N.C. Gen. Stat. § 1A-1

Rule 15(a) requires courts to freely allow amendments to pleadings when justice so requires.

Ausley v. Bishop · filed 2002-05-07Rule 15(a)

Rule 15(a) of our Rules of Civil Procedure states that leave to amend shall be freely given when justice so requires. N.C. Gen. Stat. § 1A-1, Rule 15(a).

Rule 15(b) permits pleadings to be amended to conform to the evidence and requires amendment when the objecting party fails to show prejudice.

Miller v. B.H.B. Enterprises, Inc. · filed 2002-09-03(b)

Rule 15(b) of the Rules of Civil Procedure provides in pertinent part that: 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.... 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 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. N.C. Gen.Stat. § 1A-1, Rule 15(b) (2001). ... Defendant did not argue here or at trial that he was prejudiced by the trial court allowing amendment of the pleadings. We find that plaintiff produced sufficient evidence to support the doctrine of last clear chance. Defendant has failed to carry its burden of showing an abuse of discretion. This assignment of error is overruled.

Rule 15(b) allows pleadings to be amended to conform to evidence when unpleaded issues are tried by consent, unless the amendment would prejudice a party.

Alford v. Lowery · filed 2002-12-03(b)

In the instant case, plaintiff has failed to show that the trial court abused its discretion in allowing defendant’s motion to amend her answer.

Rule 15(a) permits a court to deny leave to add defendants when the amendment would cause undue delay or unfair prejudice.

Carter v. Rockingham County Board of Education · filed 2003-07-01Rule 15(a)

From this, we conclude that the trial court found that the amendment to add the parties would have caused undue delay or undue prejudice to defendants. ... We can discern no abuse of discretion in the trial court's decision to deny plaintiff's motion to add Clark and Lauten as defendants.

Rule 15(a) permits denial of leave to amend when the proposed amendment would duplicate legal arguments already pending in another action.

Beau Rivage Homeowners Ass'n v. Billy Earl, L.L.C. · filed 2004-03-16Rule 15(a)

There is evidence within the record to support the trial court’s denial of plaintiff’s motion to amend based on the theory that plaintiff should not be afforded concurrent actions of the same legal arguments. ... Thus, plaintiff has failed to evidence that the trial court abused its discretion by denying plaintiff’s motion to amend its complaint.

Rule 15(a) sets no general time limit for amendments, but a trial court may consider the timing of a proposed amendment in relation to the lawsuit’s progress.

Stetser v. Tap Pharmaceutical Products, Inc. · filed 2004-07-06Rule 15(a)

TAP correctly argues that there is no time limit for amendments according to Rule 15. However, the trial court, in its discretion, may consider the relative timing of the proposed amendment in relation to the progress of the lawsuit.

Rule 15 permits amendment without leave before a responsive pleading is filed; undue delay in seeking leave afterward can justify denial.

Bob Timberlake Collection, Inc. v. Edwards · filed 2006-02-21Rule 15(a)

Pursuant to Rule 15, Edwards would have been able to amend his counterclaim, without leave of court, at any point prior to the responsive pleading being filed. N.C. Gen. Stat. § 1A-1, Rule 15. However, it was only after having been served plaintiff’s responsive pleading and having notice of plaintiff’s motion to dismiss, that Edwards moved orally to amend his pleadings at the hearing. Such an undue delay of time in making a motion to amend is a valid reason for denying such motion. On this record, we find no abuse of discretion by the trial court in denying Edwards’ request for leave to amend his pleadings.

Rule 15(a) permits a court to allow an amendment to an answer when the opposing party has not shown prejudice.

Pickard v. Pickard · filed 2006-02-21Rule 15(a)

Here, the court's allowance of the amendment did not prejudice plaintiff's ability to present evidence related to the additional defenses. The court deferred its ruling on amendment until it had heard evidence on estoppel, and permitted both parties to submit briefs if they desired. Plaintiff never argued at trial that he was prejudiced in his ability to present evidence on these issues; he merely contended that the issues could not be considered because they had not been included in the original answer. We conclude that the court did not abuse its discretion in permitting amendment of defendant's answer.

Rule 15(a) permits denial of leave to amend for undue delay, subject to review for abuse of discretion.

Strickland v. Lawrence · filed 2006-03-21Rule 15(a)

Based on these circumstances alone, plaintiffs cannot show that the trial court abused its discretion in denying the motion based on undue delay.

Rule 15(b) does not authorize amending a termination of parental rights petition to conform to evidence presented at the adjudication hearing when the juvenile code does not grant that right.

In Re BLH · filed 2008-05-06Rule 15(b)

The Rules of Civil Procedure will, however, apply to fill procedural gaps where Chapter 7B requires, but does not identify, a specific procedure to be used in termination cases. ... Accordingly, we will not superimpose a right to amend a petition or motion for termination of parental rights to conform with the evidence presented at the adjudication hearing and the trial court erred by allowing the amendment.

Rule 15(a) permits amendment with the adverse party’s written consent or leave of court, and leave should be freely given absent material prejudice.

Babb v. Graham · filed 2008-05-20Rule 15(a)

N.C. Gen. Stat. § 1A-1, Rule 15(a) (2007) provides that after a party has amended his pleading once as a matter of course, “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.” ... Appellant does not argue that he was prejudiced by the filing of the amended complaint and cross-claims. Moreover, Appellant does not argue that the trial court abused its discretion. We hold the trial court did not abuse its discretion and overrule this assignment of error.

Rule 15(a) requires leave to amend after the thirty-day deadline; a court may deny leave for an unexplained delay.

Media Network, Inc. v. Long Haymes Carr, Inc. · filed 2009-06-16Rule 15(a)

Defendant filed its motion to amend after the thirty-day deadline for amending without leave. Accordingly, amendment required leave of the court, which “leave shall be freely given when justice so requires.” N.C. Gen. Stat. § 1A-1, Rule 15(a) (2007). ... Accordingly, we affirm the order of the Business Court.

Under Rule 15(a), undue delay can justify denying leave to amend a complaint, including when the motion comes more than a year after the complaint and after the summary judgment hearing.

Williams v. CRAFT DEVELOPMENT, LLC · filed 2009-09-01Rule 15(a)

Further, though there is no set time limit for filing motions to amend, North River Ins. Co. v. Young, 117 N.C. App. 663, 671, 453 S.E.2d 205, 210-11 (1995), we hold the fact that Plaintiff did not move to amend her complaint until more than a year after she filed her original complaint, and the fact that she did not move to amend until after the hearing on the cross-motions for summary judgment, are sufficient grounds to deny her motion to amend based upon “undue delay.”

Rule 15(a) permits a court to deny leave to amend when the moving party’s unreasonable delay would burden the opposing party.

McMillan v. TOWN OF TRYON · filed 2009-10-06Rule 15(a)

It is axiomatic that plaintiffs bear the burden of proof on their claims, and because plaintiffs admittedly were aware that discovery would clarify the issues and refine the theories, defendants should not be burdened by plaintiffs’ unreasonable delay in vetting their claim. Accordingly, in light of the foregoing, we agree with the trial court, and we hold that the trial court did not abuse its discretion in denying plaintiffs’ motion to further amend their pleadings.

Rule 15(a) applies to amendments of petitions for judicial review when the Administrative Procedure Act provides no amendment procedure.

Rone Ex Rel. Roseboro v. Winston-Salem/Forsyth County Board of Education · filed 2010-11-02Rule 15(a)

There are no provisions in the APA that either permit or forbid an amendment to a petition for judicial review. Since an amendment procedure is not found in the APA, the superior court properly applied Rule 15(a) in the instant case.

Rule 15(a) permits a court to deny leave to amend a pleading for undue delay when the party offers no sufficient explanation for the delay.

Rabon v. Hopkins · filed 2010-12-07Rule 15(a)

This Court has held that a trial court may appropriately deny a motion for leave to amend on the basis of undue delay where a party seeks to amend its pleading after a significant period of time has passed since filing the pleading and where the record or party offers no explanation for the delay. ... Because Defendants fail to offer any sufficient explanation for the nine-month delay in seeking to amend their answer, we conclude that the trial court did not abuse its discretion in denying Defendants’ motion for leave to amend to include the affirmative defense of contributory negligence.

Rule 15 directs courts to grant leave to amend pleadings freely when justice requires, subject to the court's discretion.

