit to give notice of appeal under N.C.R.A.P., Rule 3(c) was not tolled, because there was never a judicial determination on defendants’ motion. Landin Ltd. v. Sharon Luggage, Ltd., 78 N.C. App. 558, 337 S.E.2d 685, 1985 N.C. App. LEXIS 4323 (1985).

This rule is an inappropriate vehicle to challenge the denial of a Rule 60 motion. Garrison ex rel. Chavis v. Barnes, 117 N.C. App. 206, 450 S.E.2d 554, 1994 N.C. App. LEXIS 1213 (1994).

Discretion of Trial Court. —

A motion under section (e) of this rule to amend the trial court’s judgment or order is made subsequent to the judgment and is, itself, a matter within the trial court’s discretion. Strickland v. Jacobs, 88 N.C. App. 397, 363 S.E.2d 229, 1988 N.C. App. LEXIS 4 (1988).

Trial court did not abuse its discretion in entering judgment based on the verdict because the sublessee, whom the jury found for on his claim against the landlord for conversion and breach of contract and on his claim of breach of contract against the subtenant, failed to show that the damages awarded by the jury on the two claims were inadequate and were given under the influence of passion or prejudice. Di Frega v. Pugliese, 164 N.C. App. 499, 596 S.E.2d 456, 2004 N.C. App. LEXIS 981 (2004).

Trial court did not abuse its discretion when it denied a guest’s motion to alter or amend pursuant to G.S. 1A-1-59(b) the dismissal of the guest’s personal injury claims against a motor speedway and a concrete manufacturer as a discovery sanction because evidence of a prior injury, medical records, and a worker’s compensation claim did not constitute newly discovered evidence; fact that the guest did not make his attorney aware of the incident until defendants brought it to light was of no relevance, and the guest no attempt to argue in what way he could be considered excusably ignorant of the evidence involved. Baker v. Charlotte Motor Speedway, Inc., 180 N.C. App. 296, 636 S.E.2d 829, 2006 N.C. App. LEXIS 2306 (2006).

Where a former wife’s complaint alleging that her former husband breached a separation agreement was dismissed as a sanction for her failure to file timely responses to his discovery requests, the wife’s G.S. 1A-1 , N.C. R. Civ. P. 59(e) motion for reconsideration of the dismissal order was not an abuse of the district court’s discretion because (1) she did not present grounds for such relief since the fact that she submitted her discovery responses on the day of a sanctions hearing did not preclude dismissal of her complaint as a sanction; (1) the district court was not required to find that the husband was prejudiced in order to dismiss the case as a sanction; and (3) the district court adequately considered lesser alternatives, as required, before dismissing the case as a sanction. Batlle v. Sabates, 198 N.C. App. 407, 681 S.E.2d 788, 2009 N.C. App. LEXIS 1355 (2009).

Plaintiff Entitled to New Trial on Issue of Damages. —

In breach of contract action against university, professor was entitled to a new trial on the issue of damages only where the trial court erred in denying his motion for judgment notwithstanding the verdict or for a new trial based upon a jury award of inadequate damages; the trial court’s failure to instruct the jury on whether the professor was ready, willing, and able to perform the contract meant that the jury did not decide that issue, which was critical to determining whether the professor was entitled to nominal damages or substantial damages after the jury found that the university breached the agreement. Munn v. N.C. State Univ., 173 N.C. App. 144, 617 S.E.2d 335, 2005 N.C. App. LEXIS 1931 (2005), rev'd, 360 N.C. 353 , 626 S.E.2d 270, 2006 N.C. LEXIS 10 (2006).

Order entered by trial judge after verdict, due to his apprehension about the jury being affected by an exhibit that he had excluded, although improperly denominated a mistrial, would not fail merely because it was inadvertently given the wrong nomenclature, and would therefore be considered an order granting a new trial for misconduct by the jury or prevailing party under the provisions of subsection (a)(2) of this rule. Elks v. Hannan, 68 N.C. App. 757, 315 S.E.2d 553, 1984 N.C. App. LEXIS 3462 (1984).

Judge to Set Aside Verdict Not Alter It. —

The trial judge erred when he attempted to change the verdict as to the defendants instead of setting aside the verdict and/or ordering a new trial on the damages issue if he deemed the verdict against the weight of the evidence or considered the damages excessive. Poor v. Hill, 138 N.C. App. 19, 530 S.E.2d 838, 2000 N.C. App. LEXIS 540 (2000).

Trial court erred in not granting motion to amend or open judgment where arbitrator failed to disclose numerous social, business, and professional relationships with partners in law firm representing insurance company. William C. Vick Constr. Co. v. North Carolina Farm Bureau Fed'n, 123 N.C. App. 97, 472 S.E.2d 346, 1996 N.C. App. LEXIS 576 (1996).

The trial court abused its discretion in denying a seller’s motion to set the preliminary injunction aside because the seller never received notice of the buyer’s intention to seek a preliminary injunction; the lack of notice affected the seller’s substantial rights, and the seller’s purported attorney of record did not represent the seller in the instant action, thus making service on the attorney insufficient to provide notice to the seller. Perry v. Baxley Dev., Inc., 188 N.C. App. 158, 655 S.E.2d 460, 2008 N.C. App. LEXIS 88 (2008).

JNOV Granted on Appeal Mooted New Trial Motion. —

Trial court decision denying JNOV to a city, one of its police officers, and its police department was reversed on appeal, because the plaintiff, an arrestee injured in a squad car, failed to prove gross negligence and only showed simple negligence by evidence that the police officer drove 30 to 35 miles above the legal speed limit although he knew that plaintiff was not wearing a seat belt and had to brake suddenly to avoid a collision causing plaintiff to propel into the metal screen in the squad car. City also did not waive governmental immunity by its voluntary settlement with plaintiff since the city had a liability policy and none of the conditions of waiver, as provided by G.S. 160A-485(a) , were met. Clayton v. Branson, 170 N.C. App. 438, 613 S.E.2d 259, 2005 N.C. App. LEXIS 1070 (2005).

No Surprise Justifying New Trial. —

Defense witness’s identification of the type of blood pressure machine used on plaintiff did not come as a “surprise” to plaintiff, as he had been aware for some time that defense counsel had identified the machine at issue and that defense counsel had made the machine available for his inspection. Further, he received a spoliation instruction regarding any evidence intentionally withheld or destroyed by defendants, so, on these facts, there was no irregularity in his trial that would have served as a basis for a new trial under G.S. 1A-1 , R. 59(a). Yorke v. Novant Health, Inc., 192 N.C. App. 340, 666 S.E.2d 127, 2008 N.C. App. LEXIS 1620 (2008).

IV.Decisions under Prior Law

Editor’s Note. —

The cases cited below were decided under former G.S. 1-207.

The court is not empowered to change a verdict. Rankin v. Oates, 183 N.C. 517 , 112 S.E. 32, 1922 N.C. LEXIS 307 (1922); Hyatt v. McCoy, 194 N.C. 760 , 140 S.E. 807, 1927 N.C. LEXIS 209 (1927); Bundy v. Sutton, 207 N.C. 422 , 177 S.E. 420, 1934 N.C. LEXIS 483 (1934); Edwards v. Upchurch, 212 N.C. 249 , 193 S.E. 19, 1937 N.C. LEXIS 287 (1937).

Duty to Set Aside Verdict Where Jury Commits Palpable Error. —

When it appears from the evidence, the charge of the court, and the verdict that the jury has committed a palpable error in the answer to one of the issues, it is the duty of the trial judge to set aside to prevent a miscarriage of justice. Hussey v. Atlantic C.L.R.R., 183 N.C. 7 , 110 S.E. 599, 1922 N.C. LEXIS 189 (1922).

As to discretion of court and review thereof, see Hoke v. Tilley, 174 N.C. 658 , 94 S.E. 446, 1917 N.C. LEXIS 166 (1917); Baily v. Dibbrell Mineral Co., 183 N.C. 525 , 112 S.E. 29, 1922 N.C. LEXIS 30 8 (1922); Goodman v. Goodman, 201 N.C. 808 , 161 S.E. 686, 1931 N.C. LEXIS 106 (1931); Strayhorn v. Fidelity Bank, 203 N.C. 383 , 166 S.E. 312, 1932 N.C. LEXIS 406 (1932); Manufacturers' Fin. Acceptance Corp. v. Jones, 203 N.C. 523 , 166 S.E. 504, 1932 N.C. LEXIS 30 (1932); Brantley v. Collie, 205 N.C. 229 , 171 S.E. 88, 1933 N.C. LEXIS 513 (1933); Harrison v. Metropolitan Life Ins. Co., 207 N.C. 487 , 177 S.E. 423, 1934 N.C. LEXIS 500 (1934); Anderson v. Holland, 209 N.C. 746 , 184 S.E. 511, 1936 N.C. LEXIS 341 (1936); Hawley v. Powell, 222 N.C. 713 , 24 S.E.2d 523, 1943 N.C. LEXIS 411 (1943); Alligood v. Shelton, 224 N.C. 754 , 32 S.E.2d 350, 1944 N.C. LEXIS 255 (1944); Ziglar v. Ziglar, 226 N.C. 102 , 36 S.E.2d 657, 1946 N.C. LEXIS 375 (1946); King v. Byrd, 229 N.C. 177 , 47 S.E.2d 856, 1948 N.C. LEXIS 435 (1948); Carolina Coach Co. v. Central Motor Lines, 229 N.C. 650 , 50 S.E.2d 909, 1948 N.C. LEXIS 388 (1948); Pruitt v. Ray, 230 N.C. 322 , 52 S.E.2d 876, 1949 N.C. LEXIS 610 (1949).

Rule 60. Relief from judgment or order.

  1. Clerical mistakes. —  Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the judge at any time on his own initiative or on the motion of any party and after such notice, if any, as the judge orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate division, and thereafter while the appeal is pending may be so corrected with leave of the appellate division.
  2. Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud, etc. —  On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
    1. Mistake, inadvertence, surprise, or excusable neglect;
    2. Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
    3. Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
    4. The judgment is void;
    5. The judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
    6. Any other reason justifying relief from the operation of the judgment.The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this section does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. The procedure for obtaining any relief from a judgment, order, or proceeding shall be by motion as prescribed in these rules or by an independent action.

      The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this section does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. The procedure for obtaining any relief from a judgment, order, or proceeding shall be by motion as prescribed in these rules or by an independent action.

  3. Judgments rendered by the clerk. —  The clerk may, in respect of judgments rendered by himself, exercise the same powers authorized in sections (a) and (b). The judge has like powers in respect of such judgments. Where such powers are exercised by the clerk, appeals may be had to the judge in the manner provided by law.

History. 1967, c. 954, s. 1.

Comment

The prior North Carolina law was that the court could correct clerical mistakes at any time by motion in the cause, either in or out of term. The motion to correct a clerical error need not be made to the same judge who tried the cause.

There were two statutes dealing with the subject matter. Former § 1-220 provided in effect that where there had been personal service upon the defendant the court could set aside a judgment for mistake, surprise, inadvertence or excusable neglect within one year from the rendition of the judgment. Section 1-108 formerly provided in effect that where there had been constructive service only the defendant must be allowed to defend even after judgment at any time within one year after notice of the judgment but within five years after rendition of the judgment. In any such case the judge must find the facts concerning the mistake, surprise, etc., and that the defendant had a meritorious defense and he must reduce this information to writing.

In reference to section (b)(3) of the federal rule, North Carolina makes a distinction in extrinsic and intrinsic fraud and in the manner in which such judgment may be attacked.

There is not as much difference between the federal rule and the North Carolina as first blush would indicate. Actually, the federal rule uses very succinct language to incorporate most of the results obtained under the North Carolina statutes and case law. As noted above the prior North Carolina practice distinguished between the rights of a defendant who was personally served and a defendant against whom constructive notice was served.

Legal Periodicals.

For survey of 1976 case law on civil procedure, see 55 N.C.L. Rev. 914 (1977).

For note discussing abandonment of appeal, see 56 N.C.L. Rev. 573 (1978).

For survey of 1978 law on civil procedure, see 57 N.C.L. Rev. 891 (1979).

For survey of 1979 law on civil procedure, see 58 N.C.L. Rev. 1261 (1980).

For survey of 1980 law on civil procedure, see 59 N.C.L. Rev. 1043 (1981).

For note on default not constituting an admission of facts for purposes of summary judgment, see 17 Wake Forest L. Rev. 49 (1981).

For survey of 1981 law on civil procedure, see 60 N.C.L. Rev. 1214 (1982).

For survey of 1982 law on civil procedure, see 61 N.C.L. Rev. 991 (1983).

For article, “Functus Officio: Authority of the Trial Court after Notice of Appeal,” see 81 N.C.L. Rev. 2331 (2003).

CASE NOTES

Analysis

I.In General

The rules achieve their purpose of insuring a speedy trial on the merits by providing for and encouraging liberal amendments to conform pleadings and evidence under G.S. 1A-1 , Rule 15(a), by pretrial order under G.S. 1A-1 , Rule 16, during and after reception of evidence under G.S. 1A-1, Rule 15(b), and after entry of judgment under G.S. 1A-1, Rules 15(b) and 59 and this rule. Such amendments are made upon motion and with leave of court, by express consent, and by implied consent. Roberts v. William N. & Kate B. Reynolds Mem. Park, 281 N.C. 48 , 187 S.E.2d 721, 1972 N.C. LEXIS 1004 (1972).

Court May Act Otherwise Than “On Motion”. —

Although this rule says that the court is to act “on motion,” it does not deprive the court of the power to act in the interest of justice in an unusual case where its attention has been directed to the necessity for relief by means other than a motion. Taylor v. Triangle Porsche-Audi, Inc., 27 N.C. App. 711, 220 S.E.2d 806, 1975 N.C. App. LEXIS 1952 (1975), cert. denied, 289 N.C. 619 , 223 S.E.2d 396, 1976 N.C. LEXIS 1369 (1976).

Motion to Set Aside Arbitration Award. —

Arbitration award itself was interlocutory and thus could not have been set aside pursuant to N.C. R. Civ. P. 60(b). Brock & Scott Holdings, Inc. v. West, 198 N.C. App. 357, 679 S.E.2d 507, 2009 N.C. App. LEXIS 1177 (2009).

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 N.C. App. LEXIS 1067 (2011).

A motion in the cause is not an improper procedure for seeking relief from an execution sale under the judgment. Witten Supply Co. v. Redmond, 11 N.C. App. 173, 180 S.E.2d 487, 1971 N.C. App. LEXIS 1476 (1971).

Any reference to or discussion of this rule by defendant in his motion under G.S. 1A-1 , Rule 55(d) to set aside and vacate entry of default is unnecessary and surplusage. Hubbard v. Lumley, 17 N.C. App. 649, 195 S.E.2d 330, 1973 N.C. App. LEXIS 1433 (1973).

Only a party to an action can seek relief under this section. Watson v. Ben Griffin Realty & Auction, 128 N.C. App. 61, 493 S.E.2d 331, 1997 N.C. App. LEXIS 1197 (1997).

Standing to Have Order Set Aside. —

Generally, only a party or his legal representative has standing to have an order set aside pursuant to this rule; and a stranger to the action may not obtain such relief. Bowling v. Combs, 60 N.C. App. 234, 298 S.E.2d 754, 1983 N.C. App. LEXIS 2409 (1983).

Erroneous judgment may be corrected only by appeal, and a motion under this rule cannot be used as a substitute for appellate review. Chicopee, Inc. v. Sims Metal Works, Inc., 98 N.C. App. 423, 391 S.E.2d 211, 1990 N.C. App. LEXIS 427 (1990).

Wording of Judgment Controls. —

When it is unclear from looking at a judgment whether a default judgment or a summary judgment was intended, the wording of the body of the judgment itself controls, not the heading. East Carolina Oil Transp., Inc. v. Petroleum Fuel & Term. Co., 82 N.C. App. 746, 348 S.E.2d 165, 1986 N.C. App. LEXIS 2630 (1986).

Judgment Entered in Open Court Held Not Subject to Repudiation. —

Judgment entered on June 13, 1986, in open court, based on consent of the parties, and memorialized on September 8, 1986, when the judge signed the formal judgment, could not be repudiated by one of the parties on June 17, 1986. Blee v. Blee, 89 N.C. App. 289, 365 S.E.2d 679, 1988 N.C. App. LEXIS 292 (1988).

Bound by Adverse Findings and Conclusions. —

Trial court did not err in granting summary judgment to the alleged wrongdoers, as the allegedly wrong party did not have the right to file a separate action to challenge whether fraud was involved in an earlier suit the allegedly wronged party brought against the one alleged wrongdoer; since intrinsic fraud was allegedly involved, the allegedly wronged party could only attack the earlier judgment by filing, as she did, G.S. 1A-1 , Rule 60(b) motion to set aside, and since she withdrew her appeal of the denial of that motion, she was bound by the trial court’s findings of fact and conclusions of law that held she was not entitled to have the earlier judgment set aside. Hooks v. Eckman, 159 N.C. App. 681, 587 S.E.2d 352, 2003 N.C. App. LEXIS 1517 (2003).

Claim That Judgment Is Defective Not Permitted After Accepting Its Benefits. —

After petitioning the court to enter a default judgment, plaintiff relied upon its validity and force thrice — by executing on it; by retaining the money collected by execution; and by suing defendant in a separate action for future rents. The law does not permit a party to claim that a judgment is defective after relying upon its validity and accepting its benefits. Kimzay Winston-Salem, Inc. v. Jester, 103 N.C. App. 77, 404 S.E.2d 176, 1991 N.C. App. LEXIS 568 (1991).

Invalid Entry of Default. —

Trial court erred in denying the driver’s motion set aside a default judgment entered in favor of the victim in the victim’s personal injury action, as the default judgment was predicated upon an invalid entry of default. McIlwaine v. Williams, 155 N.C. App. 426, 573 S.E.2d 262, 2002 N.C. App. LEXIS 1620 (2002).

Effect of Grant of Relief. —

The grant of relief from an order does not overrule the earlier order but relieves the parties of the effect of the order. Charns v. Brown, 129 N.C. App. 635, 502 S.E.2d 7, 1998 N.C. App. LEXIS 668 (1998).

Denial of Relief Proper. —

In determining whether a school board properly determined not to renew a teacher’s contract under G.S. 115C-325(m)(2), the trial court had looked at all of the evidence and determined that there was substantial evidence to support the board’s determination, even without inaccurate information contained in a memorandum; in doing so, it had properly applied the whole record test to the evidence presented to the board, and this justified its later denial of the teacher’s motion for reconsideration. Davis v. Macon County Bd. of Educ., 178 N.C. App. 646, 632 S.E.2d 590, 2006 N.C. App. LEXIS 1644 (2006).

Appellant’s reliance on an oral motion for a trial judge to reconsider, pursuant to G.S. 1A-1 , N.C. R. Civ. P. 60(b), a discovery order, which the appellant did not appeal, was misplaced because judgments involving misapplication of the law could be corrected only by appeal and Rule 60(b) motions could not be used as a substitute for appeal. Spangler v. Olchowski, 187 N.C. App. 684, 654 S.E.2d 507, 2007 N.C. App. LEXIS 2575 (2007).

Trial court did not abuse its discretion in denying an employer’s motion for relief or for a new trial after it granted an employee summary judgment in its breach of contract action because the employer admitted that it received the employee’s memorandum of law in opposition to the employer’s motion for summary judgment and in support of summary judgment for the employee, and there was no indication in the record that the employer made any showing to the trial court of what evidence it would have presented had it had the additional notice of a motion by the employee for summary judgment. Elliott v. Enka-Candler Fire & Rescue Dep't, Inc., 213 N.C. App. 160, 713 S.E.2d 132, 2011 N.C. App. LEXIS 1373 (2011).

Denial Of Motion Improper. —

District court erred by not granting plaintiff’s motion under N.C. R. Civ. P. 60 to set aside an order nunc pro tunc granting a motion to intervene because the district court proceeding was concluded two and a half years before the intervention order was entered, and thus, the district court had no jurisdiction to enter the order nunc pro tunc to the original hearing date; the written order created an order with findings of fact and conclusions of law that had not previously existed. Whitworth v. Whitworth, 222 N.C. App. 771, 731 S.E.2d 707, 2012 N.C. App. LEXIS 1077 , aff'd in part, rev'd, 222 N.C. App. 783, 731 S.E.2d 721, 2012 N.C. App. LEXIS 1054 (2012).

Child Custody Matters. —

Trial court properly granted a mother’s motion, pursuant to G.S. 50-13.7 , to modify a custody order and granted primary custody of the parties’ two children to the mother; the trial court properly found a substantial change in circumstances based on the father’s interference with the mother’s relationship with the children, the trial court had jurisdiction pursuant to G.S. 50A-202(a), and the trial court properly denied the father’s motions pursuant to G.S. 1A-1 , Rule 59 and G.S. 1A-1 , Rule 60 to stay the order and for a new trial. Senner v. Senner, 161 N.C. App. 78, 587 S.E.2d 675, 2003 N.C. App. LEXIS 1976 (2003).

Child Support Obligations. —

Trial court erred in using G.S. 1A-1 , N.C. R. Civ. P. 60(b), to relieve plaintiff of child support obligations as the findings of fact in the rule 60(b) order described the custody order as an erroneous order. The rule 60(b) order was an impermissible remedy for an alleged erroneous order that could only have been addressed by appeal and not by rule 60(b). Jackson v. Jackson, 273 N.C. App. 305, 848 S.E.2d 538, 2020 N.C. App. LEXIS 617 (2020).

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 N.C. App. LEXIS 901 (2005).

Substantial Right Held Not Affected, Precluding Immediate Appeal. —

Trial court’s order granting a motion to set aside a prior voluntary dismissal of a tort lawsuit, and its order denying defendants’ motion to dismiss, (1) were interlocutory, (2) were not based on “minimum contacts,” and (3) did not involve possible inconsistent jury verdicts; thus, there was no right of immediate appeal because defendants did not demonstrate any substantial right that qualified them for immediate appeal. Robinson v. Gardner, 167 N.C. App. 763, 606 S.E.2d 449, 2005 N.C. App. LEXIS 20 (2005).

Burden of Proof. —

Trial court did not err in denying the airport operators’ post-trial motions claiming that they had newly-discovered evidence that the adjoining property owners, who had brought a private nuisance claim against the airport operators, bought additional property adjoining their property and the airport following the jury trial in the private nuisance case; the fact that the adjoining property owners purchased additional property could not be the basis for a new trial because the purchase did not occur until after the trial was completed and, thus, the trial court’s denial of the post-trial motions was not an abuse of discretion. Broadbent v. Allison, 176 N.C. App. 359, 626 S.E.2d 758, 2006 N.C. App. LEXIS 524 (2006).

Appeal Dismissed Due to Trial Court’s Inclination to Grant N.C. R. Civ. P. 60(b)(3) Motion. —

Appeal was dismissed and the case was remanded to the trial court for the entry of a final order on defendant’s N.C. R. Civ. P. 60(b)(3) motion because the trial court entered an inclination to rule in favor of defendant and grant the Rule 60(b) motion. Hall v. Cohen, 177 N.C. App. 456, 628 S.E.2d 469, 2006 N.C. App. LEXIS 977 (2006).

Motion Filed Within One Year After Judgment Entered by Court. —

Because an adjudicated father filed his G.S. 1A-1 , N.C. R. Civ. P. 60 motion within one year after a judgment, order, or proceeding was entered or taken by the district court, and not from the day that he executed an affidavit of parentage, the district court properly heard the motion. Guilford County ex rel. Hill v. Holbrook, 190 N.C. App. 188, 660 S.E.2d 175, 2008 N.C. App. LEXIS 833 (2008).

Errors at Law. —

N.C. R. Civ. P. 60(b) is not designed to review errors of law, and does not provide relief therefrom. QUB Studios, LLC v. Marsh, 262 N.C. App. 251, 822 S.E.2d 113, 2018 N.C. App. LEXIS 1082 (2018).

II.Relief Under Subsection (a)

Section (a) of this rule simply codifies the body of law in existence in this State at the time the new Rules of Civil Procedure were adopted. H & B Co. v. Hammond, 17 N.C. App. 534, 195 S.E.2d 58, 1973 N.C. App. LEXIS 1399 (1973).

Liberal amendment of pleadings is encouraged by the Rules of Civil Procedure and the philosophy of G.S. 1A-1 , Rule 15 has been applied to this rule. McGinnis v. Robinson, 43 N.C. App. 1, 258 S.E.2d 84, 1979 N.C. App. LEXIS 3024 (1979).

Trial court has inherent power to amend judgments by correcting clerical errors or supplying defects so as to make the record speak the truth. Snell v. Washington County Bd. of Educ., 29 N.C. App. 31, 222 S.E.2d 756, 1976 N.C. App. LEXIS 2372 (1976).

What Constitutes Clerical Mistake. —

Failure to include interest mandated by the statute constitutes a clerical mistake; the trial court was correct to look to the statute when deciding the attorney’s motion for interest, and the fact that the attorney mistakenly requested relief pursuant to another subsection of the statute was not determinative, as the trial court had the authority to correct its oversight regardless of the arguments the attorney made. Robertson v. Steris Corp., 237 N.C. App. 263, 765 S.E.2d 825, 2014 N.C. App. LEXIS 1179 (2014).

Trial court did not err by amending a civil no-contact order because the trial court’s amendment qualified as the correction of a simple clerical mistake in failing to check the appropriate box in the court’s first order. Angarita v. Edwards, 278 N.C. App. 621, 863 S.E.2d 796, 2021- NCCOA-397, 2021 N.C. App. LEXIS 408 , dismissed, 379 N.C. 159 , 863 S.E.2d 601, 2021 N.C. LEXIS 1066 (2021).

Trial court did not err by amending a civil no-contact order because the trial court’s amendment qualified as the correction of a simple clerical mistake in failing to check the appropriate box in the court’s first order. Angarita v. Edwards, 278 N.C. App. 621, 863 S.E.2d 796, 2021- NCCOA-397, 2021 N.C. App. LEXIS 408 , dismissed, 379 N.C. 159 , 863 S.E.2d 601, 2021 N.C. LEXIS 1066 (2021).

No Substantive Modifications. —

Rule does not grant the trial court the authority to make substantive modifications to an entered judgment, thus a change in order was considered substantive and outside the boundaries of the rule when it altered the effect of the original order. Pratt v. Staton, 147 N.C. App. 771, 556 S.E.2d 621, 2001 N.C. App. LEXIS 1232 (2001).

While G.S. 1A-1 , N.C. R. Civ. P. 60(a) allowed a trial court to correct clerical mistakes in its order, it did not grant the trial court the authority to make substantive modifications to an entered judgment, and a change in an order was considered substantive and outside the boundaries of Rule 60(a) when it altered the effect of the original order; trial courts did not have the power under Rule 60(a) to affect the substantive rights of the parties or correct substantive errors in their decisions, and attempts to change the substantive provisions of judgments under the guise of clerical error were repeatedly rejected. Spencer v. Spencer, 156 N.C. App. 1, 575 S.E.2d 780, 2003 N.C. App. LEXIS 30 (2003).

Trial court, in its amended summary judgment order, lacked authority to add a certification relating to an issue in apparent reliance on its authority to correct clerical errors under G.S. 1A-1-60(a) because the amended summary judgment order did not simply correct a clerical error in the original summary judgment order, but instead worked a substantive modification to the initial summary judgment order; however, the appellate court treated the record and briefs as a petition for the issuance of a writ of certiorari pursuant to N.C. R. App. P. 21(a)(1) and granted the petition because it was advantageous for the court to consider the issues involved and expedited the ultimate disposition of the case. Newcomb v. County of Carteret, 207 N.C. App. 527, 701 S.E.2d 325, 2010 N.C. App. LEXIS 2011 (2010).

Generally, no substantive changes may be corrected by a motion under section (a) of this rule. Howard Schultz & Assocs. v. Ingram, 38 N.C. App. 422, 248 S.E.2d 345, 1978 N.C. App. LEXIS 2214 (1978).

Limit on Court’s Power. —

Subsection (a) permits the courts to correct clerical errors or omissions; however, courts do not have the power under this section to affect the substantive rights of the parties or to correct substantive errors in their decisions. Watson v. Watson, 118 N.C. App. 534, 455 S.E.2d 866, 1995 N.C. App. LEXIS 294 (1995).

Amended order made substantive changes in the original order and was not an attempt to correct clerical errors; therefore, the amended order was hereby vacated as outside the authority of subsection (a) and the original order remained in full force and effect. Buncombe County ex rel. Child Support Enforcement Agency ex rel. Andres v. Newburn, 111 N.C. App. 822, 433 S.E.2d 782, 1993 N.C. App. LEXIS 927 (1993).

The trial court’s purported modification of its order entered nine years earlier did not correct a “clerical error,” but substantially changed the earlier child support order, thereby prejudicially affecting the plaintiff mother’s rights under the South Carolina child support order, and exceeded the court’s authority under this rule. South Carolina Dep't of Soc. Servs. v. Hamlett, 142 N.C. App. 501, 543 S.E.2d 189, 2001 N.C. App. LEXIS 133 (2001).

Trial court erroneously found that a divorce decree’s failure to include the parties’ agreement to share their child’s college expenses was a clerical error correctable under G.S. 1A-1 , N.C. R. Civ. P. 60(a), because the decree, on its face, did not contain this requirement, and adding it to the decree was a substantive change in the parties’ obligations. Spencer v. Spencer, 156 N.C. App. 1, 575 S.E.2d 780, 2003 N.C. App. LEXIS 30 (2003).

Trial court’s corrected order terminating a mother’s parental rights was vacated because the trial court was without jurisdiction pursuant to G.S. 1A-1 , N.C. R. Civ. P. 60(a) to add an omitted finding of fact, which was substantive, when the presence or absence of the finding of fact that the mother lacked an appropriate alternative child care arrangement altered the effect of the order; the presence of the finding supported termination of parental rights, and in contrast, its absence would have precluded termination of parental rights. In re C.N.C.B., 197 N.C. App. 553, 678 S.E.2d 240, 2009 N.C. App. LEXIS 725 (2009).

The court’s authority under section (a) of this rule is limited to the correction of clerical errors or omissions. Courts do not have the power under section (a) to affect the substantive rights of the parties or to correct substantive errors in their decisions. Hinson v. Hinson, 78 N.C. App. 613, 337 S.E.2d 663, 1985 N.C. App. LEXIS 4321 (1985).

Correction of Clerical Errors and Modification, etc., of Judgment Distinguished. —

The power to correct clerical errors and supply defects or omissions must be distinguished from the power of the court to modify or vacate an existing judgment. Snell v. Washington County Bd. of Educ., 29 N.C. App. 31, 222 S.E.2d 756, 1976 N.C. App. LEXIS 2372 (1976).

Section (a) of this rule does not authorize the trial court to set aside a previous ruling where the basis is a legal error. Sink v. Easter, 288 N.C. 183 , 217 S.E.2d 532, 1975 N.C. LEXIS 893 (1975); Utica Mut. Ins. Co. v. Johnson, 41 N.C. App. 299, 254 S.E.2d 643, 1979 N.C. App. LEXIS 2433 (1979).

Correction of clerical errors is not limited to the term of court, but may be done at any time upon motion, or the court may on its own motion make the correction when such defect appears. Snell v. Washington County Bd. of Educ., 29 N.C. App. 31, 222 S.E.2d 756, 1976 N.C. App. LEXIS 2372 (1976).

No Time Limit. —

Defendant was not barred from seeking correction by the doctrine of laches because subsection (a) provides no time limit for the correction of clerical errors. Gordon v. Gordon, 119 N.C. App. 316, 458 S.E.2d 505, 1995 N.C. App. LEXIS 467 (1995).

Effect of Clerical Correction. —

Where plaintiff’s unqualified duty under the conclusions of law and the decretal portion of order was to continue making payments to defendant, clerical correction did not alter the effect of the original order. Gordon v. Gordon, 119 N.C. App. 316, 458 S.E.2d 505, 1995 N.C. App. LEXIS 467 (1995).

But power to correct clerical errors after lapse of the term must be exercised with great caution and may not be extended to the correction of judicial errors, so as to make the judgment different from what was actually rendered. Snell v. Washington County Bd. of Educ., 29 N.C. App. 31, 222 S.E.2d 756, 1976 N.C. App. LEXIS 2372 (1976).

While courts have always had the inherent authority to correct clerical errors or errors of expression in a judgment, they have never been deemed to have the authority, outside of a term, to correct an error in a decision or to amend a judgment so as to adversely affect the rights of third parties. H & B Co. v. Hammond, 17 N.C. App. 534, 195 S.E.2d 58, 1973 N.C. App. LEXIS 1399 (1973); Vandooren v. Vandooren, 27 N.C. App. 279, 218 S.E.2d 715, 1975 N.C. App. LEXIS 1819 (1975).

Vacation of Default Judgment Not Correction of Clerical Mistake. —

Court order which vacated a prior order and held that a party was not entitled to have a default judgment against him set aside was not an order correcting a clerical mistake or oversight entered pursuant to section (a) of this rule. Utica Mut. Ins. Co. v. Johnson, 41 N.C. App. 299, 254 S.E.2d 643, 1979 N.C. App. LEXIS 2433 (1979).

A motion under section (a) of this rule was proper to reform an order granting a preliminary injunction so as to comply with the requirements of G.S. 1A-1 , Rule 65(d), since the correction did not alter the effect of the order, but only clarified the record for appeal. Howard Schultz & Assocs. v. Ingram, 38 N.C. App. 422, 248 S.E.2d 345, 1978 N.C. App. LEXIS 2214 (1978).

Notice and Hearing Opportunity Required Where Rights Affected by Amendment, etc., of Judgment for Order. —

The courts have always had inherent authority to correct clerical errors in orders and judgments, but they do not have the power to amend or vacate an order or judgment so as to affect the rights of the parties without giving the parties notice and an opportunity to be heard. Utica Mut. Ins. Co. v. Johnson, 41 N.C. App. 299, 254 S.E.2d 643, 1979 N.C. App. LEXIS 2433 (1979).

The trial court’s failure to allow and tax costs could be considered an oversight or omission in the order, and since the substantive rights of the parties were not affected thereby, the court had authority under section (a) of this rule to correct the inadvertent omission of costs from its order. Ward v. Taylor, 68 N.C. App. 74, 314 S.E.2d 814, 1984 N.C. App. LEXIS 3189 (1984).

Trial court had jurisdiction to consider a motion filed by a guardian ad litem pursuant to this rule requesting a supplemental order, wherein she alleged that through oversight and inadvertence the district court had failed to order assessment of costs incurred in custody action, including witness fees for out-of-county witnesses as well as for expert witnesses, even though the guardian ad litem’s motion was made approximately four months after the order awarding custody was entered and the county Division of Social Services had filed its notice of appeal. In re Scearce, 81 N.C. App. 662, 345 S.E.2d 411, 1986 N.C. App. LEXIS 2342 (1986).

Sufficient evidence existed to support the trial court’s order for the wife to pay taxes and fees associated with the distribution of the husband’s retirement account that was awarded to her in the parties’ divorce and settlement, as it appeared that was merely left out of the distribution order; however, there was insufficient evidence to support the conclusion that the husband was entitled to additional payments made by the wife under the equitable distribution agreement, and that part of the order was remanded for the trial court to receive additional evidence and make further findings. Lee v. Lee, 167 N.C. App. 250, 605 S.E.2d 222, 2004 N.C. App. LEXIS 2189 (2004).

By changing the incorrect date of entry of judgment to a date other than the actual date judgment was entered, the trial court improperly altered the substantive rights of the parties by extending the period in which the parties could file a timely notice of appeal; this rule does not vest the trial court with such authority. Food Serv. Specialists v. Atlas Restaurant Mgt., Inc., 111 N.C. App. 257, 431 S.E.2d 878, 1993 N.C. App. LEXIS 696 (1993).

Change of Date of Accrual of Interest. —

A change in the date at which interest begins to accrue is something that the trial court could effectuate through subsection (a) of this rule, because the subject of the litigation was the amount of the distributive award and interest was only incidental and tangential to this matter; therefore, changing the date at which interest accrued did not alter the underlying distributive award itself. Ice v. Ice, 136 N.C. App. 787, 525 S.E.2d 843, 2000 N.C. App. LEXIS 155 (2000).

Rule Does Not Cover Serious Errors. —

Section (a) of this rule does allow the trial court by motion of a party or on its own initiative to correct clerical errors, but errors of a serious or substantial nature are not intended to be covered. Rivenbark v. Southmark Corp., 93 N.C. App. 414, 378 S.E.2d 196, 1989 N.C. App. LEXIS 210 (1989).

Granting of Motion Was Proper. —

Where the judgment did not state under what legal theory plaintiff was entitled to prevail and where the amended judgment merely corrected that omission, the trial court did not abuse its discretion in granting plaintiff’s motion under section (a) of this rule, because the amendment to the judgment did not affect the substantive rights of the parties. Woods v. Shelton, 93 N.C. App. 649, 379 S.E.2d 45, 1989 N.C. App. LEXIS 379 (1989).

Appeal from Denial of Improper Motion. —

Where defendant’s motion under subsection (a) of this rule was improper to begin with, his appeal from a denial of that motion was necessarily dismissed. Ice v. Ice, 136 N.C. App. 787, 525 S.E.2d 843, 2000 N.C. App. LEXIS 155 (2000).

III.Relief Under Subsection (b)
A.In General

Section (b) of this rule is nearly identical to FRCP, Rule 60(b). Sink v. Easter, 288 N.C. 183 , 217 S.E.2d 532, 1975 N.C. LEXIS 893 (1975).

The nearly identical provisions of section (b) of this rule and FRCP, Rule 60(b) point to the federal decisions for interpretation and enlightenment. Wiggins v. Bunch, 280 N.C. 106 , 184 S.E.2d 879, 1971 N.C. LEXIS 1098 (1971).

Use by Industrial Commission. —

G.S. 1A-1 , Rule 60(b) may be utilized by the North Carolina Industrial Commission to achieve a just and proper determination of a claim, giving it the ability to set aside a judgment where it finds (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under G.S. 1A-1 , Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. Jenkins v. Piedmont Aviation Servs., 147 N.C. App. 419, 557 S.E.2d 104, 2001 N.C. App. LEXIS 1192 (2001).

North Carolina Industrial Commission’s authority to modify its orders or the orders of its deputy commissioners is analogous to a court’s power to set aside its former judgments. Ward v. Wake County Bd. of Educ., 166 N.C. App. 726, 603 S.E.2d 896, 2004 N.C. App. LEXIS 2031 (2004).

Sanctions Upheld. —

Plaintiffs, whose suit for summary ejectment was dismissed by a magistrate as baseless, brought a motion under G.S. 1A-1 , Rule 60(b) to set aside the sanction the district court imposed upon them; however, the Rule 60(b) motion was denied as the plaintiffs could show no grounds under the enumerated causes for relief under Rule 60(b) for the sanction to be set aside or amended. Chandak v. Elec. Interconnect Corp., 144 N.C. App. 258, 550 S.E.2d 25, 2001 N.C. App. LEXIS 413 (2001).

Burden of Proof. —

Consent judgment was not set aside pursuant to G.S. 1A-1 , Rule 60(b)(4) because defendants did not overcome their burden of proof as a matter of law; defendants did not object at the hearing to the trial court’s exclusion of the attorney’s affidavit, nor did they assign as error on appeal the affidavit’s exclusion. Royal v. Hartle, 145 N.C. App. 181, 551 S.E.2d 168, 2001 N.C. App. LEXIS 556 (2001).

The purpose of subsection (b) of this rule is to strike a proper balance between the conflicting principles of finality and relief from unjust judgments. Generally, the rule is liberally construed. Carter v. Clowers, 102 N.C. App. 247, 401 S.E.2d 662, 1991 N.C. App. LEXIS 291 (1991).

This rule replaces former G.S. 1-220. Kirby v. Asheville Contracting Co., 11 N.C. App. 128, 180 S.E.2d 407, 1971 N.C. App. LEXIS 1464 , cert. denied, 278 N.C. 701 , 181 S.E.2d 602, 1971 N.C. LEXIS 1030 (1971); Gregg v. Steele, 24 N.C. App. 310, 210 S.E.2d 434, 1974 N.C. App. LEXIS 1988 (1974); Hickory White Trucks, Inc. v. Greene, 34 N.C. App. 279, 237 S.E.2d 862, 1977 N.C. App. LEXIS 1655 (1977); Howard v. Williams, 40 N.C. App. 575, 253 S.E.2d 571, 1979 N.C. App. LEXIS 2294 (1979).

The provisions of former G.S. 1-220 are now incorporated in this rule. Williams Lumber Co. v. Taylor, 8 N.C. App. 255, 174 S.E.2d 109, 1970 N.C. App. LEXIS 1528 (1970).

Procedure under section (b) of this rule is analogous to the former practice under former G.S. 1-220 and under motions to set aside an irregular judgment. Brady v. Town of Chapel Hill, 277 N.C. 720 , 178 S.E.2d 446, 1971 N.C. LEXIS 1070 (1971); Texas W. Fin. Corp. v. Mann, 36 N.C. App. 346, 243 S.E.2d 904, 1978 N.C. App. LEXIS 2479 (1978).

And the cases interpreting former G.S. 1-220 are still applicable. Kirby v. Asheville Contracting Co., 11 N.C. App. 128, 180 S.E.2d 407, 1971 N.C. App. LEXIS 1464 , cert. denied, 278 N.C. 701 , 181 S.E.2d 602, 1971 N.C. LEXIS 1030 (1971); Gregg v. Steele, 24 N.C. App. 310, 210 S.E.2d 434, 1974 N.C. App. LEXIS 1988 (1974); Hickory White Trucks, Inc. v. Greene, 34 N.C. App. 279, 237 S.E.2d 862, 1977 N.C. App. LEXIS 1655 (1977); Texas W. Fin. Corp. v. Mann, 36 N.C. App. 346, 243 S.E.2d 904, 1978 N.C. App. LEXIS 2479 (1978); Howard v. Williams, 40 N.C. App. 575, 253 S.E.2d 571, 1979 N.C. App. LEXIS 2294 (1979).

Grounds under section (b) of this rule for vacation of a prior judgment or order for “mistake, inadvertence, surprise or excusable neglect” are the exact grounds spelled out in former G.S. 1-220, and cases decided under the former statute remain good authority. Dishman v. Dishman, 37 N.C. App. 543, 246 S.E.2d 819, 1978 N.C. App. LEXIS 2800 (1978).

To proceed under subsection (b) of this rule requires an initial determination of whether a notice of dismissal constitutes a “judgment, order or proceeding.” Carter v. Clowers, 102 N.C. App. 247, 401 S.E.2d 662, 1991 N.C. App. LEXIS 291 (1991).

The broad language of subsection (b)(6) of this rule gives the court ample power to vacate judgments whenever such action is appropriate to accomplish justice. Flinn v. Laughinghouse, 68 N.C. App. 476, 315 S.E.2d 72, 1984 N.C. App. LEXIS 3306 (1984).

Section (b) of this rule provides no specific relief for “errors of law” and even the broad general language of subsection (b)(6) of this rule does not include relief for “errors of law.” The appropriate remedy for errors of law committed by the court is either appeal or a timely motion for relief under G.S. 1A-1 , Rule 59(a)(8). Hagwood v. Odom, 88 N.C. App. 513, 364 S.E.2d 190, 1988 N.C. App. LEXIS 101 (1988).

Section (b) of this rule has been described as a grand reservoir of equitable power to do justice in a particular case. Jim Walter Homes, Inc. v. Peartree, 28 N.C. App. 709, 222 S.E.2d 706, 1976 N.C. App. LEXIS 2805 (1976).

If the motion does not allege factual allegations corresponding to the specific situations contemplated in subsections (b)(1) through (5) of this rule, subsection (b)(6) of this rule serves as a “grand reservoir of equitable power” by which a court may grant relief from an order or judgment. Oxford Plastics v. Goodson, 74 N.C. App. 256, 328 S.E.2d 7, 1985 N.C. App. LEXIS 3434 (1985).

Motion Under Subsection (b) of This Rule Cannot Be a Substitute for Appellate Review. —

O’Neill v. Southern Nat’l Bank, 40 N.C. App. 227, 252 S.E.2d 231 (1979). In accord with paragraph in main pamphlet. See Jenkins v. Richmond County, 118 N.C. App. 166, 454 S.E.2d 290, 1995 N.C. App. LEXIS 91 (1995).

Erroneous judgments may be corrected only by appeal, and a motion under this rule cannot be used as a substitute for appellate review. Town of Sylva v. Gibson, 51 N.C. App. 545, 277 S.E.2d 115, 1981 N.C. App. LEXIS 2268 , cert. denied, 303 N.C. 319 , 281 S.E.2d 659, 1981 N.C. LEXIS 1319 (1981); Coleman v. Coleman, 74 N.C. App. 494, 328 S.E.2d 871, 1985 N.C. App. LEXIS 3539 (1985); Long v. Fink, 80 N.C. App. 482, 342 S.E.2d 557, 1986 N.C. App. LEXIS 2197 (1986).

Because defendant attempted to use a subdivision (b)(6) motion as a substitute for appellate review, the trial court’s order denying defendant’s motion was affirmed. Garrison ex rel. Chavis v. Barnes, 117 N.C. App. 206, 450 S.E.2d 554, 1994 N.C. App. LEXIS 1213 (1994).

Where a second lawsuit was dismissed because plaintiff had not paid the costs of dismissing a prior voluntarily dismissed suit within the mandatory 30 day time period, plaintiff was not entitled to relief from the dismissal under G.S. 1A-1 , N.C. R. Civ. P. 60(b) because an erroneous judgment could only be correct by an appeal, and a Rule 60(b) motion was not a substitute for an appeal. Welch v. Lumpkin, 199 N.C. App. 593, 681 S.E.2d 850, 2009 N.C. App. LEXIS 1504 (2009).

Applicability of Section (b) to Final Judgments Only. —

Section (b) of this rule has no application to interlocutory judgments, orders or proceedings of the trial court. It only applies, by its express terms, to final judgments. Sink v. Easter, 288 N.C. 183 , 217 S.E.2d 532, 1975 N.C. LEXIS 893 (1975).

Section (b) of this rule has no application to interlocutory orders; by its express terms it applies only to final judgments and orders. O'Neill v. Southern Nat'l Bank, 40 N.C. App. 227, 252 S.E.2d 231, 1979 N.C. App. LEXIS 2591 (1979).

A voluntary dismissal with prejudice is a “final judgment” within the meaning of this rule. Couch v. Private Diagnostic Clinic, 133 N.C. App. 93, 515 S.E.2d 30, 1999 N.C. App. LEXIS 370 , cert. denied, 350 N.C. 827 , 537 S.E.2d 816, 1999 N.C. LEXIS 820 (1999), aff'd, 351 N.C. 92 , 520 S.E.2d 785, 1999 N.C. LEXIS 1157 (1999).

Amendment of Voluntary Dismissal. —

A voluntary dismissal under G.S. 1A-1 , Rule 41(a)(1) can be amended pursuant to section (b) of this rule. Newberry Metal Masters Fabricators, Inc. v. Mitek Indus., Inc., 333 N.C. 250 , 424 S.E.2d 383, 1993 N.C. LEXIS 17 (1993).

Order Transferring Child Custody as Final Order. —

An order which transferred child custody from the plaintiff to the defendant was a final order under section (b) of this rule, even though the order could be changed subsequently upon a proper showing of change of circumstances under G.S. 50-13.7 . Dishman v. Dishman, 37 N.C. App. 543, 246 S.E.2d 819, 1978 N.C. App. LEXIS 2800 (1978).

Motion for Relief from Order Under G.S. 1A-1 , Rule 12(b)(6) Improper Under Section (b). —

Since the denial of a motion to dismiss under G.S. 1A-1 , Rule 12(b)(6) is not a final judgment or order, a motion for relief from such an order could not, as a matter of law, be proper under section (b) of this rule. O'Neill v. Southern Nat'l Bank, 40 N.C. App. 227, 252 S.E.2d 231, 1979 N.C. App. LEXIS 2591 (1979).

Provisions relating to the setting aside of a default judgment should be liberally construed so as to give litigants an opportunity to have a case disposed of on the merits, to the end that justice may be done. Howard v. Williams, 40 N.C. App. 575, 253 S.E.2d 571, 1979 N.C. App. LEXIS 2294 (1979).

Any doubt should be resolved in favor of setting aside defaults so that the merits of an action may be reached. Howard v. Williams, 40 N.C. App. 575, 253 S.E.2d 571, 1979 N.C. App. LEXIS 2294 (1979).

But Provisions Designed to Protect Plaintiffs Cannot Be Ignored. —

Statutory provisions designed to protect plaintiffs from defendants who do not give reasonable attention to important business affairs such as lawsuits cannot be ignored. Howard v. Williams, 40 N.C. App. 575, 253 S.E.2d 571, 1979 N.C. App. LEXIS 2294 (1979).

Right of Party or Legal Representative to Seek Relief from Final Judgment. —

Under this rule, a party or his legal representative may seek relief from a final judgment. Browne v. Catawba County Dep't of Social Servs., 22 N.C. App. 476, 206 S.E.2d 792, 1974 N.C. App. LEXIS 2361 (1974).

Relief May Be Granted to Successful Plaintiff. —

Section (b) of this rule provides that relief may be granted to “any party” and raises no bar to granting relief to a successful plaintiff when adequate reason is shown. Wood v. Wood, 297 N.C. 1 , 252 S.E.2d 799, 1979 N.C. LEXIS 1126 (1979).

Factors Considered on Hearing of Section (b) Motion. —

A trial judge, on hearing motions under section (b) of this rule, should consider such factors as: (1) The general desirability that a final judgment not be lightly disturbed; (2) where relief is sought from a judgment of dismissal or default, the relative interest of deciding cases on the merits and the interest in orderly procedure; (3) the opportunity the movant had to present his claim or defense; and (4) any intervening equities. McGinnis v. Robinson, 43 N.C. App. 1, 258 S.E.2d 84, 1979 N.C. App. LEXIS 3024 (1979); Baylor v. Brown, 46 N.C. App. 664, 266 S.E.2d 9, 1980 N.C. App. LEXIS 2933 (1980).

Power to Vacate Judgment Conditioned on Showing That Justice Requires It. —

While this rule gives the court ample power to vacate a judgment whenever that action is appropriate to accomplish justice, a judge cannot do so without a showing based on competent evidence that justice requires it. Highfill v. Williamson, 19 N.C. App. 523, 199 S.E.2d 469, 1973 N.C. App. LEXIS 1696 (1973).

Relief May Be Granted Absent Showing of Changed Circumstances. —

The defendant’s failure to present evidence of changed circumstances did not render the trial court’s order, pursuant to this section, invalid. Condellone v. Condellone, 137 N.C. App. 547, 528 S.E.2d 639, 2000 N.C. App. LEXIS 427 (2000).