Thames v. N.C. Department of Health · filed 2011-02-04Rule 15(a)

Therefore, pursuant to the statute, leave to amend should be freely given and whether to allow or deny a motion to amend a pleading is within the discretion of the court.

Rule 15(a) permits a trial court to allow an amendment to an answer during trial when the amendment causes no undue delay or unfair prejudice.

Davis v. Rudisill · filed 2011-02-15Rule 15(a)

We see no undue delay in the amendment simply because the amendment took place during trial.

Rule 15(a) permits a party to amend a pleading once before a responsive pleading is served, including to add a party.

Robinson v. Smith · filed 2012-03-20Rule 15(a)

Pursuant to N.C. Gen. Stat. § 1A-1, Rule 15(a) (2011), “[a] party may aménd his pleading once as a matter of course at any time before a responsive pleading is served[.]” ... The rationale in Coffey is only applicable to cases where a responsive pleading has been filed prior to the proposed amendment; because no such pleading was filed here, this case is easily distinguishable. Accordingly, the trial court did not err in considering Plaintiffs’ amended complaint to be the operative complaint in this action.

Rule 15(b) does not permit a petition or motion to terminate parental rights to be amended to conform to evidence presented at the hearing.

In Re Gbr · filed 2012-05-01Rule 15(b)

Thus, based on this Court's ruling in B.L.H. that there is no right to amend a termination petition to conform to the evidence at hearing under N.C. Gen.Stat. § 1A-1, Rule 15(b), see id. at 146-47, 660 S.E.2d at 257, we must hold that as a matter of law that the trial court erred in allowing DSS to amend the petitions to terminate the parental rights of respondent-father.

Rule 15 does not permit an amendment to conform pleadings to evidence on an unpleaded issue when the opposing party objected to that evidence.

Rink & Robinson, PLLC v. Catawba Valley Enterprises, LLC · filed 2012-05-01Rule 15(b)

Thus, an amendment to conform the pleading to this evidence was not appropriate. As such, we conclude that the trial court did not err in denying plaintiff’s motion to amend its pleading.

Leave to amend may be denied for undue delay when a party could have raised the claim earlier and offers no explanation for waiting.

Micro Capital Investors, Inc. v. Broyhill Furniture Industries, Inc. · filed 2012-06-05Rule 15(a)

However, plaintiff could have argued quantum meruit in the alternative before defendant moved for summary judgment, and plaintiff did not offer any explanation for its failure to do so. Accordingly, we cannot conclude that the trial court abused its discretion by denying the motion.

Rule 15(a) permits a plaintiff to amend a complaint as of right before a responsive pleading is filed, even after the defendant moves to dismiss under Rules 12(b)(2) and 12(b)(6).

Hardin v. York Memorial Park · filed 2012-06-19Rule 15(a)

Plaintiffs are ... correct in their assertion that they were entitled to amend their complaint as a matter of right before a responsive pleading is filed.

After a responsive pleading, Rule 15 requires leave of court or the opposing party’s written consent to amend a complaint; undue delay and prejudice can justify denying leave.

Wilkerson v. Duke University · filed 2013-09-17Rule 15(a)

Once a responsive pleading has been filed, a party may amend their complaint “only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” N.C. Gen. Stat. § 1A-1, Rule 15 (2011). ... We cannot say the trial court abused its discretion in denying plaintiff’s motion to amend for undue delay and undue prejudice.

Rule 15(a) governs a pretrial motion to amend a complaint even when the motion is styled as one to conform the pleadings to the evidence.

Bdm Invs. v. Lenhil, Inc. · filed 2014-03-20(a)

BDM’s Motion is styled as one to conform the pleadings to the evidence presented, but such a motion is properly made during trial. See N.C. Gen. Stat. § 1A-1, Rule 15(b) (2013). The court construes the Motion as a motion to amend a complaint governed by Rule 15(a).

Rule 15(a) permits a court to deny leave to amend a pleading for undue and unreasonable delay.

Greenshields, Inc. v. Travelers Prop. Cas. Co. of Am. · filed 2016-01-19Rule 15(a)

Accordingly, the trial court did not abuse its discretion in denying plaintiff’s motions to amend its complaint based on the court’s conclusion that plaintiff engaged in undue and unreasonable delay.

Rule 15(a) permits a court to deny leave to amend when prior amendments have failed to cure pleading defects and the proposed amendment would be futile.

Kingsdown, Inc. v. Hinshaw · filed 2016-02-17Rule 15(a)

As a result, the Court concludes that Ms. Ray has repeatedly failed to cure the defects in her counterclaims and her third-party complaint by her prior amendments, and that granting Ms. Ray leave to file the August 30 Amendments would be futile.

Rule 15(b) permits amendment to address evidence outside the pleadings over an objection when the amendment serves the merits and the objecting party fails to show prejudice.

Guilford Cnty. by & Through Its Child Support Enforcement Unit v. Lyon · filed 2016-04-19Rule 15(b)

Under Rule 15(b), the defendant’s evidence regarding “fraud” or “coercion” was “objected to at the trial on the ground that it is not within the issues raised by the pleadings[;]” so the trial court could allow the pleadings to be amended and “shall do so freely” if (1) “the presentation of the merits of the action will be served thereby[,] and [(2)] 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.”

Rule 15(a) makes an amended answer adding a counterclaim timely when filed thirty days after the original answer.

Recurrent Energy Dev. Holdings, LLC v. Sunenergy1, LLC · filed 2017-03-07Rule 15(a)

SunEnergy filed its amended Answer and Counterclaim thirty days after it filed its original answer, and therefore it is timely under Rule 15(a).

After a responsive pleading has been filed, Rule 15 requires court leave or the opposing party’s written consent to amend a pleading; a claim never properly added is not considered on appeal.

Fuller v. Wake Cty. · filed 2017-06-20Rule 15(a)

Fuller never filed a motion to amend his complaint to include any successor-liability claim. ... Accordingly, because Fuller never properly pled these two successor-liability claims below, we decline to address the merits of these arguments.

Rule 15(a) allows a court to deny leave to amend for undue delay and dilatory motive.

Zagaroli v. Neill · filed 2017-11-07Rule 15(a)

Therefore, the Court concludes, in its discretion, that the Motion to Amend, to the extent that it is brought under Rule 15(a), should be denied based on Plaintiff’s undue delay and dilatory motive.

Rule 15(a) permits a court to deny leave to amend a pleading for undue delay.

Alkemal Sing. Pte. Ltd. v. Dew Glob. Fin., LLC · filed 2017-12-12(a)

The Court concludes, in its discretion, that the Motion to Amend should be denied based on Defendants’ undue delay. Defendants filed the Motion to Amend on October 2, 2017—nearly two years after they filed their Answer and after briefing was complete on Plaintiff’s Motion for Partial Summary Judgment.

Rule 15(a) permits a court to deny leave to amend a pleading because of undue delay.

Carmayer, LLC v. Koury Aviation, Inc. · filed 2017-09-11Rule 15(a)

Reasons justifying denial of a motion to amend are undue delay, bad faith, dilatory motive, repeated failure to cure defects by previous amendments, undue prejudice, and futility of amendment. ... The Court concludes, in its discretion, that the Motion to Amend should be denied based on Plaintiff’s undue delay.

Rule 15(a) allows amendments that add detail to existing claims when any prejudice to defendants is minimal.

Global Textile All., Inc. v. Tdi Worldwide, LLC · filed 2018-04-06Rule 15(a)

While the Court discourages serial, piecemeal amendment of pleadings, it concludes that the liberal standard of Rule 15 should be exercised to allow these amendments at this time. If there is any prejudice to Defendants by allowing these amendments, such prejudice is minimal. The Motion to Further Amend should be GRANTED with regard to paragraphs 1, 3–5, and 7–11 in the Proposed Second Amendment.

Rule 15(a) directs courts to grant leave to amend a pleading freely when justice requires it.

Gateway Mgmt. Servs., Ltd. v. Carrbridge Berkshire Grp., Inc. · filed 2018-05-09Rule 15(a)

At this early stage of the litigation, the Court finds no reason to depart from the general rule that leave to amend pleadings should be freely given where justice so requires and, therefore, grants Plaintiff’s Motion to Amend.

Rule 15(a) requires a party granted leave to amend to file within the period the court allows; filing later without the opposing party’s consent violates the rule.

Rabinowitz v. Suvillaga · filed 2019-01-28Rule 15(a)

Therefore, on the sixth day after the Order’s entry, Defendant lacked “leave of court” to file her Amended Pleading, and her subsequent filing forty (40) days after entry of the Order was improper.

Rule 15 permits denial of a motion to amend pleadings when the proposed amendment would be futile.

Murray v. Deerfield Mobile Home Park · filed 2021-05-18

Defendants failed to show any abuse of discretion in the trial court’s denial of Defendants’ motion to amend their pleadings, where such amendment would be futile.

Rule 15 permits a trial court to deny leave to amend a pleading when the party delays until the middle of trial despite knowing of the proposed claim for months.

Dan King Plumbing Heating & Air Conditioning · filed 2022-01-18Rule 15(a)

However, after a party makes their amendment as a matter of course, further amendments are allowed “only by leave of court or by written consent of the adverse party.” Id. ... Thus, we conclude that the trial court did not abuse its discretion by denying Defendant’s motion for leave to amend his complaint in the middle of trial.

Under Rule 15(a), a proposed amendment is futile if it cannot satisfy the standard for a motion to dismiss.

McGriff Ins. Servs., Inc. v. Hudson · filed 2023-01-17(a)

Since the test for futility mirrors the sufficiency test for a motion to dismiss, the Court will evaluate McGriff’s claims, original and proposed, using this same standard.

Rule 15 does not add an unpleaded allegation when the court has not treated the pleading as amended to include it.

Brown v. Moore · filed 1975-04-14

Although these objections were general, the evidence these questions sought to elicit was not within the issues raised by the pleadings. See G.S. 1A-1, Rule 15. Defendant’s plea of contributory negligence contained no allegation to the effect that Moore was in the habit of taking the curves at maximum speed and that Brown knew it. Nor did the court treat defendant’s pleading as having been amended to incorporate such an allegation.

Rule 15(a) permits reconsideration of a motion to amend pleadings when the case’s changed posture makes the proposed amendments pertinent.

Murphy v. Murphy · filed 1978-07-14Rule 15(a)

We agree with that contention and direct that, prior to the trial of plaintiff’s action for divorce and defendant’s cross-action for alimony without divorce, the trial judge shall reconsider defendant’s motion to amend her pleadings as provided by Rule 15(a).

Rule 15(a) permits an amendment as of course and allows a later amendment with consent or leave of court, which should be freely given when justice requires.

Ballance v. Dunn · filed 1989-11-21Rule 15(a)

In the first action plaintiffs amended their complaint once as a matter of course pursuant to Rule 15(a) of the N.C. Rules of Civil Procedure. At the least they could and should have attempted another amendment to add a quiet title claim.

Rule 15(a) permits one amendment before a responsive pleading is served; further amendments require consent or leave of court, which should be freely given when justice requires.

House of Raeford Farms, Inc. v. City of Raeford · filed 1991-10-15Rule 15(a)

Pursuant to Rule 15(a) of the North Carolina Rules of Civil Procedure, a party may amend any pleading once without leave of court if amended prior to the time a responsive pleading is served, but with respect to additional amendments, “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.” N.C. Gen. Stat. § 1A-1, Rule 15(a) (1990). ... Contrary to plaintiff’s assertion, we find no abuse of discretion in this case and uphold the trial court’s denial of plaintiff’s motion to amend.

When defendants’ liability is closely interrelated, Rule 55 permits entry of default against a nonanswering defendant, but final judgment should await trial of the claims against the answering defendants.

Rawleigh, Moses & Co. v. Capital City Furniture, Inc. · filed 1970-11-18Rule 55(b)

Default judgments in this jurisdiction are now governed by G.S. 1A-1, Rule 55, which appears to be a counterpart of Rule 55 of Federal Civil Procedure. ... Absent specific provision on our statutes covering the question of default judgment where there are multiple defendants, we are inclined to follow what appears to be the federal practice in this case. We hold: (1) that the clerk properly made, or should make, an entry of default against defendant Miller, the appellee; (2) that the judgment of default final entered by the clerk was properly set aside by Judge McLean but not for the reasons stated in his judgment; ... (5) that appropriate judgment as to appellee be entered following the trial.

Rule 55(b)(2) requires at least three days’ written notice before a default judgment hearing when the opposing party has appeared.

Miller v. Belk · filed 1973-04-25Rule 55(b)(2)

However, defendant was not served with written notice of plaintiff’s application for default judgment at least three days prior to the hearing on the application as expressly required by Rule 55(b) (2).

Rule 60(b) requires a defendant seeking to set aside a default judgment to show excusable neglect and a meritorious defense.

U.S.I.F. Wynnewood Corp. v. Soderquist · filed 1975-12-03(b)

In order to set aside a judgment by default pursuant to ,G.S. 1A-1, Rule 60(b) defendant must show that his neglect is excusable and that he has a meritorious defense to the action of the plaintiff.

An entry of default under Rule 55(a) is an interlocutory step toward a final default judgment.

Battle v. Clanton · filed 1975-12-03Rule 55(a)

An entry of default under G.S. 1A-1, Rule 55(a) is only an interlocutory act looking toward the subsequent entry of a final judgment by default and is more in the nature of a formal matter.

Rule 55(b)(2) requires at least three days’ notice of a default judgment hearing when the defendant has appeared; a letter from the defendant’s registered agent can constitute an appearance.

Taylor v. Triangle Porsche-Audi, Inc. · filed 1975-12-17Rule 55(b)(2)

We hold that the letter from defendant’s registered agent constituted an appearance under Rule 55 (b) (2) and that as therein provided plaintiff was required to give at least three days’ notice of the hearing on the application for default judgment. The failure to provide the notice of hearing requires that the default judgment be vacated.

Rule 6(b) gives the trial court discretion to enlarge the time for filing a pleading, while Rule 55(d) gives it discretion to set aside an entry of default.

Privette v. Privette · filed 1976-07-07Rule 6(b)

It is clear that a motion pursuant to Rule 6(b) to enlarge the time for filing a pleading, and a motion pursuant to Rule 55(d) to set aside an entry by default are addressed to the discretion of the trial court.

Rule 55(b)(1) permits a clerk to enter a default judgment only when the claim is for a sum certain and the defendant has never appeared, and the defendant is not an infant or incompetent person.

Roland v. W & L Motor Lines, Inc. · filed 1977-02-02(b)(1)

Upon examination of this statute, we have concluded that there are thus two basic requirements that must be fulfilled before a clerk can enter a default judgment. These requirements are: (1) the plaintiff’s claim must be for a sum certain or for a sum that can by computation be made certain, and (2) the defendant must have been defaulted for failure to appear and he must not have been an infant or incompetent person. We therefore hold that this statute is clearly intended to allow a clerk to enter default judgment against a defendant only if he has never made an appearance.

Rule 55(b)(1) authorizes a clerk to enter default judgment and make foreclosure orders when the debt is secured by a contractual security, including a laborer’s or materialman’s lien.

Ridge Community Investors, Inc. v. Berry · filed 1977-04-06(b)(1)

G.S. 1A-1, Rule 55(b) (1), authorizes the clerks to enter judgment by default when plaintiff’s claim is for a sum certain or for a sum which can by computation be made certain; said rule further provides: “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, . . . the clerk may likewise make all further orders required to consummate foreclosure . . . . ” ... While our research fails to disclose any direct authority supporting our holding, we think the term “contractual security” includes a laborer’s or materialman’s lien.

Rule 55(d) requires a showing of good cause to set aside an entry of default.

Frye v. Wiles · filed 1977-07-06Rule 55(d)

Under G.S. 1A-1, Rule 55(d), all that needs to be shown to set aside an entry of default is good cause.

Rule 55(b)(1) does not treat statutory Chapter 44A liens as contractual security, so a clerk or assistant clerk lacks jurisdiction to consummate their foreclosure.

Ridge Community Investors, Inc. v. Berry · filed 1977-12-15(b)(1)

We hold that liens established pursuant to Chapter 44A of the General Statutes are not “contractual security” within the meaning of Rule 55(b)(1) of the Rules of Civil Procedure and that a clerk or assistant clerk of court is without jurisdiction to make orders consummating foreclosure of liens established pursuant to Chapter 44A of the General Statutes.