When Consent Judgment May Be Changed, etc. —

A consent judgment cannot be changed without the consent of the parties or set aside except upon proper allegation and proof that consent was not in fact given or that it was obtained by fraud or mutual mistake, the burden being upon the party attacking the judgment. Blankenship v. Price, 27 N.C. App. 20, 217 S.E.2d 709, 1975 N.C. App. LEXIS 1737 (1975).

A consent judgment incorporates the bargained agreement of the parties. Such a judgment can only be attacked on limited grounds. The party attacking the judgment must properly allege and prove that consent was not in fact given, or that it was obtained by mutual mistake or fraud. Stevenson v. Stevenson, 100 N.C. App. 750, 398 S.E.2d 334, 1990 N.C. App. LEXIS 1160 (1990).

A contract may be avoided based on mutual mistake where the mistake is common to both parties and because of it each has done what neither intended. A unilateral mistake, unaccompanied by fraud, imposition, or like circumstances, is not sufficient to avoid a contract. These contract principles apply to consent judgments. Stevenson v. Stevenson, 100 N.C. App. 750, 398 S.E.2d 334, 1990 N.C. App. LEXIS 1160 (1990).

Absent a showing of fraud, mutual mistake or a lack of consent, attacks on consent judgments are controlled by Rule 60(b)(6). Thacker v. Thacker, 107 N.C. App. 479, 420 S.E.2d 479, 1992 N.C. App. LEXIS 731 (1992).

Interpretation of Consent Order. —

Trial court committed no error under G.S. 1A-1 , Rules 60(b)(4)-(5) and 70 in failing to hold the wife in contempt with respect to her post-consent order motion to set aside and to enforce various provisions thereof, as it was clear the parties wanted an interpretation of the provision of the order; further, they had agreed not to pursue the issue of contempt. Holden v. Holden, 214 N.C. App. 100, 715 S.E.2d 201, 2011 N.C. App. LEXIS 1637 (2011).

Power to Set Aside Judgment or Order Entered by Another Judge. —

A superior court judge had authority, upon motion under this rule, to set aside an order entered in another superior court where that order was entered without power and authority and was a nullity. Charleston Capital Corp. v. Love Valley Enters., Inc., 10 N.C. App. 519, 179 S.E.2d 190, 1971 N.C. App. LEXIS 1662 (1971).

One judge can hear a party’s motion for rehearing to set aside a judgment entered by another, provided that such is proper and authorized by this rule. Waters v. Qualified Personnel, Inc., 32 N.C. App. 548, 233 S.E.2d 76, 1977 N.C. App. LEXIS 1991 (1977), rev'd, 294 N.C. 200 , 240 S.E.2d 338, 1978 N.C. LEXIS 1224 (1978).

A superior court judge has the authority to grant relief on a motion under section (b) of this rule without offending the rule that precludes one superior court judge from reviewing the decision of another. Hoglen v. James, 38 N.C. App. 728, 248 S.E.2d 901, 1978 N.C. App. LEXIS 2317 (1978).

A judge of the district court cannot modify a judgment or order of another judge of the district court absent mistake, fraud, newly discovered evidence, satisfaction and release, or a showing based on competent evidence that justice requires it. Town of Sylva v. Gibson, 51 N.C. App. 545, 277 S.E.2d 115, 1981 N.C. App. LEXIS 2268 , cert. denied, 303 N.C. 319 , 281 S.E.2d 659, 1981 N.C. LEXIS 1319 (1981).

In ruling on a motion under subsection (b)(6) of this rule to set aside a default judgment, the trial court had no authority to determine whether the defendant had made an appearance in the case where the trial court which entered the default judgment had previously ruled that the defendant had made no appearance. Whitfield v. Wakefield, 51 N.C. App. 124, 275 S.E.2d 263, 1981 N.C. App. LEXIS 2200 , cert. denied, 303 N.C. 184 , 280 S.E.2d 459, 1981 N.C. LEXIS 1289 (1981).

A superior court judge has authority to grant relief under a subsection (b) motion without offending the rule that precludes one superior court judge from reviewing the decision of another. Hieb v. Lowery, 121 N.C. App. 33, 464 S.E.2d 308, 1995 N.C. App. LEXIS 961 (1995), aff'd, 344 N.C. 403 , 474 S.E.2d 323, 1996 N.C. LEXIS 488 (1996).

Judge who heard the borrowers’ motion to amend, or for alternative relief after the dismissal with prejudice of their complaint, erred in denying the borrowers’ motion for relief because the judge’s denial of the motion on the grounds that he believed it was more properly in front of the judge who ruled on the motion to dismiss the complaint was a failure to exercise the discretion conferred on him by law; thus, the borrowers did not have the proper hearing on their G.S. 1A-1-60(b) motion to which they were entitled. Trent v. River Place, LLC, 179 N.C. App. 72, 632 S.E.2d 529, 2006 N.C. App. LEXIS 1683 (2006).

Motions under section (b) of this rule must be made within a reasonable time. Brady v. Town of Chapel Hill, 277 N.C. 720 , 178 S.E.2d 446, 1971 N.C. LEXIS 1070 (1971).

What Constitutes Reasonable Time. —

While motions pursuant to subsections (b)(1), (b)(2), and (b)(3) of this rule must be made “not more than one year after the judgment, order, or proceeding was entered or taken,” as well as “within a reasonable time,” motions pursuant to subsections (b)(4), (b)(5), and (b)(6) of this rule must simply be made “within a reasonable time,” and what constitutes a “reasonable time” depends upon the circumstances of the individual case. Nickels v. Nickels, 51 N.C. App. 690, 277 S.E.2d 577, 1981 N.C. App. LEXIS 2304 (1981).

Plaintiffs’ motion was not made within a reasonable time, and they were not entitled to relief where plaintiffs waited literally an entire year before filing their motion for relief, and this motion followed not only the dismissal of their appeal from the judgment itself, but also the dismissal of their appeal from the order dismissing their appeal from the judgment. Jenkins v. Richmond County, 118 N.C. App. 166, 454 S.E.2d 290, 1995 N.C. App. LEXIS 91 (1995).

Reasonable Time. —

Where plaintiff’s motion for reconsideration was made after the 15 days allowed under G.S. 97-85 , subsection (b) merely requires that a motion for relief from the judgment be filed within a reasonable time. Thus, the commission should have considered the motion as a subsection (b) motion for relief from the judgment. Jones v. Yates Motor Co., 121 N.C. App. 84, 464 S.E.2d 479, 1995 N.C. App. LEXIS 958 (1995).

Delay Held Unreasonable. —

Trial court did not abuse its discretion in concluding that delay of one year in filing motion for relief under section (b) of this rule was unreasonable and in denying the motion. Brown v. Windhom, 104 N.C. App. 219, 408 S.E.2d 536, 1991 N.C. App. LEXIS 1000 (1991).

Trial court did not abuse its discretion when it found that an injured party’s motion for relief from judgment, filed almost 11 months after the judgment from which she sought relief, was untimely, even though it was filed within one year, because complying with the Rule’s one-year limitation did not necessarily make the motion timely as that which constituted a reasonable time for filing the motion was determined by examining the circumstances of the individual case, and the injured party offered no explanation for the 11-month delay in filing her motion. Clendening v. Sears, Roebuck & Co., 2002 N.C. App. LEXIS 2114 (N.C. Ct. App. Aug. 20, 2002).

Section (b) of this rule does not provide that notice be given to any party. Wood v. Wood, 297 N.C. 1 , 252 S.E.2d 799, 1979 N.C. LEXIS 1126 (1979).

Written Motion to Set Aside Default Judgment Not to Be Heard Ex Parte. —

Defendant’s written motion to set aside a default judgment is not one which might be heard ex parte. Doxol Gas of Angier, Inc. v. Barefoot, 10 N.C. App. 703, 179 S.E.2d 890, 1971 N.C. App. LEXIS 1702 (1971).

No Express Provisions for Manner of Service Made by Section (b). —

Section (b) of this rule makes no express provisions for the manner in which a motion thereunder must be served. Wood v. Wood, 297 N.C. 1 , 252 S.E.2d 799, 1979 N.C. LEXIS 1126 (1979).

Forum for Relief from Judgment in Magistrate’s Court. —

The district court is the proper forum to hear and decide a motion made pursuant to section (b) of this rule for relief from a judgment or order entered in a magistrate’s court. A new trial is not permitted before the magistrate. Menache v. Atlantic Coast Mgt. Corp., 43 N.C. App. 733, 260 S.E.2d 100, 1979 N.C. App. LEXIS 3171 (1979), cert. denied, 299 N.C. 331 , 265 S.E.2d 396, 1980 N.C. LEXIS 1015 (1980).

Nonparties to Original Suit Lack Standing Under Rule. —

Where plaintiffs were never made parties to the original suit, they were excluded from using this rule in order to attack a final judgment, since this rule does not apply to nonparties or strangers to the action giving rise to the judgment or order. Lawyers Title Ins. Corp. v. Langdon, 91 N.C. App. 382, 371 S.E.2d 727, 1988 N.C. App. LEXIS 870 (1988), cert. denied, 324 N.C. 335 , 378 S.E.2d 793, 1989 N.C. LEXIS 240 (1989).

Specification of Subsection (b)(1) or (b)(6) Unnecessary Where Movant Is Uncertain But Motion Is Timely. —

When the motion is based on subsection (b)(1) of this rule, the rule requires it to be made not later than one year after the judgment is taken or entered. If movant is uncertain whether to proceed under subsection (b)(1) or (b)(6), he need not specify if his motion is timely and the reason justifies relief. Brady v. Town of Chapel Hill, 277 N.C. 720 , 178 S.E.2d 446, 1971 N.C. LEXIS 1070 (1971); Sides v. Reid, 35 N.C. App. 235, 241 S.E.2d 110, 1978 N.C. App. LEXIS 2931 (1978).

A motion for relief under section (b) of this rule is addressed to the sound discretion of the trial court. Burwell v. Wilkerson, 30 N.C. App. 110, 226 S.E.2d 220, 1976 N.C. App. LEXIS 2159 (1976); Hoglen v. James, 38 N.C. App. 728, 248 S.E.2d 901, 1978 N.C. App. LEXIS 2317 (1978); Oxford Plastics v. Goodson, 74 N.C. App. 256, 328 S.E.2d 7, 1985 N.C. App. LEXIS 3434 (1985); Perkins v. Perkins, 88 N.C. App. 568, 364 S.E.2d 166, 1988 N.C. App. LEXIS 109 (1988); Danna v. Danna, 88 N.C. App. 680, 364 S.E.2d 694, 1988 N.C. App. LEXIS 211 (1988).

And Will Be Disturbed Only for Abuse of Discretion. —

Relief under section (b) of this rule is within the discretion of the trial court, and such a decision will be disturbed only for an abuse of discretion. Harrington v. Harrington, 38 N.C. App. 610, 248 S.E.2d 460, 1978 N.C. App. LEXIS 2253 (1978); Harris v. Harris, 307 N.C. 684 , 300 S.E.2d 369, 1983 N.C. LEXIS 1114 (1983); Oxford Plastics v. Goodson, 74 N.C. App. 256, 328 S.E.2d 7, 1985 N.C. App. LEXIS 3434 (1985); Williams v. Jennette, 77 N.C. App. 283, 335 S.E.2d 191, 1985 N.C. App. LEXIS 4066 (1985); Vuncannon v. Vuncannon, 82 N.C. App. 255, 346 S.E.2d 274, 1986 N.C. App. LEXIS 2422 (1986).

Appellate review of a motion under section (b) of this rule is limited to determining whether the trial court abused its discretion. Burwell v. Wilkerson, 30 N.C. App. 110, 226 S.E.2d 220 (1976); Hilton v. Howington, 63 N.C. App. 717, 306 S.E.2d 196 (1983), cert. denied, 310 N.C. 152 , 311 S.E.2d 291 (1984); Thomas M. McInnis & Assocs. v. Hall, 76 N.C. App. 486, 333 S.E.2d 544 (1985), modified on other grounds, 318 N.C. 421 , 349 S.E.2d 552 (1986); Stoner v. Stoner, 83 N.C. App. 523, 350 S.E.2d 916 (1986); Cole v. Cole, 90 N.C. App. 724, 370 S.E.2d 272, cert. denied, 323 N.C. 475 , 373 S.E.2d 862 (1988). In accord with first paragraph in the main volume. See Gallbronner v. Mason, 101 N.C. App. 362, 399 S.E.2d 139, 1991 N.C. App. LEXIS 26 (1991).

A motion for relief under section (b) of this rule is addressed to the sound discretion of the trial court, and appellate review is limited to determining whether the court abused its discretion. Sink v. Easter, 288 N.C. 183 , 217 S.E.2d 532, 1975 N.C. LEXIS 893 (1975); Commercial Union Assurance Cos. v. Atwater Motor Co., 35 N.C. App. 397, 241 S.E.2d 334, 1978 N.C. App. LEXIS 2981 (1978); Kolendo v. Kolendo, 36 N.C. App. 385, 243 S.E.2d 907, 1978 N.C. App. LEXIS 2490 (1978); McGinnis v. Robinson, 43 N.C. App. 1, 258 S.E.2d 84, 1979 N.C. App. LEXIS 3024 (1979); Greenhill v. Crabtree, 45 N.C. App. 49, 262 S.E.2d 315, 1980 N.C. App. LEXIS 2587 , aff'd, 301 N.C. 520 , 271 S.E.2d 908, 1980 N.C. LEXIS 1190 (1980); In re Estate of Snipes, 45 N.C. App. 79, 262 S.E.2d 292, 1980 N.C. App. LEXIS 2582 (1980); Peters v. Elmore, 59 N.C. App. 404, 297 S.E.2d 154, 1982 N.C. App. LEXIS 3150 (1982); City Fin. Co. v. Boykin, 86 N.C. App. 446, 358 S.E.2d 83, 1987 N.C. App. LEXIS 2725 (1987).

The trial judge’s extensive power to afford relief from judgments is accompanied by a corresponding discretion to deny it, and the only question for appellate determination is whether the trial court abused its discretion in denying the motion. Sawyer v. Goodman, 63 N.C. App. 191, 303 S.E.2d 632, 1983 N.C. App. LEXIS 3011 (1983).

Court to Make Findings of Fact. —

It is the duty of the judge presiding at a hearing under section (b) of this rule to make findings of fact and to determine from such facts whether the movant is entitled to relief from the final judgment or order in question. Hoglen v. James, 38 N.C. App. 728, 248 S.E.2d 901, 1978 N.C. App. LEXIS 2317 (1978); York v. Taylor, 79 N.C. App. 653, 339 S.E.2d 830, 1986 N.C. App. LEXIS 2109 (1986).

Court Not Required to Make Findings of Fact. —

Where the trial court denied the motion to set aside the default judgment without making findings of fact, a better practice would have been to make findings of fact when ruling on a motion under subsection (b); however, the trial court is not required to do so. McLean v. Mechanic, 116 N.C. App. 271, 447 S.E.2d 459, 1994 N.C. App. LEXIS 917 (1994).

When a trial court denied an injured party’s motion for relief from a judgment adopting an arbitrator’s award dismissing the injured party’s case, the trial court was not required to make findings of fact because the injured party did not request such findings. Clendening v. Sears, Roebuck & Co., 2002 N.C. App. LEXIS 2114 (N.C. Ct. App. Aug. 20, 2002).

Findings of Fact are Conclusive If Based on Competent Evidence. —

The facts found by the judge are conclusive if there is any evidence on which to base such findings of fact. Doxol Gas of Angier, Inc. v. Barefoot, 10 N.C. App. 703, 179 S.E.2d 890, 1971 N.C. App. LEXIS 1702 (1971).

Findings of fact made by the trial court upon a motion to set aside a judgment by default are binding on appeal if supported by any competent evidence. Kirby v. Asheville Contracting Co., 11 N.C. App. 128, 180 S.E.2d 407, 1971 N.C. App. LEXIS 1464 , cert. denied, 278 N.C. 701 , 181 S.E.2d 602, 1971 N.C. LEXIS 1030 (1971); Norton v. Sawyer, 30 N.C. App. 420, 227 S.E.2d 148, 1976 N.C. App. LEXIS 2284 , cert. denied, 291 N.C. 176 , 229 S.E.2d 689, 1976 N.C. LEXIS 950 (1976).

But conclusions of law made by the judge upon the facts found by him are reviewable on appeal. Norton v. Sawyer, 30 N.C. App. 420, 227 S.E.2d 148, 1976 N.C. App. LEXIS 2284 , cert. denied, 291 N.C. 176 , 229 S.E.2d 689, 1976 N.C. LEXIS 950 (1976).

The trial judge’s findings of fact are conclusive on appeal when supported by competent evidence, but the conclusions of law made by the judge upon the facts found are reviewable on appeal. U.S.I.F. Wynnewood Corp. v. Soderquist, 27 N.C. App. 611, 219 S.E.2d 787, 1975 N.C. App. LEXIS 1924 (1975).

When Court Fails to Make Findings of Fact. —

Where the trial court does not make findings of fact in its order denying the motion to set aside the judgment, the question on appeal is whether, on the evidence before it, the court could have made findings of fact sufficient to support its legal conclusion. Grant v. Cox, 106 N.C. App. 122, 415 S.E.2d 378, 1992 N.C. App. LEXIS 365 (1992).

Amendment Following Dismissal Under G.S. 1A-1 , Rule 12(b)(6). —

A motion to dismiss under G.S. 1A-1 , Rule 12(b)(6) is not a “responsive pleading” under G.S. 1A-1 , Rule 15(a) and so does not itself terminate plaintiff’s unconditional right to amend a complaint under G.S. 1A-1, Rule 15(a). However, once the trial court enters its dismissal under G.S. 1A-1, Rule 12(b)(6), plaintiff’s right to amend under G.S. 1A-1, Rule 15(a) is terminated. Under certain limited circumstances set forth in G.S. 1A-1, Rule 59(e) and section (b) of this rule, a plaintiff may, however, seek to reopen the trial court’s judgment and amend the complaint concurrently under G.S. 1A-1, Rule 15(a). Johnson v. Bollinger, 86 N.C. App. 1, 356 S.E.2d 378, 1987 N.C. App. LEXIS 2664 (1987).

Order Setting Aside Default Judgment Interlocutory and Not Appealable. —

An order of the trial court allowing a motion pursuant to section (b) of this rule to set aside a default judgment was interlocutory and not appealable, and the Court of Appeals should have dismissed the appeal, even though the question of appealability was not raised by the parties. Bailey v. Gooding, 301 N.C. 205 , 270 S.E.2d 431, 1980 N.C. LEXIS 1159 (1980).

Order Setting Aside Dismissal Interlocutory and Appeal Premature. —

An order entered pursuant to subsection (b)(1) of this rule, setting aside a judgment which had dismissed plaintiff ’s action with prejudice for failure of plaintiffs’ counsel to appear when the case was called for trial, was interlocutory, and defendants’ appeal therefrom was premature. Metcalf v. Palmer, 46 N.C. App. 622, 265 S.E.2d 484, 1980 N.C. App. LEXIS 2866 (1980).

Interlocutory Appeal. —

Wife could not appeal an order granting a husband’s motion to vacate a judgment of absolute divorce to allow the husband to assert an equitable distribution claim because, inter alia, G.S. 1A-1 , N.C. R. Civ. P. 54(b) did not apply to allow a trial court to certify the order as appealable, since the order did not determine a claim. Campbell v. Campbell, 237 N.C. App. 1, 764 S.E.2d 630, 2014 N.C. App. LEXIS 1103 (2014).

Wife could not appeal an order granting a husband’s motion to vacate a judgment of absolute divorce to allow the husband to assert an equitable distribution claim because, inter alia, the wife did not show the order affected a substantial right as (1) the husband was not collaterally estopped, based on G.S. 50-11(e) , from making an equitable distribution claim, since no such claim had been adjudicated, so the order did not expose the wife to the risk of an inconsistent equitable distribution judgment, and (2) the wife did not show any representations the wife had made about the wife’s marital status amounted to a substantial right. Campbell v. Campbell, 237 N.C. App. 1, 764 S.E.2d 630, 2014 N.C. App. LEXIS 1103 (2014).

Appeal of Denial of Motion for Relief from Judgment Dismissed as Interlocutory. —

Appeal of a trial court’s denial of clients’ G.S. 1A-1 , N.C. R. Civ. P. 60(b) motion for relief from judgment in a collateral matter was dismissed as interlocutory because the order did not dispose of the entire case and was thus interlocutory, but the trial court’s order did not contain an G.S. 1A-1 , N.C. R. Civ. P. 54 certification and the clients failed to address (1) why there was no just reason to delay the appeal, or (2) what substantial right would have been lost absent an immediate appeal; further, the appeal was a transparent attempt to re-litigate prior orders from several trial courts, prior opinions of the appellate court, and an order denying the clients’ previous petition for discretionary review by the Supreme Court of North Carolina, and the same theory posited by the clients in the case sub judice already had been vetted and held to be unpersuasive and incorrect. The lawyers were thus entitled to sanctions pursuant to N.C. R. App. P. 34(c). Pigg v. Massagee, 196 N.C. App. 348, 674 S.E.2d 686, 2009 N.C. App. LEXIS 356 (2009), cert. denied, 365 N.C. 207 , 710 S.E.2d 34, 2011 N.C. LEXIS 487 (2011).

Appeal Divests Trial Court of Jurisdiction. —

The general rule that an appeal takes the case out of the jurisdiction of the trial court is not changed by G.S. 1A-1 , Rule 59 or this rule. Wiggins v. Bunch, 280 N.C. 106 , 184 S.E.2d 879, 1971 N.C. LEXIS 1098 (1971); Sink v. Easter, 288 N.C. 183 , 217 S.E.2d 532, 1975 N.C. LEXIS 893 (1975).

When an appeal is taken the trial court is divested of jurisdiction, except to aid in certifying a correct record. Wiggins v. Bunch, 280 N.C. 106 , 184 S.E.2d 879, 1971 N.C. LEXIS 1098 (1971).

The general rule that an appeal takes a case out of the jurisdiction of the trial court was not changed by the enactment of G.S. 1A-1 , Rule 59 and this rule. Estrada v. Jaques, 70 N.C. App. 627, 321 S.E.2d 240, 1984 N.C. App. LEXIS 3880 (1984), limited, Osburn v. Danek Med., Inc., 135 N.C. App. 234, 520 S.E.2d 88, 1999 N.C. App. LEXIS 1045 (1999).

The general rule that an appeal takes a case out of the jurisdiction of the trial court is subject to two exceptions and one qualification. The exceptions are that notwithstanding the pendency of an appeal the trial judge retains jurisdiction over the cause (1) during the session in which the judgment appealed from was rendered, and (2) for the purpose of settling the case on appeal. The qualification to the general rule is that the trial judge, after notice and on proper showing, may adjudge that the appeal has been abandoned and thereby regain jurisdiction of the cause. Estrada v. Jaques, 70 N.C. App. 627, 321 S.E.2d 240, 1984 N.C. App. LEXIS 3880 (1984), limited, Osburn v. Danek Med., Inc., 135 N.C. App. 234, 520 S.E.2d 88, 1999 N.C. App. LEXIS 1045 (1999).

Entertainment of Motion by Court of Appeals. —

A motion under this rule to set aside the judgment and for a new trial on the ground that a witness for plaintiff had perjured himself, which was filed after the appeal had been scheduled for argument, was properly made in the Court of Appeals. Rhodes v. Henderson, 14 N.C. App. 404, 188 S.E.2d 565, 1972 N.C. App. LEXIS 2140 (1972).

Remand for Hearing of Issues Raised by Motion. —

Since at the time plaintiff ’s motion under section (b) of this rule was filed the case was pending on appeal in the Court of Appeals, the motion was properly filed in the appellate court. However, as determination of the motion required resolution of controverted questions of fact which the trial court was in a better position to pass upon than the Court of Appeals, the cause would be remanded to the trial court for the purpose of hearing and passing upon all questions and issues raised by the motion. Swygert v. Swygert, 46 N.C. App. 173, 264 S.E.2d 902, 1980 N.C. App. LEXIS 2831 (1980).

Consideration of Section (b) Motion by Trial Court While Appeal Pending. —

The general rule is that when one party gives notice of appeal, the jurisdiction of the trial court is ousted and it may take no further action in the case except in aid of the appeal, unless the case is remanded to it by the appellate court. However, the trial court should consider a motion under section (b) of this rule filed while the appeal is pending for the limited purpose of indicating, by a proper entry in the record, how it would be inclined to rule on the motion were the appeal not pending. At the time the motion is made in the lower court, the movant should notify the appellate court, so that it may delay consideration of the appeal until the trial court has considered the motion. Upon an indication of favoring the motion, appellant would be in a position to move the appellate court to remand to the trial court for judgment on the motion and the proceedings would thereafter continue until a final, appealable judgment was rendered. An indication by the trial court that it would deny the motion would be considered binding on that court and appellant could then request appellate court review of the lower court’s action. This procedure would allow the trial court to rule in the first instance on the motion and would permit the appellate court to review the trial court’s decision on such motion at the same time it considered other assignments of error. Bell v. Martin, 43 N.C. App. 134, 258 S.E.2d 403, 1979 N.C. App. LEXIS 3045 (1979), rev'd, 299 N.C. 715 , 264 S.E.2d 101, 1980 N.C. LEXIS 991 (1980).

As a general rule, an appeal divests the trial court of jurisdiction. However, the trial court retains limited jurisdiction to hear a motion under section (b) of this rule and to indicate its probable disposition after the notice of appeal has been entered. Where the trial court indicates that the motion should be denied, the appellate court will review that action along with any other assignments of error raised by the appellant. Hagwood v. Odom, 88 N.C. App. 513, 364 S.E.2d 190, 1988 N.C. App. LEXIS 101 (1988).

Motion Made After Notice of Appeal. —

The trial court does not have jurisdiction to rule on a motion pursuant to section (b) of this rule where such motion is made after the notice of appeal has been given. York v. Taylor, 79 N.C. App. 653, 339 S.E.2d 830, 1986 N.C. App. LEXIS 2109 (1986).

As a general rule, an appeal divests the trial court of jurisdiction of a case and, pending appeal, the trial court is functus officio. However, the trial court retains limited jurisdiction to hear and consider a motion under section (b) of this rule to indicate what action it would be inclined to take were an appeal not pending. Talbert v. Mauney, 80 N.C. App. 477, 343 S.E.2d 5, 1986 N.C. App. LEXIS 2199 (1986).

Disciplinary Hearing Commission (DHC) of the North Carolina State Bar did not err in concluding that it lacked jurisdiction to rule upon defendant’s motion under G.S. 1A-1 , N.C. R. Civ. P. 60(b) because the motion was made after the attorney filed a notice of appeal. N.C. State Bar v. Sossomon, 197 N.C. App. 261, 676 S.E.2d 910, 2009 N.C. App. LEXIS 710 (2009).

Notice of Appeal Filed at Same Time as Motions. —

Where notice of appeal from default judgment for defendants with respect to plaintiff ’s claim and defendants’ counterclaim against plaintiff was filed at the same time as plaintiff ’s motion under G.S. 1A-1 , Rule 52(b) for amended and additional findings of fact and his motion under section (b) of this rule for relief from judgment, under the circumstances of the case, the trial court had jurisdiction to rule on plaintiff ’s motion under section (b) of this rule. York v. Taylor, 79 N.C. App. 653, 339 S.E.2d 830, 1986 N.C. App. LEXIS 2109 (1986).

Filing and granting of motion of withdrawal and abandonment of appeal served to invest trial judge with jurisdiction over the cause, and hence he had sufficient jurisdictional power to file his order granting plaintiff relief pursuant to subsections (b)(1) and (b)(2) of this rule. Sink v. Easter, 288 N.C. 183 , 217 S.E.2d 532, 1975 N.C. LEXIS 893 (1975).

Perjured testimony is not usually recognized as a “fraud upon the court” within the meaning of the provision of section (b) of this rule providing that the rule “does not limit the power of a court to entertain an independent action . . . to set aside a judgment for a fraud upon the court.” McGinnis v. Robinson, 43 N.C. App. 1, 258 S.E.2d 84, 1979 N.C. App. LEXIS 3024 (1979).

Where a movant is uncertain whether to proceed under subsection (b)(1) or (b)(6) of this rule, he need not specify which section if his motion is timely and the reason justifies relief under either. The movant must show that he has a meritorious defense, as it would be a waste of judicial economy to vacate a judgment or order when the movant could not prevail on the merits of the civil action. Oxford Plastics v. Goodson, 74 N.C. App. 256, 328 S.E.2d 7, 1985 N.C. App. LEXIS 3434 (1985).

Proceedings Under Chapter 40A. —

This Rule applies to proceedings under Chapter 40A in order to provide relief from judgments or orders when necessary to promote the interests of justice. City of Durham v. Woo, 129 N.C. App. 183, 497 S.E.2d 457, 1998 N.C. App. LEXIS 419 , cert. denied, 348 N.C. 496 , 510 S.E.2d 380, 1998 N.C. LEXIS 381 (1998).

Divorce Decree Regular on Face of Judgment Roll. —

Subsection (b)(4) of this rule requires that the judgment be void. A divorce decree, in all respects regular on the face of the judgment roll, is at most voidable, not void. Howell v. Tunstall, 64 N.C. App. 703, 308 S.E.2d 454, 1983 N.C. App. LEXIS 3354 (1983).

Alimony Pendente Lite. —

Given the interlocutory nature of an order for alimony pendente lite, which allows correction of any error at the district court’s final hearing on the matter, such an order is not a “final judgment, order, or proceeding” that can be the proper subject of a motion under section (b) of this rule. Coleman v. Coleman, 74 N.C. App. 494, 328 S.E.2d 871, 1985 N.C. App. LEXIS 3539 (1985).

Child Custody. —

In a custody case, trial court erred in failing to take any evidence before entering a permanent custody order in favor of plaintiff maternal uncle and aunt; therefore, trial court abused its discretion in denying defendant mother’s G.S. 1A-1-60(b) motion for relief. Bohannan v. McManaway, 208 N.C. App. 572, 705 S.E.2d 1, 2010 N.C. App. LEXIS 2446 (2010).

Child Support. —

Like custody orders, child support orders are not “final” orders only in the sense that they may be modified subsequently upon a motion in the cause and a showing of change of circumstances, and thus, like custody orders, a party may seek relief from a child support order pursuant to section (b) of this rule. Coleman v. Coleman, 74 N.C. App. 494, 328 S.E.2d 871, 1985 N.C. App. LEXIS 3539 (1985).

Child Support Judgment Not Voided by Temporary Resumption of Marital Relationship. —

Temporary resumption of the marital relationship does not require the court to grant a motion, pursuant to subsection (b)(4) of this rule, to have declared void a judgment ordering payment of child support. Walker v. Walker, 59 N.C. App. 485, 297 S.E.2d 125, 1982 N.C. App. LEXIS 3139 (1982).

Applicability to Industrial Commission Motion. —

Since the North Carolina Industrial Commission has no rule comparable to section (b) of this rule, and because the Rules of Civil Procedure were applicable, the Industrial Commission should have treated defendant’s motion pursuant to G.S. 97-85 and Industrial Commission Rule XXI for a new hearing on the ground that he had not received notice of hearing in which plaintiff was awarded compensation as one made pursuant to section (b) of this rule to be relieved from a judgment. Long v. Reeves, 77 N.C. App. 830, 336 S.E.2d 98, 1985 N.C. App. LEXIS 4388 (1985).

Remand to Industrial Commission Following Appeal. —

Motion under subsections (b)(2) and (b)(6) of this rule, filed in the Court of Appeals while workers’ compensation case was pending therein, whereby defendants moved for a new hearing before the Industrial Commission in the event that the Court of Appeals ruled adversely to defendants on the merits of their appeal, should have been remanded to the Commission for initial determination following decision on the merits of the appeal. Hill v. Hanes Corp., 319 N.C. 167 , 353 S.E.2d 392, 1987 N.C. LEXIS 1891 (1987).

Court’s Miscalculation of Ability to Pay Alimony Arrearages Held Error. —

Where the trial court understated defendant’s monthly expenses by approximately $500.00 per month and failed to include that amount in its calculation of the amount of defendant’s present ability to pay alimony arrearages and prospective alimony, while this miscalculation may have had no effect on the trial court’s order of specific performance, it may have had an effect on the amount defendant can reasonably afford to pay plaintiff on a monthly basis; the trial court’s miscalculation in this situation was of a substantial nature and was a prejudicial error. Edwards v. Edwards, 102 N.C. App. 706, 403 S.E.2d 530, 1991 N.C. App. LEXIS 493 (1991).

Failure to Address Deficiency in Record. —

The court would not rule on the plaintiff’s contention that the final judgment reflected an “oversight or omission regarding the proper designation of defendant” where the portion of the court’s denial of a new trial mentioning this rule was been marked out and where the plaintiff did not address this fact or seek to have the record properly made up. Collins v. St. George Physical Therapy, 141 N.C. App. 82, 539 S.E.2d 356, 2000 N.C. App. LEXIS 1286 (2000).

Elapsed Time Held Not Unreasonable. —

The period of time between November 26, 1984, and April 1, 1985, was not an unreasonable amount of time to elapse so as to preclude relief under subsections (b)(5) and (b)(6) of this rule. Poston v. Morgan, 83 N.C. App. 295, 350 S.E.2d 108, 1986 N.C. App. LEXIS 2709 (1986).

Where defendants contended that a mistake was mutual in that both parties settling a wrongful death claim agreed to purchase an annuity for $300,000.00 and that both parties were mistaken as to the actual future payments that the decedent’s child would receive from the annuity based on a present value of $300,000.00, as based on incorrect figures received from the annuity company, but where the settlement agreement made no representation as to the cost of the annuity to defendants, and the agreement did not set forth a present value for the settlement, but rather simply set forth the payments to be made by the defendants to decedent’s wife and child, the defendants’ allegation that the mistake as to the present value of the annuity was mutual was not evident in the settlement agreement. Goodwin v. Cashwell, 102 N.C. App. 275, 401 S.E.2d 840, 1991 N.C. App. LEXIS 332 (1991).

Motions to Set Aside Magistrate’s Judgment. —

G.S. 7A-228(a) provides for motions under subsection (b)(1) of this rule to set aside a magistrate’s judgment. Provident Fin. Co. v. Locklear, 89 N.C. App. 535, 366 S.E.2d 599, 1988 N.C. App. LEXIS 186 (1988).

Where denial of Rule 60(b) motion was in the nature of an interlocutory order because plaintiff’s voluntary dismissal resulted in there being no action pending, and defendants would not suffer the loss of a substantial right absent an appeal, in the court’s discretion pursuant to Rules 2 and 21, the appeal was treated as a writ of certiorari. Troy v. Tucker, 126 N.C. App. 213, 484 S.E.2d 98, 1997 N.C. App. LEXIS 334 (1997).

Jurisdiction. —

Equitable distribution action and ancillary claim for restitution held properly dismissed for lack of personal jurisdiction over defendant where evidence failed to show that defendant purposefully established numerous contacts with this state. Shamley v. Shamley, 117 N.C. App. 175, 455 S.E.2d 435, 1994 N.C. App. LEXIS 1219 (1994).

Relief from Paternity Judgment. —

Trial court erred in granting a putative father’s motion to compel DNA testing before it addressed the putative father’s motion, under G.S. 1A-1 , Rule 60(b)(1999), for relief from an earlier judgment establishing that he was the father of the child. State v. Flaskrud, 148 N.C. App. 710, 559 S.E.2d 286, 2002 N.C. App. LEXIS 58 (2002).

Order for the parties to submit to a paternity test was error because a father’s motion to set aside his acknowledgment of paternity was filed over seven years after the acknowledgement was filed, but the one-year time period for seeking relief under G.S. 1A-1-60(b) applied to challenges under G.S. 110-132(a). County of Durham DSS ex rel. Stevons v. Charles, 182 N.C. App. 505, 642 S.E.2d 482, 2007 N.C. App. LEXIS 673 (2007).

Relief from Voluntary Dismissal of Juvenile Petition. —

Motion for relief was the proper method for a guardian ad litem to challenge a voluntary dismissal, without prejudice, filed by a county department of social services, purporting to dismiss juvenile petitions. In re E.H., 227 N.C. App. 525, 742 S.E.2d 844, 2013 N.C. App. LEXIS 612 (2013).

Same Standard Used for Setting Aside Summary Judgment and Default Judgment. —

Seller’s claim that the entry of both a default judgment and a summary judgment simultaneously deprived the seller of the seller’s right to move to have the default judgment set aside for good cause was rejected, as the seller’s burden would have been the same regardless of which judgment the seller moved to set aside since: (1) the seller never made a G.S. 1A-1-55(d) motion to have the entry of default set aside; and (2) after entry of the default judgment and the summary judgment, the seller could only have sought relief from the trial court pursuant to G.S. 1A-1-60(b). Kniep v. Templeton, 185 N.C. App. 622, 649 S.E.2d 425, 2007 N.C. App. LEXIS 1943 (2007).

Standing to Bring Motion for Relief. —

Widow, as the original party in an action brought by the decedent’s son to determine title to real property, had standing to bring a motion for relief from the default judgment entered against the widow because the widow was an original party. However, the friend to whom the widow conveyed the property by quitclaim deed, after the entry of the default judgment, lacked standing to bring a motion for relief in the friend’s own right because the friend had no interest in the property as the widow had no interest in the property to convey following the entry of the default judgment. Edmunds v. Edmunds, 194 N.C. App. 425, 669 S.E.2d 874, 2008 N.C. App. LEXIS 2258 (2008), aff'd, 363 N.C. 740 , 686 S.E.2d 150, 2009 N.C. LEXIS 1281 (2009).

Intervenors had Standing to Seek Relief. —

Once paternal grandparents’ motion to intervene in a child custody action was granted, they became a “party” for all purposes, and thus had standing to seek relief under G.S. 1A-1-60(b). Williams v. Walker, 185 N.C. App. 393, 648 S.E.2d 536, 2007 N.C. App. LEXIS 1826 (2007).

Trial Court Should Have Ruled on Defendant’s Motion to Set Aside Dismissal with Prejudice. —

Because a voluntary dismissal with prejudice was a “proceeding” under G.S. 1A-1 , N.C. R. Civ. P. 60(b), the trial court should have ruled on defendant deputy’s motion to set aside his motion to dismiss with prejudice. Estate of Barber v. Guilford County Sheriff's Dep't, 161 N.C. App. 658, 589 S.E.2d 433, 2003 N.C. App. LEXIS 2256 (2003).

Judicial Admission that Order Was Final. —

By filing a G.S. 1A-1-60(b) motion as to a trial court’s order determining the parties’ settlement terms, an owner’s association judicially admitted that the order was final, and therefore its appeal from that order was untimely; also, because the owner’s association ratified the order by its actions and acceptance of payment pursuant to the order, it was not permitted to challenge its validity. Sea Ranch II Owners Ass'n v. Sea Ranch II, Inc., 180 N.C. App. 226, 636 S.E.2d 332, 2006 N.C. App. LEXIS 2247 (2006).

Relief Not Warranted. —

Because a co-trustee failed to demonstrate that a judgment against her was due to excusable neglect where her attorney was allowed to withdraw, was procured by any fraud, misconduct, or misrepresentation, and the record demonstrated that the trial court’s denial of the co-trustee’s motion was not manifestly unsupported by reason, the relief under N.C. R. Civ. P. 60(b) was properly denied. Milton M. Croom Charitable Remainder Unitrust v. Hedrick, 188 N.C. App. 262, 654 S.E.2d 716, 2008 N.C. App. LEXIS 73 (2008).

Guarantor was not entitled to relief, under G.S. 1A-1 , N.C. R. Civ. P. 60(b)(6), from a default judgment on the grounds the judgment was “irregular” for granting judgment in excess of the relief sought against the guarantor in the complaint because the complaint’s allegations supported each claim against the guarantor or were directed toward all defendants. Brown v. Cavit Scis., Inc., 230 N.C. App. 460, 749 S.E.2d 904, 2013 N.C. App. LEXIS 1201 (2013).

Guarantor was not entitled to relief, under G.S. 1A-1 , N.C. R. Civ. P. 60(b)(6), from a default judgment on the grounds the complaint did not state claims against the guarantor because the complaint set forth ample allegations supporting each of the claims for relief against the guarantor. Brown v. Cavit Scis., Inc., 230 N.C. App. 460, 749 S.E.2d 904, 2013 N.C. App. LEXIS 1201 (2013).

Guarantor was not entitled to relief, under G.S. 1A-1 , N.C. R. Civ. P. 60(b)(6), from a default judgment awarding treble damages on grounds the complaint did not state claims for relief against the guarantor because (1) treble damages were awarded pursuant to the Uniform Deceptive Trade Practices Act, G.S. 75-1 et seq., and (2) the complaint set forth ample allegations supporting the claim against the guarantor. Brown v. Cavit Scis., Inc., 230 N.C. App. 460, 749 S.E.2d 904, 2013 N.C. App. LEXIS 1201 (2013).

Guarantor was not entitled to relief, under G.S. 1A-1 , N.C. R. Civ. P. 60(b)(6), from a default judgment awarding attorneys’ fees on grounds the complaint did not state claims for relief against the guarantor because (1) attorneys’ fees were awarded pursuant to the Uniform Deceptive Trade Practices Act, G.S. 75-1 et seq., and (2) the complaint set forth ample allegations supporting the claim against the guarantor. Brown v. Cavit Scis., Inc., 230 N.C. App. 460, 749 S.E.2d 904, 2013 N.C. App. LEXIS 1201 (2013).

B.Mistake, Inadvertence, Surprise and Excusable Neglect

One Year Filing Period. —

The requirement that the motion to set aside a judgment made pursuant to subsection (b)(1) of this rule be made within one year is mandatory. Huggins v. Hallmark Enters., Inc., 84 N.C. App. 15, 351 S.E.2d 779, 1987 N.C. App. LEXIS 2468 (1987).

Final Adjudication. —

Once the one-year period for refiling an action has elapsed and the action can no longer be resurrected, the voluntary dismissal acts as a final adjudication for purposes of section (b). Robinson v. General Mills Restaurants, Inc., 110 N.C. App. 633, 430 S.E.2d 696, 1993 N.C. App. LEXIS 560 (1993).

Relief Possible Without Motion. —

[A]lthough this rule says that the court is to act “on motion,” it does not deprive the court of the power to act in the interest of justice in an unusual case where its attention has been directed to the necessity for relief by means other than a motion. Carter v. Clowers, 102 N.C. App. 247, 401 S.E.2d 662, 1991 N.C. App. LEXIS 291 (1991).

Motions to Set Aside Magistrate’s Judgment. —

G.S. 7A-228(a) provides for motions under subsection (b)(1) of this rule to set aside a magistrate’s judgment. Provident Fin. Co. v. Locklear, 89 N.C. App. 535, 366 S.E.2d 599, 1988 N.C. App. LEXIS 186 (1988).

Standard of Review. —

Trial judge’s decision with regard to whether neglect is excusable or not will not be disturbed on appeal if competent evidence supports the judge’s findings and those findings support the conclusion. JMM Plumbing & Utils., Inc. v. Basnight Constr. Co., 169 N.C. App. 199, 609 S.E.2d 487, 2005 N.C. App. LEXIS 509 (2005).

Excusable Neglect Has Long Been Recognized. —

Although the ground of excusable neglect is set forth in this rule, it has long been recognized in this jurisdiction and the Supreme Court has spoken on the subject many times. Rawleigh, Moses & Co. v. Capital City Furn., Inc., 9 N.C. App. 640, 177 S.E.2d 332, 1970 N.C. App. LEXIS 1426 (1970).

What constitutes “excusable neglect” depends on what may be reasonably expected of a party in paying proper attention to his case under all the surrounding circumstances. Dishman v. Dishman, 37 N.C. App. 543, 246 S.E.2d 819, 1978 N.C. App. LEXIS 2800 (1978).

While there is no clear dividing line as to what falls within the confines of excusable neglect as grounds for setting aside a judgment, what constitutes excusable neglect depends upon what, under all the surrounding circumstances, may be reasonably expected of a party in paying proper attention to his case. Higgins v. Michael Powell Bldrs., 132 N.C. App. 720, 515 S.E.2d 17, 1999 N.C. App. LEXIS 346 (1999).

Excusable neglect is something which must have occurred at or before entry of judgment, and which caused it to be entered. Norton v. Sawyer, 30 N.C. App. 420, 227 S.E.2d 148, 1976 N.C. App. LEXIS 2284 , cert. denied, 291 N.C. 176 , 229 S.E.2d 689, 1976 N.C. LEXIS 950 (1976); Higgins v. Michael Powell Bldrs., 132 N.C. App. 720, 515 S.E.2d 17, 1999 N.C. App. LEXIS 346 (1999).

Deliberate or willful conduct is not “excusable neglect” within the meaning of this rule. Couch v. Private Diagnostic Clinic, 133 N.C. App. 93, 515 S.E.2d 30, 1999 N.C. App. LEXIS 370 , cert. denied, 350 N.C. 827 , 537 S.E.2d 816, 1999 N.C. LEXIS 820 (1999), aff'd, 351 N.C. 92 , 520 S.E.2d 785, 1999 N.C. LEXIS 1157 (1999).

Inadvertent conduct that does not demonstrate diligence is not “excusable neglect” under this rule. Couch v. Private Diagnostic Clinic, 133 N.C. App. 93, 515 S.E.2d 30, 1999 N.C. App. LEXIS 370 , cert. denied, 350 N.C. 827 , 537 S.E.2d 816, 1999 N.C. LEXIS 820 (1999), aff'd, 351 N.C. 92 , 520 S.E.2d 785, 1999 N.C. LEXIS 1157 (1999).

Mistakes of legal advice or mistakes of law are not “excusable neglect” under this rule. Couch v. Private Diagnostic Clinic, 133 N.C. App. 93, 515 S.E.2d 30, 1999 N.C. App. LEXIS 370 , cert. denied, 350 N.C. 827 , 537 S.E.2d 816, 1999 N.C. LEXIS 820 (1999), aff'd, 351 N.C. 92 , 520 S.E.2d 785, 1999 N.C. LEXIS 1157 (1999).

Findings of Fact. —

Under section (b), the trial court is not required to make findings of fact unless requested to do so by a party. Nations v. Nations, 111 N.C. App. 211, 431 S.E.2d 852, 1993 N.C. App. LEXIS 713 (1993).

Trial court is not required to make written findings of fact when ruling on a motion for relief from judgment, unless requested to do so by a party; when no such findings are made, the issue on appeal is whether, on the evidence before the appellate court, the trial court could have made findings of fact sufficient to support its legal conclusion. JMM Plumbing & Utils., Inc. v. Basnight Constr. Co., 169 N.C. App. 199, 609 S.E.2d 487, 2005 N.C. App. LEXIS 509 (2005).

Although negligence and carelessness can support relief from judgment, it is only when such neglect or carelessness is excusable. Couch v. Private Diagnostic Clinic, 133 N.C. App. 93, 515 S.E.2d 30, 1999 N.C. App. LEXIS 370 , cert. denied, 350 N.C. 827 , 537 S.E.2d 816, 1999 N.C. LEXIS 820 (1999), aff'd, 351 N.C. 92 , 520 S.E.2d 785, 1999 N.C. LEXIS 1157 (1999).

Trial court properly denied defendants’ N.C. R. Civ. P. 60(b) motion to set aside default judgment because defendants made no request for written findings of fact regarding the trial court’s order denying their post-trial motions but rather requested the trial court to amend its findings under G.S. 1A-1 , N.C. R. Civ. P. 52(b), and defendants could not make a Rule 52(b) request for amended findings of fact regarding a previous order applicable to a Rule 60(b) motion and subsequent order where there was no additional request for findings of fact; the trial court did not err in failing to make findings of fact and conclusions of law as to whether there was a showing of excusable neglect and meritorious defense because the issue of whether there was a showing of a meritorious defense was immaterial when there was sufficient evidence to support the trial court’s conclusion that defendants failed to establish excusable neglect. Monaghan, M.D. v. Schilling, MD, 197 N.C. App. 578, 677 S.E.2d 562, 2009 N.C. App. LEXIS 718 (2009).

To Constitute Grounds for Relief, Attorney Error Must be Negligent in Manner Evincing Lack of Due Care. —

Although attorney error may constitute grounds for relief pursuant to N.C. R. Civ. P. 60(b)(1), ignorance, carelessness, or similarly negligent mistakes evincing a lack of due care do not; however, what is required is some showing that counsel not only erred, but did so in a negligent manner evincing a lack of due care. QUB Studios, LLC v. Marsh, 262 N.C. App. 251, 822 S.E.2d 113, 2018 N.C. App. LEXIS 1082 (2018).

Finding of Excusable Neglect Required to Set Aside Judgment. —

Unless the judge finds that there was excusable neglect, and this finding is correct as a matter of law, he is not authorized to set aside the judgment. Doxol Gas of Angier, Inc. v. Barefoot, 10 N.C. App. 703, 179 S.E.2d 890, 1971 N.C. App. LEXIS 1702 (1971).

Along with Finding of a Meritorious Defense. —

Even in situations when the facts found justify a conclusion that the neglect was excusable, the court cannot set aside the judgment unless the defendant has a meritorious defense. U.S.I.F. Wynnewood Corp. v. Soderquist, 27 N.C. App. 611, 219 S.E.2d 787, 1975 N.C. App. LEXIS 1924 (1975).

In order to vacate a judgment there must be both excusable neglect and a meritorious defense. Norton v. Sawyer, 30 N.C. App. 420, 227 S.E.2d 148, 1976 N.C. App. LEXIS 2284 , cert. denied, 291 N.C. 176 , 229 S.E.2d 689, 1976 N.C. LEXIS 950 (1976); Menache v. Atlantic Coast Mgt. Corp., 43 N.C. App. 733, 260 S.E.2d 100, 1979 N.C. App. LEXIS 3171 (1979), cert. denied, 299 N.C. 331 , 265 S.E.2d 396, 1980 N.C. LEXIS 1015 (1980); Chaparral Supply v. Bell, 76 N.C. App. 119, 331 S.E.2d 735, 1985 N.C. App. LEXIS 3815 (1985); Thomas M. McInnis & Assocs. v. Hall, 76 N.C. App. 486, 333 S.E.2d 544, 1985 N.C. App. LEXIS 3890 (1985), aff'd in part and rev'd in part, 318 N.C. 421 , 349 S.E.2d 552, 1986 N.C. LEXIS 2676 (1986).

In order to have a judgment set aside, the movant must show excusable neglect and a meritorious defense. Howard v. Williams, 40 N.C. App. 575, 253 S.E.2d 571, 1979 N.C. App. LEXIS 2294 (1979); Higgins v. Michael Powell Bldrs., 132 N.C. App. 720, 515 S.E.2d 17, 1999 N.C. App. LEXIS 346 (1999).

It is the duty of the judge presiding at the hearing on the motion to make findings of fact and upon those facts to determine as a matter of law whether there is a showing of excusable neglect and of a meritorious defense. U.S.I.F. Wynnewood Corp. v. Soderquist, 27 N.C. App. 611, 219 S.E.2d 787, 1975 N.C. App. LEXIS 1924 (1975).