Under Rule 60(b)(1), leaving a lawsuit with an attorney and making little inquiry about its progress does not establish excusable neglect for setting aside a default judgment.

Howard v. Williams · filed 1979-04-03Rule 60(b)(1)

In our opinion, when the defendant Williams turned the matter over to attorney Ryals and thereafter made little, if any, inquiry as to whether anything had been done, the neglect of the attorney is imputable to him. He has shown no excusable neglect.

Rule 55(b)(1) permits a clerk to enter a default judgment only for a sum certain or one that can be computed; demanding a specified amount alone does not meet that requirement.

Hecht Realty, Inc. v. Hastings · filed 1980-02-19(b)(1)

Plaintiff’s claim as stated in its complaint in the present case was neither for “a sum certain” nor for “a sum which can by computation be made certain” within the meaning of Rule 55(b). The mere demand for judgment of a specified dollar amount does not suffice to make plaintiffs claim one for “a sum certain” as contemplated by Rule 55(b).

Rule 55(d) allows a court to set aside an entry of default for good cause without requiring the defaulting party to show excusable neglect.

Bailey v. Gooding · filed 1980-03-04Rule 55(d)

There are distinctions between setting aside an entry of default and setting aside a default judgment. The former is governed by the first clause of Rule 55(d) (emphasis added) which requires that " [f]or good cause shown, the court may set aside an entry of default." The latter is governed "in accordance with Rule 60(b)." Id. In setting aside a default judgment, "Mistake, inadvertence, surprise, or excusable neglect," G.S. 1A-1, Rule 60(b)(1), for example, must be present but not in the setting aside of an entry of default.

Setting aside an entry of default requires good cause; the standard for setting aside a final judgment does not apply.

Pendley v. Ayers · filed 1980-03-18Rule 55(c)

Judge Howell was required to find whether defendant had shown good cause for setting aside the default. The test applied by Judge Howell related to setting aside a final judgment.

Rule 55 allows a plaintiff to bypass entry of default and proceed to trial against a defendant who has not appeared.

Love v. Nationwide Mutual Insurance · filed 1980-03-04Rule 55(a)

We did not hold that Rule 55 was the exclusive procedure for obtaining judgment against a non-appearing party. ... Plaintiff had the option to bypass entry of default and proceed to trial.

Rule 60(b)(1) requires a finding of meritorious defense before a default judgment may be set aside for excusable neglect.

Davis v. Mitchell · filed 1980-04-15Rule 60(b)(1)

Even if there is evidence from which a finding of excusable neglect can be made, our case law requires a finding of meritorious defense before the judgment may be set aside.

Rule 55(d) allows an entry of default to be set aside for good cause, including an insurer’s inadvertence when the delay does not prejudice the plaintiff.

Peebles v. Moore · filed 1980-09-02Rule 55(d)

Although such inadvertence may not be excusable, we believe that the circumstances of this case support a showing of sufficient cause to set aside entry of default. We find that the delay in answer did not prejudice plaintiff, and it appears that allowing default here would do an injustice to defendant.

Rule 55(b)(1) requires a defendant to be free of disability for a clerk to enter default judgment, but does not require an affirmative finding of that fact.

General Foods Corp. v. Morris · filed 1980-11-18(b)(1)

Defendant appellant contends Rule 55 and the statute, when read together, require an affirmative finding by the clerk that the defendant is not a minor and is under no legal disability. We do not agree. ... The requirement is only that defendant in fact not be under a disability.

Rule 55(a) does not permit entry of default after an answer has been filed, even if the answer is late.

Peebles v. Moore · filed 1981-03-04Rule 55(a)

We are unable to perceive anything in this language or in the language of the entire rule, G.S. 1A-1, Rule 55, which alters the established law that defaults may not be entered after answer has been filed, even though the answer be late.

Rule 55(a) permits entry of default when the plaintiff shows that the defendant failed to answer within the required time.

Hasty v. Carpenter · filed 1981-04-07Rule 55(a)

Thus, plaintiff adequately informed the court, as required by Rule 55(a), of defendant’s failure to answer; and entry of default was appropriate.

Rule 55(d) permits a court to set aside an entry of default for good cause; denial of that relief is reviewed for abuse of discretion.

Coulbourn Lumber Co. v. Grizzard · filed 1981-04-21Rule 55(d)

Pursuant to the provisions of G.S. 1A-1, Rule 55(d), the trial court may set aside an entry of default for good cause shown. ... Under such circumstances, we believe the trial judge did not abuse his discretion in reaching the conclusion that defendants had not shown good cause for setting aside the entry of default.

Rule 60(b)(1) allows a court to set aside a default judgment only to the extent the moving party shows both excusable neglect and a meritorious defense.

Emdur Metal Products, Inc. v. Super Dollar Stores, Inc. · filed 1982-02-02Rule 60(b)(1)

We find no abuse of discretion in the setting aside only of that portion of the judgment for which there was both excusable neglect and a meritorious defense.

Rule 55(d) requires good cause to set aside an entry of default, a decision within the trial judge's discretion.

Byrd v. Mortenson · filed 1982-12-21Rule 55(d)

For the entry of a default to be disturbed, as those entered by the Clerk of Superior Court on 3 and 6 April in this case, G.S. 1A-1, Rule 55(d) 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.

Rule 55(a) permits a clerk to enter default based on proof of failure to plead other than an affidavit, including the record alone.

Silverman v. Tate · filed 1983-04-19Rule 55(a)

Rule 55(a) plainly does not require proof solely by affidavit; the clerk may act upon any proof he or she deems appropriate, including the record alone.

Rule 55(d) requires the trial judge to exercise discretion in deciding whether good cause warrants setting aside an entry of default.

Byrd v. Mortenson · filed 1983-05-31Rule 55(d)

The default judgment entered by the trial court is vacated and this cause is remanded to the Court of Appeals, with directions to remand to the Superior Court of Wake County, to the end that the trial judge may exercise his discretion as to whether defendants have demonstrated “good cause” sufficient to justify setting aside the entries of default.

Rule 55(b)(1) permits a clerk to enter default judgment only against a defendant who has not appeared.

North Carolina National Bank v. McKee · filed 1983-07-05Rule 55(b)(1)

Under G.S. 1A-1, Rule 55(b)(1) the clerk can enter a default judgment against a defendant only if the defendant has failed to appear in the matter.

Rule 55(a) permits a clerk to enter default when a party fails to file a timely reply to a counterclaim denominated as such.

Beard v. Pembaur · filed 1984-04-17Rule 55(a)

We hold that a clerk may properly enter a default when no reply is timely filed in response to a counterclaim denominated as such.

Rule 55(d) allows a trial court to set aside an entry of default for good cause shown.

Stone v. Martin · filed 1984-07-17Rule 55(d)

Judge Farmer had authority to set aside the default sanction both because it was a discretionary, interlocutory order, see Calloway, supra, 281 N.C. at 502, 189 S.E. 2d at 488-89, and because G.S. 1A-1, Rule 55(d) specifically allows the trial court to set aside an entry of default “for good cause shown.”

Rule 55(a) does not permit entry of default after an answer has been filed, even if the answer was late.

Joe Newton, Inc. v. Tull · filed 1985-06-18Rule 55(a)

By waiting until answer had been filed before seeking to obtain entry of default, plaintiff waived its rights to entry of default pursuant to G.S. 1A-1, Rule 55(a). Default may not be entered after an answer has been filed, even if the answer is tardily filed.

Rule 55(b)(1) permits the clerk to enter a default judgment for a sum certain when a verified complaint alleges a specific payment for a contractual obligation the defendant failed to perform.

Smith v. Barfield · filed 1985-10-01Rule 55(b)(1)

In their verified complaint, plaintiffs alleged that they paid defendants the sum of $5,350.00 to perform a contractual obligation which defendants had failed and refused to perform. This clearly constitutes a claim for a sum certain under Rule 55(b)(1).

Rule 55(d) allows an entry of default to be set aside for good cause, with the decision resting in the trial court’s discretion.

Automotive Equipment Distributors, Inc. v. Petroleum Equipment & Service, Inc. · filed 1987-11-17Rule 55(d)

A motion to set aside an entry of default pursuant to N.C.G.S. § 1A-1, Rule 55(d) for “good cause” shown falls within the sound discretion of the trial court, whose decision will not be disturbed on appeal “absent a showing of abuse of that discretion.” ... Defendant, in our opinion, has shown “good cause” to justify setting aside the entry of default and the trial court therefore erred by reinstating the entry of default.

Rule 55(b)(2) treats a defendant’s agreement to meet with the plaintiff and her attorney to discuss the case as an appearance requiring three days’ notice before a default judgment hearing.

Stanaland v. Stanaland · filed 1988-03-01Rule 55(b)(2)

We therefore hold that defendant’s agreement to meet with plaintiff and her attorney, although one day late, was sufficient to constitute an appearance within the meaning of Rule 55(b)(2). ... As we have already held that defendant had made an appearance in the plaintiff s action for the purposes of Rule 55, it follows that plaintiff was required to provide the three days’ notice.

Rule 55(a) bars a defaulting party from contesting a claim that it has no interest in property.

In re Asset Control Co. of North Carolina · filed 1988-08-10Rule 55(a)

In the state’s claim against the debtor, where the question of the validity of its interest in this property is raised, the debtor has defaulted and is now barred as a matter of law from contesting the state’s claim that it has no interest.

Rule 55(a) permits the clerk to enter default on the plaintiff’s motion when a defendant fails to answer on time.

Spartan Leasing Inc. v. Pollard · filed 1991-02-05Rule 55(a)

When a defendant fails to timely answer a complaint, an entry of default may be made by the clerk on motion of the plaintiff.

Under Rule 55, an entry of default remains interlocutory when a hearing is still needed to determine damages or property taken.

Duncan v. Duncan · filed 1991-03-05Rule 55(a), (b)

The trial court then set for hearing a determination as to the money and property taken, damages caused, and “all other things” taken. We conclude that here 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 review here.

Rule 55(d) permits an entry of default to be set aside for good cause, while Rule 60(b) governs relief from a default judgment.

Faucette v. Dickerson · filed 1991-08-06(d), (b)

A motion to set aside an entry of default pursuant to Rule 55(d) is within the sound discretion of the trial court and will not be disturbed except for an abuse of discretion.

Rule 55(b)(1) authorizes the clerk to enter a default judgment only when the claim is for a sum certain or a sum that can be made certain by computation.

Grant v. Cox · filed 1992-04-21(b)(1)

We find that the clerk did not have authority under G.S. § 1A-1, Rule 55(b)(1) to enter a default judgment against defendants.

Rule 55 generally postpones default judgment against a defendant on a joint claim until all defendants default or the liability of the nondefaulting defendants is decided.

John Henry Spainhour & Sons Grading Co. v. Carolina E. E. Homes, Inc. · filed 1993-03-02Rule 55

See Leonard v. Pugh, 86 N.C. App. 207, 210-11, 356 S.E.2d 812, 815 (1987) (“[wjhere a complaint alleges a joint claim against more than one defendant, default judgment pursuant to G.S. 1A-1, Rule 55 should not be entered against a defaulting defendant until all defendants have defaulted; or if one or more do not default then, generally, entry of default judgment should await an adjudication as to the liability of the non-defaulting defendants.”). Accordingly, the trial court erred by not setting aside the default judgment against defendant Shelton.

Rule 55 bars entry of default after the defendant has filed an answer, even if the answer was late.

Fieldcrest Cannon Employees Credit Union v. Mabes · filed 1994-09-06Rule 55(a)

The portion of G.S. 1A-1, Rule 55, applicable to the facts of the case before us, requires a clerk to make an entry of default “when a party . . . has failed to plead . . . .” When a party has answered, it cannot be said that he “has failed to plead . ...” We are unable to perceive anything in this language or in the language of the entire rule, G.S. 1A-1, Rule 55, which alters the established law that defaults may not be entered after answer has been filed, even though the answer be late.

A default judgment may be entered against one defendant alleged to be jointly and severally liable without awaiting a decision on the other defendants’ liability.

Harlow v. Voyager Communications V · filed 1998-07-09Rule 55

Where the plaintiff has alleged the defendants to be jointly and severally liable, the Frow principle will not apply because the defendants are not so closely tied that the judgment against each must be consistent.

Rule 55(d) permits an entry of default to be set aside for good cause, while Rule 38(d) prevents a plaintiff from withdrawing a jury demand without the defendant's consent after the defendant appears.

Cabe v. Worley · filed 2000-10-03(d)

Generally, an entry of default may be set aside “[f]or good cause shown.” N.C.G.S. § 1A-1, Rule 55(d) (1999). ... “A demand for trial by jury . . . may not be withdrawn without the consent of the parties who have pleaded or otherwise appealed] in the action.” N.C.G.S. § 1A-1, Rule 38(d) (1999). Thus, a plaintiff who has requested a jury trial may withdraw that request, without the consent of the defendant, at any time before an answer is filed or before an appearance is made by the defendant.

Rule 55 requires a plaintiff to move for default judgment after the 30-day notice period; judgment does not follow automatically when the period expires.

Security Credit Leasing, Inc. v. D.J.'s of Salisbury, Inc. · filed 2000-11-07Rule 55(b)(2)(b)(1)

However, we note that the statute provides — not an “automatic enforcement” of a plaintiffs default judgment, but instead requires a plaintiff-creditor to “motion [the court] for judgment by default” once the thirty days have passed following notice.

After an entry of default remains in effect and the complaint states a claim, the defendant may not defend the merits by asserting affirmative defenses in a summary judgment motion.

Hartwell v. Mahan · filed 2002-11-05

We hold that where an entry of default has not been set aside and the complaint is sufficient to state a claim, the defendant in default may not defend its merits by asserting affirmative defenses in a motion for summary judgment.

Rule 60(b)(4) does not require a default judgment to be set aside as void for lack of service when competent evidence supports a finding of proper service.

Blankenship v. Town and Country Ford, Inc. · filed 2002-12-31Rule 60(b)(4)

Because there is competent evidence in the record to support this finding, we hold the trial court did not abuse its discretion in concluding proper service of process was made on defendant. Therefore, the trial court properly denied defendant’s Rule 60(b)(4) motion to set aside the default judgment as void for lack of service of process.

The Rules require a valid entry of default before a Rule 55 default judgment and allow relief under Rule 60(b) when that entry is vacated or the judgment is void for lack of jurisdiction.

McIlwaine v. Williams · filed 2002-12-31Rule 55(d), Rule 60(b)(5), and Rule 60(b)(4)

“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).” N.C. Gen. Stat. § 1A-1, Rule 55(d) (2001). Under Rule 60(b), a judgment may be set aside where “a prior judgment upon which it is based has been reversed or otherwise vacated.” N.C. Gen. Stat. § 1A-1, Rule 60(b)(5) (2001). Here, the default judgment was entirely predicated upon an invalid entry of default that was vacated by the trial court. Under these facts, the invalid entry of default rendered the subsequent default judgment equally invalid. The trial court therefore abused its discretion in denying defendant’s motion to set aside the default judgment.

Rule 55(f) requires a claimant to prove a right to relief with evidence before obtaining a default judgment against the State, even when the parties have stipulated to an injury.

Hummel v. University of North Carolina · filed 2003-02-18(f)

Although a stipulation had been entered, plaintiff still bore the burden of proving his damages: 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. G.S. § 1A-1, Rule 55(f)(2001). The full Commission specifically found unconvincing plaintiff's evidence on reduced future earning capacity.

Rule 55(b)(1) permits a clerk to enter default judgment only when the claim is for a sum certain or an amount that can be computed with certainty; an unsupported assertion of the amount owed does not suffice.

Basnight Construction Co. v. Peters & White Construction Co. · filed 2005-04-05Rule 55(b)(1)

N.C. Gen. Stat. § 1A-1, Rule 55(b) deals with the entry of a default judgment. When the plaintiff’s claim is for a “sum certain or for a sum which can by computation be made certain,” then the default judgment can be entered by a clerk. N.C. Gen. Stat. § 1A-1, Rule 55(b)(1) (2003). Absent a certain dollar amount, the default judgment must be entered by a judge who may conduct a hearing to adequately determine damages. N.C. Gen. Stat. § 1A-1, Rule 55(b)(2) (2003). A review of our case law and the record before us reveals that the default judgment here should have been entered by the judge and not the clerk; the claim is not for a sum certain and the clerk lacked authority to enter judgment.

An entry of default under Rule 55(a) is interlocutory and is not a final judicial action.