Even if there is evidence from which a finding of excusable neglect can be made, case law requires a finding of a meritorious defense before the judgment may be set aside. Kirby v. Asheville Contracting Co., 11 N.C. App. 128, 180 S.E.2d 407, 1971 N.C. App. LEXIS 1464 , cert. denied, 278 N.C. 701 , 181 S.E.2d 602, 1971 N.C. LEXIS 1030 (1971); Davis v. Mitchell, 46 N.C. App. 272, 265 S.E.2d 248, 1980 N.C. App. LEXIS 2805 (1980).

In proceeding under subsection (b)(1) of this rule the movant must show that he has a meritorious defense. Sides v. Reid, 35 N.C. App. 235, 241 S.E.2d 110, 1978 N.C. App. LEXIS 2931 (1978).

In order for a party to be entitled to relief under section (b) of this rule, he must show excusable neglect and a meritorious defense. East Carolina Oil Transp., Inc. v. Petroleum Fuel & Term. Co., 82 N.C. App. 746, 348 S.E.2d 165, 1986 N.C. App. LEXIS 2630 (1986); Thomas M. McInnis & Assocs. v. Hall, 318 N.C. 421 , 349 S.E.2d 552, 1986 N.C. LEXIS 2676 (1986).

A party moving to set aside a judgment under subdivision (b)(1) must show not only mistake, inadvertence, surprise or excusable neglect, but also the existence of a meritorious defense. Baker v. Baker, 115 N.C. App. 337, 444 S.E.2d 478, 1994 N.C. App. LEXIS 616 (1994).

As It Would Be Idle to Vacate a Judgment Where There Is No Real Defense. —

Even when the facts found justify a conclusion that the neglect was excusable, the court cannot set aside the judgment unless there is a meritorious defense, for it would be idle to vacate a judgment where there is no real or substantial defense on the merits. Doxol Gas of Angier, Inc. v. Barefoot, 10 N.C. App. 703, 179 S.E.2d 890, 1971 N.C. App. LEXIS 1702 (1971).

Error to Set Aside Judgment Absent Meritorious Defense. —

Where defendants contended that judgment was properly set aside under subsection (b)(1) of this rule, for “excusable neglect,” but defendants failed to show a meritorious defense, the setting aside of the default judgment was error. First Union Nat'l Bank v. Richards, 90 N.C. App. 650, 369 S.E.2d 620, 1988 N.C. App. LEXIS 588 (1988).

Court Determines Only Whether Meritorious Defense Pleaded. —

As for the defense, the trial court does not hear the facts but determines only whether the movant has pleaded a meritorious defense. Chaparral Supply v. Bell, 76 N.C. App. 119, 331 S.E.2d 735, 1985 N.C. App. LEXIS 3815 (1985).

Meritorious Defense Need Not Be Proved. —

At the hearing on the motion to set aside a judgment it is not necessary that a meritorious defense be proved, but only that a prima facie defense exists. U.S.I.F. Wynnewood Corp. v. Soderquist, 27 N.C. App. 611, 219 S.E.2d 787, 1975 N.C. App. LEXIS 1924 (1975).

To merely deny indebtedness and assert the presence of a meritorious defense is not sufficient. This is true even when the facts found justify a conclusion that the movant’s neglect was excusable. The trial court cannot set aside the judgment unless there is a meritorious defense, a real or substantial defense on the merits. Chaparral Supply v. Bell, 76 N.C. App. 119, 331 S.E.2d 735, 1985 N.C. App. LEXIS 3815 (1985).

A mere denial of indebtedness is not sufficient to constitute a meritorious defense. PYA/Monarch, Inc. v. Ray Lackey Enters., Inc., 96 N.C. App. 225, 385 S.E.2d 170, 1989 N.C. App. LEXIS 959 (1989).

A party served with a summons must give the matter the attention that a person of ordinary prudence would give to his important business. Failure to do so is not excusable neglect under subsection (b)(1) of this rule. East Carolina Oil Transp., Inc. v. Petroleum Fuel & Term. Co., 82 N.C. App. 746, 348 S.E.2d 165, 1986 N.C. App. LEXIS 2630 (1986).

When a party is duly served with a summons, yet fails to give her defense the attention which a person of ordinary prudence usually gives her important business, there is no excusable neglect. In re Hall, 89 N.C. App. 685, 366 S.E.2d 882, 1988 N.C. App. LEXIS 360 (1988).

Absence of a sufficient showing of excusable neglect renders the question of meritorious defense immaterial. Texas W. Fin. Corp. v. Mann, 36 N.C. App. 346, 243 S.E.2d 904, 1978 N.C. App. LEXIS 2479 (1978); Howard v. Williams, 40 N.C. App. 575, 253 S.E.2d 571, 1979 N.C. App. LEXIS 2294 (1979).

A court need not make findings as to meritorious defense after a hearing on a motion to set aside a judgment for excusable neglect when it concludes that no excusable neglect was shown. Whether or not there was a meritorious defense is immaterial in such case. Dishman v. Dishman, 37 N.C. App. 543, 246 S.E.2d 819, 1978 N.C. App. LEXIS 2800 (1978).

And Relief Will Not Be Granted Where Neglect Is Inexcusable. —

The exceptional relief of this rule to set aside a judgment for mistake, inadvertence, surprise, or excusable neglect will not be granted where there is inexcusable neglect on the part of the litigant. Holcombe v. Bowman, 8 N.C. App. 673, 175 S.E.2d 362, 1970 N.C. App. LEXIS 1646 (1970).

The exceptional relief provided by section (b) of this rule will not be granted where there is inexcusable neglect on the part of the litigant. City of Durham v. Keen, 40 N.C. App. 652, 253 S.E.2d 585, 1979 N.C. App. LEXIS 2348 , cert. denied, 297 N.C. 608 , 257 S.E.2d 217, 1979 N.C. LEXIS 1490 (1979).

Excusability of the neglect on which relief is granted is that of the litigant, not that of the attorney. Kirby v. Asheville Contracting Co., 11 N.C. App. 128, 180 S.E.2d 407, 1971 N.C. App. LEXIS 1464 , cert. denied, 278 N.C. 701 , 181 S.E.2d 602, 1971 N.C. LEXIS 1030 (1971); Norton v. Sawyer, 30 N.C. App. 420, 227 S.E.2d 148, 1976 N.C. App. LEXIS 2284 , cert. denied, 291 N.C. 176 , 229 S.E.2d 689, 1976 N.C. LEXIS 950 (1976).

In considering granting relief from a court order finding the waiver of exemptions by failure to act, the court must focus on the litigant’s excusable neglect, not the attorney’s. The negligence of the attorney, in attending to his clients’ case, although inexcusable, may still be cause for relief. In re Laughinghouse, 44 B.R. 789, 1984 Bankr. LEXIS 4529 (Bankr. E.D.N.C. 1984).

Negligence of Counsel. —

Seller of office buildings was not entitled to set aside a default judgment because the seller failed to show excusable neglect as its member/manager provided the buyer’s amended complaint to the seller’s then-counsel and the record was devoid of any evidence of follow-up by the seller once the matter was turned over to the attorney. Competent evidence supported the conclusion that the seller’s failure to appear was due to its own inexcusable neglect of its business affairs rather than to extraordinary circumstances. Judd v. Tilghman Med. Assocs., LLC, 272 N.C. App. 520, 847 S.E.2d 45, 2020 N.C. App. LEXIS 538 (2020).

Attorney neglect can constitute grounds for relief from judgment on grounds of excusable neglect if the client has been diligent in communicating with his attorney and is not otherwise at fault. Couch v. Private Diagnostic Clinic, 133 N.C. App. 93, 515 S.E.2d 30, 1999 N.C. App. LEXIS 370 , cert. denied, 350 N.C. 827 , 537 S.E.2d 816, 1999 N.C. LEXIS 820 (1999), aff'd, 351 N.C. 92 , 520 S.E.2d 785, 1999 N.C. LEXIS 1157 (1999).

Neglect of the attorney will not be imputed to the litigant unless he is guilty of inexcusable neglect. Kirby v. Asheville Contracting Co., 11 N.C. App. 128, 180 S.E.2d 407, 1971 N.C. App. LEXIS 1464 , cert. denied, 278 N.C. 701 , 181 S.E.2d 602, 1971 N.C. LEXIS 1030 (1971); Dishman v. Dishman, 37 N.C. App. 543, 246 S.E.2d 819, 1978 N.C. App. LEXIS 2800 (1978).

Ordinarily a client is not charged with the inexcusable neglect of his attorney, provided the client himself has exercised proper care. Norton v. Sawyer, 30 N.C. App. 420, 227 S.E.2d 148, 1976 N.C. App. LEXIS 2284 , cert. denied, 291 N.C. 176 , 229 S.E.2d 689, 1976 N.C. LEXIS 950 (1976).

Where a defendant engages an attorney and thereafter diligently confers with the attorney and generally tries to keep informed as to the proceedings, the negligence of the attorney will not be imputed to the defendant. Mayhew Elec. Co. v. Carras, 29 N.C. App. 105, 223 S.E.2d 536, 1976 N.C. App. LEXIS 2385 (1976).

When the client employs counsel and communicates the merits of his case to such counsel, and the counsel is negligent, it is excusable on the part of the client, who may reasonably rely upon the counsel’s doing what may be necessary on his behalf. Norton v. Sawyer, 30 N.C. App. 420, 227 S.E.2d 148, 1976 N.C. App. LEXIS 2284 , cert. denied, 291 N.C. 176 , 229 S.E.2d 689, 1976 N.C. LEXIS 950 (1976).

A party may be relieved from a judgment rendered against him as a result of the negligence of his attorney if the litigant himself is not at fault. Wood v. Wood, 297 N.C. 1 , 252 S.E.2d 799, 1979 N.C. LEXIS 1126 (1979).

In cases allowing relief from judgments pursuant to subsection (b)(1) of this rule, the courts have pointed out that where the client shows some diligence, and there is no evidence of inexcusable neglect, relief will be granted. This is because the law does not demand that a litigant in effect be his own attorney, when he employs one to represent him. A nonlawyer is not supposed to know the technical steps of a lawsuit and cannot be expected to know what allegations must be pled to prove those facts which the nonlawyer client relates to his attorney. Furthermore, the court must keep in mind that exemption laws must be liberally construed in the debtor’s favor. In re Laughinghouse, 44 B.R. 789, 1984 Bankr. LEXIS 4529 (Bankr. E.D.N.C. 1984).

When Attorney’s Neglect Imputed to Defendant. —

Where a defendant engages an attorney and thereafter diligently confers with him and generally tries to keep informed as to the proceedings, the negligence of the attorney will not be imputed to defendant. If, however, the defendant turns a legal matter over to an attorney upon the latter’s assurance that he will handle the matter, and then the defendant does nothing further about it, such neglect will be inexcusable. Kirby v. Asheville Contracting Co., 11 N.C. App. 128, 180 S.E.2d 407, 1971 N.C. App. LEXIS 1464 , cert. denied, 278 N.C. 701 , 181 S.E.2d 602, 1971 N.C. LEXIS 1030 (1971); Howard v. Williams, 40 N.C. App. 575, 253 S.E.2d 571, 1979 N.C. App. LEXIS 2294 (1979).

Excusable Neglect Not Shown Despite Attorney’s Absence. —

Although their attorney’s failure to appear for defendants at a summary judgment hearing would not be imputed to defendants, where the trial court properly determined that attorney’s absence did not cause summary judgment to be entered against defendants, excusable neglect for purposes of setting aside the judgment did not exist. PYA/Monarch, Inc. v. Ray Lackey Enters., Inc., 96 N.C. App. 225, 385 S.E.2d 170, 1989 N.C. App. LEXIS 959 (1989).

Client May Not Abandon His Case on Employment of Counsel. —

The mere employment of counsel is not enough. The client may not abandon his case on employment of counsel and when he has a case in court he must attend to it. Norton v. Sawyer, 30 N.C. App. 420, 227 S.E.2d 148, 1976 N.C. App. LEXIS 2284 , cert. denied, 291 N.C. 176 , 229 S.E.2d 689, 1976 N.C. LEXIS 950 (1976).

Failure to Raise Argument. —

Employee failed to preserve for appeal his argument that the North Carolina Industrial Commission committed reversible error by denying his motion for reconsideration on the grounds that he showed excusable neglect to support his motion because the employee failed to raise his excusable neglect argument before the Industrial Commission; a review of the employee’s motion to reconsider revealed no mention of excusable neglect, but rather, the employee argued that the Industrial Commission failed to consider documents which had been filed. Soder v. Corvel Corp., 202 N.C. App. 724, 690 S.E.2d 30, 2010 N.C. App. LEXIS 369 , cert. denied, 364 N.C. 327 , 700 S.E.2d 924, 2010 N.C. LEXIS 678 (2010).

Because the review of the court of appeals was limited to defendant’s arguments contained in his G.S. 1A-1 , N.C. R. Civ. P. 60(b) motion, the court of appeals did not address for the first time on appeal defendant’s argument that the trial court erred by hearing arguments on motions and entering orders after the case had been dismissed for arbitration but later reopened; any argument by defendant pertaining to the order to compel arbitration and subsequent order reopening the case would have been properly made before the trial court, but defendant did not argue before the trial court in his motion that there were legal deficiencies in the order entered by the trial court after the order compelling arbitration. Federated Fin. Corp. of Am. v. Jenkins, 215 N.C. App. 330, 719 S.E.2d 48, 2011 N.C. App. LEXIS 1881 (2011).

Failure to Comply with Ordinary Prudent Man Standard Not Excusable. —

Parties who have been duly served with summons are required to give their defense that attention which a man of ordinary prudence usually gives his important business, and failure to do so is not excusable. Doxol Gas of Angier, Inc. v. Barefoot, 10 N.C. App. 703, 179 S.E.2d 890, 1971 N.C. App. LEXIS 1702 (1971); Kirby v. Asheville Contracting Co., 11 N.C. App. 128, 180 S.E.2d 407, 1971 N.C. App. LEXIS 1464 , cert. denied, 278 N.C. 701 , 181 S.E.2d 602, 1971 N.C. LEXIS 1030 (1971); Engines & Equip., Inc. v. Lipscomb, 15 N.C. App. 120, 189 S.E.2d 498, 1972 N.C. App. LEXIS 1837 (1972); Gregg v. Steele, 24 N.C. App. 310, 210 S.E.2d 434, 1974 N.C. App. LEXIS 1988 (1974); Boyd v. Marsh, 47 N.C. App. 491, 267 S.E.2d 394, 1980 N.C. App. LEXIS 3138 (1980).

The standard of care required of the litigant in his participation in a lawsuit is that which a man of ordinary prudence usually bestows on his important business. Norton v. Sawyer, 30 N.C. App. 420, 227 S.E.2d 148, 1976 N.C. App. LEXIS 2284 , cert. denied, 291 N.C. 176 , 229 S.E.2d 689, 1976 N.C. LEXIS 950 (1976).

The test of the negligence of the client or party is whether he has acted as a man of ordinary prudence while engaged in transacting important business. Norton v. Sawyer, 30 N.C. App. 420, 227 S.E.2d 148, 1976 N.C. App. LEXIS 2284 , cert. denied, 291 N.C. 176 , 229 S.E.2d 689, 1976 N.C. LEXIS 950 (1976).

No Excusable Neglect Where LLC Failed to Maintain Registered Office to Receive Notice. —

Denial of an LLC’s motion to set aside a default judgment based on alleged improper substituted service on the Secretary of State was proper because the LLC’s failure to receive actual notice of the lawsuit was due to the LLC’s own failure to properly maintain a registered office; only after several attempts to serve the LLC by serving the registered agent and by mail failed, was process served on the Secretary of State. Smith v. Jones, 183 N.C. App. 643, 645 S.E.2d 198, 2007 N.C. App. LEXIS 1157 (2007).

As to burden of proof as to negligence of party, see Norton v. Sawyer, 30 N.C. App. 420, 227 S.E.2d 148, 1976 N.C. App. LEXIS 2284 , cert. denied, 291 N.C. 176 , 229 S.E.2d 689, 1976 N.C. LEXIS 950 (1976).

Findings of Fact on Excusable Neglect. —

Upon hearing a motion to set aside a judgment on the ground of excusable neglect, the trial court should make findings of fact from which it can determine, as a matter of law, whether excusable neglect has been shown, although absent a request therefor it is not required to do so. Texas W. Fin. Corp. v. Mann, 36 N.C. App. 346, 243 S.E.2d 904, 1978 N.C. App. LEXIS 2479 (1978).

What constitutes “excusable neglect” is a question of law, which is fully reviewable on appeal. However, the trial court’s decision is final if there is competent evidence to support its findings and those findings support its conclusion. Whether the movant has shown excusable neglect must be determined by his actions at or before entry of judgment. In re Hall, 89 N.C. App. 685, 366 S.E.2d 882, 1988 N.C. App. LEXIS 360 (1988).

Appellate court declined to reverse a trial court’s decision to deny a motion for relief from judgment for excusable neglect based on a failure to make findings of fact because neither party made such a request. Brown v. Foremost Affiliated Ins. Servs., 158 N.C. App. 727, 582 S.E.2d 335, 2003 N.C. App. LEXIS 1222 (2003).

Better Practice Is to Make Findings as to Meritorious Defense Even Where Excusable Neglect Not Found. —

Although it is not necessary that a court make findings as to meritorious defense when it finds adequate notice and concludes that there was no excusable neglect, it would be the better practice to make such findings, since the court may have its conclusion of no excusable neglect reversed, and would then have to make such findings on remand. Dishman v. Dishman, 37 N.C. App. 543, 246 S.E.2d 819, 1978 N.C. App. LEXIS 2800 (1978).

Determination of whether excusable neglect, inadvertence, or surprise has been shown is a question of law, not a question of fact. Mason v. Mason, 22 N.C. App. 494, 206 S.E.2d 764, 1974 N.C. App. LEXIS 2368 (1974).

Whether excusable neglect has been shown is a question of law, not a question of fact. Engines & Equip., Inc. v. Lipscomb, 15 N.C. App. 120, 189 S.E.2d 498, 1972 N.C. App. LEXIS 1837 (1972); Texas W. Fin. Corp. v. Mann, 36 N.C. App. 346, 243 S.E.2d 904, 1978 N.C. App. LEXIS 2479 (1978); Thomas M. McInnis & Assocs. v. Hall, 318 N.C. 421 , 349 S.E.2d 552, 1986 N.C. LEXIS 2676 (1986).

Upon the facts found the court determines, as a matter of law, whether or not they constitute excusable neglect. Engines & Equip., Inc. v. Lipscomb, 15 N.C. App. 120, 189 S.E.2d 498, 1972 N.C. App. LEXIS 1837 (1972).

Whether neglect is excusable or inexcusable is a question of law. JMM Plumbing & Utils., Inc. v. Basnight Constr. Co., 169 N.C. App. 199, 609 S.E.2d 487, 2005 N.C. App. LEXIS 509 (2005).

And Reviewable on Appeal. —

Whether the facts found constitute excusable neglect or not is a matter of law and reviewable upon appeal. Doxol Gas of Angier, Inc. v. Barefoot, 10 N.C. App. 703, 179 S.E.2d 890, 1971 N.C. App. LEXIS 1702 (1971); Texas W. Fin. Corp. v. Mann, 36 N.C. App. 346, 243 S.E.2d 904, 1978 N.C. App. LEXIS 2479 (1978); Dishman v. Dishman, 37 N.C. App. 543, 246 S.E.2d 819, 1978 N.C. App. LEXIS 2800 (1978); Higgins v. Michael Powell Bldrs., 132 N.C. App. 720, 515 S.E.2d 17, 1999 N.C. App. LEXIS 346 (1999); Couch v. Private Diagnostic Clinic, 133 N.C. App. 93, 515 S.E.2d 30, 1999 N.C. App. LEXIS 370 , cert. denied, 350 N.C. 827 , 537 S.E.2d 816, 1999 N.C. LEXIS 820 (1999), aff'd, 351 N.C. 92 , 520 S.E.2d 785, 1999 N.C. LEXIS 1157 (1999).

Appellate court had jurisdiction to consider a trial court’s denial of a guarantor’s G.S. 1A-1 , N.C. R. Civ. P. 60(b)(6) motion for relief from a default judgment because the denial affected a substantial right. Brown v. Cavit Scis., Inc., 230 N.C. App. 460, 749 S.E.2d 904, 2013 N.C. App. LEXIS 1201 (2013).

Finality of Findings on Excusable Neglect, etc. —

Conclusion as to whether excusable neglect, inadvertence, or surprise has been shown is final unless exception is made that there was no evidence to support the findings of fact or that there was a failure to find sufficient material facts to support the conclusion. Mason v. Mason, 22 N.C. App. 494, 206 S.E.2d 764, 1974 N.C. App. LEXIS 2368 (1974).

Findings of fact by the judge on a motion to set aside a judgment on the grounds of excusable neglect are final unless excepted to or contentions are made that the evidence does not support the findings of fact. Menache v. Atlantic Coast Mgt. Corp., 43 N.C. App. 733, 260 S.E.2d 100, 1979 N.C. App. LEXIS 3171 (1979), cert. denied, 299 N.C. 331 , 265 S.E.2d 396, 1980 N.C. LEXIS 1015 (1980); Chaparral Supply v. Bell, 76 N.C. App. 119, 331 S.E.2d 735, 1985 N.C. App. LEXIS 3815 (1985).

The court’s findings as to excusable neglect are generally conclusive on appeal if supported by any competent evidence, but findings made under a misapprehension of the law are not binding, and if the findings are insufficient to support the conclusion the order will be reversed. Dishman v. Dishman, 37 N.C. App. 543, 246 S.E.2d 819, 1978 N.C. App. LEXIS 2800 (1978).

Whether the facts found constitute excusable neglect or not is a matter of law and reviewable on appeal when the trial court’s findings are made under a misapprehension of the law, and when the findings are insufficient to support the trial court’s conclusion of law. Oxford Plastics v. Goodson, 74 N.C. App. 256, 328 S.E.2d 7, 1985 N.C. App. LEXIS 3434 (1985).

What constitutes “excusable neglect” is a question of law, which is fully reviewable on appeal. However, the trial court’s decision is final if there is competent evidence to support its findings and those findings support its conclusion. Whether the movant has shown excusable neglect must be determined by his actions at or before entry of judgment. In re Hall, 89 N.C. App. 685, 366 S.E.2d 882, 1988 N.C. App. LEXIS 360 (1988).

The trial court’s ruling on a motion for relief from judgment will not be disturbed on appeal unless the trial court has abused its discretion. Couch v. Private Diagnostic Clinic, 133 N.C. App. 93, 515 S.E.2d 30, 1999 N.C. App. LEXIS 370 , cert. denied, 350 N.C. 827 , 537 S.E.2d 816, 1999 N.C. LEXIS 820 (1999), aff'd, 351 N.C. 92 , 520 S.E.2d 785, 1999 N.C. LEXIS 1157 (1999).

Application of Section (b)(1) Standard to Entry of Default Improper. —

A judgment by a superior court judge which determined the issue of liability in a personal injury action and ordered a trial on the issue of damages was only an entry of default rather than a default judgment, since it was not a final judgment. Therefore, the trial court erred in applying the “mistake, inadvertence, surprise or excusable neglect” standard of subsection (b)(1) of this rule rather than the “good cause shown” standard of G.S. 1A-1 , Rule 55(d) in ruling on defendant’s motion to set aside its judgment. Pendley v. Ayers, 45 N.C. App. 692, 263 S.E.2d 833, 1980 N.C. App. LEXIS 2703 (1980).

Attacking Consent Judgment on Grounds of Mutual Mistake. —

When parties seek to attack a consent judgment on the basis of mutual mistake by way of a motion in the cause, subsection (b)(6) of this rule controls. In re Baity, 65 N.C. App. 364, 309 S.E.2d 515, 1983 N.C. App. LEXIS 3474 (1983), cert. denied, 311 N.C. 401 , 319 S.E.2d 266, 1984 N.C. LEXIS 1961 (1984).

Well-reasoned Decision Not Product of Clerical Mistake. —

Trial court did not abuse its discretion in denying husband’s motion for relief as its award of marital property to the wife of the lower cash surrender value of the husband’s life insurance policy rather than the award of that same property at the higher fair market value involved a well-reasoned decision that was not the product of a clerical mistake. Surles v. Surles, 154 N.C. App. 170, 571 S.E.2d 676, 2002 N.C. App. LEXIS 1400 (2002).

Remand for Hearing and Findings. —

Where although a hearing was conducted, at which plaintiff ’s counsel was not present, the trial court made no findings of fact resolving the critical issues of whether plaintiff was entitled to relief from judgment on the grounds of “mistake, inadvertence, surprise, or excusable neglect” and whether plaintiff had a meritorious defense to defendants’ counterclaim, the order denying plaintiff ’s motion would be vacated and the case would be remanded to the district court for a new hearing and ruling on all issues raised by the motion under section (b) of this rule. York v. Taylor, 79 N.C. App. 653, 339 S.E.2d 830, 1986 N.C. App. LEXIS 2109 (1986).

Wife’s failure to respond to complaint was excusable neglect, where she turned the papers over to her husband upon the assurance from him that the matter had been resolved and that there was no necessity to respond to the complaint. Thomas M. McInnis & Assocs. v. Hall, 76 N.C. App. 486, 333 S.E.2d 544, 1985 N.C. App. LEXIS 3890 (1985), aff'd in part and rev'd in part, 318 N.C. 421 , 349 S.E.2d 552, 1986 N.C. LEXIS 2676 (1986).

Workers’ Compensation Cases. —

A motion made under G.S. 97-47 is not the same as a motion under this rule, and a motion by defendant before the Industrial Commission pursuant to G.S. 97-47 would not afford the same relief as a motion filed pursuant to subsections (b)(2) and (b)(6) of this rule. Hill v. Hanes Corp., 319 N.C. 167 , 353 S.E.2d 392, 1987 N.C. LEXIS 1891 (1987).

North Carolina Industrial Commission erred in granting an employer’s motion to dismiss an employee’s appeal of the deputy commissioner’s award denying his claim for additional benefits because the failure of the employee’s attorney to file the appeal within the 15 day period required by G.S. 97-85 was excusable neglect due to the actions of the attorney’s agent; based upon the lack of any Commission rules regarding the use of email to announce an award, which could have put the attorney on notice that an opinion and award could arrive by email, it was excusable neglect for the agent to conclude that the attorney had been sent a copy of the award via email and for her not to realize that the employee’s right to appeal would depend upon her delivery of the email to the attorney. Egen v. Excalibur Resort Prof'l, 191 N.C. App. 724, 663 S.E.2d 914, 2008 N.C. App. LEXIS 1469 (2008).

Waiver of Errors. —

Errors of law alleged to have been committed by the trial court in entering the equitable distribution judgment were issues which could have been raised in the first appeal to the Court of Appeals; therefore, the trial court did not abuse its discretion in denying section (b) motion, as the record could support no other conclusion. Nations v. Nations, 111 N.C. App. 211, 431 S.E.2d 852, 1993 N.C. App. LEXIS 713 (1993).

Attorney Ignorance or Carelessness Not a Ground for Relief. —

Although attorney error may qualify as a reason for granting relief from judgment under certain conditions, neither ignorance nor carelessness on the part of an attorney will provide grounds for such relief. Briley v. Farabow, 348 N.C. 537 , 501 S.E.2d 649, 1998 N.C. LEXIS 333 (1998).

Attorney’s Negligent Conduct Not Excusable Neglect. —

An attorney’s negligent conduct is not “excusable neglect” that would warrant relief from judgment, and in determining such, the court must look at the behavior of the attorney. Briley v. Farabow, 348 N.C. 537 , 501 S.E.2d 649, 1998 N.C. LEXIS 333 (1998).

Summary judgment was properly granted in favor of an insurer in a breach of contract action because two insureds admitted there was no breach of an insurance contract by failing to make a timely response to requests for admissions; moreover, the fact that the insureds’ attorney failed to provide the discovery documents to the insureds did not provide a basis for relief from the judgment. Brown v. Foremost Affiliated Ins. Servs., 158 N.C. App. 727, 582 S.E.2d 335, 2003 N.C. App. LEXIS 1222 (2003).

No Clerical Mistake. —

Since a trial court’s amendment of an earlier order gave legal custody to the Department of Social Services and physical custody to the relatives, where the earlier order gave legal custody to the relatives prior to filing of the petition to terminate the mother’s parental rights, any error could not be said to be clerical. In re D.D.J., 177 N.C. App. 441, 628 S.E.2d 808, 2006 N.C. App. LEXIS 933 (2006).

Grounds for Attacking Foreign Judgment. —

North Carolina court erred by denying plaintiff’s motion to enforce an Alabama judgment under G.S. 1C-1705(a) on the grounds of intrinsic fraud, misrepresentation and misconduct, because these grounds were not sufficient under the Full Faith and Credit Clause of the United States Constitution to deny enforcement of a foreign judgment; in North Carolina, the remedies available under G.S. 1A-1 , N.C. R. Civ. P. 60(b) are limited by the Full Faith and Credit Clause of the United States Constitution when a foreign judgment is at issue. Postjudgment relief from foreign judgments under Rule 60(b) is limited to the following grounds: (1) the judgment is based upon extrinsic fraud; (2) the judgment is void; or (3) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application. DOCRX, Inc. v. EMI Servs. of NC, LLC, 225 N.C. App. 7, 738 S.E.2d 199, 2013 N.C. App. LEXIS 52 (2013), aff'd on other grounds, 367 N.C. 371 , 758 S.E.2d 390, 2014 N.C. LEXIS 407 (2014).

Plaintiff ’s failure to appear at a custody hearing was understandable and excusable neglect where, although plaintiff was served with process and notified of the hearing date, she relied on her attorney’s advice to disregard the notice. It was the duty of the attorney to notify the court properly that he represented plaintiff and to determine whether the hearing would in fact be held on the date specified in the notice to plaintiff, since the case did not appear on the printed trial calendar but was handwritten onto the add-on calendar, and his failure to do so would not be imputed to plaintiff. Dishman v. Dishman, 37 N.C. App. 543, 246 S.E.2d 819, 1978 N.C. App. LEXIS 2800 (1978).

Where trial court expressly found that defendant was diligent in communicating with his attorneys and providing them with information necessary to prepare an answer, and that the neglect of the attorneys in failing to file an answer within apt time was both excusable and was not to be imputed to defendant, these findings, coupled with the court’s finding that defendant had a meritorious defense, fully supported the order setting aside a judgment of default for excusable neglect. Mayhew Elec. Co. v. Carras, 29 N.C. App. 105, 223 S.E.2d 536, 1976 N.C. App. LEXIS 2385 (1976).

Failure to Maintain Agent for Service of Process. —

Where defendant corporation failed for more than eight years to maintain a registered agent in North Carolina to receive service of process, and failed, for over eight years, to notify the Secretary of State that its address had changed, there existed competent evidence in the record of inexcusable neglect that led to the entry a default judgment which could not be set aside. Patridge v. Associated Cleaning Consultants & Servs., Inc., 108 N.C. App. 625, 424 S.E.2d 664, 1993 N.C. App. LEXIS 108 (1993).

Council’s failure to move for an extension of time in which to produce and deliver transcript supported a finding of excusable neglect. Anuforo v. Dennie, 119 N.C. App. 359, 458 S.E.2d 523, 1995 N.C. App. LEXIS 478 (1995).

Wife’s Reliance on Husband’s Assurances. —

In an action for nonpayment of an open account, excusable neglect was shown where defendant wife relied upon her husband’s assurances that he would take care of the matter, and a meritorious defense was shown by the fact that the account ledger was in the name of her husband only, her name did not appear on the open account at all, and she had never received a demand for payment from plaintiff. Hickory White Trucks, Inc. v. Greene, 34 N.C. App. 279, 237 S.E.2d 862, 1977 N.C. App. LEXIS 1655 (1977).

Wife’s failure or neglect to file an answer in a suit against herself and her husband, upon assurances by her husband that he would be responsible for and assume defense of the action, was excusable neglect. Gregg v. Steele, 24 N.C. App. 310, 210 S.E.2d 434, 1974 N.C. App. LEXIS 1988 (1974).

Wife acted within a reasonable time for filing a Rule 60(b)(6) motion to set aside the previous alimony order as the wife testified that the balance owed on the equity line on the marital home was discovered only when the creditor informed the wife that it was instituting a foreclosure action. Sloan v. Sloan, 151 N.C. App. 399, 566 S.E.2d 97, 2002 N.C. App. LEXIS 761 (2002).

Husband’s History of Domestic Violence Led Court to Find That Wife’s Failure to Notify Court of Her Change of Address Constituted Excusable Neglect. —

Where the trial court’s findings of fact tended to show that the husband had a documented history of domestic abuse against the wife and that the husband violated G.S. 1A-1 , N.C. R. Civ. P. 5 by failing to serve the requests for admissions and subsequent pleadings on all defendants, the trial court properly concluded that the wife’s failure to notify the court of her change of address constituted excusable neglect under G.S. 1A-1 , N.C. R. Civ. P. 60(b)(1). Elliott v. Elliott, 200 N.C. App. 259, 683 S.E.2d 405, 2009 N.C. App. LEXIS 1619 (2009).

When counsel engaged for a case declines to go forward with it, the litigant is entitled both to reasonable notice of that fact and a reasonable opportunity to obtain substitute counsel. And where the record plainly showed that plaintiff had had neither, its failure to attend trial was excusable as a matter of law. Barclays Am. Corp. v. Howell, 81 N.C. App. 654, 345 S.E.2d 228, 1986 N.C. App. LEXIS 2341 (1986).

Suit Filed Against Wife Where Judgment Against Husband Had Been Satisfied. —

It was not unreasonable for wife to rely on her husband’s assurance that the matter raised in the suit filed against her had been taken care of, where a prior action against her husband was based upon the same contract on which she was being sued, and her husband had satisfied the judgment entered against him in that action. Thomas M. McInnis & Assocs. v. Hall, 318 N.C. 421 , 349 S.E.2d 552, 1986 N.C. LEXIS 2676 (1986).

Modification of the qualified domestic relations order (QDRO) was proper where the ex-wife received an additional $ 19,750.31 to which she was not entitled simply due to the wording in the QDRO; the court properly modified the QDRO to reflect the true intent of the parties. Harris v. Harris, 162 N.C. App. 511, 591 S.E.2d 560, 2004 N.C. App. LEXIS 183 (2004).

County Clerk of Court Had Authority to Set Aside Foreclosure Sale. —

County clerk of court had the inherent authority under N.C. R. Civ. P. 60(b) to set aside a foreclosure sale after discovering that a notice of sale was not included in the foreclosure file because the lack of notice qualified as both a mistake and a substantial reason justifying relief from the final order of sale entered by the clerk. Angell v. Wells Fargo Bank, N.A., 2012 Bankr. LEXIS 236 (Bankr. E.D.N.C. Jan. 25, 2012).

No Error in Denial of Motion. —

Despite a distributor’s claims that his manufacturer’s export agent, who lived in Great Britain, had tortiously interfered with the distributor-manufacturer relationship, in that the agent hired the distributor’s salesman with the intention of establishing his own distributorship, a trial court did not err in denying the distributor’s motion, made pursuant to G.S. 1A-1 , N.C. R. Civ. P. 60(b), to vacate its order in which it had dismissed the complaint on the ground that under the Due Process Clause, the trial court had no personal jurisdiction over the manager. Review under a Rule 60(b) motion was limited to determining whether a trial court had abused its discretion, the documents submitted with the motion would not have changed the trial court’s ruling on the motion to dismiss, and the distributor had been given the opportunity to obtain and present the documents in the evidentiary hearing on the Rule 60(b) motion but had failed to do so. Deer Corp. v. Carter, 177 N.C. App. 314, 629 S.E.2d 159, 2006 N.C. App. LEXIS 968 (2006).

Because the trial court did not err by entering default against defendant since it failed to file a response to plaintiff’s complaint within thirty days and failed to make a request to extend time to answer, the trial court also did not abuse its discretion in denying defendant’s motion to set aside an entry of default under G.S. 1A-1 , N.C. R. Civ. P. 60(b)(6); the trial court found no reason justifying defendant’s request to set aside the entry of default judgment and summary judgment. Bodie Island Beach Club Ass'n v. Wray, 215 N.C. App. 283, 716 S.E.2d 67, 2011 N.C. App. LEXIS 1887 (2011).

Because the record contained evidence that defendant received adequate notice of a hearing, the trial court did not abuse its discretion in denying defendant’s G.S. 1A-1 , N.C. R. Civ. P. 60(b) motion to set aside the judgment; defendant was served with an amended notice of hearing, containing the hearing date, and that was competent evidence to support the trial court’s findings of fact, and as such, they were binding on appeal. Federated Fin. Corp. of Am. v. Jenkins, 215 N.C. App. 330, 719 S.E.2d 48, 2011 N.C. App. LEXIS 1881 (2011).

Where important information was requested from plaintiff by plaintiff’s counsel, and plaintiff did not produce the information until well after the time for filing a response to the counterclaim and after hearing on summary judgment, plaintiff showed no excusable neglect and was not entitled to relief under subsection (b)(1) of this rule. East Carolina Oil Transp., Inc. v. Petroleum Fuel & Term. Co., 82 N.C. App. 746, 348 S.E.2d 165, 1986 N.C. App. LEXIS 2630 (1986).

Where facts found in order setting aside default judgment did not constitute excusable neglect as a matter of law, and defendant failed to show a meritorious defense, and there was no finding that he had such a defense, such order was erroneous. Doxol Gas of Angier, Inc. v. Barefoot, 10 N.C. App. 703, 179 S.E.2d 890, 1971 N.C. App. LEXIS 1702 (1971).

Failure to Consult an Attorney. —

Denial of a landlord’s motion to set aside a default judgment against him pursuant to N.C. R. Civ. P. 60(b) was upheld on appeal, because the landlord’s failure to consult an attorney or any alleged lack of legal knowledge did not constitute excusable neglect under N.C. R. Civ. P. 60(b). Scoggins v. Jacobs, 169 N.C. App. 411, 610 S.E.2d 428, 2005 N.C. App. LEXIS 684 (2005).

Failure to Obtain Attorney and Other Delays. —

Wife was not entitled to relief under G.S. 1A-1-60(b)(1) from a consent judgment due to excusable neglect, as the wife was on notice that she needed to hire an attorney and be prepared to proceed with trial, the proceedings had been going on for over three years, and the wife had contributed to those delays; the order denying the Rule 60(b)(1) motion set forth in great detail the case’s procedural history and the reasons there was not excusable neglect. McIntosh v. McIntosh, 184 N.C. App. 697, 646 S.E.2d 820, 2007 N.C. App. LEXIS 1596 (2007).

Failure to Monitor Corporate Affairs. —

Trial judge committed no error in denying company’s motion for relief under subsection (b)(1) of this rule, where company’s own neglect and not any intervening negligence was responsible for its failure to appeal in the action. Not only did company fail to change registered agents in Maryland, it failed altogether to name one in this State as required by statute. Furthermore, had the company established some means to ensure that it was promptly informed of important business matters coming to registered agent’s attention, the loss of summons and complaint in the mail would not have gone unnoticed, and it would have received motion for default judgment and notice of hearing. Anderson Trucking Serv., Inc. v. Key Way Transp., Inc., 94 N.C. App. 36, 379 S.E.2d 665, 1989 N.C. App. LEXIS 425 (1989).

Failure to Notify Party of Depositions. —

Attorneys’ failure to notify a party of depositions, resulting in a default judgment against the party for discovery misconduct, was not “excusable neglect” justifying relief from the judgment under G.S. 1A-1 , Rule 60(b)(1). Henderson v. Wachovia Bank of N.C. N.A., 145 N.C. App. 621, 551 S.E.2d 464, 2001 N.C. App. LEXIS 735 (2001).

Failure to Appear on Date Calendared for Trial. —

Failure to retain counsel promptly or otherwise to maintain contact with the court, resulting in failure to appear on the date calendared for trial, should not be classified as excusable neglect of one’s own lawsuit. Standard Equip. Co. v. Albertson, 35 N.C. App. 144, 240 S.E.2d 499, 1978 N.C. App. LEXIS 2885 (1978).

Failure to Answer Requests for Admissions While Proceeding Pro Se. —

Subcontractor failed to show excusable neglect, as the subcontractor was proceeding pro se when it did not respond to a builder’s requests for admissions; further, when the subcontractor’s attorney, who had been permitted to withdraw, filed a second motion for continuance, the attorney purportedly did so solely “at the subcontractor’s request” and only promised “a limited appearance” should the continuance be denied. McKinley Bldg. Corp. v. Alvis, 183 N.C. App. 500, 645 S.E.2d 219, 2007 N.C. App. LEXIS 1158 (2007).

Judgment would not be set aside because present counsel was not made aware of prior action until after summary judgment was rendered, as it was inconceivable that plaintiff was unaware of the prior action, since it was instituted in his behalf by counsel retained by him. Plaintiff ’s failure to apprise his counsel of the prior action was not the attention to litigation required. Lattimore v. Powell, 15 N.C. App. 522, 190 S.E.2d 288, 1972 N.C. App. LEXIS 1955 (1972).

Dismissal of Party With Prejudice. —

Counsel’s decision in a medical malpractice case to dismiss one defendant with prejudice and proceed against a single defendant was part of counsel’s trial strategy rather than excusable neglect; thus, relief under this rule was not available. Couch v. Private Diagnostic Clinic, 133 N.C. App. 93, 515 S.E.2d 30, 1999 N.C. App. LEXIS 370 , cert. denied, 350 N.C. 827 , 537 S.E.2d 816, 1999 N.C. LEXIS 820 (1999), aff'd, 351 N.C. 92 , 520 S.E.2d 785, 1999 N.C. LEXIS 1157 (1999).

Where inattention and neglect were attributed to the similarity in the title of a case to a former action, and to his preoccupation in the duties of his profession, this should not be held in law to constitute such excusable neglect as would relieve an intelligent and active businessman from the consequences of his inattention, as against diligent suitors. Rawleigh, Moses & Co. v. Capital City Furn., Inc., 9 N.C. App. 640, 177 S.E.2d 332, 1970 N.C. App. LEXIS 1426 (1970).

Failure to Take Note of Order. —

The trial court did not abuse its discretion in denying defendant’s motion for relief from judgment where a default judgment was entered against defendants as a sanction for failure to comply with discovery requests and defendants argued in their motion that defendants’ counsel mistakenly failed to take note of the order for sanctions, which was timely served, and mistakenly thought that the motion for sanctions that appeared on the court docket pertained to another defendant. Ignorance, excusable neglect, or carelessness on the part of an attorney will not provide grounds for relief under G.S. 1A-1 , Rule 60(b)(1). Clark v. Penland, 146 N.C. App. 288, 552 S.E.2d 243, 2001 N.C. App. LEXIS 863 (2001).

Defendant Failed to Show Good Cause. —

Trial court did not abuse its discretion under G.S. 1A-1-55(d) and G.S. 1A-1-60(b) in denying an insurance carrier’s motion to vacate a default judgment, as the carrier failed to show good cause to grant the requested relief where the carrier’s actions upon being served with the papers were not diligent, and it was not attentive to its responsibilities and duties; there was no showing that the judge’s decision was manifestly unsupported by reason in the circumstances. Lowery v. Campbell, 185 N.C. App. 659, 649 S.E.2d 453, 2007 N.C. App. LEXIS 1948 (2007), aff'd, 362 N.C. 231 , 657 S.E.2d 354, 2008 N.C. LEXIS 140 (2008).

Pro Se Representation And Lack of Knowledge. —

The Industrial Commission erred by concluding that excusable neglect existed where plaintiff represented himself before the deputy commissioner and was unacquainted with the complexities of the Workers’ Compensation Act. Moore v. City of Raleigh, 135 N.C. App. 332, 520 S.E.2d 133, 1999 N.C. App. LEXIS 1042 (1999).

Failure to file an answer in a paternity and child support action was not the result of excusable neglect where defendant had a ninth grade education and could read and write, had employed attorneys in other matters, and testified that he failed to file an answer because he did not believe he could be subject to orders of paternity and child support more than seven years after the child was born. Boyd v. Marsh, 47 N.C. App. 491, 267 S.E.2d 394, 1980 N.C. App. LEXIS 3138 (1980).

Physical and Mental Strain. —

An affidavit stating that as a result of certain duties defendant affiant was under tremendous physical and mental strain at the time he was served with a summons and complaint and for several weeks thereafter was insufficient to support an order setting aside a default judgment on the ground of excusable neglect. Rawleigh, Moses & Co. v. Capital City Furn., Inc., 9 N.C. App. 640, 177 S.E.2d 332, 1970 N.C. App. LEXIS 1426 (1970).

Consumer Installment Contract Signed by Wife. —

Following a deficiency judgment on a consumer installment contract, defendant wife showed excusable neglect by her reliance on her husband’s verbal assurances that he would take care of the matter, but she failed to show a meritorious defense by admitting that she signed the consumer installment contract as a co-customer, thus acknowledging that she became bound thereby. Hickory White Trucks, Inc. v. Greene, 34 N.C. App. 279, 237 S.E.2d 862, 1977 N.C. App. LEXIS 1655 (1977).

Failure to Attend Termination Proceedings. —

Where respondent testified that she could have returned to North Carolina in time to attend proceeding to terminate her parental rights, but did not think about it because she was worrying about finding work, caring for her other child, and the termination of her relationship with baby’s father, while her financial situation may have been a difficult one, under the circumstances, it did not constitute excusable neglect. In re Hall, 89 N.C. App. 685, 366 S.E.2d 882, 1988 N.C. App. LEXIS 360 (1988).

Timeliness of Motion. —

Father’s motion to strike an existing order of paternity, filed after he learned he was excluded as the father of his alleged daughter, was properly denied despite the father’s allegations that such was warranted on the basis of either mistake or fraud under N.C. R. Civ. P. 60(b)(1) or G.S. 1A-1 , N.C. R. Civ. P. 60(b)(3), where such motion was filed more than three years after the order was entered. State ex rel. Davis v. Adams, 153 N.C. App. 512, 571 S.E.2d 238, 2002 N.C. App. LEXIS 1177 (2002).

Business court. in the court’s discretion. found that a motion by movants to be relieved from certain aspects of a final judgment was not made within a reasonable time as the movants could have, and should have, raised the movants’ concern regarding whether and which loans were considered by the jury as damages at a much earlier stage in the litigation. Chisum v. Campagna, 2021 NCBC LEXIS 85 (N.C. Super. Ct. Sept. 30, 2021).

Failure of defendant subcontractor to contact its attorney until after a default judgment was entered against it did not constitute excusable neglect, and the trial court, therefore, properly denied the subcontractor’s motion for relief from judgment. JMM Plumbing & Utils., Inc. v. Basnight Constr. Co., 169 N.C. App. 199, 609 S.E.2d 487, 2005 N.C. App. LEXIS 509 (2005).

Where defendants should have been aware of the deficiency in their case before judgment was entered, relief for alleged mistake under subsection (b)(1) of this rule was not justified. Hagwood v. Odom, 88 N.C. App. 513, 364 S.E.2d 190, 1988 N.C. App. LEXIS 101 (1988).

Claim Abandoned. —

Plaintiffs were properly denied relief under G.S. 1A-1 -P. 60 as they abandoned their claim that a checking account had been omitted from a testator’s list of assets that were to pass under the laws of intestacy under N.C. R. App. P. 28(b)(6) because they presented only the bare assertion in their primary brief that the checking account was an intestate checking account. Stanford v. Paris, 209 N.C. App. 173, 703 S.E.2d 488, 2011 N.C. App. LEXIS 64 (2011).

Consent Order. —

Motion under section (b)(6) of this rule should have been denied where defendant altered the agreement from what was agreed upon at trial, as each side apparently did during several redrafts. There was no finding or evidence which would lead to a conclusion that this was inadvertent; therefore, any mistake was not mutual, and a consent order incorporating the agreement could not be modified. Stevenson v. Stevenson, 100 N.C. App. 750, 398 S.E.2d 334, 1990 N.C. App. LEXIS 1160 (1990).

A finding that plaintiff received a greater percentage of the marital assets pursuant to the consent judgment would not otherwise be sufficient to render the agreement invalid, and defendant could not invoke the broad language of subdivision (b)(6) of this rule simply to obtain relief to which she was otherwise not entitled. Thacker v. Thacker, 107 N.C. App. 479, 420 S.E.2d 479, 1992 N.C. App. LEXIS 731 (1992).

Subdivision (b)(6) of this rule is not a catch-all rule; in order to be entitled to relief thereunder, the movant must show that (1) extraordinary circumstances exist and that (2) justice demands such relief. Goodwin v. Cashwell, 102 N.C. App. 275, 401 S.E.2d 840, 1991 N.C. App. LEXIS 332 (1991).

Trial court erred in treating father’s motion to amend a written order to comply with the trial court’s oral custody decree as a motion for relief made under G.S. 1A-1 , Rule 60(b)(6), and granting it; rather than seeking relief from the effect of the custody order, the father sought to amend the effect of that order to reduce the mother’s weeknight visitation privilege. Black v. Black, 174 N.C. App. 361, 620 S.E.2d 924, 2005 N.C. App. LEXIS 2395 (2005).

Failure to Attend Proceedings After Insurance Carrier Refused to Defend. —

Where defendants were well aware that their insurance carrier refused to represent them, and counsel for plaintiff waited three months before moving for default and also sent defendants a letter stating his intention to seek default if defendants continued to fail to respond, there was sufficient time to protect their interests; accordingly, trial court’s refusal to grant defendants relief from judgment for excusable neglect was not an abuse of discretion. Hayes v. Evergo Tel. Co., 100 N.C. App. 474, 397 S.E.2d 325, 1990 N.C. App. LEXIS 1065 (1990).

Evaluation of Case for Settlement Purposes. —

The court would reverse an order setting aside a default judgment entered against the defendants in an action arising from a motor vehicle accident because there was insufficient evidence to support the trial court’s conclusion of excusable neglect, notwithstanding the trucking company’s assertion that it failed to retain counsel based on its insurance carrier’s desire to first evaluate the case to determine if it could be settled prior to proceeding with litigation, where the defendant trucking company was aware of the pending litigation prior to the judgment, and the trucking company’s insurance carrier knew that entry of default had been rendered against the trucking company, yet failed to give defense of the lawsuit that attention usually given to important business in the exercise of ordinary prudence. Gibson v. Mena, 144 N.C. App. 125, 548 S.E.2d 745, 2001 N.C. App. LEXIS 332 (2001).

An order reopening and enlarging a default judgment was erroneous because, by deciding to obtain a final judgment for the sum certain that was owed when the default judgment was entered, rather than to have the damages determined later by a trial, plaintiff waived any right it might have had to obtain judgment for a larger amount. Kimzay Winston-Salem, Inc. v. Jester, 103 N.C. App. 77, 404 S.E.2d 176, 1991 N.C. App. LEXIS 568 (1991).