Autec, Inc. v. Southlake Holdings, LLC · filed 2005-06-21Rule 55(a)

The entry of default is interlocutory in nature and is not a final judicial action.

Rule 55 permits a request for entry of default and a request for default judgment in the same pleading.

Ruiz v. Mecklenburg Utilities, Inc. · filed 2008-03-04Rule 55

In summary, while obtaining a default judgment is normally a two-step process with entry of default before the clerk preceding the judgment, Rule 55 does not prohibit both motions from being made in the same pleading.

Rule 55(a) does not permit entry of default against a defendant that filed an answer before the plaintiff moved for default.

SIVITA USA, INC. v. Stutts · filed 2008-07-15Rule 55(a)

Likewise, in the case before us, Plaintiff waived its right to entry of default against Defendant North and South by waiting to move for entry of default until after Defendant North and South had filed its answer. Therefore, we hold the trial court lacked authority to enter default against Defendant North and South.

An entry of default deems the complaint’s allegations admitted and bars the defendant from contesting the merits when the complaint states a claim.

Johnson v. Lucas · filed 2008-08-05Rule 55(a)

Because an entry of default was made against Lynwood Lucas and Plaintiffs' complaint sufficiently alleged a cause of action for conversion, Lynwood Lucas is deemed to have admitted the allegations in Plaintiffs' complaint and is prohibited from defending on the merits of the case.

A motion for an extension of time counts as an appearance under Rule 55(b)(1), leaving the clerk without authority to enter a default judgment against that defendant.

EB HARRIS, INC. v. Wiggins · filed 2010-04-20Rule 55(b)(1)

In light of Williams, we hold that Defendant appeared for the purposes of N.C.G.S. § 1A-1, Rule 55(b) by filing his motion for extension of time. Therefore, the Clerk of Superior Court was without authority to enter a default judgment against Defendant and the judgment so entered was void as a matter of law.

Rule 55(b) requires a defendant’s contact to occur before entry of default judgment to count as an appearance.

COASTAL FEDERAL CREDIT UNION v. Falls · filed 2011-11-15Rule 55(b)

According to Rule 55(b), for any contact by defendant to amount to an “appearancef,]” it must occur before entry of default judgment.

Rule 55 allows a clerk to enter default for failure to plead regardless of an appearance, and allows a judge to enter default judgment on that basis.

Lewis v. Hope · filed 2012-12-18Rule 55(a), (b)(2)

As such, his appearance is not relevant because the clerk could enter default on these grounds both because section (a) directly grants that authority and because section (b)(2) grants the judge the authority to enter default judgment.

Rule 55(b)(2) permits a judge to consider the complaint’s allegations and supporting evidence when determining damages after entry of default.

Webb v. McJas, Inc. · filed 2013-06-18Rule 55(b)(2)

In conclusion, we hold the trial court properly exercised its authority to consider the extent of the damages based on the allegations in plaintiff’s complaint and evidence in support thereof.

Setting aside a default judgment under Rule 60(b)(6) reopens the claims and related issues for litigation.

Dewey Wright Well & Pump Co. v. Worlock · filed 2015-10-20(b)(6)

We hold that the trial court’s order setting aside the default judgment against Mr. Taylor opened up plaintiff’s claims against Mr. Taylor, as well as any related issues, to relitigation and that the trial court later disposed of those claims without deciding the merits of any of those claims or issues.

Rule 55(b)(1) allows a clerk to enter default judgment when an affidavit and a complaint verified by affidavit provide specific facts from which the amount owed can be determined with certainty.

Unifund CCR Partners v. Loggins · filed 2020-04-07Rule 55(b)(1)

Unlike the complaint in Hecht Realty, which demanded judgment for a specified amount but failed to include allegations making it possible to compute the amount of damages to which plaintiff was entitled, here, Plaintiff’s affidavit and complaint verified by affidavit included specific allegations enabling the clerk to identify the amount owed with certainty.

Rule 55(b)(1) permits a clerk to enter default judgment when the claim is for a sum certain that can be determined from the supporting allegations and affidavit.

Unifund CCR Partners v. Loggins · filed 2020-04-07Rule 55(b)(1)

As Plaintiff’s claim was for a sum certain, the clerk had the authority to enter the 2007 default judgment, and thus the judgment was not void.

After a default judgment is entered, Rule 55(d) directs courts to apply Rule 60(b) to a motion to set aside the default.

Judd v. Tilghman Med. Assocs. · filed 2020-07-21Rule 55(d)

After default judgment was entered in this case and before Defendant filed his motion to set aside either entry of default or default judgment, the trial court was bound by the plain text of Rule 55(d) and precedents to analyze Defendant’s motion under the standards set forth in Rule 60(b).

Rule 54(c) prohibits a default judgment from granting relief different in kind from the relief demanded.

Tifco, Inc. v. Insurance Designers Underwriters Group, Inc. · filed 1976-09-15Rule 54(c)

It seems clear that the relief granted by the judgment appealed from was different in kind from the relief sought. “A judgment by default shall not be different in kind from . . . that prayed for in the demand for judgment.” G.S. 1A-1, Rule 54(c).

Rule 65(e) governs a hearing on damages under an injunction bond after the Rules of Civil Procedure took effect on January 1, 1970.

Town of Hillsborough v. Smith · filed 1970-12-16Rule 65(e)

Originally this hearing would have been conducted in accordance with G.S. 1-497; but, since the Rules of Civil Procedure became effective 1 January 1970, the hearing will be conducted in accordance with G.S. 1A-1, Rule 65(e).

Damages sought by motion on an injunction bond are limited to the bond’s penalty.

Stevenson v. North Carolina Department of Insurance · filed 1980-02-05Rule 65(e)

If the party damaged by the 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.

Rule 65(c) permits recovery on a restraining order bond when the applicant’s voluntary withdrawal of a request for a preliminary injunction is equivalent to a final determination that the restraint was wrongful.

Leonard E. Warner, Inc. v. Nissan Motor Corp. · filed 1984-01-17Rule 65(c)

We hold that plaintiffs voluntary withdrawal of its request in the circumstances of this case was sufficient to permit the court to allow recovery on the bond.

Rule 65(e) permits damages when an injunction or restraining order is dissolved; a party must seek those damages by claim or motion for the court to consider them.

American Marble Corp. v. Crawford · filed 1987-01-20Rule 65(e)

Rule 65(e) provides that an order or judgment dissolving an injunction or restraining order may include an award of damages against the party procuring the injunction. Despite defendant’s suggestion to the contrary, he does not expressly assert a claim for damages under Rule 65(e) in any of his counterclaims. The record also reveals no motion by defendant for such damages. We thus do not reach the merits of defendant’s contention.

A final adjudication substantially favoring the enjoined party on the merits establishes wrongful injunction for purposes of damages on a Rule 65(c) bond.

Industrial Innovators, Inc. v. Myrick-White, Inc. · filed 1990-06-19Rule 65(c)

Accordingly, a defendant is entitled to damages on an injunction bond only when there has been a final adjudication substantially favorable to the defendant on the merits of the plaintiff’s claim. Such an adjudication is equivalent to a determination that the defendant has been wrongfully enjoined.

Rule 60(b) provides a motion in the court that rendered judgment as the remedy for seeking relief from an irregular dismissal for failure to prosecute.

Brady v. Town of Chapel Hill · filed 1971-01-20(b)

After the judgment of dismissal was entered in his absence, however, plaintiff’s remedy — if any — was by a motion in the cause under G.S. 1A-1, Rule 60 (b), and not by appeal.

Rule 60(b)(1) relief for excusable neglect requires facts that constitute excusable neglect as a matter of law and a meritorious defense.

Doxol Gas of Angier, Inc. v. Barefoot · filed 1971-03-31(b)(1)

The cases cited above were decided under former G.S. 1-220, which has now been replaced by Rule 60(b) (1) of the Rules of Civil Procedure. The language of the Rule follows closely the language of the former statute, and the principles announced in the above cases still apply. In the present case it is our opinion and we so hold that the facts found in the order appealed from do not, as a matter of law, constitute excusable neglect. Furthermore, the defendant failed to show and there was no finding that he has any meritorious defense.

Rule 60(b)(5) and (6) allow a motion in the cause to seek relief from an execution sale under a judgment.