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, 1991 N.C. App. LEXIS 568 (1991).

Defendant’s Failure to Protect Interests. —

The defendant failed to show excusable neglect necessary to vacate a default judgment in a wrongful death action, where both the defendant’s insurer’s refusal to defend and the defendant’s attorney’s failure to forward a copy of the plaintiff’s amended complaint to the insurer or to file a responsive pleading constituted inexcusable neglect. Estate of Teel v. Darby, 129 N.C. App. 604, 500 S.E.2d 759, 1998 N.C. App. LEXIS 660 (1998).

Trial court did not abuse its discretion in denying a father’s motion to set aside a judgment awarding sole custody of his minor children to his ex-wife, because the father did not show excusable neglect in his failure to attend the modification of custody hearing as the father knew that a hearing was scheduled and then continued to permit him to obtain replacement cancel but did not obtain replacement counsel and did not inquire as to the continued date of the hearing; furthermore, the father learned of the rescheduled hearing date, but did not take action to continue the hearing, other than a few phone calls to the courthouse, and continued with his plans to leave on a vacation during the rescheduled hearing date. Trivette v. Trivette, 162 N.C. App. 55, 590 S.E.2d 298, 2004 N.C. App. LEXIS 40 (2004).

Case Unsupported by Evidence. —

Subsection (b) afforded no relief from summary judgment for a medical malpractice plaintiff, where the plaintiff would have had a sufficient forecast of evidence to defeat the motion, but the plaintiff’s affidavit presented bare allegations unsupported by evidence. Briley v. Farabow, 348 N.C. 537 , 501 S.E.2d 649, 1998 N.C. LEXIS 333 (1998).

Evidence Did Not Support Finding of Excusable Neglect or Fraud. —

Trial court did not err in denying the buyers relief from a judgment enforcing a settlement agreement procured by their counsel, due to counsel’s fraud on the court or his negligence in handling the case, as the latter did not amount to excusable neglect, their joint and several liability was supported by the terms of the agreement, and the trial court did not rely on any representations made by the attorney to render a judgment in favor of his clients. Purcell Int'l Textile Group, Inc. v. Algemene AFW N.V., 185 N.C. App. 135, 647 S.E.2d 667, 2007 N.C. App. LEXIS 1698 (2007).

As defendant failed to show excusable neglect under G.S. 1A-1 , N.C. R. Civ. P. 60(b)(1) for purposes of relief from a default judgment, there was no need to consider whether she had a meritorious defense. Grier v. Guy, 224 N.C. App. 256, 741 S.E.2d 338, 2012 N.C. App. LEXIS 1496 (2012).

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 N.C. App. LEXIS 1496 (2012).

Trial court appropriately declined to analyze a motion by the seller of office buildings to set aside a default judgment on the basis of excusable neglect due to the alleged non-action and negligence of its then-counsel under the good cause standard to set aside an entry of default because a default judgment had already been entered against the seller. Instead, the seller’s motion to vacate was governed by the civil rule for relief from judgment or order. Judd v. Tilghman Med. Assocs., LLC, 272 N.C. App. 520, 847 S.E.2d 45, 2020 N.C. App. LEXIS 538 (2020).

Trial court did not have authority to grant the heirs and devisees of deceased property owners affirmative relief on their counterclaims in a tax foreclosure action upon their motion under N.C. R. Civ. P. 60(b) for relief from a default judgment entered against them on a city and county’s tax foreclosure claim, as the trial court only had authority to vacate, modify, or set aside the default judgment; further, it was improper to assert a counterclaim in a tax foreclosure matter pursuant to G.S. 105-374 . County of Durham v. Daye, 195 N.C. App. 527, 673 S.E.2d 683, 2009 N.C. App. LEXIS 214 (2009).

C.Newly Discovered Evidence

Criteria in Subsection (b)(2) Must Be Met. —

A motion based on newly discovered evidence must meet the criteria established in subsection (b)(2) of this rule. Cole v. Cole, 90 N.C. App. 724, 370 S.E.2d 272, 1988 N.C. App. LEXIS 606 (1988).

Fathering of Child After First Trial Held Not Newly Discovered Evidence. —

Evidence that approximately one year after first trial, in which the Court of Appeals reversed the trial court’s finding that defendant was the father of couple’s third child, based on evidence that he had undergone a vasectomy and was infertile, defendant had fathered a daughter with his new wife, did not qualify as “newly discovered evidence” within the meaning of subsection (b)(2) of this rule, because the evidence did not exist at the time of the first trial. Cole v. Cole, 90 N.C. App. 724, 370 S.E.2d 272, 1988 N.C. App. LEXIS 606 (1988).

Failure to Produce Evidence Earlier Must Not Be Due to Lack of Diligence. —

For relief to be granted under subsection (b)(2) of this rule the failure to produce evidence at a hearing under G.S. 1A-1 , Rule 12(b) must not have been caused by the moving party’s lack of due diligence. The evidence must be such as was not and could not by the exercise of diligence have been discovered in time to present in the original proceeding. Harris v. Family Medical Ctr., 38 N.C. App. 716, 248 S.E.2d 768, 1978 N.C. App. LEXIS 2314 (1978).

The trial court did not abuse its discretion in ordering a new trial pursuant to subsection (b)(2) of this rule where the plaintiff used due diligence in bringing to the court’s attention the merits of its motion and the plaintiff could not have otherwise learned of the recanted evidence and perjured testimony of defendant’s witness which formed the basis of the motion but for the subsequent change by said witness. Conrad Indus., Inc. v. Sonderegger, 69 N.C. App. 159, 316 S.E.2d 327, 1984 N.C. App. LEXIS 3381 (1984).

Where, in support of its petition for certiorari, a bond company sought to include documents, amounting to evidence of a federal indictment and county district attorney’s dismissal of state charges against defendant, that were never presented to the trial court until after it entered its bond forfeiture order, and the bonding company did not make a motion pursuant to either G.S. 1A-1 , N.C. R. Civ. P. 59 or 60 to bring the material to the trial court’s attention, but rather sought to bring the material to light for the first time while this case was already pending on appeal, the court found that it was further evidence of the bond company’s lack of diligence and denied its petition for writ of certiorari. State v. Gonzalez-Fernandez, 170 N.C. App. 45, 612 S.E.2d 148, 2005 N.C. App. LEXIS 900 (2005).

Trial court did not err in denying the estate administratrix’s motion for relief under N.C. R. Civ. P. 60(b) because laboratory findings as to the decedent’s blood chemistry at the time of an automobile accident could have been discovered with the exercise of due diligence in time to present them in the original trial. Robinson v. Trantham, 195 N.C. App. 687, 673 S.E.2d 771, 2009 N.C. App. LEXIS 245 (2009).

Prior Action Is Not Newly Discovered Evidence. —

The existence of a prior action is not newly discovered evidence which by due diligence could not have been discovered. To say plaintiff was unaware of an action instituted by him would be ludicrous. Lattimore v. Powell, 15 N.C. App. 522, 190 S.E.2d 288, 1972 N.C. App. LEXIS 1955 (1972).

Trial court did not abuse its discretion in denying an employer’s motion to introduce newly discovered evidence pursuant to under G.S. 1A-1-60(b)(2) because the motion could not have been proper under Rule 60(b) since the employer filed the motion to introduce newly discovered evidence after the hearing on an employee’s motion to determine its workers’ compensation lien under the Workers’ Compensation Act, G.S. 97-10.2(j), but before any written order had been issued on his motion, and a hearing alone, without a written order, was not a final judgment or order; the employer did not seek relief from a final judgment or order, but rather attempted to put new evidence before the trial court for its consideration in rendering its final judgment or order, but Rule 60(b) did not contemplate that kind of relief. Kingston v. Lyon Constr., Inc., 207 N.C. App. 703, 701 S.E.2d 348, 2010 N.C. App. LEXIS 2013 (2010).

Commission’s Authority on Remand to Take Additional Evidence in Workers’ Compensation Claim Not Limited. —

Employer cited no pertinent authority for the proposition that the commission’s authority on remand to take additional evidence regarding the issue of a worker’s disability was limited by the strictures of G.S. 1A-1-60 because it constituted newly discovered evidence; the issue of the worker’s disability was not litigated at the first hearing because disability evidence was not required under G.S. 97-61.5 . Austin v. Cont'l Gen. Tire, 185 N.C. App. 488, 648 S.E.2d 570, 2007 N.C. App. LEXIS 1813 (2007).

Results of a new physical examination were not “newly discovered evidence” which would allow reopening a judgment and granting a new trial under section (b) of this rule. Grupen v. Thomasville Furn. Indus., 28 N.C. App. 119, 220 S.E.2d 201, 1975 N.C. App. LEXIS 1688 (1975), cert. denied, 289 N.C. 297 , 222 S.E.2d 696, 1976 N.C. LEXIS 1261 (1976).

Superior Court Sitting as Appellate Court Could Not Consider Motion. —

Superior court did not err in denying intervening neighbors’ motion to reconsider its decision reversing a board of adjustment’s finding that a developer’s property was in a Conservation Overlay District based on newly discovered evidence, because the superior court’s scope of review of the board’s decision did not allow it to consider evidence that was not presented to the board. Bailey & Assocs. v. Wilmington Bd. of Adjustment, 202 N.C. App. 177, 689 S.E.2d 576, 2010 N.C. App. LEXIS 191 (2010).

Evidence Held Not “Newly Discovered”. —

Trial court did not err in dismissing plaintiffs’ motions for a new trial under N.C. R. Civ. P. 59 and for relief from judgment under N.C. R. Civ. P. 60 on the ground that an affidavit constituted newly discovered evidence since it was inadvertently not given to plaintiffs’ counsel because the document was not “newly discovered” after the summary judgment hearing in the case had concluded; plaintiffs’ counsel was served with the affidavit, and the affidavit was filed in the underlying case. Health Mgmt. Assocs. v. Yerby, 215 N.C. App. 124, 715 S.E.2d 513, 2011 N.C. App. LEXIS 1747 (2011).

Where plaintiffs, after filing a notice of appeal, filed a motion for relief from judgment under G.S. 1A-1 , N.C. R. Civ. P. 60(b) based on newly discovered evidence, as there was no new information in their proffered evidence, the trial court did not abuse its discretion in determining that it would deny plaintiffs’ motion had it been before the court. Morgan v. Nash County, 224 N.C. App. 60, 735 S.E.2d 615, 2012 N.C. App. LEXIS 1369 (2012).

D.Fraud, Misrepresentation and Misconduct of Adverse Party

Time for Bringing Attack on Judgment. —

An attack against judgment on the basis of fraud must be brought within one year after judgment. Caswell Realty Assocs. v. Andrews Co., 121 N.C. App. 483, 466 S.E.2d 310, 1996 N.C. App. LEXIS 79 (1996).

Intrinsic or Extrinsic Nature of Fraud Irrelevant to Motion Under Subsection (b)(3). —

Under subsection (b)(3) of this rule, where relief is sought from final judgment by motion it is irrelevant whether the fraud alleged is “intrinsic” or “extrinsic.” Textile Fabricators, Inc. v. C.R.C. Indus., Inc., 43 N.C. App. 530, 259 S.E.2d 570, 1979 N.C. App. LEXIS 3126 (1979).

But Intrinsic Fraud Can Only Be Subject to Subsection (b)(3) Motion. —

While this rule does not limit the power of a court to entertain an independent action to set aside a judgment for fraud, whenever the alleged fraud is intrinsic it can only be the subject of a motion under subsection (b)(3) of this rule, and it is barred after one year following the judgment. Textile Fabricators, Inc. v. C.R.C. Indus., Inc., 43 N.C. App. 530, 259 S.E.2d 570, 1979 N.C. App. LEXIS 3126 (1979).

Only Extrinsic Fraud Is Defense to Action on Foreign Judgment. —

Although extrinsic fraud is a defense to an action to recover on a foreign judgment, intrinsic fraud is not. Florida Nat'l Bank v. Satterfield, 90 N.C. App. 105, 367 S.E.2d 358, 1988 N.C. App. LEXIS 386 (1988).

Allegations that defendant’s attorney in a foreign state had a conflict of interest and failed to protect his interests were claims of intrinsic fraud and had to be directly attacked in that state. Florida Nat'l Bank v. Satterfield, 90 N.C. App. 105, 367 S.E.2d 358, 1988 N.C. App. LEXIS 386 (1988).

Attorney Fraud. —

Trial court erred in concluding that it lacked jurisdiction under G.S. 1A-1 , N.C. R. Civ. P. 60(b) to set aside an order of dismissal for attorney fraud because the plaintiff, a foreign corporation, claimed that the dismissal of the complaint was a result of the fraud and misrepresentation of defendants’ attorney in its motion to dismiss for plaintiff’s failure to obtain a certificate of authority. Plaintiff argued that defendants’ counsel argued the motion in a misleading way by failing to provide the court with the relevant legal authority of G.S. 55-15-01 , which was paramount in the determination of whether the plaintiff was required to obtain a certificate of authority. Harbin Yinhai Tech. v. Greentree Fin. Group, Inc., 196 N.C. App. 615, 677 S.E.2d 854, 2009 N.C. App. LEXIS 525 (2009).

Wife’s N. C. R. Civ. P. 60(b) motion to set aside an order adopting an agreed property settlement was properly granted because the evidence was sufficient to establish that the wife was induced to settle based on a material misrepresentations by the husband’s attorney that a mortgage lien on the marital residence had been discharged and removed. Autry v. Autry, 207 N.C. App. 514, 700 S.E.2d 141, 2010 N.C. App. LEXIS 1952 (2010).

Fraud by Party’s Own Attorney. —

Attorneys’ failure to notify a party of depositions, resulting in a default judgment against the party for discovery misconduct, was not grounds for relief from that judgment because of fraud, under G.S. 1A-1 , Rule 60(b)(3), because that rule governed fraud by an adverse party, not fraud by a party’s own attorney. Henderson v. Wachovia Bank of N.C. N.A., 145 N.C. App. 621, 551 S.E.2d 464, 2001 N.C. App. LEXIS 735 (2001).

Where decedent’s nephew was not notified or made a party to adoption nullification proceeding initiated by daughter of decedent’s former wife, the nephew was fully empowered to bring an independent action to vacate the clerk’s order. Flinn v. Laughinghouse, 68 N.C. App. 476, 315 S.E.2d 72, 1984 N.C. App. LEXIS 3306 (1984).

Failure to Serve Amended Complaint on Defendant. —

A default judgment was not void as to the defendant, where the defendant argued that the plaintiff in a wrongful death action never served its amended complaint on defendant, but the defendant’s attorney admitted via affidavit that the defendant was served with a copy of the amended complaint and that the defendant forwarded a copy of the amended complaint to the attorney. Estate of Teel v. Darby, 129 N.C. App. 604, 500 S.E.2d 759, 1998 N.C. App. LEXIS 660 (1998).

Fraudulent 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 N.C. App. LEXIS 1575 (2002).

Evidence of a fraudulent scheme on the part of plaintiff and her husband was not admissible to support a motion for a directed verdict where the defendant in an alienation of affection case neither affirmatively pled, as required by G.S. 1A-1 , Rule 8(c), nor tried the case on the theory of fraud. Ward v. Beaton, 141 N.C. App. 44, 539 S.E.2d 30, 2000 N.C. App. LEXIS 1288 (2000), cert. denied, 353 N.C. 398 , 547 S.E.2d 431, 2001 N.C. LEXIS 211 (2001).

Undue influence not shown. —

Mother who signed a consent judgment agreeing to an award of custody of the mother’s child to the mother’s sister and brother-in-law did not show that the mother was entitled to have the consent judgment set aside, under G.S. 1A-1 , N.C. R. Civ. P. 60(b), due to undue influence because (1) the mother did not show the mother was under the influence of drugs when the mother signed the consent judgment, (2) it was not shown that a lawyer who represented both the sister and brother-in-law and the department of social services when the custody arrangements were being discussed tried to influence the mother, and (3) a social worker’s statement that the mother did not need a lawyer, when signing the judgment, viewed in context, did not show the mother was unduly influenced. Yurek v. Shaffer, 198 N.C. App. 67, 678 S.E.2d 738, 2009 N.C. App. LEXIS 1079 (2009).

False Testimony. —

Trial court did not abuse its discretion in denying plaintiffs’ motion for a new trial because defendant’s witness’s alleged false testimony did not relate to a crucial issue in the case and did not prevent a fair trial. Krantz v. Owens, 168 N.C. App. 384, 607 S.E.2d 337, 2005 N.C. App. LEXIS 264 (2005).

Fraud Not Shown. —

As there was evidence that a lessee was in default under a contract that a guarantor had signed a guaranty agreement to secure, his claim that defendants, as assignees of the lessor’s rights, were fraudulent in asserting that the lessee was in default lacked merit and did not support relief under G.S. 1A-1 , N.C. R. Civ. P. 60(b)(3). Epes v. B.E. Waterhouse, LLC, 221 N.C. App. 422, 728 S.E.2d 390, 2012 N.C. App. LEXIS 761 (2012).

Business owner was not entitled to relief from judgment because the owner did not prove by clear and convincing evidence that the manager of the owner’s store committed fraud in obtaining a favorable jury verdict, and, at times, the owner also failed to articulate any meritorious defense (or claim) that it was prevented from presenting prior to the court’s entry of the final order and judgment. Bayport Holdings v. Sisson, 2021 NCBC 39, 2021 NCBC LEXIS 58 (N.C. Super. Ct. June 25, 2021).

Trial Court’s Sua Sponte Motion Prejudiced Mother Where Father Sought Modification of Child Support. —

Mother was prejudiced by the trial court’s spontaneous motion for relief under G.S. 1A-1 , Rule 60, as she had no notice that relief from judgment would be sought, particularly on the grounds of fraud, after the father filed a motion to modify child support based on a change of his financial circumstances. Guilford Cnty. ex rel. St. Peter v. Lyon, 247 N.C. App. 74, 785 S.E.2d 131, 2016 N.C. App. LEXIS 435 (2016).

E.Other Reasons Justifying Relief Under Subdivision (b)(6)

Subdivision (b)(6) of this section is equitable in nature and authorizes the trial judge to exercise his discretion in granting or withholding the relief sought. State ex rel. Envtl. Mgt. Comm'n v. House of Raeford Farms, Inc., 101 N.C. App. 433, 400 S.E.2d 107, 1991 N.C. App. LEXIS 86 , writ denied, 328 N.C. 576 , 403 S.E.2d 521, 1991 N.C. LEXIS 300 (1991).

Subdivision (b)(6) serves as a “grand reservoir of equitable power” by which a court may grant relief from a judgment whenever extraordinary circumstances exist and there is a showing that justice demands it. Dollar v. Tapp, 103 N.C. App. 162, 404 S.E.2d 482, 1991 N.C. App. LEXIS 709 (1991).

Subdivision (b)(6) has been referred to as a “vast reservoir of equitable power.” Lumsden v. Lawing, 117 N.C. App. 514, 451 S.E.2d 659, 1995 N.C. App. LEXIS 7 (1995).

Subdivision (b)(6) Not a “Catch-All” Rule. —

While subsection (b)(6) of this rule has been described as a grand reservoir of equitable power to do justice in a particular case, it should not be a “catch-all” rule. Standard Equip. Co. v. Albertson, 35 N.C. App. 144, 240 S.E.2d 499, 1978 N.C. App. LEXIS 2885 (1978); Vaglio v. Town & Campus Int'l, Inc., 71 N.C. App. 250, 322 S.E.2d 3, 1984 N.C. App. LEXIS 3820 (1984).

Although subsection (b)(6) of this rule has often been termed “a vast reservoir of equitable power,” a court cannot set aside a judgment pursuant to this rule without a showing (1) that extraordinary circumstances exist, and (2) that justice demands relief. Thacker v. Thacker, 107 N.C. App. 479, 420 S.E.2d 479, 1992 N.C. App. LEXIS 731 (1992).

Nature of Fraud Envisioned Under Rule. —

Attorneys’ failure to notify a party of depositions, resulting in a default judgment against the party due to discovery misconduct, was not grounds for relief from the default judgment under G.S. 1A-1 , Rule 60(b)(6), due to fraud, because the fraud envisioned under that rule was a deliberate, egregious scheme of directly subverting the judicial process which could not be exposed by the normal adversarial process. Henderson v. Wachovia Bank of N.C. N.A., 145 N.C. App. 621, 551 S.E.2d 464, 2001 N.C. App. LEXIS 735 (2001).

Movant Must Proceed Under Proper Subsection. —

Subsection (b)(6) of this rule cannot be the basis for a motion to set aside a judgment if the facts supporting it are facts which more appropriately would support one of the five preceding subsections; a movant may not be allowed to circumvent the requirements of subsections (b)(1) through (b)(5) of this rule by designating their motion as one made under subsection (b)(6) of this rule. Therefore, where appellants’ arguments were based upon circumstances which would allow relief, if at all, under subsection (b)(1) and not subsection (b)(6), and they did not bring their motions within one year of entry of judgment, their motions were not timely filed and denial was proper. Bruton v. Sea Captain Properties, Inc., 96 N.C. App. 485, 386 S.E.2d 58, 1989 N.C. App. LEXIS 1023 (1989).

Two-Pronged Test. —

The setting aside of a judgment pursuant to subsection (b)(6) of this rule should only take place where (i) extraordinary circumstances exist and (ii) there is a showing that justice demands it. This test is two-pronged, and relief should be forthcoming only where both requisites exist. In addition to these requirements, the movant must also show that he has a meritorious defense. State ex rel. Envtl. Mgt. Comm'n v. House of Raeford Farms, Inc., 101 N.C. App. 433, 400 S.E.2d 107, 1991 N.C. App. LEXIS 86 , writ denied, 328 N.C. 576 , 403 S.E.2d 521, 1991 N.C. LEXIS 300 (1991).

A judgment may be valid, irregular, erroneous, or void. An erroneous judgment is one rendered according to the course and practice of the court but contrary to the law or upon a mistaken view of the law. A void judgment has semblance of a valid judgment, but lacks some essential element such as jurisdiction or service of process. Thus, a judgment is not void if the court had jurisdiction over the parties and the subject matter and had authority to render the judgment entered. Windham Distrib. Co. v. Davis, 72 N.C. App. 179, 323 S.E.2d 506, 1984 N.C. App. LEXIS 4001 (1984).

A judgment or order rendered without an essential element, such as jurisdiction or proper service of process, is void. County of Wayne ex rel. Williams v. Whitley, 72 N.C. App. 155, 323 S.E.2d 458, 1984 N.C. App. LEXIS 4010 (1984).

Failure to Obtain Personal Jurisdiction Over Defendant. —

Motion to set aside the consent judgment, although made more than six years after its entry, was based on the argument that the trial court did not have personal jurisdiction over defendant. Because a judgment entered without personal jurisdiction over a party is void, defendant’s motion was not untimely because it was undisputed that defendant neither accepted service of process nor was served with process. Nye, Mitchell, Javis & Bugg v. Oates, 109 N.C. App. 289, 426 S.E.2d 291, 1993 N.C. App. LEXIS 231 (1993).

Waiver of Objection to Personal Jurisdiction. —

Defendants were not entitled to relief from the judgment pursuant to this rule as any objection to personal jurisdiction was waived by defendant appearing at the hearing and consenting to the substitution of the administrator as party defendant and the subsequent entry of judgment against the defendants. Farm Credit Bank v. Edwards, 121 N.C. App. 72, 464 S.E.2d 305, 1995 N.C. App. LEXIS 960 (1995).

Where the record supported the trial court’s finding that there was no evidence to show that plaintiff’s attorney had actual knowledge of an address where defendant could be served, substituted service on the Secretary of State was effective, and trial court did not err in denying defendant’s motion to set aside the judgment on that ground pursuant to subdivision (b)(4) of this rule. Patridge v. Associated Cleaning Consultants & Servs., Inc., 108 N.C. App. 625, 424 S.E.2d 664, 1993 N.C. App. LEXIS 108 (1993).

The lack of notice to interested party of the original incompetency proceeding would clearly justify granting relief pursuant to subsection (b)(6). In re Ward, 337 N.C. 443 , 446 S.E.2d 40, 1994 N.C. LEXIS 402 (1994).

Irregular, But Not Erroneous, Judgments Within Purview of Subsection (b)(6). —

Under the broad power of subsection (b)(6) of this rule an erroneous judgment cannot be attacked, but irregular judgments, rendered contrary to the cause and practice of the court, come within its purview. Taylor v. Triangle Porsche-Audi, Inc., 27 N.C. App. 711, 220 S.E.2d 806, 1975 N.C. App. LEXIS 1952 (1975), cert. denied, 289 N.C. 619 , 223 S.E.2d 396, 1976 N.C. LEXIS 1369 (1976).

Procedure for setting aside an irregular judgment is now found in subsection (b)(6) of this rule. City of Salisbury v. Kirk Realty Co., 48 N.C. App. 427, 268 S.E.2d 873, 1980 N.C. App. LEXIS 3235 (1980).

Section (b)(6) of this rule is equitable in nature and authorizes the trial judge to exercise his discretion in granting or withholding the relief sought. Kennedy v. Starr, 62 N.C. App. 182, 302 S.E.2d 497, 1983 N.C. App. LEXIS 2861 (1983); Huggins v. Hallmark Enters., Inc., 84 N.C. App. 15, 351 S.E.2d 779, 1987 N.C. App. LEXIS 2468 (1987); Howell v. Howell, 321 N.C. 87 , 361 S.E.2d 585, 1987 N.C. LEXIS 2503 (1987).

Court Has Power Under Subsection (b)(6) to Vacate Judgments to Accomplish Justice. —

The broad language of subsection (b)(6) of this rule gives the court ample power to vacate judgments whenever such action is appropriate to accomplish justice. Brady v. Town of Chapel Hill, 277 N.C. 720 , 178 S.E.2d 446, 1971 N.C. LEXIS 1070 (1971); Norton v. Sawyer, 30 N.C. App. 420, 227 S.E.2d 148, 1976 N.C. App. LEXIS 2284 , cert. denied, 291 N.C. 176 , 229 S.E.2d 689, 1976 N.C. LEXIS 950 (1976); Thomas v. Thomas, 43 N.C. App. 638, 260 S.E.2d 163, 1979 N.C. App. LEXIS 3146 (1979).

Subsection (b)(6) of this rule empowers the court to set aside or modify a final judgment, order or proceeding whenever such action is necessary to do justice under the circumstances. Howell v. Howell, 321 N.C. 87 , 361 S.E.2d 585, 1987 N.C. LEXIS 2503 (1987).

Where Competent Evidence Shows That Justice Requires It. —

While subsection (b)(6) of this rule vests power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice, a judge cannot do so without a showing based on competent evidence that justice requires it. Norton v. Sawyer, 30 N.C. App. 420, 227 S.E.2d 148, 1976 N.C. App. LEXIS 2284 , cert. denied, 291 N.C. 176 , 229 S.E.2d 689, 1976 N.C. LEXIS 950 (1976).

Notwithstanding the broad equitable power of a trial court to vacate judgments pursuant to subsection (b)(6) of this rule, it should not grant such relief absent a showing based on competent evidence that justice requires it. Sides v. Reid, 35 N.C. App. 235, 241 S.E.2d 110, 1978 N.C. App. LEXIS 2931 (1978).

Courts have the power to vacate judgments when such is appropriate, yet they should not do so under subsection (b)(6) of this rule except in extraordinary circumstances and after a showing that justice demands it. Vaglio v. Town & Campus Int'l, Inc., 71 N.C. App. 250, 322 S.E.2d 3, 1984 N.C. App. LEXIS 3820 (1984).

The expansive test by which relief can be given under subsection (b)(6) of this rule is whether (1) extraordinary circumstances exist, and (2) there is a showing that justice demands it. Oxford Plastics v. Goodson, 74 N.C. App. 256, 328 S.E.2d 7, 1985 N.C. App. LEXIS 3434 (1985).

Test for Setting Aside Judgment Pursuant to Subsection (b)(6). —

The setting aside of a judgment pursuant to subsection (b)(6) of this rule should only take place where (1) extraordinary circumstances exist, and (2) there is a showing that justice demands it. This test is two-pronged, and relief should be forthcoming only where both requisites exist. Baylor v. Brown, 46 N.C. App. 664, 266 S.E.2d 9, 1980 N.C. App. LEXIS 2933 (1980); Huggins v. Hallmark Enters., Inc., 84 N.C. App. 15, 351 S.E.2d 779, 1987 N.C. App. LEXIS 2468 (1987).

Courts have the power to vacate judgments when such action is appropriate, yet they should not do so under subsection (b)(6) of this rule except in extraordinary circumstances and after a showing that justice demands it. Standard Equip. Co. v. Albertson, 35 N.C. App. 144, 240 S.E.2d 499, 1978 N.C. App. LEXIS 2885 (1978).

The test for whether a judgment, order or proceeding should be modified or set aside under subsection (b)(6) of this rule is two pronged: (1) extraordinary circumstances must exist, and (2) there must be a showing that justice demands that relief be granted. Howell v. Howell, 321 N.C. 87 , 361 S.E.2d 585, 1987 N.C. LEXIS 2503 (1987).

Meritorious Defense Required Under Subsection (b)(6). —

In proceeding under subsection (b)(6) of this rule the movant must show that he has a meritorious defense. Sides v. Reid, 35 N.C. App. 235, 241 S.E.2d 110, 1978 N.C. App. LEXIS 2931 (1978).

Where a default judgment was entered against an insured in an individual’s negligence action because the insured failed to respond despite proper service of process, the trial court did not abuse its discretion in denying the intervening insurer’s motion to set aside the judgment pursuant to Rule 60(b)(6) where the insurer failed to allege or show the existence of extraordinary circumstances, a meritorious defense, or that the trial court abused its discretion in refusing to set aside the judgment. Barton v. Sutton, 152 N.C. App. 706, 568 S.E.2d 264, 2002 N.C. App. LEXIS 976 (2002).

To set aside a judgment for irregularity, it is necessary to make a motion in the cause before the court which rendered the judgment, with notice to the other party. The objection cannot be made by an appeal, an independent action, or collateral attack. The time for such motion is not limited to one year after the judgment is rendered, but it must be made by the party affected and within a reasonable time, in order to show that the movant has been diligent to protect his rights. The application should also show that the judgment affects injuriously the rights of the party and that he has a meritorious defense; otherwise, it would be useless to set aside the judgment. City of Salisbury v. Kirk Realty Co., 48 N.C. App. 427, 268 S.E.2d 873, 1980 N.C. App. LEXIS 3235 (1980).

Timeliness of Motion. —

Entry of a default judgment, and not the point of the defendant’s actual notice, was the appropriate point in time to consider the timeliness of the defendant’s motion for relief under N.C. R. Civ. P. 60(b)(6) motion. Further, the motion, which was filed 17 months after entry of the default judgment, was reasonably timely considering that the trial court granted more relief beyond than was authorized by the allegations of the complaint. Sharyn's Jewelers, LLC v. Ipayment, Inc., 196 N.C. App. 281, 674 S.E.2d 732, 2009 N.C. App. LEXIS 362 (2009).

Motion to Amend Divorce Judgment Not Proper Under Subsection (b)(6). —

Defendant’s motion to amend divorce judgment to permit him to claim the two children of the parties as dependents on his State and federal tax returns was not properly made pursuant to subsection (b)(6) of this rule, since defendant sought to amend the judgment rather than to be relieved of it, and his motion should have been made pursuant to G.S. 1A-1 , Rule 59(e). Coleman v. Arnette, 48 N.C. App. 733, 269 S.E.2d 755, 1980 N.C. App. LEXIS 3300 (1980).

Motion to Obtain Modifications of Separation Agreement Improper Under Subsection (b)(6). —

Husband’s motion under G.S. 1A-1 , N.C. R. Civ. P. 60(b)(6) was improper where he sought to vacate the alimony provision of his separation agreement with his wife, which had been incorporated into the parties’ divorce decree; the motion should have been filed under G.S. 50-16.9 . Oakley v. Oakley, 165 N.C. App. 859, 599 S.E.2d 925, 2004 N.C. App. LEXIS 1511 (2004).

Motion to Amend Consent Judgment Not Allowed. —

Subsection (b)(6) of this rule permits motions for relief from judgments for “[a]ny other reason justifying relief from the operation of the judgment.” However, where a request for relief pursuant to subsection (b)(6) of this rule was in reality a motion to amend the Consent Judgment and that result could not be achieved by a motion under subsection (b)(6). State ex rel. Envtl. Mgt. Comm'n v. House of Raeford Farms, Inc., 101 N.C. App. 433, 400 S.E.2d 107, 1991 N.C. App. LEXIS 86 , writ denied, 328 N.C. 576 , 403 S.E.2d 521, 1991 N.C. LEXIS 300 (1991).

Reduction of Amount of Attorney’s Fees Awarded as a Sanction. —

Trial court did not abuse its discretion in reducing the amount of attorney’s fees awarded to an employer as a sanction for its employee initiating an action against the employer for an improper purpose after the employer terminated the employee from her employment. Davis v. Durham Mental Health/Development Disabilities/Substance Abuse Area Auth., 165 N.C. App. 100, 598 S.E.2d 237, 2004 N.C. App. LEXIS 1156 (2004).

The interest of deciding cases on the merits cannot outweigh all other considerations and entitle plaintiff to extraordinary relief under subsection (b)(6) of this rule. Standard Equip. Co. v. Albertson, 35 N.C. App. 144, 240 S.E.2d 499, 1978 N.C. App. LEXIS 2885 (1978).

Motions under subsection (b)(6) of this rule are not to be used as a substitute for appeal, and an erroneous judgment cannot be attacked under this subsection. Waters v. Qualified Personnel, Inc., 32 N.C. App. 548, 233 S.E.2d 76, 1977 N.C. App. LEXIS 1991 (1977), rev'd, 294 N.C. 200 , 240 S.E.2d 338, 1978 N.C. LEXIS 1224 (1978).

When debtors’ motion for attorney’s fees, pursuant to G.S. 75-16.1 , was denied, it was error for a trial court to grant attorney’s fees pursuant to a reconsideration of the court’s prior denial, under G.S. 1A-1 , N.C. R. Civ. P. 60(b)(6), because the motion to reconsider raised alleged errors of law by claiming the trial court applied the wrong legal standard in denying the attorney’s fees motion, and such errors could not properly be considered under a motion to reconsider, but, rather, had to be considered either on appeal or pursuant to a new trial motion under G.S. 1A-1 , N.C. R. Civ. P. 59. Catawba Valley Bank v. Porter, 188 N.C. App. 326, 655 S.E.2d 473, 2008 N.C. App. LEXIS 77 (2008).

Attorney Negligence Not Shown. —

Defendants failed to establish a meritorious defense or prove evidence showing gross negligence on the part of their attorney; evidence presented was otherwise unpersuasive. Royal v. Hartle, 145 N.C. App. 181, 551 S.E.2d 168, 2001 N.C. App. LEXIS 556 (2001).

Failure to Perfect Appeal. —

The Superior Court’s appropriate dismissal of defendant’s appeal on the grounds that defendant failed to perfect it barred any discussion of the merits of the exchange rate used in the judgment; accordingly, the trial court properly denied defendant’s motion under subdivision (b)(6) of this rule. Lang v. Lang, 108 N.C. App. 440, 424 S.E.2d 190, 1993 N.C. App. LEXIS 84 (1993).

Trial court properly denied defendants’ motion for relief on alleged errors of law under G.S. 1A-1-60(b)(6) because, although defendants properly appealed a trial court order to the Court of Appeals, they failed to perfect such appeal, leading to the dismissal of the appeal, and to the Supreme Court of North Carolina’s denial of defendants’ petition for discretionary review; accordingly, defendants could not then seek a second bite at the apple through Rule 60(b)(6). Baxley v. Jackson, 179 N.C. App. 635, 634 S.E.2d 905, 2006 N.C. App. LEXIS 2055 (2006).

Attacking Consent Judgment on Grounds of Mutual Mistake. —

When parties seek to attack a consent judgment on the basis of mutual mistake by way of a motion in the cause, section (b)(6) of this rule controls. In re Baity, 65 N.C. App. 364, 309 S.E.2d 515, 1983 N.C. App. LEXIS 3474 (1983), cert. denied, 311 N.C. 401 , 319 S.E.2d 266, 1984 N.C. LEXIS 1961 (1984).

Failure to Agree to Order’s Modification. —

Where order set aside equitable distribution award because the parties could not agree as to a modification of the order, and plaintiff failed to preserve his right of appeal while such modification was being considered, the parties’ failure to agree as to the order’s modification was not a justifiable reason for setting the order aside; setting the order aside because plaintiff lost his right to appeal through his own oversight would amount to using subsection (b)(6) of this rule as a substitute for appeal, which the law does not permit. Draughon v. Draughon, 94 N.C. App. 597, 380 S.E.2d 547, 1989 N.C. App. LEXIS 547 (1989).

Court May Not Nullify Effect of Judgment While Leaving Judgment Intact. —

Neither subsection (b)(6) of this rule nor any other provision of law authorizes a court to nullify or avoid one or more of the legal effects of a valid judgment while leaving the judgment itself intact. Howell v. Howell, 321 N.C. 87 , 361 S.E.2d 585, 1987 N.C. LEXIS 2503 (1987).

Trial court erred in granting wife’s motion to be “relieved of the effect” of a divorce judgment solely to the extent that the judgment barred her claim for equitable distribution. Howell v. Howell, 321 N.C. 87 , 361 S.E.2d 585, 1987 N.C. LEXIS 2503 (1987).

The Industrial Commission has inherent power analogous to that conferred on courts by subsection (b)(6), of this rule in the exercise of supervision over its own judgments to set aside a former judgment when the paramount interest in achieving a just and proper determination of a workers’ compensation claim requires it. Hogan v. Cone Mills Corp., 315 N.C. 127 , 337 S.E.2d 477, 1985 N.C. LEXIS 2091 (1985).

Plaintiffs who because of procedural blunders made by some of their attorneys had never had a full hearing on the merits of any of their claims, and whose avenues of appeal were cut off through gross neglect by their attorneys, showed a basis for relief under subsections (b)(5) and (b)(6) of this rule, and the trial court abused its discretion in denying plaintiffs’ motion to modify a prior court order which enjoined further suits by plaintiffs against defendants as vexatious as a matter of law. Poston v. Morgan, 83 N.C. App. 295, 350 S.E.2d 108, 1986 N.C. App. LEXIS 2709 (1986).

Four Year Old Consent Order. —

Trial court did not abuse its discretion in refusing to set aside a consent order that plaintiff had signed over four years ago on grounds that it was void because of plaintiff’s lack of voluntary consent thereto. Prescott v. Prescott, 83 N.C. App. 254, 350 S.E.2d 116, 1986 N.C. App. LEXIS 2707 (1986).

Failure to Give Notice or Opportunity to Be Heard. —

Defendant, who defaulted on original complaint which alleged that she was a resident of this State, was entitled to notice of plaintiff’s 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 subsection (b)(4) of this rule. First Union Nat'l Bank v. Rolfe, 83 N.C. App. 625, 351 S.E.2d 117, 1986 N.C. App. LEXIS 2752 (1986).

Lost Mail. —

Trial judge did not abuse his discretion in refusing to grant equitable relief from a judgment under subsection (b)(6) of this rule, since loss of summons and complaint in the mail was not an extraordinary circumstance; the evidence suggested that corporation exhibited a longstanding pattern of irresponsibility and disregard of legal matters and failed to respond to two communications about a pending suit, only one of which allegedly was lost in the mail. Anderson Trucking Serv., Inc. v. Key Way Transp., Inc., 94 N.C. App. 36, 379 S.E.2d 665, 1989 N.C. App. LEXIS 425 (1989).

No Notice of Calendaring for Trial. —

Judge erred in denying defendants’ motion to obtain relief from judgment pursuant to their motion under this rule where defendants had no notice that the case which they had appealed from the magistrate to the district court had been calendared for trial; since the judge found as a fact that the case had been duly calendared and that neither plaintiff nor defendants appeared and since the only evidence regarding the matter of whether defendants had received notice was in the negative, it was the duty of the trial judge to find as a fact that defendants did not have notice and to allow defendants’ motion entering an order vacating the judgment. Windley v. Dockery, 95 N.C. App. 771, 383 S.E.2d 682, 1989 N.C. App. LEXIS 876 (1989).

Unilateral Reduction of Verdict. —

In a breach of contract case in which the jury awarded judgment against one defendant in the amount of $2,426.10 and judgment in the amount of $2,426.10 against the other defendant, the total recovery being the precise amount of the prayer for relief, $4,852.20, it was an abuse of discretion for the trial court, on its own motion, to enter a judgment jointly and severally against the defendants in the total sum of $2,426.10, thereby reducing the verdict by 50 percent. Jorgensen v. Seeman, 95 N.C. App. 767, 383 S.E.2d 702, 1989 N.C. App. LEXIS 877 (1989).

Where defendant failed to appeal from judgment against it in favor of subcontractor and failed to move for a new trial under G.S. 1A-1 , Rule 59, it was not entitled to relief from judgment under section (b) of this rule on grounds that it had already paid contractor all that was due under contract. Concrete Supply Co. v. Ramseur Baptist Church, 95 N.C. App. 658, 383 S.E.2d 222, 1989 N.C. App. LEXIS 841 (1989).

After foreclosure, where property was owned and possessed by independent third persons, it was impossible for plaintiffs to satisfy the requirement of reconveyance; this change in circumstances is a good example of a situation which would justify relief under subdivision (b)(6). Lumsden v. Lawing, 117 N.C. App. 514, 451 S.E.2d 659, 1995 N.C. App. LEXIS 7 (1995).

Incompetent Plaintiff Not Yet Declared Incompetent. —

The trial court properly nullified its previous orders giving plaintiff relief from all dismissals, costs, and fee orders entered in the previous cases where none of the parties was entitled to act on the incompetent’s behalf, as incompetent plaintiffs must be represented by a general or testamentary guardian or guardian ad litem, and where the inexcusable negligence of the parents’ attorney could not be charged against her because she was an incompetent “entitled to the greatest possible protection by this court.” Fox v. Health Force, Inc., 143 N.C. App. 501, 547 S.E.2d 83, 2001 N.C. App. LEXIS 298 , cert. denied, 354 N.C. 216 , 553 S.E.2d 912, 2001 N.C. LEXIS 1017 (2001).

Denial of Motion Upheld. —

The trial court did not abuse its discretion in denying property owner’s motion for relief from default judgment granting subcontractor a lien against certain real property, under G.S. 1A-1 , Rule 60(b)(6), where the default judgment against the property owner was not void, and the record revealed no extraordinary circumstances or other showing by the property owner that would warrant relief from the judgment. Piedmont Rebar, Inc. v. Sun Constr., Inc., 150 N.C. App. 573, 564 S.E.2d 281, 2002 N.C. App. LEXIS 583 (2002).

Trial court did not abuse its discretion by denying a husband’s motion for review and reconsideration, due to a fall in stock market prices, of a lump sum distribution to be made in the equitable distribution of the parties’ property. Lee v. Lee, 167 N.C. App. 250, 605 S.E.2d 222, 2004 N.C. App. LEXIS 2189 (2004).

Trial court properly denied a condominium owner’s motion to set aside an execution sale, the order confirming the sale, and the sheriff’s deed pursuant to G.S. 1A-1 , N.C. R. Civ. P. 60(b) because the sheriff complied with G.S. 1-339.54(2)a by sending the notice of the sale via registered mail more than 30 days prior to the sale of the property to the owner’s last known address; because the owner was not located in the county, he was not entitled to have a copy of the notice served on him personally pursuant to G.S. 1-339.54(1). St. Regis of Onslow County, N.C. Owners Ass'n v. Johnson, 191 N.C. App. 516, 663 S.E.2d 908, 2008 N.C. App. LEXIS 1468 (2008).

Where a former wife’s complaint alleging that her former husband breached a separation agreement was dismissed as a sanction for her failure to file timely responses to his discovery requests, the wife’s G.S. 1A-1 , N.C. R. Civ. P. 60(b) motion for reconsideration of the dismissal order was not an abuse of the district court’s discretion because (1) she did not present grounds for such relief since the fact that she submitted her discovery responses on the day of a sanctions hearing did not preclude dismissal of her complaint as a sanction; (1) the district court was not required to find that the husband was prejudiced in order to dismiss the case as a sanction; and (3) the district court adequately considered lesser alternatives, as required, before dismissing the case as a sanction. Batlle v. Sabates, 198 N.C. App. 407, 681 S.E.2d 788, 2009 N.C. App. LEXIS 1355 (2009).

Because the trial court did not err by entering default against defendant since it failed to file a response to plaintiff’s complaint within thirty days and failed to make a request to extend time to answer, the trial court also did not abuse its discretion in denying defendant’s motion to set aside an entry of default under G.S. 1A-1 , N.C. R. Civ. P. 60(b)(6); the trial court found no reason justifying defendant’s request to set aside the entry of default judgment and summary judgment. Bodie Island Beach Club Ass'n v. Wray, 215 N.C. App. 283, 716 S.E.2d 67, 2011 N.C. App. LEXIS 1887 (2011).

Trial court did not abuse its discretion in denying defendants’ G.S. 1A-1 , N.C. R. Civ. P. 60(b), motion where the discovery they sought for an out-of-state case had been provided and that case had been dismissed, and the issue of sanctions was not timely nor properly before the appellate court. Engility Corp. v. Nell, 258 N.C. App. 402, 814 S.E.2d 113, 2018 N.C. App. LEXIS 259 (2018).

Seller of office buildings was not entitled to set aside a default judgment because the seller failed to show excusable neglect as its member/manager provided the buyer’s amended complaint to the seller’s then-counsel and the record was devoid of any evidence of follow-up by the seller once the matter was turned over to the attorney. Competent evidence supported the conclusion that the seller’s failure to appear was due to its own inexcusable neglect of its business affairs rather than to extraordinary circumstances. Judd v. Tilghman Med. Assocs., LLC, 272 N.C. App. 520, 847 S.E.2d 45, 2020 N.C. App. LEXIS 538 (2020).

Denial of Motion Improper. —

In a medical malpractice case, the trial court erred in granting the doctor and hospital’s motions for judgment on the pleadings and denying the injured party’s motion to set aside the dismissal where the injured party filed the case on the last day of a 120-day extension filed an amended complaint to include the expert testimony certification, voluntarily dismissed the action and later 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 N.C. App. LEXIS 1044 (2003), rev'd, 358 N.C. 144 , 592 S.E.2d 687, 2004 N.C. LEXIS 172 (2004).

Trial court erred in denying a seller’s motion for relief from judgment under G.S. 1A-1-60(b)(6), as the seller presented evidence that was not presented at trial that the seller did not own the watercraft that the seller was ordered to convey to the buyers. Curran v. Barefoot, 183 N.C. App. 331, 645 S.E.2d 187, 2007 N.C. App. LEXIS 1156 (2007).

Relief Awarded to Plaintiff. —

Trial court erred by awarding relief to a plaintiff in a default judgment against one of the named defendants in excess of the relief supported by the allegations in the plaintiff’s complaint because the complaint only stated claims for relief as to that defendant on theories of breach of contract and negligent misrepresentation, but the court awarded relief for additional claims in the complaint that were asserted against the other defendants. Sharyn's Jewelers, LLC v. Ipayment, Inc., 196 N.C. App. 281, 674 S.E.2d 732, 2009 N.C. App. LEXIS 362 (2009).

F.Void Judgments

Four Year Old Consent Order. —

Trial court did not abuse its discretion in refusing to set aside a consent order that plaintiff had signed over four years ago on grounds that it was void because of plaintiff’s lack of voluntary consent thereto. Prescott v. Prescott, 83 N.C. App. 254, 350 S.E.2d 116, 1986 N.C. App. LEXIS 2707 (1986).

Ratified Consent Order. —

Where record demonstrated that both plaintiff and defendant understood and consented to oral stipulations as read into the record by plaintiff’s counsel, and defendant’s subsequent actions ratified and validated the trial court’s order, the defendant was estopped from challenging it on the basis of withdrawal of consent; consequently, trial court did not err in denying his motion for relief from judgment. Chance v. Henderson, 134 N.C. App. 657, 518 S.E.2d 780, 1999 N.C. App. LEXIS 906 (1999).

A void judgment binds no one, and it is immaterial whether the judgment was or was not entered by consent. Allred v. Tucci, 85 N.C. App. 138, 354 S.E.2d 291, 1987 N.C. App. LEXIS 2582 (1987).

A judgment is void only when the issuing court has no jurisdiction over the parties or subject matter in question or has no authority to render the judgment entered. Burton v. Blanton, 107 N.C. App. 615, 421 S.E.2d 381, 1992 N.C. App. LEXIS 771 (1992).

Order setting aside a summary judgment was void ab initio and could be attacked at any time; the trial court did not have personal jurisdiction over the individual employers since the employee failed to serve the individual employers with a copy of the summons and complaint. Van Engen v. Que Scientific, Inc., 151 N.C. App. 683, 567 S.E.2d 179, 2002 N.C. App. LEXIS 871 (2002).

Decision to deny an ex-wife’s Rule 60(b)(4) motion was affirmed since the ex-wife did not show that an equitable distribution order was void; the ex-wife did not raise any jurisdictional challenge or assert that the district court was without authority to enter the equitable distribution order, so the ex-wife failed to show that the order was void under the law. Britt v. Britt, 168 N.C. App. 198, 606 S.E.2d 910, 2005 N.C. App. LEXIS 170 (2005).

A judgment is not void if the court has jurisdiction over the parties and the subject matter and had the authority to render the judgment entered. Sharp v. Sharp, 84 N.C. App. 128, 351 S.E.2d 799, 1987 N.C. App. LEXIS 2458 (1987).

Sanctions ordered by a district court against a party whose cause of action was dismissed by a magistrate was not a void judgment under G.S. 1A-1 , Rule 60(b)(4) since the district court had jurisdiction over the motion for sanctions the defendant filed with the district court after the magistrate dismissed the underlying action. Chandak v. Elec. Interconnect Corp., 144 N.C. App. 258, 550 S.E.2d 25, 2001 N.C. App. LEXIS 413 (2001).

A judgment, if proper on its face, is not void. Burton v. Blanton, 107 N.C. App. 615, 421 S.E.2d 381, 1992 N.C. App. LEXIS 771 (1992).

Default judgment was not void for lack of jurisdiction due to a failure to use due diligence to obtain personal service before service by publication because the person against whom the judgment was entered was not allowed to attack the judgment under Rule 4(j)(4) when he had actual notice of the proceedings against him. Creasman v. Creasman, 152 N.C. App. 119, 566 S.E.2d 725, 2002 N.C. App. LEXIS 856 (2002).

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 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 N.C. App. LEXIS 2595 (2005).

Former husband was not entitled to relief under G.S. 1A-1 , N.C. R. Civ. P. 60(b) from a divorce judgment as void based on allegations that his signature on pleadings that acted as an answer and an agreement to summary judgment was a forgery because: (1) the notary who notarized his signature, although she did not remember the husband, testified that her usual practice was to require identification and have the person whose signature she notarized sign before her; and (2) the former wife’s attorney testified that the husband had contacted the attorney to see what was taking so long to get the divorce judgment done. Macher v. Macher, 188 N.C. App. 537, 656 S.E.2d 282, 2008 N.C. App. LEXIS 219 , aff'd, 362 N.C. 505 , 666 S.E.2d 750, 2008 N.C. LEXIS 798 (2008).

Trial court erred when it found that a farmer did not consent to personal jurisdiction in Iowa where the place of acceptance of the account agreement was Iowa, the agreement contained a consent to jurisdiction clause providing that the farmer consented to personal jurisdiction in the Iowa courts, and nothing in the record suggested that the clause was invalid under Iowa law. Rabo Agrifinance, LLC v. Sills, 264 N.C. App. 707, 826 S.E.2d 800, 2019 N.C. App. LEXIS 309 (2019).

Burden of Proof. —

Former spouse who erroneously invoked the extraordinary circumstances provision to set aside, in part, a judgment that the spouse contended was void — based on the spouse’s assertion that the trial court lacked the authority to order the spouse to make distributive award payments from funds that were exempt from distribution under federal law — failed to show that the equitable distribution order was irregular and subject to being set aside. However, the appellate court exercised its discretion to treat the appeal as a petition for certiorari. Lesh v. Lesh, 257 N.C. App. 471, 809 S.E.2d 890, 2018 N.C. App. LEXIS 63 (2018).

Excess Relief Granted Did Not Void Default Judgment. —

Excess relief granted by a trial court in excess of that to which a plaintiff was entitled upon the facts alleged in the plaintiff’s complaint did not void a default judgment under N.C. R. Civ. P. 60(b)(4) because the default judgment was thus irregular, not void. Sharyn's Jewelers, LLC v. Ipayment, Inc., 196 N.C. App. 281, 674 S.E.2d 732, 2009 N.C. App. LEXIS 362 (2009).

Failure to Give Notice or Opportunity to Be Heard. —

Defendant, who defaulted on original complaint which alleged that she was a resident of this state, was entitled to notice of plaintiff’s 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 subsection (b)(4) of this rule. First Union Nat'l Bank v. Rolfe, 83 N.C. App. 625, 351 S.E.2d 117, 1986 N.C. App. LEXIS 2752 (1986).

Where a default judgment was entered against an insured in an individual’s negligence action, the trial court did not abuse its discretion in denying the intervening insurer’s motion to set aside the judgment as void under Rule 60(b)(4) on the ground that the individual who sued the insured had not given the insurer proper notification of the suit under G.S. 20-279.21(b)(3), as the insurer failed to show that the lack of notice to the insurer deprived the trial court of jurisdiction or authority to enter the default judgment against the insured, or otherwise rendered the judgment void. Barton v. Sutton, 152 N.C. App. 706, 568 S.E.2d 264, 2002 N.C. App. LEXIS 976 (2002).

In a termination of parental rights proceeding, if service of process on the father was defective, orders adjudicating the father’s children neglected would be void, and the father would be relieved from that judgment under G.S. 1A-1 , N.C. R. Civ. P. 60(b); however, the record was not sufficiently clear to warrant voiding the trial court’s order on that basis. In re Shermer, 156 N.C. App. 281, 576 S.E.2d 403, 2003 N.C. App. LEXIS 112 (2003).

Judgment Was Void Where Trial Court Lacked Personal Jurisdiction Over The Father. —

Trial court erred in denying the father’s motion for relief from judgment or order since the record failed to show that the mother made diligent efforts to locate the father prior to publication of notice of service; thus, the trial court did not have personal jurisdiction over father and the child custody and support order was void. Cotton v. Jones, 160 N.C. App. 701, 586 S.E.2d 806, 2003 N.C. App. LEXIS 1929 (2003).

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 N.C. App. LEXIS 1925 (2005).

Improper Entry of Default By Clerk. —

Although a trial court did not abuse its discretion by finding that a failure to file an extension of time did not constitute a mistake since there was no explanation for a law firm’s actions, a motion to set aside a default judgment should have been granted under G.S. 1A-1 , N.C. R. Civ. P. 60(b) because a judgment was void since a clerk was unable to enter a default where there was no sum certain. Basnight Constr. Co. v. Peters & White Constr. Co., 169 N.C. App. 619, 610 S.E.2d 469, 2005 N.C. App. LEXIS 605 (2005).

When a trial court did not make a specific finding of whether defendants’ contact with plaintiff’s attorney occurred before or after the entry of a default judgment by the clerk, pursuant to G.S. 1A-1 , N.C. R. Civ. P. 55(b), a remand was necessary to determine if defendants made an “appearance” prior to the entry of the default, and if defendants did, the default judgment would be void under G.S. 1A-1 , N.C. R. Civ. P. 60(b)(4); the trial court would then have to determine if defendants had shown “good cause” under G.S. 1A-1, N.C. R. Civ. P. 55(d) to set aside the entry of default. Coastal Fed. Credit Union v. Falls, 217 N.C. App. 100, 718 S.E.2d 192, 2011 N.C. App. LEXIS 2349 (2011).

Time for Attacking Void Judgment. —

Although section (b) of this rule contains the requirement that all motions made pursuant thereto be made “within a reasonable time,” the requirement is not enforceable with respect to motions made pursuant to subsection (b)(4) of this rule, because a void judgment is a legal nullity which may be attacked at any time. Allred v. Tucci, 85 N.C. App. 138, 354 S.E.2d 291, 1987 N.C. App. LEXIS 2582 (1987).

Attacking Void Judgments Based on Error of Law Must be Pursued by Direct Appeal. —

When an injured party argued, in a motion for relief from judgment, that a trial court’s judgment adopting an arbitrator’s award dismissing her case was void, to the extent the injured party said the judgment was invalid or reversible for errors of law, such arguments were not properly before the appellate court because they should have been pursued in a direct appeal of the trial court’s judgment. Clendening v. Sears, Roebuck & Co., 2002 N.C. App. LEXIS 2114 (N.C. Ct. App. Aug. 20, 2002).

Relief from Void Divorce Following Death of Spouse. —

A proceeding to set aside an invalid divorce decree is not barred by the death of one of the spouses where property rights are involved. Allred v. Tucci, 85 N.C. App. 138, 354 S.E.2d 291, 1987 N.C. App. LEXIS 2582 (1987).

Husband’s motion for relief from December 16, 1985, judgment of divorce from bed and board, filed on May 20, 1986, two months after wife’s death, was timely, and was properly granted, as the judgment of divorce, although entered with the consent of the parties, contained no finding of material facts and was therefore void. Allred v. Tucci, 85 N.C. App. 138, 354 S.E.2d 291, 1987 N.C. App. LEXIS 2582 (1987).

Order for Husband to Sign Standard Separation Agreement Held Void. —

Court erred in denying husband’s motion to be relieved from “Memorandum of Judgment/Order” requiring husband to sign “a standard separation agreement,” since the provision in the “Memorandum of Judgment/Order” requiring husband to sign such agreement was void for vagueness, as the law does not recognize that any particular form is a “standard separation agreement.” Morrow v. Morrow, 94 N.C. App. 187, 379 S.E.2d 705, 1989 N.C. App. LEXIS 424 (1989), cert. denied, 326 N.C. 365 , 389 S.E.2d 816, 1990 N.C. LEXIS 144 (1990).

Failure of Court to Follow Terms of Custody Agreement. —

Although signed by both parties and the court and filed with the clerk of the court, custody and child support agreement would be vacated because the trial court did not read its terms to the parties and inquire into the parties understanding of and voluntary consent to the terms, as provided in the agreement. Tevepaugh v. Tevepaugh, 135 N.C. App. 489, 521 S.E.2d 117, 1999 N.C. App. LEXIS 1149 (1999).

Tenants’ Consent Judgment with Landlords Not Enforceable by Contempt Action. —

Tenants’ consent judgment with landlords was not enforceable by a contempt action, and the trial court erred by holding one of the landlords in contempt after he refused to deliver a tobacco marketing card so the tenants could sell tobacco and by denying the landlords’ motion, pursuant to G.S. 1A-1 , N.C. R. Civ. P. 60(b), for relief from that judgment. Hemric v. Groce, 154 N.C. App. 393, 572 S.E.2d 254, 2002 N.C. App. LEXIS 1466 (2002).

Lack of In Personam Jurisdiction. —

Judgment entered against defendant over which the court does not have in personam jurisdiction is void and subject to being set aside pursuant to subsection (b)(4) of this rule. Hayes v. Evergo Tel. Co., 100 N.C. App. 474, 397 S.E.2d 325, 1990 N.C. App. LEXIS 1065 (1990).

Evidence of Backdated Signature Voids Subject Matter Jurisdiction. —

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 thirty days. Latimer v. Latimer, 136 N.C. App. 227, 522 S.E.2d 801, 1999 N.C. App. LEXIS 1313 (1999), decided prior to 2001 amendment to subsection (c).

Proper Service of Process Found. —

Motion to set aside default judgment was denied because although a car dealership submitted affidavits from its general manager, its receptionist, and its controller denying the receipt of the summons and complaint, the trial court found proper service of process on defendant as indicated by the return of service filed with the clerk of court. Blankenship v. Town & Country Ford, Inc., 155 N.C. App. 161, 574 S.E.2d 132, 2002 N.C. App. LEXIS 1599 (2002).

Proper Service of Process Not Found. —

Default judgment was void under G.S. 1A-1 , N.C. R. Civ. P. 55(d) and G.S. 1A-1 , N.C. R. Civ. P. 60(b) because the service by publication under G.S. 1A-1, N.C. R. Civ. P. 4(j1) failed to list the correct county where the action was commenced. Accordingly, because the default judgment was void, the trial court abused its discretion in not granting a motion to set aside the judgment. Connette v. Jones, 196 N.C. App. 351, 674 S.E.2d 751, 2009 N.C. App. LEXIS 359 (2009).

Motion Under Subsection (b)(4) Held Inappropriate. —

Where the court had jurisdiction and authority to enter a contempt order, the order was not void, and therefore, a subsection (b)(4) motion was an inappropriate means to rectify the alleged error of failing to appoint counsel for defendant. Vaughn v. Vaughn, 99 N.C. App. 574, 393 S.E.2d 567, 1990 N.C. App. LEXIS 518 (1990).

Failure to Address Motion to Set Aside Default Judgment in Brief. —

Appellant could have moved for relief from a default judgment pursuant to G.S. 1A-1 , N.C. R. Civ. P. 60(b), but the appellant failed to address a motion to set aside in its brief, so that motion was not before the appellate court. Autec, Inc. v. Southlake Holdings, Inc., 169 N.C. App. 232, 609 S.E.2d 485, 2005 N.C. App. LEXIS 510 , dismissed, 171 N.C. App. 147, 613 S.E.2d 727, 2005 N.C. App. LEXIS 1162 (2005).

IV.Decisions under Prior Law
A.In General

Editor’s Note. —

The cases cited below were decided under former G.S. 1-220.

Former G.S. 1-220 was not applicable to proceedings before the Industrial Commission, because the Industrial Commission is not a court of general jurisdiction. It has no jurisdiction except that conferred upon it by statute. Hartsell v. Pickett Cotton Mills, Inc., 4 N.C. App. 67, 165 S.E.2d 792, 1969 N.C. App. LEXIS 1439 (1969).

No Application to Irregular Verdicts. —

Where an irregular verdict was rendered by the court, the same could not be set aside or altered under former statute. Becton v. Dunn, 137 N.C. 559 , 50 S.E. 289, 1905 N.C. LEXIS 208 (1905); Gough v. Bell, 180 N.C. 268 , 104 S.E. 535, 1920 N.C. LEXIS 81 (1920); Hood v. Stewart, 209 N.C. 424 , 184 S.E. 36, 1936 N.C. LEXIS 265 (1936).

Judgment or Order Not to Be Set Aside on Motion of Stranger. —

The remedy provided is restricted to the parties aggrieved by the judgment or order sought to be set aside, and the superior court had no power to set aside a judgment or order once rendered upon motion of a stranger to the cause. Smith v. City of New Bern, 73 N.C. 303 , 1875 N.C. LEXIS 63 (1875); Edwards v. Phillips, 91 N.C. 355 , 1884 N.C. LEXIS 76 (1884); In re Hood, 208 N.C. 509 , 181 S.E. 621, 1935 N.C. LEXIS 64 (1935).

On application for relief no distinction is made between adult and infant parties, provided the latter are represented according to the requirements of the law and the practice of the court. Mauney v. Gidney, 88 N.C. 200 , 1883 N.C. LEXIS 52 (1883).

Modification by One Judge of Judgment Rendered by Another. —

Where on notice and showing that there was on the part of the complainant a mistake, inadvertence, surprise, or excusable neglect by which he was injured, the judgment rendered against him may be modified by a judge other than the one by whom it was rendered. Johnson v. Marcom, 121 N.C. 83 , 28 S.E. 58, 1897 N.C. LEXIS 168 (1897).

A judgment may be set aside in whole or in part; the court is invested with full legal discretion over the matter. Geer v. Reams, 88 N.C. 197 , 1883 N.C. LEXIS 51 (1883).

Relief Discretionary with Judge. —

The application for relief is addressed to the discretion of the judge presiding. Bank of Statesville v. Foote, 77 N.C. 131 , 1877 N.C. LEXIS 38 (1877).

The setting aside of a judgment is in the sound legal discretion of the trial judge. Dunn v. Jones, 195 N.C. 354 , 142 S.E. 320, 1928 N.C. LEXIS 88 (1928).

A rehearing is not a matter of right, but rests in the sound discretion of the court. Williams v. Alexander, 70 N.C. 665 , 1874 N.C. LEXIS 305 (1874).

It is discretionary with a judge whether he will relieve a party against a judgment taken against him through his “inadvertence, mistake, surprise, or excusable neglect.” If a judge refuses to entertain a motion to set aside a judgment for any of the enumerated causes because he thinks he has no power to grant it, then there is error, as he has failed to exercise the discretion conferred on him by law. Hudgins v. White, 65 N.C. 393 , 1871 N.C. LEXIS 113 (1871).

The surprise contemplated is some condition or situation in which a party to a cause is unexpectedly placed to his injury, without any fault or negligence of his own, which ordinary prudence could not have guarded against. Townsend v. Carolina Coach Co., 231 N.C. 81 , 56 S.E.2d 39, 1949 N.C. LEXIS 484 (1949).

Withdrawal of defendant’s attorney by leave of court when the case is called for trial constitutes “surprise.” Perkins v. Sykes, 233 N.C. 147 , 63 S.E.2d 133, 1951 N.C. LEXIS 550 (1951).

The court’s permitting counsel for defendant to withdraw from a case upon the calling of the case for trial, in the absence of notice to defendant, constitutes “surprise,” but does not entitle defendant to have the judgment set aside in the absence of a showing of a meritorious defense. Roediger v. Sapos, 217 N.C. 95 , 6 S.E.2d 801, 1940 N.C. LEXIS 180 (1940).

Relief Afforded from Mistakes of Fact and Not of Law. —

Former statute applied only to matters of fact, and did not afford relief from a judgment on the ground of a mistake of law. Skinner v. Terry, 107 N.C. 103 , 12 S.E. 118, 1890 N.C. LEXIS 19 (1890); Crissman v. Palmer, 225 N.C. 472 , 35 S.E.2d 422, 1945 N.C. LEXIS 348 (1945).

Mistaken legal advice by counsel acted on by client is not remediable, being a mistake of law and not of fact. Phifer v. Travellers Ins. Co., 123 N.C. 405 , 31 S.E. 715, 1898 N.C. LEXIS 87 (1898).

A judgment may be set aside for excusable neglect irrespective of whether the neglect is induced by mistake of fact or law. Rierson v. York, 227 N.C. 575 , 42 S.E.2d 902, 1947 N.C. LEXIS 473 (1947).

The larger part of the court’s jurisdiction is invoked under “excusable neglect” where there is neither mistake of law nor fact. Rierson v. York, 227 N.C. 575 , 42 S.E.2d 902, 1947 N.C. LEXIS 473 (1947).

The discretion to set aside a judgment is not given unless there has been excusable neglect. Norton v. McLaurin, 125 N.C. 185 , 34 S.E. 269, 1899 N.C. LEXIS 190 (1899). See also, Meir v. Walton, 2 N.C. App. 578, 163 S.E.2d 403, 1968 N.C. App. LEXIS 973 (1968).

Along with a Meritorious Defense. —

A party moving in apt time to set aside a judgment taken against him on the ground of excusable neglect, not only must show excusable neglect, but also must make it appear that he has a meritorious defense to the plaintiff ’s cause of action. Van Hanford v. McSwain, 230 N.C. 229 , 53 S.E.2d 84, 1949 N.C. LEXIS 627 (1949). See Bowie v. Tucker, 197 N.C. 671 , 150 S.E. 200, 1929 N.C. LEXIS 330 (1929); State v. O'Connor, 223 N.C. 469 , 27 S.E.2d 88, 1943 N.C. LEXIS 303 (1943); Perkins v. Sykes, 233 N.C. 147 , 63 S.E.2d 133, 1951 N.C. LEXIS 550 (1951).

Which Is Prerequisite to Relief. —

Existence of a meritorious cause of action is a prerequisite to relief on motion to vacate former judgment. Craver v. Spaugh, 226 N.C. 450 , 38 S.E.2d 525, 1946 N.C. LEXIS 246 (1946).

Absence of a sufficient showing of excusable neglect renders the question of meritorious defense immaterial. Johnson v. Sidbury, 225 N.C. 208 , 34 S.E.2d 67, 1945 N.C. LEXIS 418 (1945); Whitaker v. Raines, 226 N.C. 526 , 39 S.E.2d 266, 1946 N.C. LEXIS 252 (1946); Ellison v. White, 3 N.C. App. 235, 164 S.E.2d 511, 1968 N.C. App. LEXIS 839 (1968).

And a want of a sufficient showing of a meritorious defense renders the question of excusable neglect immaterial. Ellison v. White, 3 N.C. App. 235, 164 S.E.2d 511, 1968 N.C. App. LEXIS 839 (1968).

Mistake, etc., Must Be of the Party Seeking Relief. —

Former statute applied only where the mistake, surprise, etc., was that of the party seeking relief and had no application where the mistake and surprise arose from the fraudulent conduct of another. Boyden v. Williams, 80 N.C. 95 , 1879 N.C. LEXIS 30 (1879).

And not of the Court. —

Former section did not apply where a motion was made to correct an erroneous judgment rendered at a former term, if it appeared that the error committed was that of the court and not that of the party. Simmons v. Dowd, 77 N.C. 155 , 1877 N.C. LEXIS 45 (1877).

Whether neglect is excusable is to be determined with reference to the litigant’s neglect, and not that of his attorney or defendant’s insurer. Ellison v. White, 3 N.C. App. 235, 164 S.E.2d 511, 1968 N.C. App. LEXIS 839 (1968).

The omission of an attorney retained as counsel to perform his duty as such is excusable neglect in the party, and the judgment may be vacated. Griel v. Vernon, 65 N.C. 76 , 1871 N.C. LEXIS 23 (1871); Wiley v. Logan, 94 N.C. 564 , 1886 N.C. LEXIS 105 (1886).

Especially where counsel is insolvent, and unable to respond in damages for his negligence. Hygenic Plate Ice Mfg. Co. v. Raleigh & A. Air Line R.R., 125 N.C. 17 , 34 S.E. 100 (1899). See also, Deal v. Palmer, 68 N.C. 215 , 1873 N.C. LEXIS 53 (1873); English v. English, 87 N.C. 497 , 1882 N.C. LEXIS 103 (1882).

Where a party to an action employs a reputable attorney and is guilty of no negligence himself, the attorney’s negligence in failing to appear and answer will not be imputed to such party in a proceeding to vacate a default judgment, but the law will excuse the party and afford him relief. Stallings v. Spruill, 176 N.C. 121 , 96 S.E. 890, 1918 N.C. LEXIS 200 (1918). See also, Geer v. Reams, 88 N.C. 197 , 1883 N.C. LEXIS 51 (1883).

But the client may not abandon his case on employment of counsel, and when he has a case in court he must attend to it. Meir v. Walton, 2 N.C. App. 578, 163 S.E.2d 403, 1968 N.C. App. LEXIS 973 (1968).

For the personal inattention of a suitor no relief can be granted. Ellington, Royster & Co. v. Wicker, 87 N.C. 14 , 1882 N.C. LEXIS 6 (1882).

Failure to Comply with Ordinary Prudent Man Standard Not Excusable. —

Parties who have been duly served with summons are required to give their defense that attention which a man of ordinary prudence usually gives his important business, and failure to do so is not excusable. Meir v. Walton, 2 N.C. App. 578, 163 S.E.2d 403, 1968 N.C. App. LEXIS 973 (1968); Ellison v. White, 3 N.C. App. 235, 164 S.E.2d 511, 1968 N.C. App. LEXIS 839 (1968).

Changing or Setting Aside Consent Judgment. —

Where court enters a judgment on its record which appears to have been by the consent of the parties, such judgment cannot thereafter be changed, altered, or set aside without the consent of the parties to it, unless it appears, upon proper allegation and proof and a finding of the court wherein it had been entered, that the judgment was obtained by fraud or mutual mistake, or that consent had not in fact been given. The burden is on the party attacking the judgment to show facts which will entitle him to relief. Gardiner v. May, 172 N.C. 192 , 89 S.E. 955, 1916 N.C. LEXIS 263 (1916).

Voidability of Judgment Against Incompetent Defendant. —

A judgment obtained against one who was non compos mentis is not void, but voidable, and can only be set aside for excusable neglect and the showing of a meritorious defense. Farmers & Merchants Bank v. Duke, 187 N.C. 386 , 122 S.E. 1, 1924 N.C. LEXIS 294 (1924).

Verification of a complaint by swearing with uplifted hand rather than on the Bible is not a sufficient ground for setting aside a judgment entered by default. Fellos v. Allen, 202 N.C. 375 , 162 S.E. 905, 1932 N.C. LEXIS 509 (1932).

The burden is upon the party seeking to vacate a judgment to show facts which would make the refusal to vacate appear to be an abuse of discretion. Kerchner v. Baker, 82 N.C. 169 , 1880 N.C. LEXIS 199 (1880).

Findings of Fact Are Required. —

Before a judge can vacate a judgment on the grounds of excusable neglect, he must find and state the facts. Clegg v. New York White Soapstone Co., 66 N.C. 391 , 1872 N.C. LEXIS 79 (1872); Powell v. Weith, 66 N.C. 423 , 1872 N.C. LEXIS 93 (1872).

In setting aside a judgment, the court is required to find not only the facts in regard to the excusable neglect relied on, but also the facts in regard to a meritorious defense, and a finding of a “meritorious defense,” without finding the facts showing a meritorious defense, is insufficient. Parnell v. Ivey, 213 N.C. 644 , 197 S.E. 128, 1938 N.C. LEXIS 164 (1938).

And Are Conclusive When Supported by Competent Evidence. —

The findings of fact by the trial court upon the hearing of a motion to set aside a judgment for excusable neglect are conclusive on appeal when supported by any competent evidence. Carter v. Anderson, 208 N.C. 529 , 181 S.E. 750, 1935 N.C. LEXIS 72 (1935).

But Are Not Conclusive If Made Under a Misapprehension of Law. —

Upon motion to set aside a judgment, the findings of the court as to excusable neglect and meritorious defense are conclusive on appeal when supported by evidence, but such findings are not conclusive if made under a misapprehension of the law, in which instance the cause will be remanded to the end that the evidence be considered in its true legal light. Van Hanford v. McSwain, 230 N.C. 229 , 53 S.E.2d 84, 1949 N.C. LEXIS 627 (1949). See also, Perkins v. Sykes, 233 N.C. 147 , 63 S.E.2d 133, 1951 N.C. LEXIS 550 (1951).

Discretion of Judge Not Reviewable on Appeal. —

The appellate court can review on appeal what is a mistake, surprise, or excusable neglect, but it cannot review the discretion exercised by a judge of the superior court. Branch v. Walker, 92 N.C. 87 , 1885 N.C. LEXIS 158 (1885); D.J. Foley, Bro. & Co. v. Blank & Lovick, 92 N.C. 476 , 1885 N.C. LEXIS 240 (1885).

Absent Abuse of Discretionary Power. —

The refusal of a motion to set aside a judgment on the grounds of surprise or excusable neglect is a matter of discretion with the judge below, and cannot be reviewed on appeal unless it should appear that such discretion was abused. Cowles v. Cowles, 121 N.C. 272 , 28 S.E. 476, 1897 N.C. LEXIS 222 (1897).

But Whether Facts Found Constitute Mistake, etc., May Be Reviewed. —

When the judge grants relief, in the exercise of his discretion, that conclusion is not reviewable; but whether the facts found constitute, in law, mistake, inadvertence, surprise, or excusable neglect may be reviewed, and if it is determined that the court below erred therein, the judgment will be corrected, and the motion remanded, to the end that the trial judge may exercise the discretion conferred on him alone. Weil v. Woodard, 104 N.C. 94 , 10 S.E. 129, 1889 N.C. LEXIS 156 (1889).

After hearing the evidence and finding the facts, the action of the judge is conclusive upon the parties, and there is no appeal therefrom; however, this discretion is not arbitrary, but implies a legal discretion, and if the judge mistake the meaning of “mistake, inadvertence, surprise, or excusable neglect,” his judgment is the subject of appeal and review. Hudgins v. White, 65 N.C. 393 , 1871 N.C. LEXIS 113 (1871); Albertson v. Terry, 108 N.C. 75 , 12 S.E. 892, 1891 N.C. LEXIS 13 (1891).

Existence of mistake, surprise, inadvertence, or excusable neglect as a ground for relieving a party from a judgment, etc., is a question of law, and if the judge below errs in his ruling in regard thereto, his decision is subject to review. Powell v. Weith, 68 N.C. 342 , 1873 N.C. LEXIS 89 (1873).

Should the judge set aside a judgment upon a state of facts which did not bring the case within the scope of the former statute, his action would be subject to correction on appeal. Beck v. Bellamy, 93 N.C. 129 , 1885 N.C. LEXIS 27 (1885).

The discretionary power of the trial court to set aside a default judgment for mistake, inadvertence, surprise, or excusable neglect is a legal discretion and reviewable. Rierson v. York, 227 N.C. 575 , 42 S.E.2d 902, 1947 N.C. LEXIS 473 (1947).

Whether, upon the facts found by the judge, the neglect of attorneys for defendants to file answers to the complaint within the time required by statute was excusable, or whether, in any event, such neglect was imputable to defendants, were questions of law with respect to which the conclusions of the judge were reviewable on appeal. Abbitt v. Gregory, 195 N.C. 203 , 141 S.E. 587, 1928 N.C. LEXIS 47 (1928).

Upon the facts found the court determines, as a matter of law, whether or not they constitute excusable neglect, and whether or not they show a meritorious defense; and from such ruling either party may appeal. Ellison v. White, 3 N.C. App. 235, 164 S.E.2d 511, 1968 N.C. App. LEXIS 839 (1968).

Effect of Judge’s Failure to State Facts Found on Review. —

When, in setting aside a judgment for excusable negligence, the judge did not state the ground on which he founded his order, his action would nevertheless be upheld if in any aspect of the case it would be proper. D.J. Foley, Bro. & Co. v. Blank & Lovick, 92 N.C. 476 , 1885 N.C. LEXIS 240 (1885).

Presumption on Appeal That Excusable Neglect Was Considered. —

When the court below refused a party permission to file an answer at a term subsequent to the time allowed by a former order, the appellate court would assume that the question of “excusable neglect” was passed upon. Clegg v. New York White Soap Stone Co., 67 N.C. 302 , 1872 N.C. LEXIS 236 (1872).

Presumption That Findings of Fact Were Based on Sufficient Evidence. —

Where no evidence appeared on appeal from an order setting aside a judgment for surprise and excusable neglect, it would be presumed that findings of fact were based upon sufficient evidence, in the absence of exceptions to the findings, and the order would be affirmed where the findings sustained the court’s holding that movants had shown excusable neglect and meritorious defense. Radeker v. Royal Pines Park, 207 N.C. 209 , 176 S.E. 285, 1934 N.C. LEXIS 421 (1934).

Right of Appeal May Be Lost. —

The right of appeal from a judgment and a review thereof for errors of law cannot be restored to a party who has lost the right by a mere motion to vacate and an appeal from the refusal, whether founded on irregularity or for other causes. Badger v. Daniel, 82 N.C. 468 , 1880 N.C. LEXIS 275 (1880).

When Certiorari Granted. —

The writ of certiorari, as a substitute for a lost appeal, will be granted only when the petitioner shows that he has been diligent, that there have been no laches on his part in respect to his appeal, and further, that his failure to take and perfect the same was occasioned by some act or misleading representation on the part of the opposing party or some other person or cause in some way connected with it and not within his control. Williamson v. Boykin, 99 N.C. 238 , 5 S.E. 378, 1888 N.C. LEXIS 281 (1888); Graves v. Hines, 106 N.C. 323 , 11 S.E. 362, 1890 N.C. LEXIS 309 (1890).

As to appeal from order of clerk, see Caldwell v. Caldwell, 189 N.C. 805 , 128 S.E. 329, 1925 N.C. LEXIS 403 (1925); Kerr v. North Carolina Joint Stock Land Bank, 205 N.C. 410 , 171 S.E. 367, 1933 N.C. LEXIS 571 (1933); Gunter v. Dowdy, 224 N.C. 522 , 31 S.E.2d 524, 1944 N.C. LEXIS 412 (1944).

The effect of an amendment made by the court cannot be collaterally considered, but must be done in a proceeding brought for that purpose. Foster v. Woodfin, 65 N.C. 29 , 1871 N.C. LEXIS 8 (1871).

Institution of an independent action in lieu of a renewal of the motion was such an abandonment of the remedy by motion as worked a discontinuance of the same. Norwood v. King, 86 N.C. 80 , 1882 N.C. LEXIS 150 (1882).

Duty of Court to Supply Omissions in Record. —

It is the duty of every court to supply the omissions of its officers in recording its proceedings and to see that its record truly sets forth its action in each and every instance, and this it must do upon the application of any interested person, and without regard to its effect upon the rights of parties or of third persons. It is not open to any other tribunal to call in question the propriety of the action or the verity of its records, as made, and no lapse of time will debar the court of the power to discharge this duty. Walton v. Pearson, 85 N.C. 34 , 1881 N.C. LEXIS 200 (1881).

B.Relief Held Proper

Where the answer and record disclosed a meritorious defense, denial of a motion to set aside the judgment because defendant had offered no evidence of a meritorious defense was erroneous. Perkins v. Sykes, 233 N.C. 147 , 63 S.E.2d 133, 1951 N.C. LEXIS 550 (1951).

Action of the trial court in setting aside judgment for surprise and excusable neglect, etc., and placing the parties in status quo would be upheld on appeal where the record disclosed that the answer of the defendant set up a meritorious defense. Cagle v. Williamson, 200 N.C. 727 , 158 S.E. 391, 1931 N.C. LEXIS 424 (1931).

Entry of Default Judgment in State Court Following Removal to Federal Court. —

Where clerk erroneously granted defendants’ motion to remove a cause to the federal court, the moving defendants were entitled to assume that no further proceedings would be had in the State court until the cause was remanded from the federal court, and where a judgment by default and inquiry was entered therein for the want of an answer, without notice, nothing else appearing to show laches on the part of defendants’ attorneys, upon relevant findings of the trial judge, including that of a meritorious defense, the action of the trial judge is setting aside the judgment and permitting the defendants to file an answer would not be disturbed on appeal. Abbitt v. Gregory, 195 N.C. 203 , 141 S.E. 587, 1928 N.C. LEXIS 47 (1928).

Where service of summons was had on defendant bus company by service on an employee of the lessees of a bus station who sold tickets for the bus companies using the station, but the ticket saleswoman failed to notify defendant and judgment by default final was taken against it, it was held that the neglect of the ticket saleswoman would not be imputed to defendant, and the trial court had discretionary power to set aside the judgment upon a showing of meritorious defense. Townsend v. Carolina Coach Co., 231 N.C. 81 , 56 S.E.2d 39, 1949 N.C. LEXIS 484 (1949).

Court’s order setting aside a judgment by default against a corporation that had not been properly served with summons on the ground of excusable neglect was not error where the motion was made in apt time and a meritorious defense was found as a fact upon supporting evidence. Hershey Corp. v. Atlantic C.L. R.R., 203 N.C. 184 , 165 S.E. 550, 1932 N.C. LEXIS 342 (1932).

For case granting relief to a party who thought he was being summoned as a witness when in fact he was being summoned as the defendant, see Holden v. Purefoy, 108 N.C. 163 , 12 S.E. 848, 1891 N.C. LEXIS 30 (1891).

Where defendant endorser of a note was required by the illness of his wife to be outside the State, and the complaint was filed on the first day of the term while judgment by default was entered two days later, there was sufficient excuse for failure to answer to justify the opening of the default. Bank of Union v. Brock, 174 N.C. 547 , 94 S.E. 301, 1917 N.C. LEXIS 138 (1917).

Wife’s neglect to file answer upon assurances of her husband that he would do so was excusable in joint action against them. Wachovia Bank & Trust Co. v. Turner, 202 N.C. 162 , 162 S.E. 221, 1932 N.C. LEXIS 449 (1932).

Fact that an order which in effect deprived plaintiff of right of appeal was made at midnight, when plaintiff was absent and neither knew nor had reason to believe that court was in session, his counsel not being able to attend to the trial, constituted a case of “excusable neglect.” Long v. Cole, 74 N.C. 267 , 1876 N.C. LEXIS 68 (1876).

Where defendant employed a licensed, reputable attorney of good standing, residing in one county of the State, to defend an action brought in another county, and put him in possession of the facts constituting his defense, which attorney prepared and duly filed an answer, and the case was calendared and called for trial without notice to the defendant or his attorney, upon a judgment being obtained by default against defendant, defendant, upon his motion aptly made, could have the judgment set aside for surprise, excusable neglect, etc., upon a showing of a meritorious defense, the negligence of the attorney, if any, not being imputed to the client, and the latter being without fault. Meece v. Commercial Credit Co., 201 N.C. 139 , 159 S.E. 17, 1931 N.C. LEXIS 200 (1931).

Where defendant, who had retained an attorney of high character and reputation for diligence and faithfulness in the practice of his profession, with instructions to employ an attorney local to the litigation, and fully relied on him to notify him of the steps necessary to be taken in his defense, sought to set aside a judgment by default entered against him for his failure to answer, the laches of the attorney, if any, nothing else appearing, were not attributable to defendant and the order of the superior court setting aside the judgment for his excusable neglect, when otherwise correct, would be sustained on appeal. Helderman v. Hartsell Mills Co., 192 N.C. 626 , 135 S.E. 627, 1926 N.C. LEXIS 365 (1926).

Failure of Counsel to File Defendants’ Verified Answers. —

Where defendants, who had employed counsel who were learned in the law and skillful and diligent in its practice and whose zeal and fidelity to the cause of a client were unquestioned, verified their answers promptly and entrusted them to their attorneys for filing, attorneys’ failure to file the answers within time required by law was not due to such negligence on the part of defendants as deprived the judge of power to grant them relief from a default judgment. Abbitt v. Gregory, 195 N.C. 203 , 141 S.E. 587, 1928 N.C. LEXIS 47 (1928).

Failure to Notify Client of Attorney’s Withdrawal. —

Though an attorney may withdraw from a case with the permission of the court in proper instances, his client is entitled to such specific notice, either before or after the withdrawal, as will permit him to protect his rights, and where, for failure of such notice, a judgment upon a verdict was obtained against the client and he was without laches in moving to set it aside for surprise and excusable neglect upon a showing of a meritorious defense, it was correct for the trial judge to grant his motion. Gosnell v. Hilliard, 205 N.C. 297 , 171 S.E. 52, 1933 N.C. LEXIS 536 (1933).

Attorney Prevented from Examining Complaint. —

On motion to set aside a judgment on the ground of excusable negligence, where it appeared that defendant had twice called on the clerk to enter upon the docket the name of the attorney whom he had employed, and that the attorney himself had applied to the clerk to examine the plaintiff ’s complaint but was unable to see it and during the remainder of the term was absent in obedience to a summons as a witness, defendant’s neglect was excusable. Wynne v. Prairie, 86 N.C. 73 , 1882 N.C. LEXIS 148 (1882).

Incapacity of Attorney Due to Illness. —

Findings that the neglect of defendant was due to the incapacity of her lawyer induced by serious illness, that she had used due diligence, that the attorney’s neglect should not be imputed to her, and that defendant had a meritorious defense, were sufficient to support court’s order setting aside a default judgment. Rierson v. York, 227 N.C. 575 , 42 S.E.2d 902, 1947 N.C. LEXIS 473 (1947).

Where after summons and complaint were served on defendant, he timely employed an attorney to make answer and resist the suit, but judgment by default was taken by plaintiff, no answer having been filed in consequence of the illness and death of the wife of defendant’s attorney and the prolonged illness of the attorney himself, such circumstances constituted excusable neglect. Gunter v. Dowdy, 224 N.C. 522 , 31 S.E.2d 524, 1944 N.C. LEXIS 412 (1944).

C.Relief Held Improper

Where there were no findings of fact which would show excusable neglect on the part of defendants, or that the failure to file proper answer and undertaking was due to excusable neglect, it was error for court to allow defendant’s motion to set aside judgment. Whitaker v. Raines, 226 N.C. 526 , 39 S.E.2d 266, 1946 N.C. LEXIS 252 (1946).

Fact that defendants were old and feeble, although of sound mind, and that they forgot about the service of summons upon them, and therefore took no steps to defend the action, did not show excusable neglect. Pierce v. Eller, 167 N.C. 672 , 83 S.E. 758, 1914 N.C. LEXIS 196 (1914).

Infirm Party of Sound Mind. —

Where defendant was of sound mind, and, though his bodily infirmities confined him, carried on business and defended other suits, a default judgment against such defendant would not be vacated on account of excusable neglect because of his infirmities. Jernigan v. Jernigan, 179 N.C. 237 , 102 S.E. 310, 1920 N.C. LEXIS 214 (1920).

Mistake as to Nature of Summons. —

The fact that a defendant supposed a summons which was served on him to be a paper in another cause pending between himself and plaintiff, and for that reason did not take any measure to answer the same, was not such excusable neglect as entitled him to relief. White v. Snow, 71 N.C. 232 , 1874 N.C. LEXIS 62 (1874).

Inattention to Action. —

Where notwithstanding fact that summons and complaint were duly served on defendant and copies left with him, defendant failed for a period of 30 days to acquaint himself with their contents and to file an answer or other defense, attributing his inattention and neglect to the similarity of the title of the case to a former action and to his preoccupation in the duties of his profession, there was no evidence of such excusable neglect as would relieve an intelligent and active businessman from the consequences of his conduct as against diligent suitors proceeding in accordance with statute. Johnson v. Sidbury, 225 N.C. 208 , 34 S.E.2d 67, 1945 N.C. LEXIS 418 (1945).

Absence from Trial. —

It is the duty of a party to be present in court at the trial of his cause for the performance of matters outside the proper duties of his attorney, and where, without cause, he remains out of court, he cannot claim relief, as his act amounts to inexcusable neglect. Cobb v. O'Hagan, 81 N.C. 293 , 1879 N.C. LEXIS 180 (1879).

Where an attorney had ample notice as to the day of the trial, the continued absence of the client for two successive calls was inexcusable neglect for which no relief could be had under the statute. Henry v. Clayton, 85 N.C. 371 , 1881 N.C. LEXIS 274 (1881).

Where party was in courtroom when court announced that motions in his case would be heard the following day, his motion to set aside an order made on the day stipulated on the ground of excusable neglect was properly denied. Abernethy v. First Sec. Trust Co., 211 N.C. 450 , 190 S.E. 735, 1937 N.C. LEXIS 119 (1937).

Client Misinformed by Attorney as to Time of Trial. —

When defendant moved to vacate a judgment upon the ground of excusable neglect, for the reason that his counsel, by mistake, had misinformed him as to the time of holding court, whereby he failed to answer, it was held that the excuse was not sufficient, when the facts showed that defendant did not suffer harm by the mistake of his counsel. Clegg v. New York White Soap Stone Co., 67 N.C. 302 , 1872 N.C. LEXIS 236 (1872).

Failure of Defendant and Attorney to Answer. —

Where it appeared upon defendant’s motion to set aside a judgment by default that the same was regularly calendared for trial, and that the defendant had notice thereof and was afforded full opportunity to file his answer, but that his attorney failed to do so, defendant did not show such excusable neglect as would entitle him to have the judgment set aside on his motion. Gaster v. Thomas, 188 N.C. 346 , 124 S.E. 609, 1924 N.C. LEXIS 69 (1924).

Failure to Answer After Attempt to Compromise. —

Judgment by default for the want of an answer would not be set aside for excusable neglect when it was regularly entered at the preceding term of the court, and it appeared that the moving party, after endeavoring to compromise, had promised to send at once the amount sued for but failed to do so, and that his attorney had been notified before the commencement of the term at which the judgment was entered that this course would be taken. Union Guano Co. v. Middlesex Supply Co., 181 N.C. 210 , 106 S.E. 832, 1921 N.C. LEXIS 44 (1921).

Failure to Defend After Denial of Motion for Continuance. —

Where the trial court found that defendants and their attorney were present in court when defendants’ motion for a continuance was refused that defendants and their attorney thereupon left the courtroom without definite agreement with the court or opposing counsel and did not return to defend the case, and that defendants and their attorney had failed to exercise due diligence, the court’s refusal of the motion to set aside the judgment would be affirmed on appeal. Carter v. Anderson, 208 N.C. 529 , 181 S.E. 750, 1935 N.C. LEXIS 72 (1935).

Failure of Counsel to Receive Notice Sent Through Mail. —

Refusal of a motion to set aside a judgment for surprise and excusable neglect would be upheld where the trial court found from competent evidence that notice of the time set for trial was duly sent movant’s counsel through the mail but was not received by him. Clayton v. Adams, 206 N.C. 920 , 175 S.E. 185, 1934 N.C. LEXIS 359 (1934).

Fact that party was misled by a conversation between his counsel and adversary’s attorney did not entitle him to relief. Hutchinson v. Rumfelt, 83 N.C. 441 , 1880 N.C. LEXIS 93 (1880).

Change of Post Office and Failure to Inquire. —

A judgment by default would not be set aside on the ground of excusable neglect where it appeared that defendants changed their post office and did not receive the answer mailed to them by their counsel until 11 months after it was mailed, no inquiry for letters having been made by them at their former post office, and no communication being addressed to their counsel concerning the matter until 11 months after the time for answering the complaint had expired. Vick v. Baker, 122 N.C. 98 , 29 S.E. 64, 1898 N.C. LEXIS 199 (1898).

Failure to Question Counsel as to Case. —

While as a general rule a client will be relieved against a judgment by default taken against him through the negligence of his attorney, yet where it devolved upon client to question his counsel in regard to his case, his failure to do so was inexcusable neglect and relief would be denied. Holland v. Edgecombe Benevolent Ass'n, 176 N.C. 86 , 97 S.E. 150, 1918 N.C. LEXIS 188 (1918).

Attorney’s Death Within Knowledge of Client. —

Where an attorney in whose hands a cause had been placed died, and the client had notice of such fact and failed to file his answer at the proper time, he could not later claim relief on the ground of excusable neglect. Simpson v. Broom, 117 N.C. 482 , 23 S.E. 441, 1895 N.C. LEXIS 99 (1895).

Failure to Retain New Counsel upon Disqualification or Withdrawal of Counsel During Pendency of Trial. —

Where, pending a reference, counsel for a party to the action became disqualified, but the client, although having notice of the subsequent orders, proceedings, etc., in the cause, neglected to retain another counsel, this did not require the court to set aside the report and recommit the matter passed upon therein. Smith v. Smith, 101 N.C. 461 , 8 S.E. 128, 1888 N.C. LEXIS 80 (1888).

Where the court found that defendant in claim and delivery proceedings was in court when his attorney was allowed to withdraw from case and was told he would have to employ other counsel, and the case was continued to the next term, the motion made by defendant and the surety on his replevin bond to set aside the judgment taken at the next succeeding term on the ground of mistake, surprise, and excusable neglect was properly refused. Baer v. McCall, 212 N.C. 389 , 193 S.E. 406, 1937 N.C. LEXIS 332 (1937).

Neglect of Nonresident Local Attorneys. —

A judgment would not be set aside for irregularity and surprise when it appeared that it had come to issue and was regularly set upon the trial docket and that judgment was entered in the due course and practice of the court, and the only ground upon which relief was sought was the employment of nonresident local attorneys, who were not notified, though means of easy communication in ample time were available, as the neglect of the attorneys was personally attributable to the party, whose duty it was also to attend to the action himself, as well as to employ attorneys for the purpose. Hyde County Land & Lumber Co. v. Thomasville Chair Co., 190 N.C. 437 , 130 S.E. 12, 1925 N.C. LEXIS 95 (1925).

Consent Judgment Signed by Attorney. —

Where, upon a motion to set aside a judgment for surprise and excusable neglect on the ground that the judgment was a consent judgment and was signed by movant’s attorney without authority, and a motion to set aside the consent judgment for such want of authority by movant’s attorney, the court found, upon evidence by affidavits, that the attorney was duly authorized to sign the judgment for movant, that finding was conclusive on the appellate court upon appeal, and the order refusing the motions would be upheld. Alston v. Southern Ry., 207 N.C. 114 , 176 S.E. 292, 1934 N.C. LEXIS 393 (1934).

Where defendant, upon the suggestion of counsel, allowed judgment by default to go against him, he could not, upon discovering that the recovery was greater than he had anticipated, seek relief, for his action did not amount to excusable neglect. State ex rel. Hodgin v. Matthews, 81 N.C. 289 , 1879 N.C. LEXIS 179 (1879).

Excusable Neglect Not Shown Despite Attorney’s Absence. —

Although their attorney’s failure to appear for defendants at a summary judgment hearing would not be imputed to defendants, where the trial court properly determined that attorney’s absence did not cause summary judgment to be entered against defendants, excusable neglect for purposes of setting aside the judgment did not exist. PYA/Monarch, Inc. v. Ray Lackey Enters., Inc., 96 N.C. App. 225, 385 S.E.2d 170, 1989 N.C. App. LEXIS 959 (1989).

Workers’ Compensation Cases. —

A motion made under G.S. 97-47 is not the same as a motion under this rule, and a motion by defendant before the Industrial Commission pursuant to G.S. 97-47 would not afford the same relief as a motion filed pursuant to subsections (b)(2) and (b)(6) of this rule. Hill v. Hanes Corp., 319 N.C. 167 , 353 S.E.2d 392, 1987 N.C. LEXIS 1891 (1987).

The Industrial Commission had authority to grant relief from a judgment entered against the employee, even though the employee filed his notice of appeal after expiration of the time limit, where he showed excusable neglect in that his counsel was on vacation when the workers’ compensation opinion arrived, the opinion was filed by the attorney’s clerical staff, and no entry was made on the office calendar showing the date the opinion arrived. Murray v. Ahlstrom Indus. Holdings, Inc., 131 N.C. App. 294, 506 S.E.2d 724, 1998 N.C. App. LEXIS 1325 (1998).

Failure to Monitor Corporate Affairs. —

Trial judge committed no error in denying company’s motion for relief under subsection (b)(1) of this rule, where company’s own neglect and not any intervening negligence was responsible for its failure to appeal in the action. Not only did company fail to change registered agents in Maryland, it failed altogether to name one in this State as required by statute. Furthermore, had the company established some means to ensure that it was promptly informed of important business matters coming to registered agent’s attention, the loss of summons and complaint in the mail would not have gone unnoticed, and it would have received motion for default judgment and notice of hearing. Anderson Trucking Serv., Inc. v. Key Way Transp., Inc., 94 N.C. App. 36, 379 S.E.2d 665, 1989 N.C. App. LEXIS 425 (1989).

Rule 61. Harmless error.

No error in either the admission or exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action amounts to the denial of a substantial right.

History. 1967, c. 954, s. 1.

Comment

The substance of this rule has been many times endorsed by the court. See e.g., Collins v. Lamb, 215 N.C. 719 , 2 S.E.2d 863 (1937).

Legal Periodicals.

For article, “Toward a Codification of the Law of Evidence in North Carolina,” see 16 Wake Forest L. Rev. 669 (1980).

CASE NOTES

Error alone will not justify reversal; the error must affect some substantial right of the appellant. Andrews v. Andrews, 79 N.C. App. 228, 338 S.E.2d 809, 1986 N.C. App. LEXIS 2050 (1986), disapproved, Armstrong v. Armstrong, 322 N.C. 396 , 368 S.E.2d 595, 1988 N.C. LEXIS 372 (1988).

Plaintiffs’ arguments as to the admissibility of testimony about the possibility of other causes for a child’s cerebral palsy were rejected where the plaintiffs had not shown how the proffered testimony would have changed the outcome of their medical malpractice claim. O'Mara v. Wake Forest Univ. Health Scis., 184 N.C. App. 428, 646 S.E.2d 400, 2007 N.C. App. LEXIS 1478 (2007).

Former spouse had not demonstrated that the spouse was prejudiced by the trial court’s allegedly improper reliance on a book of forms; while the trial court did reference a form prenuptial agreement to emphasize the lack of “hereafter acquired” language in the parties’ prenuptial agreement, the trial court could have drawn the same comparison by relying on cases interpreting prenuptial or postnuptial agreements containing similar language. McIntyre v. McIntyre, 188 N.C. App. 26, 654 S.E.2d 798, 2008 N.C. App. LEXIS 85 , aff'd, 362 N.C. 503 , 666 S.E.2d 749, 2008 N.C. LEXIS 799 (2008).

Mere formal defects in findings ordinarily will be ignored if the substance of the judgment is sufficient. Andrews v. Andrews, 79 N.C. App. 228, 338 S.E.2d 809, 1986 N.C. App. LEXIS 2050 (1986), disapproved, Armstrong v. Armstrong, 322 N.C. 396 , 368 S.E.2d 595, 1988 N.C. LEXIS 372 (1988).

The failure to make certain findings, even when specifically requested, does not rise to the level of reversible error if the requested findings are not material. Andrews v. Andrews, 79 N.C. App. 228, 338 S.E.2d 809, 1986 N.C. App. LEXIS 2050 (1986), disapproved, Armstrong v. Armstrong, 322 N.C. 396 , 368 S.E.2d 595, 1988 N.C. LEXIS 372 (1988).

Especially in light of the conclusive nature of stipulations and the binding effect of pretrial orders, failure to find facts stipulated to in a pretrial order can hardly be prejudicial. Andrews v. Andrews, 79 N.C. App. 228, 338 S.E.2d 809, 1986 N.C. App. LEXIS 2050 (1986), disapproved, Armstrong v. Armstrong, 322 N.C. 396 , 368 S.E.2d 595, 1988 N.C. LEXIS 372 (1988).