Witten Supply Co. v. Redmond · filed 1971-04-28Rule 60(b)(5), (6)

A motion in the cause was not an improper procedure for seeking relief from an execution sale under the judgment. G.S. 1A-1, Rule 60(b) (5) (6).

Rule 60(b)(1) permits a default judgment to be set aside for mistake or excusable neglect, but the party must also have a meritorious defense.

Kirby v. ASHEVILLE CONTRACTING COMPANY · filed 1971-04-28Rule 60(b)(1)

Even if there is evidence from which a finding of excusable neglect can be made, our case law requires a finding of a meritorious defense before the judgment may be set aside.

Rule 60(b)(2) does not treat a party’s own prior action as newly discovered evidence warranting relief from judgment.

Lattimore v. Powell · filed 1972-08-02(b)(2)

Nor is the existence of the prior action “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59 (b).” G.S. 1A-1, Rule 60 (b) (2).

A Rule 60 motion to set aside a judgment may properly be made in the appellate court after the appeal is calendared for argument.

Rhodes v. Henderson · filed 1972-05-24

The motion, under G.S. 1A-1, Rule 60, is properly made in this Court.

Rule 60(b)(1) requires a served party to give the defense the attention an ordinarily prudent person gives important business; relying on an employer’s assurance that an answer was filed did not establish excusable neglect.

Engines & Equipment, Inc. v. Lipscomb · filed 1972-06-28Rule 60(b)(1)

We hold that as a matter of law the facts found by the trial judge do not constitute excusable neglect under G.S. 1A-1, Rule 60(b) (1).

Rule 60(a) permits technical corrections to a judgment, but not a substantive amendment that adversely affects third parties’ rights.

H & B COMPANY OF STATESVILLE v. Hammond · filed 1973-03-14(a)

The amendment to the judgment allowed here is much more extensive than a mere technical correction such as contemplated by Rule 60(a).

Rule 60(b)(6) allows a judge to vacate a judgment to accomplish justice only when competent evidence shows that justice requires it.

Highfill v. Williamson · filed 1973-10-10Rule 60(b)(6)

While this rule gives the court ample power to vacate a judgment whenever that action is appropriate to accomplish justice, nevertheless, we hold that a judge cannot do so without a showing based on competent evidence that justice requires it.

Rule 60(b)(6) permits a motion to set aside a final judgment for another reason justifying relief if the motion is made within a reasonable time.

Lowe's Charlotte Hardware, Inc. v. Howard · filed 1973-04-25Rule 60(b)(6)

While motions under G.S. 1A-1, Rule 60(b)(1), (2) and (3) must be brought within one year after a judgment is taken or entered, motions under Rule 60(b) (6), to set aside a final judgment for “[a]ny other reason justifying relief from the operation of the judgment” may be brought within “a reasonable time.”

Rule 60(b)(1) relief from a final judgment requires sufficient findings supported by evidence to establish mistake, inadvertence, or excusable neglect.

Mason v. Mason · filed 1974-07-17Rule 60(b)(1)

While the trial court did make certain findings, we are of the opinion that the findings made are not sufficient to support an order setting aside a final judgment on the grounds of “mistake, inadvertence or excusable neglect”. Moreover, there is a complete absence from this record of any evidence to support the findings of fact made by the trial judge.

Rule 60 allows a party or the party’s legal representative to seek relief from a final judgment.

Browne v. Catawba County Department of Social Services · filed 1974-07-17Rule 60(b)

Under G.S. 1A-1, Rule 60, a party or his legal representative may seek relief from a final judgment. Petitioner was not a party, and is not the legal representative of a party, in the former cause.

Rule 60(b)(4) does not provide relief from a judgment merely because a defendant failed to respond to an amended complaint; the defendant must show that the judgment is void.

Value Homes, Inc. v. Harris · filed 1974-11-20(b)(4)

Defendant’s failure to file answer or otherwise defend herself against the proceeding did not divest the court of jurisdiction to proceed to judgment. Defendant has failed to show that the judgment is void or that she is in any way entitled to be relieved therefrom pursuant to Rule 60 (b) (4).

Rule 60(b) applies only to final judgments and does not apply to interlocutory judgments, orders, or proceedings.

Sink v. Easter · filed 1975-08-27Rule 60(b)

Rule 60(b) of the North Carolina Rules of Civil Procedure, which is nearly identical to Federal Rule 60(b), has no application to interlocutory judgments, orders, or proceedings of the trial court. It only applies, by its express terms, to final judgments.

Rule 60 permits relief from a judgment on specified grounds, including when the judgment is void, but an erroneous judgment is not void.

Waters v. Qualified Personnel, Inc. · filed 1977-03-16

Rule 60, entitled Relief from Judgment or Order, lists a number of grounds for granting relief from a judgment. All relate to what could be loosely called matters of fact. They include mistake, fraud, newly discovered evidence, and satisfaction and release. Two others are .arguably applicable here. Rule 60(b) (4) allows relief from a judgment which is void. Judge Long concluded that Judge McConnell’s earlier judgment was void ab initio. That conclusion is wrong. Both parties were always within the jurisdiction of the court. The court, in the person of Judge McConnell, had the power to adjudicate the rights, duties and liabilities of the parties as they arose out of matters within the pleadings. Judge McConnell’s judgment may have been erroneous (and as to this we express no opinion), but it certainly was not void.

Rule 62(b) permits a court to stay execution of a judgment while a Rule 60(b)(6) motion for relief from the judgment is pending.

Bell v. Moore · filed 1976-11-03Rule 62(b)

G.S. 1A-1, Rule 62(b) allows the court in its discretion to stay the execution of a judgment pending the disposition of a motion for relief from a judgment made pursuant to Rule 60(b)(6).

Rule 60(b) permits relief from a final judgment, order, or proceeding for mistake, inadvertence, surprise, or excusable neglect.

Dishman v. Dishman · filed 1978-08-15(b)

G.S. 1A-1, Rule 60(b) allows relief from “a final judgment, order, or proceeding.” We find that the custody order of 26 June was a “final order” under the Rule, though the order could be changed subsequently upon a proper showing of change of circumstances under G.S. 50-13.7.

Rule 60(b) motions are committed to the trial court's discretion and are reviewable on appeal only for abuse of discretion.

Kolendo v. Kolendo · filed 1978-05-16Rule 60(b)

A motion made pursuant to Rule 60(b) of the North Carolina Rules of Civil Procedure, G.S. 1A-1, is addressed to the discretion of the trial court.

Rule 60(b) requires the judge hearing a motion for relief from a final judgment or order to make factual findings and decide whether the movant is entitled to relief.

Hoglen v. James · filed 1978-11-21(b)

It is the duty of the judge presiding at a Rule 60(b) hearing to make findings of fact and to determine from such facts whether the movant is entitled to relief from a final judgment or order.

Rule 60(b) allows a trial court to consider a motion for relief from judgment during a pending appeal for the limited purpose of indicating how it would rule if the appeal were not pending.

Bell v. Martin · filed 1979-10-02Rule 60(b)

We hold in the present case that the trial court should have considered appellant’s Rule 60(b) motion for the limited purpose of indicating how it would have been inclined to rule on the motion and the trial court erred in dismissing the Rule 60(b) motion.

A party seeking to set aside a judgment under Rule 60(b) must show both excusable neglect and a meritorious defense.

Menache v. Atlantic Coast Management Corp. · filed 1979-11-20Rule 60(b)

G.S. 1A-1, Rule 60(b) grants relief to a party from a final judgment by reason of mistake, inadvertence, surprise, or excusable neglect. For a judgment to be set aside, the moving party must show both excusable neglect and a meritorious defense.

Rule 60(b)(6) permits a court to set aside a judgment only when extraordinary circumstances exist and justice demands relief.

Baylor v. Brown · filed 1980-05-20Rule 60(b)(6)

As. recognized in our decision in Equipment Co. v. Albertson, supra, the setting aside of a judgment pursuant to G.S. 1A-1, Rule 60(b)(6), of the Rules of Civil Procedure 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.

Rule 60(b)(6) requires a party seeking to set aside an irregular judgment to show that the judgment injures their rights and that they have a meritorious defense.

City of Salisbury v. KIRK RLTY. CO., INC. · filed 1980-08-19Rule 60(b)(6)

The procedure for setting aside an irregular judgment is now found in G.S. 1A-1, Rule 60 (b)(6). ... We do not find anything in the Rule or any comment thereto which changes the requirements from those set out in Collins — a showing by the moving party that the judgment affects his rights injuriously and that he has a meritorious defense.