The introduction of inadmissible evidence by itself will not require reversal; the appellant must demonstrate that the error was prejudicial, i.e., that it probably influenced the verdict of the jury. Broyhill v. Coppage, 79 N.C. App. 221, 339 S.E.2d 32, 1986 N.C. App. LEXIS 2048 (1986).

Even if evidence of an Occupational Safety and Health Administration complaint was improperly admitted in a case in which a former employee sought to recover for injuries incurred based on his alleged exposure to a toxic workplace, such error did not require reversal as it would not have changed the outcome of the trial and was, therefore, harmless under N.C. R. Civ. P. 61. Cameron v. Merisel Props., 187 N.C. App. 40, 652 S.E.2d 660, 2007 N.C. App. LEXIS 2318 (2007).

The admission of incompetent testimony will not be held prejudicial when its import is abundantly established by other competent testimony or when the testimony is merely cumulative or corroborative. Warren v. City of Asheville, 74 N.C. App. 402, 328 S.E.2d 859, 1985 N.C. App. LEXIS 3543 (1985).

In the Face of Contributory Negligence. —

Where plaintiffs introduced records of 911 calls from January 1988 through July 1993 concerning incidents at a restaurant where the subject murder occurred and their crime analyst testified as to the type of offenses that prompted the calls in 1992 and 1993 as well as crimes that occurred within a one-half mile radius of the restaurant in those years, the trial court did not err in excluding data pertaining to criminal activity from 1988 to 1991, some of which was probably cumulative, and if such exclusion did constitute error, such error was, in the face of the plaintiffs’ contributory negligence, harmless. Benton v. Hillcrest Foods, Inc., 136 N.C. App. 42, 524 S.E.2d 53, 1999 N.C. App. LEXIS 1296 (1999).

Admission of Hearsay Testimony. —

Court disagreed that the propounder’s inadmissible hearsay testimony showed caveator to be a “vile” person, thereby prejudicing the jury against him, and held that the admission of this testimony was harmless error. In re Estate of Ferguson, 135 N.C. App. 102, 518 S.E.2d 796, 1999 N.C. App. LEXIS 927 (1999).

The burden is on the appellant not only to show error, but also to enable the court to see that he was prejudiced and that a different result would likely have ensued had the error not occurred. Warren v. City of Asheville, 74 N.C. App. 402, 328 S.E.2d 859, 1985 N.C. App. LEXIS 3543 (1985).

The party asserting error must show from the record not only that the trial court committed error, but that the aggrieved party was prejudiced as a result. Lawing v. Lawing, 81 N.C. App. 159, 344 S.E.2d 100, 1986 N.C. App. LEXIS 2279 (1986).

Introduction of Erroneous Instruction. —

Trial court did not commit prejudicial error by presenting an allegedly erroneous view of the law regarding breach of fiduciary duty in its instruction to the jury by basing the instruction on a North Carolina case rather than on several Georgia cases cited in plaintiffs’ brief because there was no substantial difference between the Georgia and North Carolina cases regarding the treatment of minority stockholders in a close corporation. Powell v. Omli, 110 N.C. App. 336, 429 S.E.2d 774, 1993 N.C. App. LEXIS 521 (1993).

Court of Appeals erred in requiring an instruction on unconsciousness as part of sudden-incapacitation defense, and plaintiff was entitled under this rule to a new trial because of the possibility of prejudice and error affecting a substantial right. Word v. Jones ex rel. Moore, 350 N.C. 557 , 516 S.E.2d 144, 1999 N.C. LEXIS 420 (1999).

Plaintiff was entitled to a new trial under G.S. 1A-1-61 because the trial court’s error in giving a sudden emergency instruction probably influenced the jury’s verdict, in that the instructions of the trial judge plainly permitted the jury to find that the skidding of defendant’s car was evidence of negligence solely because there was ice or snow on the roadway. Sobczak v. Vorholt, 181 N.C. App. 629, 640 S.E.2d 805, 2007 N.C. App. LEXIS 403 (2007).

The exclusion of memorandum as evidence was harmless error because plaintiff did not show that (1) it was prejudiced by the exclusion of the memorandum and (2) had the memorandum been admitted, a different result would likely have ensued. Raintree Homeowners Ass'n v. Bleimann, 116 N.C. App. 561, 449 S.E.2d 13, 1994 N.C. App. LEXIS 1072 (1994), rev'd, 342 N.C. 159 , 463 S.E.2d 72, 1995 N.C. LEXIS 553 (1995).

Even though it is error to permit the jury to view exhibits in the jury room absent the parties’ express consent, the complaining party is not entitled to a new trial absent a showing that the error was prejudicial. Gardner v. Harriss, 122 N.C. App. 697, 471 S.E.2d 447, 1996 N.C. App. LEXIS 547 (1996).

Failure to Show Prejudice. —

Any assignment of error based on G.S. 1A, N.C. R. Civ. P. 61, was overruled because respondent-father failed to cite any finding made by the trial court “out of Court,” and none appeared on the face of the record; thus, respondent-father had not shown how he was prejudiced. In re T.M., 187 N.C. App. 694, 654 S.E.2d 502, 2007 N.C. App. LEXIS 2568 (2007).

State was not entitled to judicial review of claimed error in admitting a photograph that illustrated a witness’ testimony. The State failed to articulate how the photo changed the outcome of the trial, beyond a generalized assertion that it was intended to elicit sentimental value to the opposing party. City of Wilson Redevelopment Comm'n v. Boykin, 193 N.C. App. 20, 667 S.E.2d 282, 2008 N.C. App. LEXIS 1755 (2008).

Homeowners association waived any objection to the fact that a sanitary district’s motion for summary judgment was served seven days before the hearing, rather than ten days before, and the association failed to establish that it suffered any prejudice, because the association attended the hearing and participated, without requesting a continuance, objecting, or arguing that it needed more time to prepare. Badin Shores Resort Owners Ass'n v. Handy Sanitary Dist., 257 N.C. App. 542, 811 S.E.2d 198, 2018 N.C. App. LEXIS 76 (2018).

Error Prejudicial. —

Trial court’s error in ruling that the parties’ contract was unenforceable was prejudicial for G.S. 1A-1-61 purposes as an employment relationship that could be terminated by the employer only for cause would have removed the employment contract from the presumption of at-will employment. Lockett v. Sister-2-Sister Solutions, Inc., 209 N.C. App. 60, 704 S.E.2d 299, 2011 N.C. App. LEXIS 61 (2011).

When a trial court violated a wife’s Fifth Amendment rights by threatening to imprison the wife or the wife’s counsel if the wife asserted those rights at a hearing on a request for a domestic violence protection order against the wife, the error was not harmless because the error was prejudicial and amounted to denying the wife a substantial right. Herndon v. Herndon, 243 N.C. App. 288, 777 S.E.2d 141, 2015 N.C. App. LEXIS 827 (2015), rev'd, 368 N.C. 826 , 785 S.E.2d 922, 2016 N.C. LEXIS 439 (2016).

No Error Committed. —

Grant of new trial was improper under G.S. 1A-1 , N.C. R. Civ. P. 59(a)(8) and 61 since by having a former employee read aloud the verbatim transcript of the employee’s deposition, a patron had the full benefit of the prior inconsistent statements that the patron sought to introduce by having the jury view a videotaped deposition; a conclusion that the videotaped deposition was admissible to contradict the employee’s testimony as a witness and that excluding the videotape amounted to an error of law was erroneous. Harrell v. Sagebrush of N.C. LLC, 191 N.C. App. 381, 663 S.E.2d 444, 2008 N.C. App. LEXIS 1319 (2008).

No Harmful Error Committed. —

Although the trial court should not have instructed the jury on the issue of the outdoor advertising company’s commercial bribery in a case where the outdoor advertising company sued the ad agency for unfair and deceptive trade practices (UDTP), the error was harmless pursuant to G.S. 1A-1 , N.C. R. Civ. P. 61. Commercial bribery was not a defense to a North Carolina UDTP action, but the outcome in the case, a verdict in the outdoor advertising company’s favor, did not change because of the error. Media Network, Inc. v. Long Haymes Carr, Inc., 197 N.C. App. 433, 678 S.E.2d 671, 2009 N.C. App. LEXIS 774 (2009).

Dismissal of Appeal was Harmless Where Alternate Grounds for Dismissal Existed. —

Although a mother’s oral notice of appeal in a termination case was timely under N.C. R. App. P. 3, and thus the trial court used invalid grounds for its order dismissing the mother’s appeal, because valid grounds existed on which the trial court’s order could have been based, N.C. R. App. P. 25(a) authorized the trial court’s actions, and the error was harmless. In re J.L., 184 N.C. App. 750, 646 S.E.2d 861, 2007 N.C. App. LEXIS 1598 (2007).

Rule 62. Stay of proceedings to enforce a judgment.

  1. Automatic stay; exceptions — Injunctions and receiverships. —  Except as otherwise stated herein, no execution shall issue upon a judgment nor shall proceedings be taken for its enforcement until the expiration of the time provided in the controlling statute or rule of appellate procedure for giving notice of appeal from the judgment. Unless otherwise ordered by the court, an interlocutory or final judgment in an action for an injunction or in a receivership action shall not be stayed during the period after its entry and until an appeal is taken or during the pendency of an appeal. The provisions of section (c) govern the suspending, modifying, restoring, or granting of an injunction during the pendency of an appeal.
  2. Stay on motion for new trial or for judgment. —  In its discretion and on such conditions for the security of the adverse party as are proper, the court may stay the execution of or any proceedings to enforce a judgment pending the disposition of a motion for a new trial or to alter or amend a judgment made pursuant to Rule 59, or of a motion for relief from a judgment or order made pursuant to Rule 60, or of a motion for judgment made pursuant to Rule 50, or of a motion for amendment to the findings or for additional findings made pursuant to Rule 52(b). If the time provided in the controlling statute or rule of appellate procedure for giving notice of appeal from the judgment had not expired before a stay under this subsection was entered, that time shall begin to run immediately upon the expiration of any stay under this section, and no execution shall issue nor shall proceedings be taken for enforcement of the judgment until the expiration of that time.
  3. Injunction pending appeal. —  When an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party.
  4. Stay upon appeal. —  When an appeal is taken, the appellant may obtain a stay of execution, subject to the exceptions contained in section (a), by proceeding in accordance with and subject to the conditions of G.S. 1-289 , G.S. 1-290 , G.S. 1-291 , G.S. 1-292 , G.S. 1-293 , G.S. 1-294 , and G.S. 1-295 .When stay is had by giving supersedeas bond, the bond may be given at or after the time of filing the notice of appeal or of procuring the order allowing the appeal as the case may be, and stay is then effective when the supersedeas bond is approved by the court. When stay is had by giving supersedeas bond, the bond may be given at or after the time of filing the notice of appeal or of procuring the order allowing the appeal as the case may be, and stay is then effective when the supersedeas bond is approved by the court.

    When stay is had by giving supersedeas bond, the bond may be given at or after the time of filing the notice of appeal or of procuring the order allowing the appeal as the case may be, and stay is then effective when the supersedeas bond is approved by the court.

  5. Stay in favor of North Carolina, city, county, local board of education, or agency thereof. —  When an appeal is taken by the State of North Carolina, or a city or a county thereof, a local board of education, or an officer in his official capacity or agency thereof or by direction of any department or agency of the State of North Carolina or a city or county thereof or a local board of education and the operation or enforcement of the judgment is stayed, no bond, obligation, or other security shall be required from the appellant.
  6. Power of appellate court not limited. —  The provisions of this rule do not limit any power of an appellate court or of a judge or justice thereof to stay proceedings during the pendency of an appeal or to suspend, modify, restore, or grant an injunction during the pendency of an appeal or to make any order appropriate to preserve the status quo or the effectiveness of the judgment subsequently to be entered.
  7. Stay of judgment as to multiple claims or multiple parties. —  When a court has ordered a final judgment under the conditions stated in Rule 54(b), the court may stay enforcement of that judgment until the entering of a subsequent judgment or judgments and may prescribe such conditions as are necessary to secure the benefit thereof to the party in whose favor the judgment is entered.
  8. Right to immediate interlocutory appeal of order granting or denying injunctive relief in as-applied constitutional challenge. —  Notwithstanding any other provision of law, a party shall have the right of immediate appeal (i) from an adverse ruling by a trial court granting or denying interlocutory, temporary, or permanent injunctive or declaratory relief restraining the State or a political subdivision of the State from enforcing the operation or execution of an act of the General Assembly as applied against a party in a civil action or (ii) from an adverse ruling by a trial court denying a motion to stay an injunction restraining the State or a political subdivision of the State from enforcing the operation or execution of an act of the General Assembly as applied against a party in a civil action. This subsection only applies where the State or a political subdivision of the State is a party in the civil action. This subsection does not apply to facial challenges heard by a three-judge panel pursuant to G.S. 1-267.1 .

History. 1967, c. 954, s. 1; 1973, c. 91; 1979, c. 820, s. 10; 1987, c. 462, s. 1; 1989, c. 377, ss. 3, 4; 2014-100, s. 18B.16(d).

Comment

While in general this rule leaves the present North Carolina law intact in this area, it does make some specific provisions in order to tie in the procedure here employed to other rules.

Editor’s Note.

Session Laws 2014-100, s. 18B.16(f) made subsection (h) of this rule, as added by Session Laws 2014-100, s. 18B.16(d), effective August 7, 2014, and applicable to any claim filed on or after that date or asserted in an amended pleading on or after that date that asserts that an act of the General Assembly is either facially invalid or invalid as applied to a set of factual circumstances on the basis that the act violates the North Carolina Constitution or federal law.

Session Laws 2014-100, s. 1.1, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2014.’ ”

Session Laws 2014-100, s. 38.7, is a severability clause.

Effect of Amendments.

Session Laws 2014-100, s. 18B.16(d), added subsection (h). See Editor’s note for effective date and applicability.

Legal Periodicals.

For survey of 1977 constitutional law, see 56 N.C.L. Rev. 943 (1978).

CASE NOTES

Constitutionality. —

Section (a) of this rule, insofar as it excepts summary ejectment cases from an automatic ten-day stay of execution of judgment, is unconstitutional and unenforceable. Usher v. Waters Ins. & Realty Co., 438 F. Supp. 1215, 1977 U.S. Dist. LEXIS 13470 (W.D.N.C. 1977) (decided prior to 1979 amendment to this rule) .

The denial to tenants in summary ejectment of the automatic ten-day stay on execution which section (a) of this rule allows to other appellants is arbitrarily discriminatory. Usher v. Waters Ins. & Realty Co., 438 F. Supp. 1215, 1977 U.S. Dist. LEXIS 13470 (W.D.N.C. 1977) (decided prior to 1979 amendment to this rule) .

Taken together, section (a) of this rule and G.S. 42-34(b) and G.S. 42-32 deny access to jury trial and place an unconstitutionally discriminatory burden upon less-than-affluent tenants in summary ejectment cases, in violation of the equal protection clause of the United States Constitution. Usher v. Waters Ins. & Realty Co., 438 F. Supp. 1215, 1977 U.S. Dist. LEXIS 13470 (W.D.N.C. 1977) (decided prior to 1979 amendments to this rule and G.S. 42-34(b) and G.S. 42-32 ) .

Construction with Other Sections. —

G.S. 1-292 must be complied with notwithstanding defendant’s appeal rights under this rule. Venture Properties I v. Anderson, 120 N.C. App. 852, 463 S.E.2d 795, 1995 N.C. App. LEXIS 943 (1995).

Where defendant did not request the setting of a bond nor did he post a bond as required, the defendant made no attempt to comply with the requirements of G.S. 1-292 , thus he was not entitled to a stay of execution under this rule. Venture Properties I v. Anderson, 120 N.C. App. 852, 463 S.E.2d 795, 1995 N.C. App. LEXIS 943 (1995).

Trial court did not err by failing to order a stay of execution on a money judgment because: (1) the appellant did not deposit with the clerk of court amounts specified for interest and costs and, therefore, did not satisfy the requirements of G.S. 1-289 to post a bond in the amount directed to be paid by the judgment; and (2) the appellant took no action following the insufficient deposit with the clerk of court and, therefore, did not proceed in accordance with G.S. 1-293 . Babb v. Graham, 190 N.C. App. 463, 660 S.E.2d 626, 2008 N.C. App. LEXIS 1024 (2008).

Trial court did not err in dismissing a judgment assignee’s complaint to enforce a judgment entered because the assignee failed to assert his claim within the ten-year statute of limitations, G.S. 1-47(1) , and nothing in the plain language of G.S. 1A-1 , N.C. R. Civ. P. 62(a), indicated that the legislature intended the automatic stay from execution to add thirty days to the ten-year statute of limitations on commencing an action to enforce a judgment; because the issuance of an execution does not prolong the life of a judgment lien, the thirty-day stay on the issuance of an execution or proceedings to enforce the judgment will also not operate to toll the statute of limitations for commencement of an action to enforce a judgment. Fisher v. Anderson, 193 N.C. App. 438, 667 S.E.2d 292, 2008 N.C. App. LEXIS 1806 (2008).

Trial court did not err in denying a stay of a judgment pending appeal. Under G.S. 1-291 , a stay was not compelled, and the wording of G.S. 1A-1 , N.C. R. Civ. P. 62(d) was that an appellant may obtain a stay of execution. Meares v. Town of Beaufort, 193 N.C. App. 49, 667 S.E.2d 244, 2008 N.C. App. LEXIS 1764 (2008).

Appellate court lacked jurisdiction to hear the property owners’ appeal of the trial court’s entry of a stay requiring them to immediately remove any and all obstructions from a trust’s use of an easement on their property because the purported permanent injunction was insufficient to constitute a permanent injunction, was a routine grant of partial summary judgment on a legal claim, did not identify the acts enjoined or contain any other specific terms of injunctive relief, and the trial court had not yet entered the underlying permanent injunction. Gunn Testamentary Trust v. Bumgardner, 276 N.C. App. 277, 857 S.E.2d 533, 2021- NCCOA-90, 2021 N.C. App. LEXIS 99 (2021).

Stay of Execution to Prevent Mootness. —

Former husband could have attempted to prevent the issue of the husband’s ability to pay alimony from becoming moot by seeking a stay of execution of the trial court’s contempt order pursuant to G.S. 1A-1 , N.C. R. Civ. P. 62(d). Tucker v. Tucker, 675 S.E.2d 676, 2009 N.C. App. LEXIS 499 (N.C. Ct. App. 2009), op. withdrawn, 2009 N.C. App. LEXIS 1160 (N.C. Ct. App. May 13, 2009).

Automatic Stay Bypassed. —

Intervenors’ failure to preserve the status quo by obtaining an injunction to prevent town council from issuing a special use permit mooted their appeal, where town council voluntarily complied with the superior court’s mandate to issue the permit, thereby bypassing the automatic stay that had issued to prevent proceedings to enforce the court’s mandate. Estates, Inc. v. Town of Chapel Hill, 130 N.C. App. 664, 504 S.E.2d 296, 1998 N.C. App. LEXIS 1150 (1998).

Effect on Tolling of Building Permit. —

Plaintiffs had a valid building permit because their appeal of the order that prevented them from building tolled the statutory time period in which plaintiffs could resume construction under their office building permit; however, the building permit only authorized the construction of an office building it did not establish a statutory vested right to mine the property. Sandy Mush Props. v. Rutherford County, 181 N.C. App. 224, 638 S.E.2d 557, 2007 N.C. App. LEXIS 87 (2007).

Superior Court Mandate as “Judgment.” —

The term “judgment” as used in this rule must include the mandate of a superior court when it sits as an appellate court to review the decision of a town council in granting or denying a special use permit. Estates, Inc. v. Town of Chapel Hill, 130 N.C. App. 664, 504 S.E.2d 296, 1998 N.C. App. LEXIS 1150 (1998).

Granting or refusing an order for the appointment of a receiver is not a mere matter of discretion in the judge, and either party dissatisfied with such ruling may have it reviewed. Doxol Gas of Angier, Inc. v. Howard, 28 N.C. App. 132, 220 S.E.2d 203, 1975 N.C. App. LEXIS 1692 (1975).

Authority to Stay Enforcement of Judgment Under Subsection (g). —

Section (g) of this rule allows the trial court, after it has ordered a final judgment as to one or more but fewer than all parties under the conditions stated in G.S. 1A-1 , Rule 54(b), to stay enforcement of the judgment until the entering of a subsequent judgment or judgments, and to prescribe such conditions as are necessary to prevent harm that might result to a party if the trial court should decide not to certify judgment for immediate appeal. Equitable Leasing Corp. v. Myers, 46 N.C. App. 162, 265 S.E.2d 240, 1980 N.C. App. LEXIS 2811 , dismissed, Leasing Corp. v. Myers, 301 N.C. 92 , 1980 N.C. LEXIS 1271 (1980).

A trial court possesses the legal authority to stay its own orders pending appeal in cases involving the Public Records Act. Wilmington Star-News, Inc. v. New Hanover Regional Medical Ctr., Inc., 125 N.C. App. 174, 480 S.E.2d 53, 1997 N.C. App. LEXIS 76 (1997).

Abuse of Discretion Not Found. —

Trial court’s denial of a town and its historic preservation board’s motion to stay or enjoin enforcement of a judgment pending the appeal and its order that a Certificate of Appropriateness executed by the town and its commission be released and delivered by the Clerk of Superior Court to an owner was not an abuse of discretion even though the arguments on appeal were not frivolous. Meares v. Town of Beaufort, 193 N.C. App. 49, 667 S.E.2d 244, 2008 N.C. App. LEXIS 1764 (2008).

Trial court did not abuse its discretion when it denied a G.S. 1A-1 , N.C. R. Civ. P. 62(c) motion for an injunction pending appeal. Plaintiffs failed to show that the trial court’s ruling was manifestly unsupported by reason or was so arbitrary that it could not have been the result of a reasoned decision. N. Iredell Neighbors for Rural Life v. Iredell County, 196 N.C. App. 68, 674 S.E.2d 436, 2009 N.C. App. LEXIS 370 (2009).

Sufficiency of Injunction. —

Appellate court lacked jurisdiction to hear the property owners’ appeal of the trial court’s entry of a stay requiring them to immediately remove any and all obstructions from a trust’s use of an easement on their property because the purported permanent injunction was insufficient to constitute a permanent injunction, was a routine grant of partial summary judgment on a legal claim, did not identify the acts enjoined or contain any other specific terms of injunctive relief, and the trial court had not yet entered the underlying permanent injunction. Gunn Testamentary Trust v. Bumgardner, 276 N.C. App. 277, 857 S.E.2d 533, 2021- NCCOA-90, 2021 N.C. App. LEXIS 99 (2021).

Stay Properly Denied. —

At a hearing to consider whether defendant should be required to enroll in satellite-based monitoring, it was not error to deny defendant’s request for a stay because defendant only cited G.S. 1A-1 , N.C. R. Civ. P. 62(a) in support, which only allowed a stay when an appeal was taken. State v. Blue, 246 N.C. App. 259, 783 S.E.2d 524, 2016 N.C. App. LEXIS 293 (2016).

OPINIONS OF ATTORNEY GENERAL

Rule Inapplicable to Execution on Small Claim Judgment. — A judgment creditor is entitled as a matter of right to have execution issued on a small claim judgment irrespective of this rule, as since there is specific statutory authorization for issuance of execution, this rule is not applicable. See opinion of Attorney General to Mr. James R. Sugg, 41 N.C. Op. Att'y Gen. 368 (1971).

Rule 63. Disability of a judge.

If by reason of death, sickness or other disability, resignation, retirement, expiration of term, removal from office, or other reason, a judge before whom an action has been tried or a hearing has been held is unable to perform the duties to be performed by the court under these rules after a verdict is returned or a trial or hearing is otherwise concluded, then those duties, including entry of judgment, may be performed:

  1. In actions in the superior court by the judge senior in point of continuous service on the superior court regularly holding the courts of the district. If this judge is under a disability, then the resident judge of the district senior in point of service on the superior court may perform those duties. If a resident judge, while holding court in the judge’s own district suffers disability and there is no other resident judge of the district, such duties may be performed by a judge of the superior court designated by the Chief Justice of the Supreme Court.
  2. In actions in the district court, by the chief judge of the district, or if the chief judge is disabled, by any judge of the district court designated by the Director of the Administrative Office of the Courts.

    If the substituted judge is satisfied that he or she cannot perform those duties because the judge did not preside at the trial or hearing or for any other reason, the judge may, in the judge’s discretion, grant a new trial or hearing.

History. 1967, c. 954, s. 1; 2001-379, s. 7.

Comment

Formerly, there was no statutory prescription in respect to the problem dealt with by this rule. It can be seen, however, that in particular cases where a verdict has already been returned or findings of fact and conclusions of law filed and then the trial judge is unable to continue to function, it will be highly useful to have some judge authorized to step into the breach.

Legal Periodicals.

For article, “Judges Breaking the Law: An Empirical Study of Financially Interested Judges Deciding Cases,” see 99 N. C.L. Rev. 1 (2020).

CASE NOTES

Original Judge Need Not Have Become Incapacitated. —

Trial court did not err in having their post-judgment motions ruled upon by another judge; this rule neither requires nor implies that before a different judge can rule on post-trial motions, the judge who heard the case must have become incapacitated. Borg-Warner Acceptance Corp. v. Johnston, 107 N.C. App. 174, 419 S.E.2d 195, 1992 N.C. App. LEXIS 666 (1992).

Substitute Judge to Function Only After Return of Verdict or Filing of Findings and Conclusions. —

Under this rule an appropriate judge may substitute for a disabled or deceased judge before whom an action has been tried only with respect to duties remaining to be performed after a verdict has been returned or findings of fact and conclusions of law have been filed. Girard Trust Bank v. Easton, 12 N.C. App. 153, 182 S.E.2d 645, 1971 N.C. App. LEXIS 1309 , cert. denied, 279 N.C. 393 , 183 S.E.2d 245, 1971 N.C. LEXIS 812 (1971) (decided prior to 2001 amendment, which substituted reference to a trial or hearing having concluded for reference to the filing of findings of fact and conclusions of law) .

Successor Judge Authorized to Reconsider Original Judge’s Order. —

Notwithstanding the original judge’s absence from the bench due to retirement, the successor judge erred in denying the motion to reconsider an original expungement order for lack of jurisdiction because he was statutorily authorized to address the motion to reconsider the order for expungement and, in accordance with the dictates of G.S. 15A-146(a), to amend the earlier order. In re Expungement for Kearney, 174 N.C. App. 213, 620 S.E.2d 276, 2005 N.C. App. LEXIS 2294 (2005).

So as to Effectuate Decision Already Made. —

This rule does not contemplate that a substitute judge, who did not hear the witnesses and participate in the trial, may nevertheless participate in the decision making process; it contemplates only that he may perform such acts as are necessary under the rules of procedure to effectuate a decision already made. Girard Trust Bank v. Easton, 12 N.C. App. 153, 182 S.E.2d 645, 1971 N.C. App. LEXIS 1309 , cert. denied, 279 N.C. 393 , 183 S.E.2d 245, 1971 N.C. LEXIS 812 (1971); In re Whisnant, 71 N.C. App. 439, 322 S.E.2d 434, 1984 N.C. App. LEXIS 3850 (1984).

Successor Judge Did Not Abuse Discretion in Denying New Trial. —

Under an exception to the general application of G.S. 1A-1 , N.C. R. Civ. P. 63, the successor judge who did not try the subcontractor’s action on the payment bonds and took the place of the retired judge did not abuse the judge’s discretion in denying the surety’s motion for a new trial based on a lack of jurisdiction. Gemini Drilling & Found., LLC v. Nat'l Fire Ins. Co., 192 N.C. App. 376, 665 S.E.2d 505, 2008 N.C. App. LEXIS 1628 (2008).

Judge’s Oral Statements Held Insufficient to Support Entry of Judgment by Substitute. —

Where, at the conclusion of the evidence in an action tried before the court without a jury, the trial judge orally indicated answers in favor of plaintiff to issues which had been prepared by counsel for defendant in anticipation of a jury trial, and instructed plaintiff ’s counsel to submit a proposed judgment containing appropriate findings of fact and conclusions of law, the issues and the court’s answers thereto constituted neither a verdict nor findings of fact and conclusions of law which would permit a substitute judge to proceed under this rule to enter judgment in the case. Girard Trust Bank v. Easton, 12 N.C. App. 153, 182 S.E.2d 645, 1971 N.C. App. LEXIS 1309 , cert. denied, 279 N.C. 393 , 183 S.E.2d 245, 1971 N.C. LEXIS 812 (1971).

A new hearing on the petition to terminate a mother’s parental rights was ordered where a judge who did not preside over the hearings signed an order terminating parental rights based on oral statements in court of the presiding judge because the presiding judge was no longer available; this rule does not contemplate that a substitute judge, who did not hear the witnesses and participate in the trial, may nevertheless participate in the decision making process, but only contemplates the judge performing such acts as are necessary under the rules of procedure to effectuate a decision already made. In re Savage, 163 N.C. App. 195, 592 S.E.2d 610, 2004 N.C. App. LEXIS 296 (2004).

Entry of judgment in open court by another district court judge without notice to the parties that the judgment was entered was error, but as the notice of appeal was timely filed, there was no prejudice. Brower v. Brower, 75 N.C. App. 425, 331 S.E.2d 170, 1985 N.C. App. LEXIS 3695 (1985).

Substitute Judge Properly Entered Punitive Damages Findings. —

Trial court properly denied defendants’ motion to dismiss plaintiff’s punitive damages claim because G.S. 1A-1 , Rule 63 authorized another judge, such as successor judge in this case, to enter the G.S. 1D-50 opinion. Springs v. City of Charlotte, 222 N.C. App. 132, 730 S.E.2d 803, 2012 N.C. App. LEXIS 936 (2012).

Appeal from Recusal Not Moot. —

It was error to dismiss as moot an appeal from a judicial recusal order after the subject judge retired from the bench because a decision on the merits of the appeal would have had a practical effect given the options afforded to substituted judges under the rule. Lange v. Lange, 357 N.C. 645 , 588 S.E.2d 877, 2003 N.C. LEXIS 1419 (2003).

Adjudication and Disposition Order a Nullity. —

Since only a stipulation without any adjudication or rendering of the order, any action by the chief district court judge to cause a later prepared and unsigned draft order to be entered was ministerial; the written disposition portion of the order went beyond the retired judge’s oral recitations, and because rendering and entering judgment was more than a ministerial task, the chief district court judge had no authority to sign the adjudication and disposition orders, which were a nullity. In re R.P., 856 S.E.2d 868 (Mar. 16, 2021).

Article 8. Miscellaneous.

Rule 64. Seizure of person or property.

At the commencement of and during the course of an action, all remedies providing for seizure of person or property for the purpose of securing satisfaction of the judgment ultimately to be entered in the action are available under the circumstances and in the manner provided by the law of this State.

History. 1967, c. 954, s. 1.

Comment

This rule seems to be self-explanatory.

Rule 65. Injunctions.

  1. Preliminary injunction; notice. —  No preliminary injunction shall be issued without notice to the adverse party.
  2. Temporary restraining order; notice; hearing; duration. —  A temporary restraining order may be granted without written or oral notice to the adverse party or that party’s attorney only if (i) it clearly appears from specific facts shown by affidavit or by verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party’s attorney can be heard in opposition, and (ii) the applicant’s attorney certifies to the court in writing the efforts, if any, that have been made to give the notice and the reasons supporting the claim that notice should not be required. Every temporary restraining order granted without notice shall be endorsed with the date and hour of issuance; shall be filed forthwith in the clerk’s office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after entry, not to exceed 10 days, as the judge fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. In case a temporary restraining order is granted without notice and a motion for a preliminary injunction is made, it shall be set down for hearing at the earliest possible time and takes precedence over all matters except older matters of the same character; and when the motion comes on for hearing, the party who obtained the temporary restraining order shall proceed with a motion for a preliminary injunction, and, if he does not do so, the judge shall dissolve the temporary restraining order. On two days’ notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the judge may prescribe, the adverse party may appear and move its dissolution or modification and in that event the judge shall proceed to hear and determine such motion as expeditiously as the ends of justice require. Damages may be awarded in an order for dissolution as provided in section (e).
  3. Security. —  No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the judge deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. No such security shall be required of the State of North Carolina or of any county or municipality thereof, or any officer or agency thereof acting in an official capacity, but damages may be awarded against such party in accord with this rule. In suits between spouses relating to support, alimony, custody of children, separation, divorce from bed and board, and absolute divorce no such security shall be required of the plaintiff spouse as a condition precedent to the issuing of a temporary restraining order or preliminary injunction enjoining the defendant spouse from interfering with, threatening, or in any way molesting the plaintiff spouse during pendency of the suit, until further order of the court, but damages may be awarded against such party in accord with this rule.A surety upon a bond or undertaking under this rule submits himself to the jurisdiction of the court and irrevocably appoints the clerk of the court as his agent upon whom any papers affecting his liability on the bond or undertaking may be served. His liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of the court, who shall forthwith mail copies to the persons giving the security and the sureties thereon if their addresses are known.

    A surety upon a bond or undertaking under this rule submits himself to the jurisdiction of the court and irrevocably appoints the clerk of the court as his agent upon whom any papers affecting his liability on the bond or undertaking may be served. His liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of the court, who shall forthwith mail copies to the persons giving the security and the sureties thereon if their addresses are known.

    A surety upon a bond or undertaking under this rule submits himself to the jurisdiction of the court and irrevocably appoints the clerk of the court as his agent upon whom any papers affecting his liability on the bond or undertaking may be served. His liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of the court, who shall forthwith mail copies to the persons giving the security and the sureties thereon if their addresses are known.

  4. Form and scope of injunction or restraining order. —  Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts enjoined or restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice in any manner of the order by personal service or otherwise.
  5. Damages on dissolution. —  An order or judgment dissolving an injunction or restraining order may include an award of damages against the party procuring the injunction and the sureties on his undertaking without a showing of malice or want of probable cause in procuring the injunction. The damages may be determined by the judge, or he may direct that they be determined by a referee or jury.

History. 1967, c. 954, s. 1; 2001-379, s. 8.

Comment

While a plaintiff may be entitled to legal and equitable relief in a civil action, the preliminary injunction continues to be an extraordinary and provisional remedy and will not be granted except where adequate relief cannot be had without it. Town of Clinton v. Ross, 226 N.C. 682 , 40 S.E.2d 593 (1946).

When temporary injunction issued. — The form of relief may be a preliminary injunction or restraining order, which may be issued:

  1. To preserve the status quo pending the action. As a rule, a mandatory order or injunction will not be made as a preliminary injunction except when the injury is immediate, pressing, irreparable, and clearly established. Seaboard Air Line Ry. v. Atlantic Coast Line Ry., 237 N.C. 88 , 74 S.E.2d 430 (1953).
  2. To protect the subject matter of the action.
  3. To prevent fraudulent transfer. See § 1-485.

Time of issuing. — The preliminary injunction may be granted at the time of commencing the action or at any time afterwards, before judgment. Requisites are (a) affidavits; (b) summons.

When notice required. — When the restraining order is asked for as a preliminary motion, notice is not required, but if the judge deems it proper that the other party should be heard, he may issue a show cause order, and the defendant may, in the meantime, be restrained. A restraining order cannot be granted by a judge for a longer time than twenty days, without notice. After the defendant has answered, an injunction will not be granted except upon notice. However, the defendant may be restrained pending such action. See former §§ 1-490, 1-491, 1-492.

Undertaking. — Upon granting a restraining order or an order for an injunction, the judge shall require a written undertaking. See former § 1-496.

Appeals. — Upon appeal from a judgment vacating a restraining order or denying a perpetual injunction where the injunction is the principal relief sought, the court, in its discretion, may require plaintiff to give bond and continue the restraining order pending the appeal. See § 1-500.

Damages in injunction. — A judgment dissolving an injunction carries with it judgment for damages against the party procuring it and against his sureties without the requirement of malice or want of probable cause, which damages may be obtained by a reference or otherwise, as the judge directs. See former § 1-497.

OFFICIAL COMMENT

Practice under Rule.

This rule is substantially the same as federal Rule 65.

Section (a). — This section provides that no preliminary injunction shall be issued without notice to the adverse party. While the rule does not specify the type of notice, proper service of the complaint and summons upon the party or his proper agent have been held sufficient. The court must have in personam jurisdiction. Section (b) specifies the time for hearing. On the hearing, the pleadings, if verified, and other affidavits have been held sufficient to grant a preliminary injunction.

The principal change here is the requirement of notice. Ordinarily, the purpose of the preliminary or interlocutory injunction is to preserve the status quo until the issues are determined after final hearing. Section (b) takes care of the situation where immediate action is necessary.

Section (b). — A restraining order is a temporary order, entered in an action, without notice, if necessary, and upon a summary showing of its necessity in order to prevent immediate and irreparable injury, pending a fuller hearing and determination of the rights of the parties. The ex parte restraining order is, under this section, then, subject to definite time limitations and is to preserve the status quo until the motion for a preliminary injunction can, after notice, be brought on for hearing and decision. Such ex parte order must be upon verified facts. Note, also, that such order granted without notice expires by its terms within such time after entry, not to exceed ten days, unless the time is, for good cause shown, extended.

Section (c). — The requirements with respect to security as set forth in this section are similar to the requirements of former § 1-496.

In general, there are two methods for enforcement of liability on a bond or other security given to secure the issuance of a restraining order or preliminary injunction: An independent action or motion for judgment in the injunction action. The second paragraph of section (c) deals with this second method of enforcement. Since this motion procedure is part of the “equity suit,” there is no right to trial by jury on the issues raised. If, however, an independent action is brought, this would be one of law, and a right to jury would be preserved.

Section (d). — The requirement that the judge state the reasons for granting the injunction and the acts to be restrained is new. Under prior law no particular form of order was required, although the decisions hold that “the defendant shall be given authentic notification of the mandate of the court or judge.” Davis v. Champion Fiber Co., 150 N.C. 84 , 63 S.E. 178 (1908). There does not appear to be a statute as explicit as the final clause of section (d) with respect to the parties affected by the action.

Section (e). — This is substantially the same provision as is found in former § 1-497.

Legal Periodicals.

For article on remedies for trespass to land in North Carolina, see 47 N.C.L. Rev. 334 (1969).

For article, “Should Security Be Required as a Pre-Condition to Provisional Injunctive Relief ?,” see 52 N.C.L. Rev. 1091 (1974).

For article, “Statutory Waiver of Municipal Immunity Upon Purchase of Liability Insurance in North Carolina and the Municipal Liability Crisis,” see 4 Campbell L. Rev. 41 (1981).

For note discussing preliminary injunctions in employment noncompetition cases in light of A.E.P. Industries, Inc. v. McClure, 308 N.C. 393 , 302 S.E.2d 752 (1983), see 63 N.C.L. Rev. 222 (1984).

For article, “Paying for Pretrial Detention,” see 98 N.C.L. Rev. 1255 (2020).

CASE NOTES

Analysis

I.In General

A “temporary restraining order” and a “preliminary injunction” serve the same function. Lambe v. Smith, 11 N.C. App. 580, 181 S.E.2d 783, 1971 N.C. App. LEXIS 1587 (1971).

Unclear Order May Require Clarifying Instructions. —

The language of an injunctive order may be so unclear that a party is, in good faith, unable to follow the trial court’s directives in the absence of clarifying instructions. Hopper v. Mason, 71 N.C. App. 448, 322 S.E.2d 193, 1984 N.C. App. LEXIS 3862 (1984).

No appeal lies to an appellate court from an interlocutory order unless the order deprives the appellant of a substantial right which he would lose absent a review prior to final determination. Thus, the threshold question presented by a purported appeal from an order granting a preliminary injunction is whether the appellant has been deprived of any substantial right which might be lost should the order escape appellate review before final judgment. Robins & Weill, Inc. v. Mason, 70 N.C. App. 537, 320 S.E.2d 693, 1984 N.C. App. LEXIS 3710 (1984).

The voluntary and unconditional dismissal of the proceedings by the plaintiff is equivalent to a judicial determination that the proceeding for an injunction was wrongful, since thereby the plaintiff is held to have confessed that he was not entitled to the equitable relief sought. Leonard E. Warner, Inc. v. Nissan Motor Corp., 66 N.C. App. 73, 311 S.E.2d 1, 1984 N.C. App. LEXIS 2812 (1984).

Enforcement of Ordinances Through Injunctive Relief. —

Although the General Assembly has given to municipalities the power to enforce ordinances through injunctive relief, a municipality must comply with the requirements of this rule, which requires a clear showing of specific facts of irreparable injury; the availability of injunctive relief as the appropriate ultimate remedy is not prima facie evidence establishing a municipality’s right to injunctive relief prior to the resolution of a matter on its merits. Town of Knightdale v. Vaughn, 95 N.C. App. 649, 383 S.E.2d 460, 1989 N.C. App. LEXIS 823 (1989), cert. denied, Thrash v. Asheville, 326 N.C. 54 , 389 S.E.2d 105, 1990 N.C. LEXIS 29 (1990).

II.Preliminary Injunctions

Purpose of Preliminary or Interlocutory Injunction. —

Purpose of a preliminary injunction is to preserve the status quo pending trial on the merits. Setzer v. Annas, 286 N.C. 534 , 212 S.E.2d 154, 1975 N.C. LEXIS 1249 (1975); A.E.P. Indus., Inc. v. McClure, 308 N.C. 393 , 302 S.E.2d 754, 1983 N.C. LEXIS 1214 (1983).

Purpose of an interlocutory injunction is to preserve the status quo of the subject matter involved until a trial can be had on the merits. Pruitt v. Williams, 288 N.C. 368 , 218 S.E.2d 348, 1975 N.C. LEXIS 985 (1975).

Prohibitory and Mandatory Injunctions Distinguished. —

The law recognizes a distinction between prohibitory and mandatory injunctions. A prohibitory injunction seeks to preserve the status quo, until the rights of the parties can be determined, by restraining the party enjoined from doing particular acts. A mandatory injunction is intended to restore the status quo, and to that end requires a party to perform a positive act; it is comparable in nature and function to a writ of mandamus, and will ordinarily be granted only where the injury is immediate, pressing, irreparable, and clearly established. Automobile Dealer Resources, Inc. v. Occidental Life Ins. Co., 15 N.C. App. 634, 190 S.E.2d 729, 1972 N.C. App. LEXIS 1997 (1972).

Decree May Be Both Preventive and Mandatory. —

While in the greater number of instances injunction is a preventive remedy, the court has jurisdiction to issue a preliminary mandatory injunction where the case is urgent and the right is clear; moreover, if necessary to meet the exigencies of a particular situation, the injunctive decree may be both preventive and mandatory. Automobile Dealer Resources, Inc. v. Occidental Life Ins. Co., 15 N.C. App. 634, 190 S.E.2d 729, 1972 N.C. App. LEXIS 1997 (1972).

Notice and Hearing Required for Preliminary Injunction. —

Preliminary injunction, unlike a temporary restraining order, requires notice to the adverse party and a hearing. Jolliff v. Winslow, 24 N.C. App. 107, 210 S.E.2d 221, 1974 N.C. App. LEXIS 1941 (1974).

A preliminary or interlocutory injunction can only be issued after notice and a hearing, which affords the adverse party an opportunity to present evidence in his behalf. Lambe v. Smith, 11 N.C. App. 580, 181 S.E.2d 783, 1971 N.C. App. LEXIS 1587 (1971).

Where movant received no notice of injunction and was not given an opportunity to be heard before the order was entered, the court lacked personal jurisdiction over movant and the court’s order was void. Helbein v. Southern Metals Co., 119 N.C. App. 431, 458 S.E.2d 518, 1995 N.C. App. LEXIS 522 (1995).

The trial court abused its discretion in denying a seller’s motion to set the preliminary injunction aside because the seller never received notice of the buyer’s intention to seek a preliminary injunction; the lack of notice affected the seller’s substantial rights, and the seller’s purported attorney of record did not represent the seller in the instant action, thus making service on the attorney insufficient to provide notice to the seller. Perry v. Baxley Dev., Inc., 188 N.C. App. 158, 655 S.E.2d 460, 2008 N.C. App. LEXIS 88 (2008).

A preliminary injunction is interlocutory in nature, issued after notice and hearing, and restrains a party pending final determination on the merits. A.E.P. Indus., Inc. v. McClure, 308 N.C. 393 , 302 S.E.2d 754, 1983 N.C. LEXIS 1214 (1983).

A preliminary or interlocutory injunction is usually not for a fixed, limited period of time, since ordinarily its purpose is to preserve the status quo until the issues are adjudged after a final hearing. Lambe v. Smith, 11 N.C. App. 580, 181 S.E.2d 783, 1971 N.C. App. LEXIS 1587 (1971).

Verification of Complaint Not a Condition for Issuance. —

Verification of a complaint is not a condition for issuance of a preliminary injunction under this rule. Moore v. Wykle, 107 N.C. App. 120, 419 S.E.2d 164, 1992 N.C. App. LEXIS 660 (1992).

Verification Not Required. —

Trial court did not lack subject matter jurisdiction to consider the animal welfare agency’s complaint, and to enter a permanent injunction and temporary custody order; the animal owners could not show that a requirement existed that the animal welfare agency’s complaint be verified, as the statute that the animal owners cited to, G.S. 19A-3 , involved preliminary injunctions not permanent injunctions; G.S. 19A-4 , involving permanent injunctions, did not contain verification-language requirement, and verification of a complaint was not a condition for issuance of an injunction pursuant to G.S. 1A-1-65. Animal Legal Def. Fund v. Woodley, 181 N.C. App. 594, 640 S.E.2d 777, 2007 N.C. App. LEXIS 254 (2007).

Grounds for Preliminary Injunction. —

A temporary injunction will ordinarily be granted pending trial on the merits (1) if there is probable cause for supposing that plaintiff will be able to sustain his primary equity, and (2) if there is a reasonable apprehension of irreparable loss unless injunctive relief is granted, or if in the court’s opinion it appears reasonably necessary to protect plaintiff ’s rights. Automobile Dealer Resources, Inc. v. Occidental Life Ins. Co., 15 N.C. App. 634, 190 S.E.2d 729, 1972 N.C. App. LEXIS 1997 (1972); Robins & Weill, Inc. v. Mason, 70 N.C. App. 537, 320 S.E.2d 693, 1984 N.C. App. LEXIS 3710 (1984).

Ordinarily, to justify the issuance of a preliminary injunction it must be made to appear that (1) there is probable cause that plaintiff will be able to establish the right he asserts, and (2) there is reasonable apprehension of irreparable loss unless interlocutory injunctive relief is granted or unless interlocutory injunctive relief appears reasonably necessary to protect plaintiffs’ rights during the litigation. Setzer v. Annas, 286 N.C. 534 , 212 S.E.2d 154, 1975 N.C. LEXIS 1249 (1975); Pruitt v. Williams, 25 N.C. App. 376, 213 S.E.2d 369, 1975 N.C. App. LEXIS 2267 (1975); Waff Bros. v. Bank of N.C. N.A., 25 N.C. App. 517, 214 S.E.2d 261, 1975 N.C. App. LEXIS 2313 (1975), rev'd, 289 N.C. 198 , 221 S.E.2d 273, 1976 N.C. LEXIS 1242 (1976); Herff Jones Co. v. Allegood, 35 N.C. App. 475, 241 S.E.2d 700, 1978 N.C. App. LEXIS 3009 (1978); Howard Schultz & Assocs. v. Ingram, 38 N.C. App. 422, 248 S.E.2d 345, 1978 N.C. App. LEXIS 2214 (1978).

A preliminary injunction will be issued only if plaintiff is able to show the likelihood of success on the merits of his case and if plaintiff is likely to sustain irreparable loss unless the injunction is issued, or if, in the opinion of the court, issuance is necessary for the protection of plaintiff’s rights during the course of litigation. A.E.P. Indus., Inc. v. McClure, 308 N.C. 393 , 302 S.E.2d 754, 1983 N.C. LEXIS 1214 (1983).

Order granting an attorney and her law firm a preliminary injunction compelling the disclosure of unemployment hearings information was vacated because it did not mention the federal regulations concerning the confidentiality of unemployment insurance information and their bearing, if any, on the public records claim; such analysis would be necessary before finding whether the attorney and law firm had a likelihood of success on the merits. Wilson v. N.C. DOC, 239 N.C. App. 456, 768 S.E.2d 360, 2015 N.C. App. LEXIS 85 (2015).

Order granting an attorney and her law firm a preliminary injunction compelling the disclosure of unemployment hearings information was vacated and remanded for the trial court to make findings and conclusions addressing the likelihood of success; since the trial court had to enter additional findings and conclusions as to the likelihood of success element, its finding that injunctive relief was necessary to protect the attorney’s right to receive hearing notices on a daily basis could change. Wilson v. N.C. DOC, 239 N.C. App. 456, 768 S.E.2d 360, 2015 N.C. App. LEXIS 85 (2015).

Plaintiff was not entitled to a preliminary injunction enjoining the liquidating agent (LA) from selling two personal residences owned by plaintiff and the debtor’s principal as tenants by the entirety as she was not likely to succeed on the merits since: (1) she had consented to Plan, Confirmation Order, and Consent Order which, in total, allowed the LA to sell all real property owned by the debtor, including property owned by the debtor’s principal and plaintiff; (2) she signed each of these documents evidencing her consent to the sale of the personal residences; and (3) she affirmed in open court her consent and understanding of the terms of the Plan, particularly with regard to the sale of the personal residences. In re J.O.C. Farms, LLC, 2015 Bankr. LEXIS 3433 (Bankr. E.D.N.C. Oct. 9, 2015).

Plaintiff’s motion for a preliminary injunction for breach of non-solicitation provisions and an exclusivity addendum was proper, as plaintiff had shown a likelihood of success in establishing the existence of a valid contract, and considering the threatened loss of existing and potential customers plaintiff faced from defendants’ conduct. Total Merch. Servs., LLC v. TMS NC, Inc., 2022 NCBC LEXIS 42 (N.C. Super. Ct. May 6, 2022).

Irreparable Injury. —

Corporation could not establish irreparable injury sufficient for a preliminary injunction by alleging the possibility that it would have to defend itself against lawsuits because it was adequately protected by G.S. 1A-1 , Rule 11. DaimlerChrysler Corp. v. Kirkhart, 148 N.C. App. 572, 561 S.E.2d 276, 2002 N.C. App. LEXIS 60 (2002).

To constitute irreparable injury it is not essential that it be shown that the injury is beyond the possibility of repair or possible compensation in damages, but that the injury is one to which the complainant should not be required to submit or the other party permitted to inflict, and is of such continuous and frequent recurrence that no reasonable redress can be had in a court of law. A.E.P. Indus., Inc. v. McClure, 308 N.C. 393 , 302 S.E.2d 754, 1983 N.C. LEXIS 1214 (1983).

Conclusory Allegation of Irreparable Harm. —

In action instituted by town alleging that defendant was operating a used car lot in violation of town’s zoning ordinance, where the only evidence before the trial court was town’s verified complaint, wherein town alleged irreparable injury, town’s conclusory allegation of irreparable harm was insufficient to allow the trial court to determine whether an interlocutory injunction should have been issued or refused. Town of Knightdale v. Vaughn, 95 N.C. App. 649, 383 S.E.2d 460, 1989 N.C. App. LEXIS 823 (1989), cert. denied, Thrash v. Asheville, 326 N.C. 54 , 389 S.E.2d 105, 1990 N.C. LEXIS 29 (1990) (vacating preliminary injunction) .

Decision of the trial judge to grant or deny a preliminary injunction rests in his sound judgment and discretion. Lambe v. Smith, 11 N.C. App. 580, 181 S.E.2d 783, 1971 N.C. App. LEXIS 1587 (1971).

To issue or to refuse to issue an interlocutory injunction is usually a matter of discretion to be exercised by the trial court. Pruitt v. Williams, 288 N.C. 368 , 218 S.E.2d 348, 1975 N.C. LEXIS 985 (1975).

Issuance of a preliminary injunction is a matter of discretion to be exercised by the hearing judge after a careful balancing of the equities. A.E.P. Indus., Inc. v. McClure, 308 N.C. 393 , 302 S.E.2d 754, 1983 N.C. LEXIS 1214 (1983).

Determination of Relative Conveniences and Inconveniences. —

Where a serious question exists, the hearing judge must consider the relative conveniences and inconveniences of the parties in determining the propriety of a preliminary injunction and the terms thereof if granted. Setzer v. Annas, 286 N.C. 534 , 212 S.E.2d 154, 1975 N.C. LEXIS 1249 (1975).

Burden is on plaintiffs to establish their right to preliminary injunction. Pruitt v. Williams, 25 N.C. App. 376, 213 S.E.2d 369, 1975 N.C. App. LEXIS 2267 (1975); Waff Bros. v. Bank of N.C. N.A., 25 N.C. App. 517, 214 S.E.2d 261, 1975 N.C. App. LEXIS 2313 (1975), rev'd, 289 N.C. 198 , 221 S.E.2d 273, 1976 N.C. LEXIS 1242 (1976).

The prayer for relief in a complaint may constitute a sufficient motion for a preliminary injunction, and a separate or additional motion is not necessarily required. Collins v. Freeland, 12 N.C. App. 560, 183 S.E.2d 831, 1971 N.C. App. LEXIS 1404 (1971).

And Complaint Need Not Use Technical Language. —

Although the wording of the prayer for relief in a complaint and the wording in the notice to show cause did not technically follow the language of this rule, the meaning was clear and unambiguous and sufficient to constitute a motion for a preliminary injunction. Collins v. Freeland, 12 N.C. App. 560, 183 S.E.2d 831, 1971 N.C. App. LEXIS 1404 (1971).

Court May Consider Affidavits. —

Both before and after the adoption of the Rules of Civil Procedure, it was and is proper for the court to consider evidence by affidavits in show cause hearings for injunctions, and subdivision (1) of G.S. 1-485 does not prohibit this. State ex rel. Morgan v. Dare to Be Great, Inc., 15 N.C. App. 275, 189 S.E.2d 802, 1972 N.C. App. LEXIS 1898 (1972).

When proceeding under subdivision (1) of G.S. 1-485 for a preliminary injunction, the court is not limited to what appears in the complaint. The courts have historically heard motions for preliminary injunction on affidavits. State ex rel. Morgan v. Dare to Be Great, Inc., 15 N.C. App. 275, 189 S.E.2d 802, 1972 N.C. App. LEXIS 1898 (1972).

Standard for Affidavits. —

An injunction under this rule is a temporary order pending trial; thus the affidavits need not meet as high a standard as those for a summary judgment ruling. Howard Schultz & Assocs. v. Ingram, 38 N.C. App. 422, 248 S.E.2d 345, 1978 N.C. App. LEXIS 2214 (1978).

Scope of Review of Preliminary Injunction. —

In reviewing orders for temporary injunctive relief an appellate court may look beyond the findings of fact made by the trial court and determine from the evidence whether a preliminary injunction is justified. Automobile Dealer Resources, Inc. v. Occidental Life Ins. Co., 15 N.C. App. 634, 190 S.E.2d 729, 1972 N.C. App. LEXIS 1997 (1972).

On appeal from an order of a superior court judge granting or refusing a preliminary injunction, the Supreme Court is not bound by the findings of fact of the hearing judge, but may review and weigh the evidence and find the facts for itself. Setzer v. Annas, 286 N.C. 534 , 212 S.E.2d 154, 1975 N.C. LEXIS 1249 (1975); Pruitt v. Williams, 288 N.C. 368 , 218 S.E.2d 348, 1975 N.C. LEXIS 985 (1975); A.E.P. Indus., Inc. v. McClure, 308 N.C. 393 , 302 S.E.2d 754, 1983 N.C. LEXIS 1214 (1983).

The scope of appellate review in the granting or denying of a preliminary injunction is essentially de novo. An appellate court is not bound by the findings, but may review and weigh the evidence and find facts for itself. Robins & Weill, Inc. v. Mason, 70 N.C. App. 537, 320 S.E.2d 693, 1984 N.C. App. LEXIS 3710 (1984).

On appeal of the entry of a preliminary injunction, the enjoined party bears the burden of showing that the trial court erred, as there is a presumption that the judgment is correct. Howard Schultz & Assocs. v. Ingram, 38 N.C. App. 422, 248 S.E.2d 345, 1978 N.C. App. LEXIS 2214 (1978).

Specific Performance of Alimony Provisions. —

Trial court had authority under this rule to grant specific performance of the alimony provisions of a separation agreement in order to preserve the status quo pending final determination of the merits of an action on the agreement. Gibson v. Gibson, 49 N.C. App. 156, 270 S.E.2d 600, 1980 N.C. App. LEXIS 3331 (1980).

Covenant Not to Compete. —

Dental practice was entitled to a preliminary injunction against former employee dentists who violated a covenant not to compete against the dental practice as the dental practice showed a likelihood of success on the merits of its case through a showing that the restrictive covenants were reasonable and enforceable, and established irreparable harm through a showing that a substantial portion of its patients followed the employee dentists to the new practice. Kennedy v. Kennedy, 160 N.C. App. 1, 584 S.E.2d 328, 2003 N.C. App. LEXIS 1675 , dismissed, 357 N.C. 658 , 590 S.E.2d 267, 2003 N.C. LEXIS 1499 (2003).

Preliminary Injunction Barring Challenge to Certificate of Need Application Proper. —

Preliminary injunction enjoining medical providers from challenging a hospital’s Certificate of Need application was proper because the parties’ agreement barred challenges to noncompetitive applications, and provided that, for applications to be competitive, they must have been received in same review period; the medical providers did not file an application in same review period and the state Department of Health and Human Services determined that the hospital’s application was noncompetitive. Irreparable harm was shown by, among other things, the agreement itself, which stated that a breach would have resulted in irreparable harm. N.C. Baptist Hosp. v. Novant Health, Inc., 195 N.C. App. 721, 673 S.E.2d 794, 2009 N.C. App. LEXIS 250 (2009).

Preliminary Injunction Was Immediately Appealable. —

Preliminary injunction compelling the disclosure of unemployment hearings information was immediately appealable because it affected a substantial right; the order required the disclosure of information that government agencies contended constituted confidential information under both state and federal law, and the agencies alleged that the disclosure could result in the loss of federal administrative funding. Wilson v. N.C. DOC, 239 N.C. App. 456, 768 S.E.2d 360, 2015 N.C. App. LEXIS 85 (2015).

III.Temporary Restraining Orders

Section (b) of this rule is constitutional. Jolliff v. Winslow, 24 N.C. App. 107, 210 S.E.2d 221, 1974 N.C. App. LEXIS 1941 (1974).

Although the ex parte temporary restraining order procedure is drastic, it operates within an emergency context which recognizes the need for swift action, but passes constitutional muster because it immediately affords defendants notice and an opportunity to be heard. State ex rel. Gilchrist v. Hurley, 48 N.C. App. 433, 269 S.E.2d 646, 1980 N.C. App. LEXIS 3284 (1980).

G.S. 1A-1 , Rule 3 and section (b) of this rule must be construed in pari materia. Carolina Freight Carriers Corp. v. International Bhd. of Teamsters Local 61, 11 N.C. App. 159, 180 S.E.2d 461, 1971 N.C. App. LEXIS 1472 , cert. denied, 278 N.C. 701 , 181 S.E.2d 601, 1971 N.C. LEXIS 1028 (1971).

Procedure under section (b) of this rule is permissible only after an action is commenced as provided by G.S. 1A-1 , Rule 3. Carolina Freight Carriers Corp. v. International Bhd. of Teamsters Local 61, 11 N.C. App. 159, 180 S.E.2d 461, 1971 N.C. App. LEXIS 1472 , cert. denied, 278 N.C. 701 , 181 S.E.2d 601, 1971 N.C. LEXIS 1028 (1971).

Temporary Restraining Order Entered Under N.C. R. Civ. P. 65(b) Not Equivalent to Protective Order Entered Under G.S 50B-1 et seq. —

By limiting applicability of the enhancement provision to violation of protective orders issued after a hearing, the General Assembly recognizes and gives deference to protection of a defendant’s liberty interest through due process of law; therefore, a temporary restraining order entered under N.C. R. Civ. P. 65(b) is not the functional legal equivalent of a protective order entered pursuant to the procedure set forth in Chapter 50B. State v. Byrd, 363 N.C. 214 , 675 S.E.2d 323, 2009 N.C. LEXIS 347 (2009).

Application To Enjoin Foreclosure Sale Must Be Filed Before Upset Bid Period Expires. —

Application seeking to enjoin a foreclosure sale must be heard and decided, as well as filed, prior to the date upon which the rights of the parties to the sale became fixed in order for the superior court to retain the authority to enjoin a foreclosure sale; given that temporary restraining orders may be issued on a ex parte basis in appropriate instances, and given that “apply” can be defined as to make a formal request or motion, an interpretation of G.S. 45-21.34 that requires the applicant to seek and obtain the requested injunction before the point at which the upset bid period expires is completely consistent with the literal language and the underlying purpose sought to be achieved through the relevant statutory provision. Goad v. Chase Home Fin., LLC, 208 N.C. App. 259, 704 S.E.2d 1, 2010 N.C. App. LEXIS 2418 (2010).

Temporary Restraining Order Not Effective Until Filed by Clerk. —

Pursuant to G.S. 1A-1 , Rule 58, a judgment is “entered” when it is reduced to writing, signed by the judge, and filed with the clerk of court, and nothing in G.S. 1A-1 , Rule 65(b) suggests that “entry” has a different meaning for purposes of Rule 65; in fact, case law confirms that a temporary restraining order is not effective until filed by the clerk. In the instant case, the temporary restraining order was not filed with the clerk and entered of record until July 27, and would thus have expired by Rule on August 6, 2009, after debtor filed its bankruptcy petition. In re Highway 751 Partners, LLC, 2009 Bankr. LEXIS 3967 (Bankr. E.D.N.C. Dec. 3, 2009).

The purpose of a temporary restraining order, issued ex parte, is “to preserve the status quo” pending a full hearing. Huff v. Huff, 69 N.C. App. 447, 317 S.E.2d 65, 1984 N.C. App. LEXIS 3479 (1984).

The ex parte temporary restraining order neither contemplates nor authorizes the deprivation of property, and so long as certain procedural safeguards are afforded, such as definite duration, it is a universally accepted and employed procedure. State ex rel. Gilchrist v. Hurley, 48 N.C. App. 433, 269 S.E.2d 646, 1980 N.C. App. LEXIS 3284 (1980).

An ex parte restraining order is subject to definite time limitations, and is intended to preserve the status quo until the motion for a preliminary injunction can, after notice, be brought on for hearing and decision. Lambe v. Smith, 11 N.C. App. 580, 181 S.E.2d 783, 1971 N.C. App. LEXIS 1587 (1971).

Temporary restraining order is not predicated upon illusory injury, loss, or damage, but is entered only upon a showing of immediate and irreparable injury, loss, or damage. Jolliff v. Winslow, 24 N.C. App. 107, 210 S.E.2d 221, 1974 N.C. App. LEXIS 1941 (1974).

Precedence of Hearing on Temporary Restraining Order over Hearing on Change of Venue. —

This rule would appear to require that a hearing on the return of a temporary restraining order take precedence over a hearing on a motion for a change of venue. Herff Jones Co. v. Allegood, 35 N.C. App. 475, 241 S.E.2d 700, 1978 N.C. App. LEXIS 3009 (1978).

G.S. 19-2.3 Made Subject to Section (b) of this Rule. —

G.S. 19-2.3 , authorizing the issuance of an ex parte temporary restraining order to abate certain nuisances, is plainly made subject to section (b) of this rule. State ex rel. Gilchrist v. Hurley, 48 N.C. App. 433, 269 S.E.2d 646, 1980 N.C. App. LEXIS 3284 (1980).

No Jurisdiction to Determine Controversy on Merits. —

A judge conducting a hearing to determine whether a temporary restraining order should be continued as a preliminary injunction pursuant to this rule has no jurisdiction to determine a controversy on its merits; neither can the parties to an action confer this jurisdiction upon the trial court by granting consent to such a hearing. Everette v. Taylor, 77 N.C. App. 442, 335 S.E.2d 212, 1985 N.C. App. LEXIS 4083 (1985).

Denied Due to Lack of Standing. —

Temporary restraining order, under G.S. 1A-1 -65(b), was denied as the State Employees Association of North Carolina, Inc. (SEANC) lacked standing to contest the reallocation of funds from the State retirement systems; the SEANC failed to demonstate that all of its members otherwise had standing to sue in their own right, and its complaint was dismissed for failure to state a cause of action, under G.S. 1A-1 , N.C. R. Civ. P. 12(b)6), and for the lack of subject matter jurisdiction under Rule 12(h)(3). State Emples. Ass'n of N.C. Inc. v. State, 154 N.C. App. 207, 573 S.E.2d 525, 2002 N.C. App. LEXIS 1451 (2002), rev'd, 357 N.C. 239 , 580 S.E.2d 693, 2003 N.C. LEXIS 599 (2003).

Factors considered justified the conclusion that absent ex parte restraining order, plaintiff wife would suffer irreparable injury for which she had no adequate remedy at law. Huff v. Huff, 69 N.C. App. 447, 317 S.E.2d 65, 1984 N.C. App. LEXIS 3479 (1984).

It was error for the court to issue a permanent injunction at a hearing to show cause why a temporary restraining order should not be continued. Everette v. Taylor, 77 N.C. App. 442, 335 S.E.2d 212, 1985 N.C. App. LEXIS 4083 (1985).

Where defendants moved to vacate temporary restraining order thirty days after it was entered, but the order had already expired by operation of law 10 days after issuance, there was no temporary restraining order in existence to vacate or dissolve so that defendants could not recover damages in a dissolution order pursuant to subsection (e). Democratic Party v. Guilford County Bd. of Elections, 342 N.C. 856 , 467 S.E.2d 681, 1996 N.C. LEXIS 139 (1996).

Since temporary restraining order expired, by operation of law, after ten days, defendant bank had no legal authority to continue to freeze plaintiff’s funds after the ten days had passed. Taylor v. Centura Bank, 124 N.C. App. 661, 478 S.E.2d 226, 1996 N.C. App. LEXIS 1214 (1996).

Penalty Enhancement for Knowingly Violating Protective Order. —

Trial court erred in enhancing defendant’s sentence under G.S. 50B-4.1(d) for his knowing violation of a valid protective order because a temporary restraining order (TRO) was not a valid domestic violence protective order under Chapter 50B but an ex parte TRO entered under N.C. R. Civ. P. 65(b), and the order was not entered upon hearing by the trial court or consent of the parties as required under G.S. 50B-1(c) ; only a valid protective order entered under Chapter 50B can be used to enhance a defendant’s sentence under G.S. 50B-4.1(d), and Chapter 50B requires that a defendant be given notice and the opportunity to be heard before entry of a protective order. State v. Byrd, 363 N.C. 214 , 675 S.E.2d 323, 2009 N.C. LEXIS 347 (2009).

IV.Security

Rule for North Carolina practice under section (c) of this rule, in its entirety, is as follows: “The trial court has power not only to set the amount of security but to dispense with any security requirement whatsoever where the restraint will do the defendant no material damage, where there has been no proof of likelihood of harm, and where the applicant for equitable relief has considerable assets and is able to respond in damages if defendant does suffer damages by reason of a wrongful injunction.” Keith v. Day, 60 N.C. App. 559, 299 S.E.2d 296, 1983 N.C. App. LEXIS 2495 (1983).

The purpose of the security requirement in section (c) of this rule is to protect the restrained party from damages incurred as a result of the wrongful issuance of the injunctive relief. Similarly, it has been suggested that the purpose of the bond is to require that the plaintiff assume the risk of paying damages he causes as the “price” he must pay to have the extraordinary privilege of a temporary restraining order or preliminary injunction. Leonard E. Warner, Inc. v. Nissan Motor Corp., 66 N.C. App. 73, 311 S.E.2d 1, 1984 N.C. App. LEXIS 2812 (1984).

Federal Decisions Must Be Utilized for Interpretation of Section (c). —

Because of the dearth of North Carolina precedent, and the fact that section (c) of this rule was adopted verbatim from the Federal Rules of Civil Procedure, it is necessary to look to federal decisions interpreting this section for guidance. Keith v. Day, 60 N.C. App. 559, 299 S.E.2d 296, 1983 N.C. App. LEXIS 2495 (1983).

The question of when recovery on a bond posted under this rule is proper has rarely been addressed by North Carolina courts. It has been held that in interpreting section (c) of this rule North Carolina courts may look to federal decisions for guidance. Leonard E. Warner, Inc. v. Nissan Motor Corp., 66 N.C. App. 73, 311 S.E.2d 1, 1984 N.C. App. LEXIS 2812 (1984).

Application of Section (c). —

Where trial court specifically stated in its order that no security should be required of the plaintiff since this was a suit between spouses relating to divorce from bed and board, alimony, temporary alimony, possession of personal property and attorneys’ fees, and it properly could view foreign action initiated by defendant-husband as a type of interference with plaintiff during pendency of the suit, its restraining order thus fell within the express exclusion from the usual security requirements of section (c) of this rule. Huff v. Huff, 69 N.C. App. 447, 317 S.E.2d 65, 1984 N.C. App. LEXIS 3479 (1984).

Where the record established no material damage or likelihood of harm to defendant-husband from issuance of restraining order and that plaintiff-wife had considerable assets with which to respond in damages if defendant-husband subsequently was found to have suffered from wrongful issuance of the order, trial court properly dispensed with the requirement for security. Huff v. Huff, 69 N.C. App. 447, 317 S.E.2d 65, 1984 N.C. App. LEXIS 3479 (1984).

Where, in accordance with Rule 65(c), the trial court required an $ 800 bond from a former employer in granting the employer’s motion for a temporary restraining order (TRO) against a former employee, the trial court did not have to revisit the issue of the adequacy of that security in converting the TRO into a preliminary injunction unless there was some proper suggestion that the existing security was inadequate, and, therefore, since the former employee failed to show that it challenged the sufficiency of the security in the trial court, the employee was precluded from challenging its sufficiency on appeal. Precision Walls, Inc. v. Servie, 152 N.C. App. 630, 568 S.E.2d 267, 2002 N.C. App. LEXIS 980 (2002).

No security is required when a preliminary injunction is issued to preserve the trial court’s jurisdiction over the subject matter involved. Huff v. Huff, 69 N.C. App. 447, 317 S.E.2d 65, 1984 N.C. App. LEXIS 3479 (1984).

Governmental immunity is not abrogated by section (c) of this rule. Orange County v. Heath, 282 N.C. 292 , 192 S.E.2d 308, 1972 N.C. LEXIS 937 (1972).

Failure to Make Findings for Order Setting Bond. —

Where order setting an injunction bond at $20,000 contained no findings of fact or conclusions of law relating to the amount of the bond, and facts were in dispute, remand was necessary for proper determination of the amount of the security bond. Iverson v. TM One, Inc., 92 N.C. App. 161, 374 S.E.2d 160, 1988 N.C. App. LEXIS 1014 (1988).

The fact that the party against which the injunction was entered prevails at trial, does not, by itself, entitle it to the posted bond; the prevailing party also must have suffered damages as a result of the injunction. Tedder v. Alford, 128 N.C. App. 27, 493 S.E.2d 487, 1997 N.C. App. LEXIS 1205 (1997).

Trial Court Did Not Err in Not Requiring Security. —

North Carolina trial court did not err in issuing an antisuit injunction against appellants, trusts and trustees, regarding a declaratory judgment action they filed in Florida without requiring appellee co-trustee to provide security pursuant to N.C. R. Civ. P. 65(c) where (1) appellants failed to seek any security deposit as a condition precedent to entry of the injunction in the trial court, (2) appellants failed to make any showing regarding how they would be harmed by the issuance of the injunction, and (3) it was implicit from the trial court’s findings that one purpose of the antisuit injunction was to preserve the North Carolina trial court’s jurisdiction over the interpretation of documents involved in certain cases pending in North Carolina. Staton v. Russell, 151 N.C. App. 1, 565 S.E.2d 103, 2002 N.C. App. LEXIS 688 (2002).

V.Form and Scope of Injunction or Restraining Order

Application of Section (d). —

Section (d) of this rule applies only to injunctions and restraining orders, not to contempt orders. R.E. Uptegraff Mfg. Co. v. International Union of Elec. Workers Local 189, 20 N.C. App. 544, 202 S.E.2d 309, 1974 N.C. App. LEXIS 2490 , cert. denied, 285 N.C. 234 , 204 S.E.2d 24, 1974 N.C. LEXIS 950 (1974).

In an apartment complex owner’s action to enjoin a developer and a corporation from parking a 40-foot eight-wheeled construction trailer on a lot on which the owner had an easement for ingress and egress to the complex, a trial court erred in applying a 1996 injunction against the developer and a corporation because the 1996 injunction had been entered against their predecessors in ownership and there was no evidence to support a finding that the developer and the corporation were in active concert with one or more of the predecessors. Ferrell v. Doub, 160 N.C. App. 373, 585 S.E.2d 456, 2003 N.C. App. LEXIS 1800 (2003).

Trial court’s injunction order failed to comply with G.S. 1A-1 , N.C. R. Civ. P. 65(d) because it did not set forth the reasons for its issuance. Danny's Towing 2, Inc. v. N.C. Dep't of Crime Control & Pub. Safety, 213 N.C. App. 375, 715 S.E.2d 176, 2011 N.C. App. LEXIS 1485 (2011).

Necessity That Order Detail Acts Enjoined. —

The mandate of this rule that an order set forth in reasonable detail the acts enjoined involves the question of whether the party enjoined can know from the language of the order itself, and without having to resort to other documents, exactly what the court is ordering it to do. Automobile Dealer Resources, Inc. v. Occidental Life Ins. Co., 15 N.C. App. 634, 190 S.E.2d 729, 1972 N.C. App. LEXIS 1997 (1972).

Because plaintiffs’ motion for summary judgment sought an expansive permanent injunction, the trial court’s cursory handling of that issue did not meet the standard of reasonable detail concerning the act or acts enjoined or restrained. Wilner v. Cedars of Chapel Hill, LLC, 241 N.C. App. 389, 773 S.E.2d 333, 2015 N.C. App. LEXIS 444 (2015).

Reference to some other document within a temporary restraining order is not sufficient to provide a description of the act or acts enjoined or restrained. Gibson v. Cline, 28 N.C. App. 657, 222 S.E.2d 478, 1976 N.C. App. LEXIS 2794 (1976).

Absence of a statement of the reasons for an injunction renders the order irregular, not void, and should be corrected by the trial court and not on appeal. Howard Schultz & Assocs. v. Ingram, 38 N.C. App. 422, 248 S.E.2d 345, 1978 N.C. App. LEXIS 2214 (1978).

An injunctive order which does not state the reasons for its issuance is merely irregular, not void, and must be obeyed by the parties until corrected. Poor Richard's, Inc. v. Stone, 86 N.C. App. 137, 356 S.E.2d 828, 1987 N.C. App. LEXIS 2674 (1987), rev'd, 322 N.C. 61 , 366 S.E.2d 697, 1988 N.C. LEXIS 135 (1988).

Irregular injunctive orders which do not state the reasons for their issuance are properly corrected by a motion made before the trial court and will not be corrected on appeal. Poor Richard's, Inc. v. Stone, 86 N.C. App. 137, 356 S.E.2d 828, 1987 N.C. App. LEXIS 2674 (1987), rev'd, 322 N.C. 61 , 366 S.E.2d 697, 1988 N.C. LEXIS 135 (1988).

Motion under G.S. 1A-1 , Rule 60(a) was proper to reform an order granting a preliminary injunction so as to comply with the requirements of section (d) of this rule, since the correction did not alter the effect of the order, but only clarified the record for appeal. Howard Schultz & Assocs. v. Ingram, 38 N.C. App. 422, 248 S.E.2d 345, 1978 N.C. App. LEXIS 2214 (1978).

Findings and Conclusions Only Required When Requested. —

There is no statute that requires the court to make findings of fact and conclusions of law in granting or denying a preliminary injunction under this rule. Hence, absent a request by a party that the court make findings of fact and conclusions of law, the court is required to state only the reasons for its issuance. Pruitt v. Williams, 25 N.C. App. 376, 213 S.E.2d 369, 1975 N.C. App. LEXIS 2267 (1975).

Reason for Issuance Correctly Set Out in Order. —

When an order provided that it was issued by consent of the parties, it correctly set forth the reason for its issuance within the meaning of section (d) of this rule. R.E. Uptegraff Mfg. Co. v. International Union of Elec. Workers Local 189, 20 N.C. App. 544, 202 S.E.2d 309, 1974 N.C. App. LEXIS 2490 , cert. denied, 285 N.C. 234 , 204 S.E.2d 24, 1974 N.C. LEXIS 950 (1974).

Order Held Sufficiently Detailed. —

Where allegedly ambiguous terms used by the court in injunctive order were the exact words used in defendant’s letter or the contract under which the parties functioned, apparently without complaint, for more than three years, defendant could not insist that the court speak with more clarity than did plaintiff and defendant in establishing the relationship which the court sought to preserve, especially when no showing was made as to any previous difficulty on the part of either party in understanding the language used. Automobile Dealer Resources, Inc. v. Occidental Life Ins. Co., 15 N.C. App. 634, 190 S.E.2d 729, 1972 N.C. App. LEXIS 1997 (1972).

Permanent Injunction Held Proper. —

Trial court properly entered a permanent injunction prohibiting the State from interfering with corporation’s sale of pre-paid phone cards with game pieces where the inclusion of game pieces was merely a marketing system, the phone card was sufficiently compatible with the price being charged and had sufficient value and utility to support the conclusion that it, and not the associated game of chance, was the object being purchased, and consumers could receive free game pieces via written request without purchasing the phone card. Am. Treasures, Inc. v. State, 173 N.C. App. 170, 617 S.E.2d 346, 2005 N.C. App. LEXIS 1928 (2005).

Because the language used in several of the prohibited categories of behavior in the permanent injunction against the association’s member was overly broad as it did not clearly limit the prohibited behaviors to any particular geographic area, durational period, or immediately identifiable persons even though the evidence presented concerned only the member’s violations of the association’s rules while within the association’s community, the trial court abused its discretion in granting a permanent injunction with unlimited scope. Fed. Point Yacht Club Ass'n v. Moore, 233 N.C. App. 298, 758 S.E.2d 1, 2014 N.C. App. LEXIS 307 (2014).

VI.Damages on Dissolution

Remedies Available to Party Wrongfully Restrained. —

When a temporary restraining order is dissolved as having been improvidently issued, the remedies available to the party who has been wrongfully restrained are as follows: (1) He may recover damages from the party who procured the restraining order and the sureties on his injunction bond, without proof of malice or want of probable cause, or (2) he may institute an action for malicious prosecution against the party who procured the restraining order and recover damages, without regard to the limit of the bond, upon establishing the elements necessary to constitute an action for malicious prosecution. International Bhd. of Elec. Workers Local 755 v. Country Club E., Inc., 283 N.C. 1 , 194 S.E.2d 848, 1973 N.C. LEXIS 893 (1973).

Recovery under this rule may not be granted until the court has finally decided that plaintiff was not entitled to the injunction, or until something occurs equivalent to such a decision. Leonard E. Warner, Inc. v. Nissan Motor Corp., 66 N.C. App. 73, 311 S.E.2d 1, 1984 N.C. App. LEXIS 2812 (1984).

Limitation on Recovery When Proceeding by Motion in Cause. —

If a party damaged by an improvidently issued restraining order elects to proceed by motion in the cause on the bond of the opposing party and his sureties, his recovery is limited to the amount of the penalty of the injunction bond. Stevenson v. North Carolina Dep't of Ins., 45 N.C. App. 53, 262 S.E.2d 378, 1980 N.C. App. LEXIS 2581 (1980).

Damages Following Voluntary Dismissal. —

Award of damages upon the dissolution of an injunction was not improper where the injunction was granted because there was probable cause to believe that defendants might be able to establish their right to the injunction upon trying the issues raised by their counterclaim, but where after the case was tried almost to a conclusion, defendants voluntarily dismissed their counterclaim; although it was done “without prejudice,” this dismissal could only be construed as an acknowledgement by the defendants that they could not establish their entitlement to the restraining order. Pinehurst, Inc. v. O'Leary Bros. Realty, 79 N.C. App. 51, 338 S.E.2d 918, 1986 N.C. App. LEXIS 1982 , writ denied, 316 N.C. 378 , 342 S.E.2d 896, 1986 N.C. LEXIS 2123 (1986).

Trial court did not err in awarding damages to the county under the injunction bond where it was forced to pay a higher amount for transportation services while the TRO was in effect. Van-Go Transp., Inc. v. Sampson Cty., 254 N.C. App. 836, 803 S.E.2d 215, 2017 N.C. App. LEXIS 623 (2017).

Award of damages to the contract awardee following the voluntary dismissal of the unsuccessful bidder’s action was supported by proper evidence where the award was based upon the per-mile rate set forth in the contract and the actual number of miles, and an expert specified the basis for the other key variable, i.e., the avoided costs figure. Van-Go Transp., Inc. v. Sampson Cty., 254 N.C. App. 836, 803 S.E.2d 215, 2017 N.C. App. LEXIS 623 (2017).

County and contract awardee had been wrongfully enjoined by an unsuccessful bidder where the bidder made the decision to voluntarily dismiss the action for business reasons, no authority held that an enjoining party could avoid operation of the Blatt rule for such reasons, and thus, the voluntary dismissal was an admission by the bidder that it had wrongfully enjoined the county and contract awardee. Van-Go Transp., Inc. v. Sampson Cty., 254 N.C. App. 836, 803 S.E.2d 215, 2017 N.C. App. LEXIS 623 (2017).

Unsworn Statement Not Sufficient Evidence of Damages. —

Where the record indicated the trial court relied upon the unsworn statement of counsel that the Board of Education suffered “about seven fifty” in damages in making finding of fact, the statement by the attorney at trial was not considered evidence. Ronald G. Hinson Elec., Inc. v. Union County Bd. of Educ., 125 N.C. App. 373, 481 S.E.2d 326, 1997 N.C. App. LEXIS 97 (1997).

VII.Decisions under Prior Law

Editor’s Note. —

The cases cited below were decided under former G.S. 1-496 and 1-497.

Provision for Bond Mandatory. —

The provision that the plaintiff in injunction give bond is mandatory and the amount fixed by the judge is conclusive of the extent of the liability thereon, the procedure being for the defendant to move to have the amount increased when he so desires or thinks it necessary for his protection. James v. Withers, 114 N.C. 474 , 19 S.E. 367, 1894 N.C. LEXIS 93 (1894); McAden v. Watkins, 191 N.C. 105 , 131 S.E. 375, 1926 N.C. LEXIS 15 (1926).

But the validity of an injunction is not affected by a failure to require an indemnity bond to accompany it, nor is a party for that reason justified in disobeying the mandate, but if aggrieved, his remedy is in a motion to dissolve. Young v. Rollins, 90 N.C. 125 , 1884 N.C. LEXIS 176 (1884).

Failure to give the required undertaking is merely an irregularity which will be cured by a subsequent execution thereof. McKay v. Chapin, 120 N.C. 159 , 26 S.E. 701, 1897 N.C. LEXIS 33 (1897); Standard Bonded Whse. Co. v. Cooper & Griffin, Inc., 30 F.2d 842, 1929 U.S. Dist. LEXIS 1008 (D.N.C. 1929).

Bond Not Required in Action to Abate Nuisance. —

In an action to abate a public nuisance, plaintiff relator was not required to give an undertaking, the provisions of former G.S. 1-496 not being applicable. State ex rel. Carpenter v. Boyles, 213 N.C. 432 , 196 S.E. 850, 1938 N.C. LEXIS 110 (1938).

Where an injunction was issued under an order that plaintiff should give an undertaking with sufficient sureties in a certain sum, it seemed that a deposit in money of the sum named would be sufficient; but whether it was or not, the giving by plaintiff of the required undertaking before the hearing of a motion to vacate the injunction for the want of it would supply the alleged defect and prevent the injunction from being vacated on that account. Richards v. Baurman, 65 N.C. 162 , 1871 N.C. LEXIS 51 (1871).

Where an undertaking was given before the issuance of a restraining order, it was not necessary for the court, on the return of the order to show cause and upon continuing the injunction to the trial, to require a new undertaking from the plaintiff, unless it was shown that the bond already given was insufficient. Preiss v. Cohen, 112 N.C. 278 , 17 S.E. 520, 1893 N.C. LEXIS 205 (1893).

Procedure to Recover Damages. —

It is not contemplated that a separate action shall be brought upon an injunction bond, but the damages sustained by reason of an injunction shall be ascertained by proper proceedings in the same action, and may be by reference or otherwise, as the judge shall direct. North Carolina Gold Amalgamating Co. v. North Carolina Ore Dressing Co., 79 N.C. 48 , 1878 N.C. LEXIS 12 (1878). See also, Crawford v. Pearson, 116 N.C. 718 , 21 S.E. 561, 1895 N.C. LEXIS 271 (1895); Nansemond Timber Co. v. Rountree, 122 N.C. 45 , 29 S.E. 61, 1898 N.C. LEXIS 188 (1898).

Right to Elect to Seek Damages in Same or Separate Action. —

The provision requiring a bond in an injunction to cover defendant’s damages, and further provision for recovery thereof in the same action, do not limit the remedy to that action, in the event the injunction was sought with malice and without probable cause; and defendant has the right therein to elect between this remedy and that by independent action, without limiting his recovery to an action on the bond when the damages sought are in excess of that amount. Shute v. Shute, 180 N.C. 386 , 104 S.E. 764, 1920 N.C. LEXIS 100 (1920).

To sustain an action for damages, it must be made to appear that such injunction was wrongful in its inception, or at least was continued owing to some wrong on the part of plaintiff. M. Blatt Co. v. Southwell, 259 N.C. 468 , 130 S.E.2d 859, 1963 N.C. LEXIS 577 (1963).

Burden of Proof in Action for Damages. —

The burden of proof was on defendant to show as a prerequisite to his right to recover damages from plaintiff and its surety either that the court had finally decided that plaintiff was not entitled to temporary restraining order or that something had occurred equivalent to such a decision. M. Blatt Co. v. Southwell, 259 N.C. 468 , 130 S.E.2d 859, 1963 N.C. LEXIS 577 (1963).

Want of probable cause need not be alleged. Crawford v. Pearson, 116 N.C. 718 , 21 S.E. 561, 1895 N.C. LEXIS 271 (1895).

Amount of Damages Sustained Must Be Shown. —

Before judgment can be given upon an injunction bond, the party alleging that he has been damnified by reason of the injunction must establish the quantum of damages sustained. Hyman v. Devereux, 65 N.C. 588 , 1871 N.C. LEXIS 183 (1871).

Amount of damages does not include personal expenses in attending the hearing. Midgett v. Vann, 158 N.C. 128 , 73 S.E. 801, 1912 N.C. LEXIS 4 (1912).

No Damages Where Injunction Is Rightfully Awarded and Properly Dissolved on Matters Subsequently Arising. —

If an injunction is rightfully awarded, but afterwards properly dissolved because of matters done or arising subsequent to its issuance, there can be no recovery of damages. M. Blatt Co. v. Southwell, 259 N.C. 468 , 130 S.E.2d 859, 1963 N.C. LEXIS 577 (1963).

Voluntary Unconditional Dismissal Held Equivalent to Determination That Plaintiff Was Not Entitled to Equitable Relief. —

In an action in which plaintiff obtained a temporary restraining order or injunction by giving bond as required by former G.S. 1-496 , the voluntary and unconditional dismissal of the proceedings by plaintiff was equivalent to a judicial determination that the proceeding for an injunction was wrongful, since thereby plaintiff was held to have confessed that he was not entitled to the equitable relief sought. M. Blatt Co. v. Southwell, 259 N.C. 468 , 130 S.E.2d 859, 1963 N.C. LEXIS 577 (1963).

Voluntary Dismissal by Agreement Not Adjudication That Restraining Order Was Erroneous. —

A judgment of voluntary dismissal by agreement of the parties of an action in which a restraining order has been issued is not an adjudication that the restraining order was improvidently or erroneously issued. M. Blatt Co. v. Southwell, 259 N.C. 468 , 130 S.E.2d 859, 1963 N.C. LEXIS 577 (1963).

For discussion as to attorneys’ fees, see Hyman v. Devereux, 65 N.C. 588 , 1871 N.C. LEXIS 183 (1871).

Rules 66, 67.

Omitted.

Rule 68. Offer of judgment and disclaimer.

  1. Offer of judgment. —  At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted within 10 days after its service shall be deemed withdrawn and evidence of the offer is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer.
  2. Conditional offer of judgment for damages. —  A party defending against a claim arising in contract or quasi contract may, with his responsive pleading, serve upon the claimant an offer in writing that if he fails in his defense, the damages shall be assessed at a specified sum; and if the claimant signifies his acceptance thereof in writing within 20 days of the service of such offer, and on the trial prevails, his damages shall be assessed accordingly. If the claimant does not accept the offer, he must prove his damages as if the offer had not been made. If the damages assessed in the claimant’s favor do not exceed the sum stated in the offer, the party defending shall recover the costs in respect to the question of damages.

History. 1967, c. 954, s. 1.

Comment

Both sections of the rule would seem to be self-explanatory. They encompass the substance of former §§ 1-541 and 1-542. Former § 1-543, permitting a disclaimer of title by the defendant in trespass actions together with an offer to make amends, was repealed on the theory that its purpose can be accomplished by use of section (a).

Legal Periodicals.

For survey of 1982 law on civil procedure, see 61 N.C.L. Rev. 991 (1983).

For note, “Rule 68 — Should Costs Incurred After the Offer of Judgment be Included in Calculating the ‘Judgment Finally Obtained’ — The So-Called Novel Issue in Roberts v. Swain,” see 24 Campbell L. Rev. 245 (2002).

For article, “Law Between the Lines,” 25 Campbell L. Rev. 151 (2003).

For article, “Holding, Dictum . . . Whatever,” 25 N.C. Cent. L.J. 139 (2003).

CASE NOTES

Analysis

I.In General

Purpose of this rule is to encourage settlements and avoid protracted litigation. Scallon v. Hooper, 58 N.C. App. 551, 293 S.E.2d 843, 1982 N.C. App. LEXIS 2806 (1982).

The offer operates to save defendant the costs from the time of that offer if plaintiff ultimately obtains a judgment for less than the sum offered. Scallon v. Hooper, 58 N.C. App. 551, 293 S.E.2d 843, 1982 N.C. App. LEXIS 2806 (1982).

Lump Sum Offer. —

Lump sum offers of judgment which expressly include both the amount of the judgment and the amount of costs are permissible under Rule 68, but it is incumbent on the defendant to make sure that he has used language which conveys that he is making a lump sum offer. Phillips v. Warren, 152 N.C. App. 619, 568 S.E.2d 230, 2002 N.C. App. LEXIS 959 (2002).

In determining the “costs then accrued,” the relative positions of the parties as they existed at the time the offer was made must be considered. Purdy v. Brown, 307 N.C. 93 , 296 S.E.2d 459, 1982 N.C. LEXIS 1599 (1982).

Meaning of “Judgment Finally Obtained”. —

The Court of Appeals erred in concluding the “judgment finally obtained” under this rule means the jury’s verdict. The decision to equate “judgment finally obtained” with the jury’s verdict ignores the plain meaning of the words chosen by the legislature and employed in this rule. Poole v. Miller, 342 N.C. 349 , 464 S.E.2d 409, 1995 N.C. LEXIS 690 (1995).

Costs incurred after the offer of judgment but prior to the entry of judgment should be included in calculating the “judgment finally obtained,” even where attorney’s fees are awarded under a federal statute. Roberts v. Swain, 353 N.C. 246 , 538 S.E.2d 566, 2000 N.C. LEXIS 913 (2000).

Within the confines of G.S. 1A-1 , Rule 68, “judgment finally obtained” is not simply the amount of the jury’s verdict but includes applicable adjustments to the verdict by the trial court, such as costs incurred after the offer of judgment but prior to the entry of judgment, including reasonable attorney fees. Thorpe v. Perry-Riddick, 144 N.C. App. 567, 551 S.E.2d 852, 2001 N.C. App. LEXIS 525 (2001).

Costs incurred after an offer of judgment but prior to the entry of judgment should be included in calculating the “judgment finally obtained,” under Rule 68. Phillips v. Warren, 152 N.C. App. 619, 568 S.E.2d 230, 2002 N.C. App. LEXIS 959 (2002).

Judgment finally obtained, when applying this rule consists of the verdict, costs, fees, interest and any other cost assessed to defendant for plaintiff’s benefit, such as attorneys’ fees. Phillips v. Warren, 152 N.C. App. 619, 568 S.E.2d 230, 2002 N.C. App. LEXIS 959 (2002).

Satisfaction of Judgment Discharged Defendant From Liability. —

In an action filed by a patient and wife to recover for a doctor’s negligence, a trial court erred in entering judgment against a hospital upon the verdict of a jury and by denying the hospital’s motion for a judgment notwithstanding the verdict because the satisfaction of a G.S. 1A-1 , N.C. R. Civ. P. 68, judgment discharged the hospital from liability when the patient and wife accepted an offer of judgment, and a judgment was entered in their favor in a prior action against the doctor for the same injury at issue in their action against the hospital; under the language of G.S. 1A-1 , N.C. R. Civ. P. 68, and G.S. 1B-3(e) , entry and satisfaction of a judgment pursuant to Rule 68(a) discharges all other tort-feasors from liability to the claimant for the same injury pursuant to G.S. 1B-3(e) . Akins v. Mission St. Joseph's Health Sys., 193 N.C. App. 214, 667 S.E.2d 255, 2008 N.C. App. LEXIS 1740 (2008).

Defendant is entitled to the protections afforded him under this rule when plaintiff’s recovery is not more favorable than the offer. Thus, where defendant’s offer was for $5,001.00, but plaintiff only received $3,500.00 from the jury, plaintiff would have to bear the costs incurred after the offer of judgment was made. Purdy v. Brown, 307 N.C. 93 , 296 S.E.2d 459, 1982 N.C. LEXIS 1599 (1982).

Prevailing Parties. —

Because the rational behind this rule is to encourage a voluntary, mutual settlement, both parties may consider themselves prevailing parties. Evans v. Full Circle Prods., Inc., 114 N.C. App. 777, 443 S.E.2d 108, 1994 N.C. App. LEXIS 489 (1994).

Attorneys’ fees were not part of the “costs then accrued” under this rule when defendant made offer to plaintiff of $5,001.00, including costs accrued, with the exception of attorneys’ fees, as attorneys’ fees could not properly have been taxed against defendant at that time, since at the time defendant tendered his offer to plaintiff, G.S. 6-21.1 was not applicable, because the situation did not then involve a judgment for $5,000.00 or less. Purdy v. Brown, 307 N.C. 93 , 296 S.E.2d 459, 1982 N.C. LEXIS 1599 (1982).

Attorneys’ fees under 42 U.S.C. § 1988 are “costs then accrued” within the meaning of that phrase as it is used in this rule. Purdy v. Brown, 307 N.C. 93 , 296 S.E.2d 459, 1982 N.C. LEXIS 1599 (1982).

Ambiguity of Phrase. —

The phrase “together with costs accrued” was ambiguous as to whether the “costs accrued” were included in the amount offered pursuant to this rule or whether the costs were left to be separately determined by the court. Craighead v. Carrols Corp., 115 N.C. App. 381, 444 S.E.2d 651, 1994 N.C. App. LEXIS 597 (1994).

What Attorneys’ Fees Recoverable. —

Attorneys’ fees which were incurred prior to the time the offer of judgment was made are recoverable. Sanctions under this rule only provide protection against the costs incurred after the offer has been made. Purdy v. Brown, 307 N.C. 93 , 296 S.E.2d 459, 1982 N.C. LEXIS 1599 (1982).

Attorney’s fees were properly awarded pursuant to G.S. 6-21.1 in an automobile accident case; although an offer of judgment exceeded the amount of the jury’s verdict, the offer did not exceed the judgment finally obtained, which included costs and attorney’s fees. Robinson v. Shue, 145 N.C. App. 60, 550 S.E.2d 830, 2001 N.C. App. LEXIS 572 (2001).

Matter was remanded as trial court could properly consider the award of appellate attorney fees under circumstances in which an offer of judgment was made that was refused. Davis v. Kelly, 147 N.C. App. 102, 554 S.E.2d 402, 2001 N.C. App. LEXIS 1072 (2001).

When deciding whether to award attorneys’ fees under G.S. 6-21.1 , a trial court must examine the entire record, including but not limited to: (1) settlement offers made prior to institution of the action; (2) offers of judgment made pursuant to Rule 68 and whether the judgment finally obtained was more favorable than such offers; (3) whether defendant unjustly exercised superior bargaining power; (4) in the case of an unwarranted refusal by an insurance company, the context in which the dispute arose; (5) the timing of settlement offers; and (6) the amounts of settlement offers as compared to the jury verdict. Phillips v. Warren, 152 N.C. App. 619, 568 S.E.2d 230, 2002 N.C. App. LEXIS 959 (2002).

Although the trial court did not expressly find that the judgment the injured party finally obtained exceeded the tortfeasor’s Offer of Judgment, which was one Washington factor regarding whether an award of attorney fees was proper, it did make it clear that the factor had been considered and the trial court did not abuse its discretion in awarding attorney fees to the injured party where the judgment finally obtained was more than twice the tortfeasor’s Offer of Judgment. Furmick v. Miner, 154 N.C. App. 460, 573 S.E.2d 172, 2002 N.C. App. LEXIS 1474 (2002).

Award of Attorneys’ Fees Held Error. —

In a breach of contract suit wherein plaintiff subcontractor accepted an offer of judgment made by defendant general contractor, the suit was settled and the trial court erred by granting an award of attorneys’ fees to the subcontractor; when an offer of judgment is involved, no prevailing or losing party exists and an award of attorneys’ fees is precluded under G.S. 44A-35 . Martin & Loftis Clearing & Grading, Inc. v. Saieed Constr. Sys. Corp., 168 N.C. App. 542, 608 S.E.2d 124, 2005 N.C. App. LEXIS 341 (2005).

Costs Subsequent to Offer. —

The trial court abused its discretion in calculating the “judgment finally obtained” under this rule by including costs incurred after the offer of judgment. Roberts v. Swain, 135 N.C. App. 613, 521 S.E.2d 493, 1999 N.C. App. LEXIS 1185 (1999), rev'd in part, 353 N.C. 246 , 538 S.E.2d 566, 2000 N.C. LEXIS 913 (2000).

Taxing of Costs Incurred After Making of Offer Held Error. —

Where offer was made and served on May 21, 1979, and the judgment was for less than the sum offered, the trial court erred in taxing costs against the plaintiff up to and including October 15, 1979; under section (a) of this rule the judgment should have ordered plaintiff to pay the costs incurred after May 21, 1979. Scallon v. Hooper, 58 N.C. App. 551, 293 S.E.2d 843, 1982 N.C. App. LEXIS 2806 (1982).

Interest and Other Costs Not Included. —

Where the relevant portion of defendant’s offer of judgment allowed judgment to be taken against them for “$10,001.00 for all damages and attorney’s fees taxable as costs, together with the remaining costs accrued”; use of the language “together with” evidenced an intent to make an offer of judgment only as to the substantive claim and attorney fees, but not as to any other costs such as interest; therefore, construing the offer against defendants, as the drafters, a lump sum offer was not intended. Aikens v. Ludlum, 113 N.C. App. 823, 440 S.E.2d 319, 1994 N.C. App. LEXIS 206 (1994).

Taxing of Costs on Nonspecific Offer. —

Trial court did not have authority under this rule to tax costs to the plaintiff where defendants made a nonspecific offer for both plaintiffs to take judgment against defendants for a total sum of $25,000. When multiple plaintiffs in the same complaint have independent claims for relief, an offer of judgment can be valid only if it is specific as to the offer made to each plaintiff; a party wishing to accept the offer should not be barred from doing so, and thus subject himself to penalties under this rule, just because the other party would not accept. True v. T & W Textile Mach., Inc., 112 N.C. App. 358, 435 S.E.2d 551, 1993 N.C. App. LEXIS 1093 (1993), aff'd, 337 N.C. 798 , 448 S.E.2d 514, 1994 N.C. LEXIS 569 (1994).

Statement by an insurance company’s agent that he would reconsider his decision to deny a pedestrian’s claim seeking damages for injuries he sustained when he was hit by a truck, if the pedestrian would settle his case against the truck driver for litigation costs “in the $3,000 to $8,000 range,” was not an offer of settlement under G.S. 1A-1 , N.C. R. Civ. P. 68, and the trial court did not err when it decided that there was no offer of settlement and awarded the pedestrian over $32,000 in attorneys’ fees, even though the jury awarded him only $7,000 in damages. Overton v. Purvis, 162 N.C. App. 241, 591 S.E.2d 18, 2004 N.C. App. LEXIS 120 (2004).

Taxing of Costs in Child Custody Case. —

Where a trial court denied a father’s motion to tax costs in a child custody modification action after the mother rejected the father’s offer of judgment under N.C. R. Civ. P. 68, the trial court’s decision was affirmed on appeal because a Rule 68 offer of judgment in a child custody case would permit a party to circumvent the court’s statutory authority and responsibility to determine custody in the best interests of the child. Mohr v. Mohr, 155 N.C. App. 421, 573 S.E.2d 729, 2002 N.C. App. LEXIS 1590 (2002).

Offer for Division of Marital Estate Was Insufficient. —

Where a wife’s offer in a divorce case related only to the distribution of the marital residence, but failed to address the division of the entire marital estate, thus allowing the remaining separate and marital assets to be subjected to further litigation, the offer was insufficient to create a binding final judgment and thus failed to meet the requirements of G.S. 1A-1 , N.C. R. Civ. P. 68. Lauterbach v. Weiner, 174 N.C. App. 201, 620 S.E.2d 317, 2005 N.C. App. LEXIS 2297 (2005).

An offeree who does not accept an offer of judgment must bear those costs incurred from the date the offer of judgment was tendered only when the “judgment finally obtained” is not more favorable than the amount of the offer. Poole v. Miller, 342 N.C. 349 , 464 S.E.2d 409, 1995 N.C. LEXIS 690 (1995).

The provision of G.S. 84-13 for double damages applies only after a factual determination at trial of fraudulent practice by an attorney and, thus, did not apply where plaintiffs accepted defendant’s offer of judgment tendered pursuant to this rule. Estate of Wells v. Toms, 129 N.C. App. 413, 500 S.E.2d 105, 1998 N.C. App. LEXIS 559 (1998).

Where defendants made a reasonable settlement offer, four times the amount plaintiff actually recovered, the court held that plaintiff had to bear defendants’ costs incurred since the making of the offer, pursuant to this rule. Blackmon v. Bumgardner, 135 N.C. App. 125, 519 S.E.2d 335, 1999 N.C. App. LEXIS 982 (1999).

Trial court did not err in declining to award costs to defendant pursuant to G.S. 1A-1 , N.C. R. Civ. P. 68 in a passenger’s action for personal injuries sustained in an automobile collision because the total amount of the judgment obtained by the passenger, including the amount of damages, attorney’s fees, and costs, exceeded defendant’s offer for judgment, even after the amount of damages was reduced by the passenger’s settlement with a third-party defendant pursuant to G.S. 1B-4 . Reinhold v. Lucas, 167 N.C. App. 735, 606 S.E.2d 412, 2005 N.C. App. LEXIS 10 (2005).

Trial Court Did Not Err in Awarding Costs. —

Although the creditors properly submitted an offer of judgment to the secured creditor before trial, which the secured creditor rejected, the trial court was not required to charge the court’s post-offer costs to the secured creditor, even though the final judgment was less than the offer of judgment because, when the judgment award was combined with the costs awarded, as was required, a final judgment was reached in favor of the secured creditor in an amount which was more than the amount proffered in the offer of judgment. Bartlett Milling Co., L.P. v. Walnut Grove Auction & Realty Co., 192 N.C. App. 74, 665 S.E.2d 478, 2008 N.C. App. LEXIS 1546 (2008).

As defendant’s offer of judgment to plaintiff pursuant to pursuant to G.S. 1A-1 , N.C. R. Civ. P. 68(a) exceeded plaintiff’s jury award, the trial court properly awarded costs incurred after the offer to defendant, and there was no abuse of discretion. Smith v. White, 213 N.C. App. 189, 712 S.E.2d 717, 2011 N.C. App. LEXIS 1369 (2011).

II.Decisions under Prior Law

Editor’s Note. —

The cases cited below were decided under former G.S. 1-541 and 1-542.

Nature of Offer. —

An offer of compromise, to be sufficient, must be in a form that will enable plaintiff, if he accepts it, to have judgment entered by the clerk conformably to the offer. It must consequently come from all the defendants, or their common attorney-at-law, since otherwise the clerk would not be authorized to enter judgment against all. Williamson v. Lock's Creek Canal Co., 84 N.C. 629 , 1881 N.C. LEXIS 141 (1881).

Use of Evidence of Unaccepted Tender of Judgment. —

The purpose of former G.S. 1-541 could be best subserved by holding, according to its language, that a tender of judgment that is unaccepted “cannot be given in evidence,” and can only be used after verdict before the judge, to enable him to adjudge who shall pay the costs. A. Blanton Grocery Co. v. Taylor, 162 N.C. 307 , 78 S.E. 276, 1913 N.C. LEXIS 351 (1913).

Former G.S. 1-541 , authorizing a tender of judgment, provides that the tender, when not accepted, is to be deemed withdrawn, and cannot be given in evidence, and while this provision is primarily for the protection of the one making the tender, and to prevent its introduction against him, the statute is a part of the wholesome scheme devised to encourage compromises and settlements, before and after action commenced. A. Blanton Grocery Co. v. Taylor, 162 N.C. 307 , 78 S.E. 276, 1913 N.C. LEXIS 351 (1913).

When Tender Sufficient to Stop Accrual of Costs. —

A tender of payment, to stop the costs and the accrual of interest on a judgment subsequently rendered, must be in writing, signed by the party making it, and must contain an offer of judgment for the amount tendered. Dr. Shoop Family Medicine Co. v. Davenport, 163 N.C. 294 , 79 S.E. 602, 1913 N.C. LEXIS 170 (1913).

When Costs to Be Taxed Against Plaintiff. —

Where plaintiff is given judgment for no more than the amount tendered by defendant, costs from the time the tender was made should be taxed on plaintiff. Cowles v. Provident Life Assurance Soc'y, 170 N.C. 368 , 87 S.E. 119, 1915 N.C. LEXIS 406 (1915).

Where defendant tenders judgment in its answer for the amount recovered by plaintiff, which tender is refused by plaintiff upon her claim that she is entitled to recover a larger amount, the costs are properly taxed against plaintiff. Webster v. Wachovia Bank & Trust Co., 208 N.C. 759 , 182 S.E. 333, 1935 N.C. LEXIS 125 (1935).

A conditional tender may accompany an answer, and this alone is its proper placing so far as a pleading is concerned, or in reply to a counterclaim. Hall v. Western Union Tel. Co., 139 N.C. 369 , 52 S.E. 50, 1905 N.C. LEXIS 137 (1905).

Defendant may not defeat the purpose of G.S. 1-510 by undertaking to make a tender. McKay v. McNair Inv. Co., 228 N.C. 290 , 45 S.E.2d 358, 1947 N.C. LEXIS 317 (1947).

Tender of judgment which was not made until after nonsuit had been entered and plaintiff had appealed therefrom and the session of court had expired did not comply with former G.S. 1-541 . Oldham & Worth, Inc. v. Bratton, 263 N.C. 307 , 139 S.E.2d 653, 1965 N.C. LEXIS 1280 (1965).

Offer Held Not an Offer of Compromise and Admissible in Fixing Damages. —

Where, pending an action to recover for damages done to a lot of tobacco which plaintiff had bought and paid for under a guarantee of soundness by defendants, an agreement was entered into adjusting the amount of damage per pound which plaintiff should recover, if entitled to recover at all, said agreement to be without prejudice to either party, it was held that such an agreement was not an offer of compromise and was admissible on the trial of the action to determine the amount of plaintiff ’s recovery. Garrett v. Pegram, 120 N.C. 288 , 26 S.E. 778, 1897 N.C. LEXIS 55 (1897).

Defendant would have no right to force plaintiff to accept property which might have been injured or rendered worthless after conversion or pay the costs on refusal to do so, even if the action had been brought to recover the specific property tendered, unless the offer had also included with the proposed delivery of articles tendered in kind a proposal to pay an amount as damages for detention not less than that ultimately assessed by the jury. Stephens v. Koonce, 103 N.C. 266 , 9 S.E. 315, 1889 N.C. LEXIS 104 (1889).

Where, in a justice’s court, judgment was rendered against two defendants, and one appealed, and, pending the appeal, tendered in cash as a satisfaction of the judgment as to himself a sum which was less than the amount of the justice’s judgment but more than that ultimately rendered in the superior court, plaintiff was entitled to costs. Wyatt v. Wilson, 152 N.C. 276 , 67 S.E. 501, 1910 N.C. LEXIS 258 (1910).

Where defendants tendered judgment for a smaller amount on another and different liability from that alleged in the complaint, and plaintiff did not accept, the tender was thereby withdrawn, and upon judgment of nonsuit on the cause alleged plaintiff was not entitled to judgment for the amount tendered, there being no admission of liability in any amount upon the cause alleged. Doggett Lumber Co. v. Perry, 213 N.C. 533 , 196 S.E. 831, 1938 N.C. LEXIS 130 (1938).

Where, on the admissions in the pleadings, plaintiff is entitled to recover any amount, it is error for the trial court to dismiss the action as in case of nonsuit, and the fact that defendant has tendered the amount admitted to be due with interest and costs to the time of filing his answer and has paid it into court subject to plaintiff ’s order does not vary this result. Penn v. King, 202 N.C. 174 , 162 S.E. 376, 1932 N.C. LEXIS 456 (1932).

Rule 68.1. Confession of judgment.

  1. For present or future liability. —  A judgment by confession may be entered without action at any time in accordance with the procedure prescribed by this rule. Such judgment may be for money due or for money that may become due. Such judgment may also be entered for alimony or for support of minor children.
  2. Procedure. —  A prospective defendant desiring to confess judgment shall file with the clerk of the superior court as provided in section (c) a statement in writing signed and verified or sworn to by such defendant authorizing the entry of judgment for the amount stated. The statement shall contain the name of the prospective plaintiff, his county of residence, the name of the defendant, his county of residence, and shall concisely show why the defendant is or may become liable to the plaintiff.If either the plaintiff or defendant is not a natural person, for the purposes of this rule its county of residence shall be considered to be the county in which it has its principal place of business, whether in this State or not.

    If either the plaintiff or defendant is not a natural person, for the purposes of this rule its county of residence shall be considered to be the county in which it has its principal place of business, whether in this State or not.

    If either the plaintiff or defendant is not a natural person, for the purposes of this rule its county of residence shall be considered to be the county in which it has its principal place of business, whether in this State or not.

  3. Where entered. —  Judgment by confession may be entered only in the county where the defendant resides or has real property or in the county where the plaintiff resides but the entry of judgment in any county shall be conclusive evidence that this section has been complied with.
  4. Form of entry. —  When a statement in conformity with this rule is filed with the clerk of the superior court, the clerk shall enter judgment thereon for the amount confessed, and docket the judgment as in other cases, with costs, together with disbursements. The statement, with the judgment, shall become the judgment roll.
  5. Force and effect. —  Judgments entered in conformity with this rule shall have the same effect as other judgments except that no judgment by confession shall be held to be res judicata as to any fact in any civil action except in an action on the judgment confessed. When such judgment is for alimony or support of minor children, the failure of the defendant to make any payments as required by such judgment shall subject him to such penalties as may be adjudged by the court as in any other case of contempt of its orders. Executions may be issued and enforced in the same manner as upon other judgments. When the full amount of the judgment is not all due, or is payable in installments, and the installments are not all due, execution may issue upon such judgment for the collection of such sums as have become due and shall be in usual form. Notwithstanding the issue and satisfaction of such execution, the judgment remains as security for the sums thereafter to become due; and whenever any further sum becomes due, execution may in like manner be issued.

History. 1967, c. 954, s. 1; 1987, c. 288, s. 1.

Comment

While this rule largely follows former §§ 1-247, 1-248 and 1-249, there are some changes.

That part of former § 1-247 expressly allowing judgment to be confessed “to secure any person against contingent liability on behalf of the defendant” has been omitted. Otherwise, there has been no change in respect to the subject matter for which judgment may be confessed.

The provisions in respect to the particular county in which judgment may be confessed have been changed. Formerly, § 1-249 permitted a judgment to be confessed where the defendant resided or “has property.” Since it would seem to be a simple matter for a defendant to have property in any county (simply by wearing his clothes there), the possibility of abuse of the procedure by nonresidents for the benefit of nonresidents is present. The rule therefore specifies that the property must be real property. More importantly, it provides that judgment may be confessed also in the county of the plaintiff ’s residence. It will be observed that section (c), after stating the appropriate counties for the confession of judgment, provides that entry of judgment is conclusive evidence that the section has been complied with. This, in effect, puts the responsibility on the clerks for the enforcement of this section. At any rate, it prevents any nice inquiry as to whether it has been complied with.

Editor’s Note.

Session Laws 1987, c. 288, which amended this rule by inserting “or sworn to” in the first sentence of section (b) thereof, in s. 2 provides: “This act is effective upon ratification [June 4, 1987] and validates all confessions of judgment heretofore entered under G.S. 1A-1 , Rule 68.1, which were sworn to but not verified, but this act shall not affect any pending litigation.”

Legal Periodicals.

For note as to consent judgments for alimony, see 35 N.C.L. Rev. 405 (1957).

For article on the rights of individuals to control the distributional consequences of divorce by private contract and on the interest of the State in preserving its role as a third party to marriage and divorce, see 59 N.C.L. Rev. 819 (1981).

CASE NOTES

Analysis

I.In General

Strict Construction. —

A statute authorizing confession of judgment is in derogation of the common law and is to be strictly construed. Rivers v. Rivers, 29 N.C. App. 172, 223 S.E.2d 568, 1976 N.C. App. LEXIS 2405 , cert. denied, 290 N.C. 309 , 225 S.E.2d 829, 1976 N.C. LEXIS 1066 (1976).

A confession of judgment without action is a consent judgment. The judgment depends upon the consent of the parties, and the court gives effect to it as the agreement of the parties. It would not be valid unless the parties consented, nor could it affect one who was not a party. Ballard v. Hunter, 12 N.C. App. 613, 184 S.E.2d 423, 1971 N.C. App. LEXIS 1418 (1971), cert. denied, 280 N.C. 180 , 185 S.E.2d 704, 1972 N.C. LEXIS 1217 (1972); Yarborough v. Yarborough, 27 N.C. App. 100, 218 S.E.2d 411, 1975 N.C. App. LEXIS 1763 , cert. denied, 288 N.C. 734 , 220 S.E.2d 353, 1975 N.C. LEXIS 1060 (1975).

And Its Validity Depends upon Capacity to Contract. —

Since the validity of a confession of judgment is based upon the contract of the parties, there must be the authority and capacity to contract. Ballard v. Hunter, 12 N.C. App. 613, 184 S.E.2d 423, 1971 N.C. App. LEXIS 1418 (1971), cert. denied, 280 N.C. 180 , 185 S.E.2d 704, 1972 N.C. LEXIS 1217 (1972).

Defendant’s Written Authorization Required. —

There can be no entry of a confession of judgment, under this rule, without a written authorization for entry by defendant, and defendant is therefore deemed to have notice, since without a written statement by defendant authorizing its entry there can be no confession of judgment. Rivers v. Rivers, 29 N.C. App. 172, 223 S.E.2d 568, 1976 N.C. App. LEXIS 2405 , cert. denied, 290 N.C. 309 , 225 S.E.2d 829, 1976 N.C. LEXIS 1066 (1976).

Void Judgment Due to Lack of Jurisdiction. —

Superior court properly granted the insurance commissioner’s motions to strike a confession of judgment against a bond surety because it was void for want of jurisdiction since its president’s confession of judgment was executed in violation of the Rules of Civil Procedure, the seizure order, and injunction. Causey v. Cannon Sur., LLC, 269 N.C. App. 134, 837 S.E.2d 414, 2020 N.C. App. LEXIS 6 (2020).

Effect of Judgment by Confession on Jurisdiction to Determine Custody. —

Where a judgment by confession purported to grant custody of the child to a party, this judgment did not deprive the district court of jurisdiction to determine custody, but the parties, having agreed to it, were bound by its provisions until the court made some order for custody. Pierce v. Pierce, 58 N.C. App. 815, 295 S.E.2d 247, 1982 N.C. App. LEXIS 2843 (1982).

Abatement of Later Custody Action. —

Where a judgment by confession placed the custody issue before the court so that it retained jurisdiction to determine custody, it was error not to abate the subsequent action for custody. Pierce v. Pierce, 58 N.C. App. 815, 295 S.E.2d 247, 1982 N.C. App. LEXIS 2843 (1982).

Plaintiff ’s Express or Implied Consent Necessary. —

In order for a confession of judgment to be binding on plaintiff, it is essential that he either expressly or impliedly assent thereto. Yarborough v. Yarborough, 27 N.C. App. 100, 218 S.E.2d 411, 1975 N.C. App. LEXIS 1763 , cert. denied, 288 N.C. 734 , 220 S.E.2d 353, 1975 N.C. LEXIS 1060 (1975).

Minors Cannot Be Bound Without Court Investigation and Approval. —

In the case of infant parties, the next friend, guardian ad litem or guardian cannot consent to a judgment or compromise without the investigation and approval of the court. Ballard v. Hunter, 12 N.C. App. 613, 184 S.E.2d 423, 1971 N.C. App. LEXIS 1418 (1971), cert. denied, 280 N.C. 180 , 185 S.E.2d 704, 1972 N.C. LEXIS 1217 (1972).

Where there was nothing in the record on appeal to disclose an investigation and approval by the court, a purported judgment in favor of a minor plaintiff was a nullity and its purported cancellation by his guardian was of no effect. Ballard v. Hunter, 12 N.C. App. 613, 184 S.E.2d 423, 1971 N.C. App. LEXIS 1418 (1971), cert. denied, 280 N.C. 180 , 185 S.E.2d 704, 1972 N.C. LEXIS 1217 (1972).

Estoppel to Challenge Judgment by Confession for Alimony. —

Where a husband ratifies, accepts, or acquiesces in a decree of alimony by confession, he is estopped, in the absence of a showing of fraud, mistake or oppression, to challenge the validity of the judgment on the grounds of informalities or irregularities in either the confession of judgment or the decree itself. Whitehead v. Whitehead, 13 N.C. App. 393, 185 S.E.2d 706, 1972 N.C. App. LEXIS 2248 (1972).

Change of Child Support or Custody. —

A judgment concerning the custody or support of a minor child is not final, but may be altered by the showing of a substantial change of circumstances; and jurisdiction over the person of the defendant began and remained with the North Carolina court when defendant knowingly and voluntarily signed a confession of judgment pursuant to this rule. Cromer v. Cromer, 49 N.C. App. 403, 271 S.E.2d 541, 1980 N.C. App. LEXIS 3397 (1980), rev'd, 303 N.C. 307 , 278 S.E.2d 518, 1981 N.C. LEXIS 1098 (1981).

Imposition of restitution as a condition of probation is not a legal obligation equivalent to a civil judgment; therefore, in sentences imposed for G.S. 14-100 convictions, that part of the judgment purporting to require defendant to sign confessions of judgment was vacated. State v. Clemmons, 111 N.C. App. 569, 433 S.E.2d 748, 1993 N.C. App. LEXIS 859 , cert. denied, 335 N.C. 240 , 439 S.E.2d 153, 1993 N.C. LEXIS 622 (1993).

II.Decisions under Prior Law

Editor’s Note. —

The cases cited below were decided under former G.S. 1-247 through 1-249.

Provisions Are Procedural Only. —

Monarch Refrigerating Co. v. Farmers' Peanut Co., 74 F.2d 790, 1935 U.S. App. LEXIS 3540 (4th Cir.), cert. denied, 295 U.S. 732, 55 S. Ct. 643, 79 L. Ed. 1680, 1935 U.S. LEXIS 395 (1935).

They are in derogation of common right, and must be strictly construed. Gibbs v. G.H. Weston & Co., 221 N.C. 7 , 18 S.E.2d 698, 1942 N.C. LEXIS 371 (1942).

Strict Compliance Required. —

Strict compliance with the provisions of former G.S. 1-248 was required, and if all the requirements were not met the judgment was void because of a want of jurisdiction in the court to render judgment, which was apparent on the face of the proceedings. Smith v. Smith, 117 N.C. 348 , 23 S.E. 270, 1895 N.C. LEXIS 70 (1895).

In Order to Confer Jurisdiction and Ensure Validity. —

It was essential to the validity of a judgment by confession that it be confessed and entered of record according to the provisions of former G.S. 1-248. These were essential matters required by the statute to confer jurisdiction on the court and to ensure validity of the judgment. Farmers Bank v. McCullers, 201 N.C. 440 , 160 S.E. 494, 1931 N.C. LEXIS 3 (1931).

Where the requirements with respect to the form and contents of the statement have been fully complied with, the court acquires jurisdiction, and a judgment by confession, as authorized by the debtor in the statement, is valid for all purposes. Cline v. Cline, 209 N.C. 531 , 183 S.E. 904, 1936 N.C. LEXIS 283 (1936).

As to requirement of substantial compliance, see Sharp v. Danville, M. & S.W.R.R., 106 N.C. 308 , 11 S.E. 530, 1890 N.C. LEXIS 307 (1890).

Rendition of judgment in a proceeding of this kind is a distinct office of the court, not to be confused with the ministerial acts of filing and docketing. Gibbs v. G.H. Weston & Co., 221 N.C. 7 , 18 S.E.2d 698, 1942 N.C. LEXIS 371 (1942).

Court Must Have Jurisdiction. —

It is essential that the court have jurisdiction before a judgment on confession can be validly entered. Slocumb v. Cape Fear Shingle Co., 110 N.C. 20 , 110 N.C. 24 , 14 S.E. 622, 1892 N.C. LEXIS 6 (1892).

The verified statement is jurisdictional, both as to its filing and as to its contents. Gibbs v. G.H. Weston & Co., 221 N.C. 7 , 18 S.E.2d 698, 1942 N.C. LEXIS 371 (1942).

Failure to comply with the mandatory terms of former G.S. 1-248 and especially the want of rendition of judgment upon the statement and affidavit of defendant was not a mere irregularity, but constituted a fatal defect, rendering the proceeding of no effect as against creditors whose judgments were subsequently docketed. Gibbs v. G.H. Weston & Co., 221 N.C. 7 , 18 S.E.2d 698, 1942 N.C. LEXIS 371 (1942).

And a judgment confessed must contain a verified statement of the facts and transactions out of which the indebtedness arose. Davenport v. Leary, 95 N.C. 203 , 1886 N.C. LEXIS 238 (1886).

Filing of concise statement of the facts out of which the indebtedness arose, required of the party confessing judgment, is mandatory. Davidson v. Alexander, 84 N.C. 621 , 1881 N.C. LEXIS 140 (1881).

As Well as Averment That Debt Is Justly Due. —

A confession of judgment being a proceeding in derogation of a common right, former G.S. 1-248 required, as a protection against the perpetration of fraud, that the consideration out of which the debt arose be stated, and an averment that the debt for which the judgment is confessed “is justly due.” Smith v. Smith, 117 N.C. 348 , 23 S.E. 270, 1895 N.C. LEXIS 70 (1895).

Confession of judgment was sufficient when it was for “goods sold and delivered,” although omitting the time of sale, quantity, price, and value of the goods. Merchants Nat'l Bank v. Newton Cotton Mills, 115 N.C. 507 , 20 S.E. 765, 1894 N.C. LEXIS 263 (1894).

Statement that the amount was due by a certain note described in the judgment, that said note became due on a day named, and that the consideration was cotton sold and delivered was a compliance with former G.S. 1-248. Merchants Nat'l Bank v. Newton Cotton Mills, 115 N.C. 507 , 20 S.E. 765, 1894 N.C. LEXIS 263 (1894).

Where affidavit stated that the amount was due on a bond under seal for borrowed money, due and payable 2 November, 1876, it was held that the statement was sufficient. George F. Uzzle & Co. v. Vinson, 111 N.C. 138 , 16 S.E. 6, 1892 N.C. LEXIS 138 (1892).

Mere statement that debts were bona fide due, without embracing the account which was filed, was not a sufficient compliance. Davenport v. Leary, 95 N.C. 203 , 1886 N.C. LEXIS 238 (1886). See also, Davidson v. Alexander, 84 N.C. 621 , 1881 N.C. LEXIS 140 (1881).

Judgment confessed upon statement that defendant was indebted to plaintiff in a certain sum arising from acceptance of a draft, setting out a copy thereof, was irregular and void. Davidson v. Alexander, 84 N.C. 621 , 1881 N.C. LEXIS 140 (1881).

Where judgment confessed by a wife in favor of her husband showed only that it was based upon a sum alleged to be due on account of money advanced by the husband from time to time to take care of obligations due at the banks by the wife, and failed to state the items constituting the claim, when advanced and to whom, and that the advancements were not gifts to the wife, the judgment was insufficient to meet statutory requirements and was void. Farmers Bank v. McCullers, 201 N.C. 440 , 160 S.E. 494, 1931 N.C. LEXIS 3 (1931).

Failure to file note or other evidence of indebtedness does not invalidate the judgment, provided the confession contains a sufficient description of the nature of the indebtedness to enable a party to make inquiry and ascertain the truth of the matter. Merchants Nat'l Bank v. Newton Cotton Mills, 115 N.C. 507 , 20 S.E. 765, 1894 N.C. LEXIS 263 (1894).

Mere filing and entry of a verified statement, although recorded on the judgment docket and cross-indexed as judgments are, will not be effective as a judgment. Gibbs v. G.H. Weston & Co., 221 N.C. 7 , 18 S.E.2d 698, 1942 N.C. LEXIS 371 (1942).

Effect of Statement Not Expressly Authorizing Filing. —

Although a confession of judgment did not contain words expressly authorizing the clerk to enter the same upon the records, yet, if the record showed that the confession was sworn to and filed and that judgment was thereupon entered, the filing was equivalent to an express authority for its entry and sufficiently conformed to the statute. Merchants Nat'l Bank v. Newton Cotton Mills, 115 N.C. 507 , 20 S.E. 765, 1894 N.C. LEXIS 263 (1894).

Failure to endorse the judgment on the verified statement was an irregularity which did not affect the validity of the judgment, which the entry on the judgment docket made by the clerk or under his immediate supervision showed was rendered by the court. Cline v. Cline, 209 N.C. 531 , 183 S.E. 904, 1936 N.C. LEXIS 283 (1936).

Mere fact that judgments were entered in the nighttime in the law office of counsel, which was near to the courthouse and convenient, did not render them void or irregular. Sharp v. Danville, M. & S.W.R.R., 106 N.C. 308 , 11 S.E. 530, 1890 N.C. LEXIS 307 (1890).

Lien from Date of Docketing. —

A judgment by confession, like any other judgment, becomes a lien on the judgment debtor’s real estate as of the date the judgment is docketed. Keel v. Bailey, 214 N.C. 159 , 198 S.E. 654, 1938 N.C. LEXIS 289 (1938).

Setting Aside of Void Judgment. —

Ordinarily, a judgment by confession without action will not be set aside for mere irregularities, the party confessing the judgment being presumed to have waived them; but where the judgment is void for a cause appearing in the record, or the record omits some essential element, it will be set aside or quashed. Nimocks v. Cape Fear Shingle Co., 110 N.C. 20 , 110 N.C. 24 , 14 S.E. 622, 1892 N.C. LEXIS 5 (1892).

On Application of a Party Thereto. —

A judgment may be set aside for irregularity only upon the application of a party thereto. George F. Uzzle & Co. v. Vinson, 111 N.C. 138 , 16 S.E. 6, 1892 N.C. LEXIS 138 (1892).

Distinction Between Attack on Judgment by Creditors of Debtor and by Debtor Himself. —

There is a distinction between challenges to the validity of a confessed judgment made by creditors of the confessing debtor and by the debtor himself. Pulley v. Pulley, 255 N.C. 423 , 121 S.E.2d 876, 1961 N.C. LEXIS 622 (1961), aff'd, 256 N.C. 600 , 124 S.E.2d 571, 1962 N.C. LEXIS 497 (1962), dismissed, 371 U.S. 22, 83 S. Ct. 120, 9 L. Ed. 2d 96, 1962 U.S. LEXIS 2279 (1962).

Collateral Attack on Judgment Void for Want of Jurisdiction. —

Judgment which is void for want of jurisdiction in the court, if such appears on the record, may be collaterally impeached in any court in which the question arises. Henry J. Hervey & Co. v. Edmunds, 68 N.C. 243 , 1873 N.C. LEXIS 62 (1873).

As to the manner of attacking judgment by confession for fraud, see Sharp v. Danville, M. & S.W.R.R., 106 N.C. 308 , 11 S.E. 530, 1890 N.C. LEXIS 307 (1890); George F. Uzzle & Co. v. Vinson, 111 N.C. 138 , 16 S.E. 6, 1892 N.C. LEXIS 138 (1892).

Amendment of Judgments by Confession. —

Such irregularities in a confession of judgment as might be corrected by amendment in the case of ordinary judgments may be the subject of amendment in a confession of judgment. Merchants Nat'l Bank v. Newton Cotton Mills, 115 N.C. 507 , 20 S.E. 765, 1894 N.C. LEXIS 263 (1894).

If a proceeding is so defective in form and substance that it is void upon its face, no amendment can be made to give it life, but if there are irregularities they may be cured by amendment. Merchants Nat'l Bank v. Newton Cotton Mills, 115 N.C. 507 , 20 S.E. 765, 1894 N.C. LEXIS 263 (1894).

Parol Evidence Not Admissible to Vary Judgment. —

Where a judgment is confessed by one against himself and entered of record, parol evidence is not admissible to show that it was intended to have been entered against another. Davidson v. Alexander, 84 N.C. 621 , 1881 N.C. LEXIS 140 (1881).

Defendant was estopped to question the validity of his own confessed judgment for alimony. See Pulley v. Pulley, 255 N.C. 423 , 121 S.E.2d 876, 1961 N.C. LEXIS 622 (1961), aff'd, 256 N.C. 600 , 124 S.E.2d 571, 1962 N.C. LEXIS 497 (1962), dismissed, 371 U.S. 22, 83 S. Ct. 120, 9 L. Ed. 2d 96, 1962 U.S. LEXIS 2279 (1962).

Confession of Judgment with Defeasance. —

It is a well recognized practice to confess a judgment with a defeasance, and the courts will take notice of the condition and will not permit an execution to issue in violation of it. Hardy v. Reynolds, 69 N.C. 5 , 1870 N.C. LEXIS 247 (1870).

A stipulation in a confession of judgment that no execution shall issue thereon within a time specified is not such a reservation for the benefit of the debtor as impairs the rights of other creditors, and does not vitiate the judgment. Merchants Nat'l Bank v. Newton Cotton Mills, 115 N.C. 507 , 20 S.E. 765, 1894 N.C. LEXIS 263 (1894).

A judgment by confession may be taken to cover a future debt. Bank of Ga. v. Higginbottom, 34 U.S. 48, 9 L. Ed. 46, 1835 U.S. LEXIS 333 (1835).

Judgment may, it seems, be confessed for a specific sum claimed, subject to the right of the party confessing to reduce the amount, and in case of failure or omission to do so the whole amount will be collectible. Gear v. Parish, 46 U.S. 168, 12 L. Ed. 100, 5 How. 168, 1847 U.S. LEXIS 307 (1847).

Even before dissolution, one partner cannot confess judgment so as to bind copartners. Hall v. Lanning, 91 U.S. 160, 23 L. Ed. 271, 1875 U.S. LEXIS 1347 (1875).

Confession by Guardian. —

A judgment confessed by a guardian of one non compos mentis, if the statement required is verified by the guardian in the absence of fraud, is not irregular. And the analogy between infants and lunatics is so close as to justify the conclusion that a similar judgment against a lunatic would not be irregular. McAden v. Hooker, 74 N.C. 24 , 1876 N.C. LEXIS 6 (1876).

Where process was served on guardian alone, and not on infants also, as it should have been, and the guardian permitted judgment against the infants by nil dicit, the judgment was nevertheless not irregular, although the court acted unadvisedly in permitting the guardian whose interests were opposed to those of the ward to represent him. White v. Albertson, 14 N.C. 241 , 1831 N.C. LEXIS 102 (1831).

Judgment confessed by executors on a debt created after the death of the testator and during the time of administration will bind them in their individual capacity, even though they style themselves as executors in making such a confession. Hall v. Craige, 65 N.C. 51 , 1871 N.C. LEXIS 15 (1871).

Confession by Corporation. —

A corporation, nothing to the contrary appearing, may by the action of its proper officers confess judgments as a natural person, if the essential requirements are complied with. Sharp v. Danville, M. & S.W.R.R., 106 N.C. 308 , 11 S.E. 530, 1890 N.C. LEXIS 307 (1890).

A corporation may confess judgment, without action, in or out of term, but the record should show that the officer or person who represented the corporation in the proceedings was duly authorized to act, and that he acted under the direction of his principal. Nimocks v. Cape Fear Shingle Co., 110 N.C. 20 , 110 N.C. 24 , 14 S.E. 622, 1892 N.C. LEXIS 5 (1892).

Confession May Be Made to State. —

A person may confess a judgment, or recognizance on record, to the State for a sum of money, as well as to an individual. State v. Love, 23 N.C. 264 , 1840 N.C. LEXIS 117 (1840).

Where A was convicted on an indictment, fined, and ordered into the custody of the sheriff, and B, in consideration that A should be discharged from custody, confessed a judgment to the State for the fine and costs, it was held that the judgment could not afterwards be set aside. State v. Love, 23 N.C. 264 , 1840 N.C. LEXIS 117 (1840).

Construction of Warrant of Attorney. —

It seems to be an established principle that an authority given by warrant of attorney to confess a judgment against the maker of a note must be clear and explicit and strictly construed, and the court cannot supply any supposed omissions of the parties. National Exch. Bank v. Wiley, 195 U.S. 257, 25 S. Ct. 70, 49 L. Ed. 184, 1904 U.S. LEXIS 717 (1904).

OPINIONS OF ATTORNEY GENERAL

Clerk of superior court is not authorized to enter judgment by confession which determines custody of minor children. See opinion of Attorney General to The Honorable Martha J. Adams, Clerk of Superior Court, Alexander County, 46 N.C. Op. Att'y Gen. 168 (1977).

Rule 69.

Omitted.

Rule 70. Judgment for specific acts; vesting title.

If a judgment directs a party to execute a conveyance of land or to deliver deeds or other documents or to perform any other specific act and the party fails to comply within the time specified, the judge may direct the act to be done at the cost of the disobedient party by some other person appointed by the judge and the act when so done has like effect as if done by the party. On application of the party entitled to performance, the clerk shall issue a writ of attachment or sequestration against the property of the disobedient party to compel obedience to the judgment. The judge may also in proper cases adjudge the party in contempt. If real or personal property is within the State, the judge in lieu of directing a conveyance thereof may enter a judgment divesting the title of any party and vesting it in others and such judgment has the effect of a conveyance executed in due form of law. When any order or judgment is for the delivery of possession, the party in whose favor it is entered is entitled to execution upon application to the clerk upon payment of the necessary fees.

History. 1967, c. 954, s. 1.

Comment

While preserving the essence of the former vesting statute, § 1-227, the rule as drafted makes two changes. First, where a party has been directed in a judgment to perform an act and has failed to so perform, it imports into the statutes for the first time authorization for the court to have someone else to perform the act with “like effect as if done by the party.” Perhaps this authorization is most obviously applicable to specific performance decrees, yet it should be noted that it is not limited to transfers of title but extends to all acts which the court might properly direct in a judgment. Second, the rule makes it clear that a judgment divesting title and vesting it in others “has the effect of a conveyance” without further words being added to the effect that the judgment “shall be regarded as a deed of conveyance.” See Morris v. White, 96 N.C. 91 , 2 S.E. 254 (1887), and Evans v. Brendle, 173 N.C. 149 , 91 S.E. 723 (1917).

Cross References.

As to distribution by court of marital property upon divorce, see G.S. 50-20 .

CASE NOTES

The recovery of costs in a civil action is totally dependent upon statutory authority, and without such authority costs may not be awarded. Upon being granted the authority to order costs, the amount of such costs lies within the discretion of the trial court. Coastal Prod. Credit Ass'n v. Goodson Farms, Inc., 71 N.C. App. 421, 322 S.E.2d 398, 1984 N.C. App. LEXIS 3867 (1984).

Where damages are alleged because of noncompliance with a consent judgment, a motion under this rule is inappropriate. Population Planning Assocs. v. Mews, 65 N.C. App. 96, 308 S.E.2d 739, 1983 N.C. App. LEXIS 3409 (1983).

Defendant’s Failure to Timely Comply with Judgment as Necessary Precedent to Action by Judge. —

Defendant’s contention that the trial judge was without authority to execute an assignment of defendant’s wages on the ground that the judge could direct the act to be done by someone else but could not do it himself was without merit; however, though defendant’s history of willful and intentional nonpayment of alimony was sufficient to justify the judge’s entry of an order to defendant to execute an assignment of wages to secure future alimony payments, the judge was without authority himself to execute such an assignment absent defendant’s failure to comply with a judgment within the time specified. Sturgill v. Sturgill, 49 N.C. App. 580, 272 S.E.2d 423, 1980 N.C. App. LEXIS 3448 (1980).

Failure to Enter Judgment. —

Judgment creditor could execute on a husband’s interest in certain real property, despite a judge’s oral directive directing a clerk to transfer the interest to the husband’s former wife, because the oral directive was ineffective as no judgment was entered. Dabbondanza v. Hansley, 249 N.C. App. 18, 791 S.E.2d 116, 2016 N.C. App. LEXIS 875 (2016).

As to consent judgments and decrees under former G.S. 1-227, see Rollins v. Henry, 78 N.C. 342 , 1878 N.C. LEXIS 224 (1878); In re Will of Smith, 249 N.C. 563 , 107 S.E.2d 89, 1959 N.C. LEXIS 389 (1959).

Interpretation of Consent Order. —

Trial court committed no error under G.S. 1A-1 , Rules 60(b)(4)-(5) and 70 in failing to hold the wife in contempt with respect to her post-consent order motion to set aside and to enforce various provisions thereof, as it was clear the parties wanted an interpretation of the provision of the order; further, they had agreed not to pursue the issue of contempt. Holden v. Holden, 214 N.C. App. 100, 715 S.E.2d 201, 2011 N.C. App. LEXIS 1637 (2011).

Consent Order Was Not a Conveyance. —

Dismissal of assignee’s motion to subject real estate to execution sale was reversed as the assignee’s judgment lien attached to a husband’s undivided interest in property formerly held as a tenancy by the entirety upon the date of his divorce, when the property was converted by law to a tenancy in common, and when he conveyed his interest to his former wife, she took title subject to the judgment lien; a consent order providing for a future transfer of the property was not a conveyance as it provided for a future transfer of the property, did not provide a legal description or state the location of the property, and was not filed with the register of deeds. Martin v. Roberts, 177 N.C. App. 415, 628 S.E.2d 812, 2006 N.C. App. LEXIS 964 (2006).

Jurisdiction to Consider Whether Previous Order Was Being Violated. —

Trial court had jurisdiction under G.S. 1A-1 , N.C. R. Civ. P. 70, to decide whether its previous order was being violated where that order had determined that the Medicaid recipient was to continue to receive benefits under the categorically needy eligibility group until he was determined to be ineligible under the rules as modified by that order, the decision to terminate his benefits under a program for which he appeared eligible squarely raised the issue of whether the agency had acted as a disobedient party, and neither the APA nor G.S. 108A-79 provided for administrative review of the alleged violation of the court order. Pachas v. N.C. HHS, 372 N.C. 12 , 822 S.E.2d 847, 2019 N.C. LEXIS 52 (2019).

Landowner Not Entitled to Mandamus Relief. —

Statute allowed enforcement of a judgment that required the delivery of real property and the rule allowed a trial court to order the conveyance of title if a judgment directed a party to execute a conveyance of land, but the judgment in this case did neither; the judgment simply restored title to the landowner, she was left to pursue the rights against those who trespassed on her land, and she was not entitled to mandamus relief. Town of Apex v. Rubin, 277 N.C. App. 328, 858 S.E.2d 387, 2021- NCCOA-187, 2021 N.C. App. LEXIS 208 (2021).

Rules 71 through 83.

Omitted.

Rule 84. Forms.

The following forms are sufficient under these rules and are intended to indicate the simplicity and brevity of statement which the rules contemplate:

  1. Complaint on a Promissory Note. 1. On or about , , defendant executed and delivered to plaintiff a promissory note [in the following words and figures: (here set out the note verbatim)]; [a copy of which is hereto annexed as Exhibit A]; [whereby defendant promised to pay to plaintiff or order on , , the sum of dollars with interest thereon at the rate of percent per annum]. 2. Defendant owes to plaintiff the amount of said note and interest. Wherefore, plaintiff demands judgment against defendant for the sum of dollars, interest and costs. (2) Complaint on Account. Defendant owes plaintiff dollars according to the account hereto annexed as Exhibit A. Wherefore, plaintiff demands judgment against defendant for the sum of dollars, interest and costs. (3) Complaint for Negligence. 1. On , , at [name of place where accident occurred], defendant negligently drove a motor vehicle against plaintiff who was then crossing said street. 2. Defendant was negligent in that: (a) Defendant drove at an excessive speed. (b) Defendant drove through a red light. (c) Defendant failed to yield the right-of-way to plaintiff in a marked crosswalk. 3. As a result plaintiff was thrown down and had his leg broken and was otherwise injured, was prevented from transacting his business, suffered great pain of body and mind, and incurred expenses for medical attention and hospitalization [in the sum of one thousand dollars] (or) [in an amount not yet determined]. Wherefore, plaintiff demands judgment against defendant in the sum of dollars and costs. (4) Complaint for Negligence. (Where Plaintiff Is Unable to Determine Definitely Whether One or the Other of Two Persons Is Responsible or Whether Both Are Responsible and Where His Evidence May Justify a Finding of Willful- ness or of Recklessness or of Negligence.) 1. On , , at , defendant X or defendant Y, or both defendants X and Y, willfully or recklessly or negligently drove or caused to be driven a motor vehicle against plaintiff who was then crossing said street. 2. Defendant X or defendant Y, or both defendants X and Y were negligent in that: (a) Either defendant or both defendants drove at an excessive speed. (b) Either defendant or both defendants drove through a red light. (c) Either defendant or both defendants failed to yield the right-of-way to plaintiff in a marked crosswalk. 3. As a result plaintiff was thrown down and had his leg broken and was otherwise injured, was prevented from transacting his business, suffered great pain of body and mind, and incurred expenses for medical attention and hospitalization [in the sum of one thousand dollars] (or) [in an amount not yet determined]. Wherefore, plaintiff demands judgment against X or against Y or against both in the sum of dollars and costs. (5) Complaint for Specific Performance. 1. On or about , , plaintiff and defendant entered into an agreement in writing, a copy of which is hereto annexed as Exhibit A. 2. In accord with the provisions of said agreement plaintiff tendered to defendant the purchase price and requested a conveyance of the land, but defendant refused to accept the tender and refused to make the conveyance. 3. Plaintiff now offers to pay the purchase price. Wherefore, plaintiff demands (1) that defendant be required specifically to perform said agreement, (2) damages in the sum of dollars, and (3) that if specific performance is not granted plaintiff have judgment against defendant in the sum of dollars. (6) Complaint in the Alternative. I. Defendant owes plaintiff dollars according to the account hereto annexed as Exhibit A. II. ALTERNATIVE COUNT Plaintiff claims in the alternative that defendant owes plaintiff dollars for goods sold and delivered by plaintiff to defendant between , , and , . (7) Complaint for Fraud. 1. On , , at , defendant with intent to defraud plaintiff represented to plaintiff that . 2. Said representations were known by defendant to be and were false. In truth, [what the facts actually were]. 3. Plaintiff believed and relied upon the false representations, and thus was induced to . 4. As a result of the foregoing, plaintiff has been damaged [nature and amount of damage]. Wherefore, plaintiff demands judgment against defendant for dollars, interest and costs. (8) Complaint for Money Paid by Mistake. Defendant owes plaintiff dollars for money paid by plaintiff to defendant by mistake under the following circumstances: 1. On , , at , pursuant to a contract , plaintiff paid defendant dollars. (9) Motion for Judgment on the Pleadings. Plaintiff moves that judgment be entered for plaintiff on the pleadings, on the ground that the undisputed facts appearing therein entitle plaintiff to such judgment as a matter of law. (10) Motion for More Definite Statement. Defendant moves for an order directing plaintiff to file a more definite statement of the following matters: [set out] The ground of this motion is that plaintiff ’s complaint is so [vague] [ambiguous] in respect to these matters that defendant cannot reasonably be required to frame an answer hereto, in that the complaint . (11) Answer to Complaint. First Defense The complaint fails to state a claim against defendant upon which relief can be granted. Second Defense If defendant is indebted to plaintiff as alleged in the complaint, he is indebted to plaintiff jointly with X. X is alive; is a resident of the State of North Carolina, and is subject to the jurisdiction of this court as to serve of process; and has not been made a party. Third Defense 1. Defendant admits the allegations contained in paragraphs and of the complaint. 2. Defendant alleges that he is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph of the complaint. 3. Defendant denies each and every other allegation contained in the complaint. Fourth Defense The right of action set forth in the complaint did not accrue within year next before the commencement of this action. Counterclaim [Here set forth any claim as a counterclaim in the manner in which a claim is pleaded in a complaint.] Crossclaim Against Defendant Y [Here set forth the claim constituting a crossclaim against defendant Y in the manner in which a claim is pleaded in a complaint.] Dated: . Attorney for Defendant (12) Motion to Bring in Third-Party Defendant. Defendant moves for leave to make X a party to this action and that there be served upon him summons and third-party complaint as set forth in Exhibit A attached. (13) Third-Party Complaint. , Plaintiff, v. , Defendant and Third-Party Complaint Third-Party Plaintiff, v. Third-Party Defendant. Civil Action No. 1. Plaintiff has filed against defendant a complaint, a copy of which is attached as “Exhibit C.” 2. [Here state the grounds upon which the defendant and third-party plaintiff is entitled to recover from the third-party defendant all or part of what plaintiff may recover from the defendant and third-party plaintiff.] Wherefore, plaintiff demands judgment against third-party defendant for all sums that may be adjudged against defendant in favor of plaintiff. (14) Complaint for Negligence Under Federal Employer’s Liability Act. 1. During all the times herein mentioned defendant owned and operated in interstate commerce a railroad which passed through a tunnel located at and known as Tunnel No. . 2. On or about June 1, , defendant was repairing and enlarging the tunnel in order to protect interstate trains and passengers and freight from injury and in order to make the tunnel more conveniently usable for interstate commerce. 3. In the course of thus repairing and enlarging the tunnel on said day defendant employed plaintiff as one of its workmen, and negligently put plaintiff to work in a portion of the tunnel which defendant had left unprotected and unsupported. 4. By reason of defendant’s negligence in thus putting plaintiff to work in that portion of the tunnel, plaintiff was, while so working pursuant to defendant’s orders, struck and crushed by a rock which fell from the unsupported portion of the tunnel, and was (here describe plaintiff ’s injuries). 5. Prior to these injuries, plaintiff was a strong, able-bodied man, capable of earning and actually earning dollars per day. By these injuries he has been made incapable of any gainful activity, has suffered great physical and mental pain, and has incurred expense in the amount of dollars for medicine, medical attendance, and hospitalization. Wherefore, plaintiff demands judgment against defendant in the sum of dollars and costs. (15) Complaint for Interpleader and Declaratory Relief. 1. On or about June 1, , plaintiff issued to G. H. a policy of life insurance whereby plaintiff promised to pay to K. L. as beneficiary the sum of dollars upon the death of G. H. The policy required the payment by G. H. of a stipulated premium on June 1, , and annually thereafter as a condition precedent to its continuance in force. 2. No part of the premium due June 1, , was ever paid and the policy ceased to have any force of effect on July 1, . 3. Thereafter, on September 1, , G. H. and K. L. died as the result of a collision between a locomotive and the automobile in which G. H. and K. L. were riding. 4. Defendant C. D. is the duly appointed and acting executor of the will of G. H.; defendant E. F. is the duly appointed and acting executor of the will of K. L.; defendant X. Y. claims to have been duly designed as beneficiary of said policy in place of K. L. 5. Each of defendants, C. D., E. F., and X. Y. is claiming that the above-mentioned policy was in full force and effect at the time of the death of G. H.; each of them is claiming to be the only person entitled to receive payment of the amount of the policy and has made demand for payment thereof. 6. By reason of these conflicting claims of the defendants, plaintiff is in great doubt as to which defendant is entitled to be paid the amount of the policy, if it was in force at the death of G. H. Wherefore plaintiff demands that the court adjudge: (1) That none of the defendants is entitled to recover from plaintiff the amount of said policy or any part thereof. (2) That each of the defendants be restrained from instituting any action against plaintiff for the recovery of the amount of said policy or any part thereof. (3) That, if the court shall determine that said policy was in force at the death of G. H., the defendants be required to interplead and settle between themselves their rights to the money due under said policy, and that plaintiff be discharged from all liability in the premises except to the person whom the court shall adjudge entitled to the amount of said policy. (4) That plaintiff recover its costs. (16) Averment of Capacity Under Rule 9 (a). (North Carolina Corporation) Plaintiff is a corporation incorporated under the law of North Carolina having its principal office in [address]. (Foreign Corporation) Plaintiff is a corporation incorporated under the law of the State of Delaware having [not having] a registered office in the State of North Carolina. (Unincorporated Association) Plaintiff is an unincorporated association organized under the law of the State of New York having its principal office in [address] and (if applicable) having a principal office in the State of North Carolina at [address], and as such has the capacity to sue in its own name in North Carolina.

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History. 1967, c. 954, s. 1; 1999-456, s. 59.

Legal Periodicals.

For survey of decisions under the North Carolina Rules of Civil Procedure, see 50 N.C.L. Rev. 729 (1972).

For comment on jurisdiction based upon attachment, see 16 Wake Forest L. Rev. 377 (1980).

CASE NOTES

Federal Rule Compared. —

The language of this rule which declares that Forms (3) and (4) and all the other forms of complaint incorporated therein are “sufficient under these rules and are intended to indicate the simplicity and brevity of statement which the rules contemplate” is identical to that of FRCP, Rule 84. Sutton v. Duke, 277 N.C. 94 , 176 S.E.2d 161, 1970 N.C. LEXIS 510 (1970).

Forms (3) and (4) illustrate the sufficient form of a complaint for negligence. Ormond v. Crampton, 16 N.C. App. 88, 191 S.E.2d 405, 1972 N.C. App. LEXIS 1646 , cert. denied, 282 N.C. 304 , 192 S.E.2d 194, 1972 N.C. LEXIS 941 (1972).

And Require Specific Allegations. —

Although federal Forms 9 and 10, complaints for negligence, do not require specific allegations of acts of negligence, under this rule North Carolina’s Forms (3) and (4) do require such specific allegations. Roberts v. William N. & Kate B. Reynolds Mem. Park, 281 N.C. 48 , 187 S.E.2d 721, 1972 N.C. LEXIS 1004 (1972).

Forms (3) and (4) contain much more than the corresponding federal forms, by requiring the pleader to allege the specific acts which constitute the defendant’s negligence. This North Carolina requirement was the result of compromise between the drafting committee and practicing lawyers on the General Statutes Commission who wanted more specificity, especially in automobile cases. Ormond v. Crampton, 16 N.C. App. 88, 191 S.E.2d 405, 1972 N.C. App. LEXIS 1646 , cert. denied, 282 N.C. 304 , 192 S.E.2d 194, 1972 N.C. LEXIS 941 (1972).

Notice Afforded by Form (4). —

Form (4) approves, for a complaint for negligence, a short statement of the basic occurrences and the use of the words “reckless” and “wilful” to describe the character of a defendant’s conduct, as sufficient notice 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. Brewer v. Harris, 279 N.C. 288 , 182 S.E.2d 345, 1971 N.C. LEXIS 776 (1971).