Rule 60(b) cannot be used as a substitute for appeal to correct an alleged error of law in a judgment.

Town of Sylva v. Gibson · filed 1981-04-21Rule 60(b)

It is settled law that erroneous judgments may be corrected only by appeal, ... and that a motion under G.S. 1A-1, Rule 60(b) of the Rules of Civil Procedure cannot be used as a substitute for appellate review.

Rule 60(b)(4) requires a motion to set aside a void judgment to be made within a reasonable time; a court lacks authority to grant an untimely motion.

Nickels v. Nickels · filed 1981-05-05(b)(4)

Under these circumstances, we are of the opinion that defendant waited an unreasonable period of time before hiring a new attorney and filing a motion to be relieved from the consent judgment, and thus Judge Keiger had no authority to entertain and allow the motion, and his order granting relief pursuant to G.S. § 1A-1, Rule 60(b)(4) must be vacated.

At a Rule 60(b) hearing, a movant need only show a prima facie meritorious defense; the defense need not be proved.

Thelen v. Thelen · filed 1981-09-15Rule 60(b)

At a hearing for a Rule 60(b) motion it is not required that a meritorious defense be proved, only that a prima facie defense exists.

Rule 60(b)(5) permits a court to modify a judgment requiring future specific performance when continued application is no longer equitable.

Harris v. Harris · filed 1983-03-08Rule 60(b)(5)

G.S. 1A-1, Rule 60(b)(5) states that a court may relieve a party from a final judgment or order when “it is no longer equitable that the judgment should have prospective application.”

Rule 60(b)(4) does not require a court to declare a child support judgment void because the parents temporarily resumed their marital relationship.

Walker v. Walker · filed 1982-11-16Rule 60(b)(4)

The principal issue is whether temporary resumption of the marital relationship requires the court to grant a motion, pursuant to G.S. 1A-1, Rule 60(b)(4), to have declared void a judgment ordering payment of child support. We hold it does not.

Rule 60(b)(1) relief depends on whether the facts establish mistake, inadvertence, surprise, or excusable neglect as a matter of law; Rule 60(b)(6) relief is equitable and rests in the trial judge's discretion.

Kennedy v. Starr · filed 1983-05-17(b)

Rule 60(b)(1) requires that a judgment be set aside when it is shown to the court that the judgment from which relief is prayed was the result of "mistake, inadvertence, surprise, or excusable neglect." N.C.Gen. Stat. § 1A-1, Rule 60(b)(1). Whether the facts justify relief under 60(b)(1) is a matter of law. On the other hand, Rule 60(b)(6) allows a trial court to set a judgment aside for "[a]ny other reason justifying relief from the operation of the judgment." N.C.Gen.Stat. § 1A-1, Rule 60(b)(6). This provision is equitable in nature and authorizes the trial judge to exercise his discretion in granting or withholding the relief sought.

Rule 60(b)(6) cannot be used as a substitute for appellate review.

Hogan v. Cone Mills Corp. · filed 1983-08-02Rule 60(b)(6)

Also, plaintiff is attempting to use Rule 60(b)(6) as a substitute for appellate review, which is improper.

Rule 60(b)(6) permits an aggrieved party to seek relief from an order approving a final estate accounting by motion when the alleged error concerns construction of a will; an independent declaratory judgment action is not required.

Matter of Estate of Heffner · filed 1983-04-19(b)(6)

Since the “reason justifying relief’ [Rule 60(b)(6)] was an alleged erroneous construction of the will and distribution of assets under the will, it became essential for the Clerk of the Superior Court to construe the wills in question upon his hearing the evidence in the motion in the cause to vacate and set aside the final account. By virtue of the explicit provisions of Rule 60 no independent action for declaratory type relief was required, although the preferred procedure in the interpretation and construction of a will is a declaratory judgment proceeding.

Rule 60(b)(6) relief from a judgment of paternity is not categorically barred by the rule against reconsidering paternity in child support proceedings.

Leach v. Alford · filed 1983-07-05Rule 60(b)(6)

We thus hold that the G.S. 110432(b) provision that the “judgment as to paternity shall be res judicata as to that issue and shall not be reconsidered by the court” applies to child support proceedings thereunder, and does not establish an absolute bar to relief, pursuant to G.S. 1A-1, Rule 60(b)(6), from the underlying acknowledgment (judgment) of paternity.

Rule 60(b)(6) permits a court to set aside a dismissal for a reason justifying relief from the judgment.

Hilton v. Howington · filed 1983-09-06Rule 60(b)(6)

It is also clear Judge Bullock had the power to set aside the dismissal as G.S. 1A-1, Rule 60(b) authorizes the court to relieve a party from a final judgment, order or proceeding for any reason justifying relief from the operation of the judgment.

Rule 60(b)(4) requires evidence that a judgment is void; evidence of a possible defense to the original claim does not suffice.

Howell v. Tunstall · filed 1983-11-01Rule 60(b)(4)

Rule 60(b)(4) now requires him to bring forward evidence that demonstrates the judgment is void, not evidence that he may have had a genuine defense to the divorce.

Rule 60(b) permits a person who was not notified or made a party to a proceeding to bring an independent action to vacate the resulting order.

Flinn v. Laughinghouse · filed 1984-05-15(b)

Since plaintiff was not notified or made a party to the adoption nullification proceeding initiated by the defendant, the plaintiff was empowered fully to bring an independent action to vacate the clerk’s order.

Rule 60(b)(2) permits discretionary relief from a final judgment for newly discovered evidence that due diligence could not uncover in time to move for a new trial; the motion must be made within a reasonable time and within one year of judgment.

Conrad Industries, Inc. v. Sonderegger · filed 1984-06-19(b)(2)

Under Rule 60(b)(2) the law gives the trial court discretion to relieve a party from a final judgment upon a showing of newly discovered evidence “which by due diligence could not have been discovered in time to move for a new trial” within ten days after entry of the original judgment. This motion must be made within a reasonable time and within one year after the judgment was entered.

Rule 60(b) gives courts equitable power to modify an injunction when changed circumstances make its continued enforcement inequitable.

Buie v. Johnston · filed 1984-07-03(b)

We elect to follow the federal precedent, and we conclude (1) that the trial court had equitable power under G.S. § 1A-1, Rule 60, to grant defendant’s motion, and (2) that Johnston’s garage proposal complied with our decision on the earlier appeal.

Rule 60(b)(6) does not provide relief for an issue a party failed to raise at the hearing.

Vaglio v. Town & Campus International, Inc. · filed 1984-11-06(b)(6)

Plaintiff failed to raise the issue at the hearing on the motion and cannot now argue that as an extraordinary reason to obtain relief under Rule 60(b)(6).

Rule 60(b)(4) does not provide relief for errors of law when the court had jurisdiction and authority to enter the judgment.

Windham Distributing Co. v. Davis · filed 1984-12-28(b)(4)

Even if errors of law could be found in the judgment, the judgment is not void because the trial court had jurisdiction and the authority to enter it. We hold, therefore, that the trial court did not abuse his discretion in denying the defendant’s Rule 60(b)(4) motion.

Rule 60(b)(2) gives the court discretion to relieve a party from a final judgment based on newly discovered evidence that due diligence could not have uncovered in time to seek a new trial.

Staples v. Woman's Clinic · filed 1985-03-19Rule 60(b)(2)

Under G.S. 1A-1, Rule 60(b)(2), the court has discretion to relieve a party from a final judgment upon a showing of newly discovered evidence “which by due diligence could not have been discovered in time to move for a new trial” within ten days after entry of the original judgment as required by G.S. 1A-1, Rule 59.

Rule 60(b)(6) permits relief when a party misses trial because it never received the mailed trial calendar, if the party shows a meritorious defense.

Oxford Plastics v. Goodson · filed 1985-04-16(b)(6)

We hold that under these circumstances, a reasonable application of the provisions of Rule 60(b)(6) require that defendants be excused from attendance at trial, and, if defendants have shown a meritorious defense, require reversal of the trial court’s judgment.

Rule 60(b)(5) permits a court, on just terms, to relieve a party from a judgment whose prospective application is no longer equitable.

Buie v. Johnston · filed 1985-06-04(b)(5)

On motion and upon such terms as are just, a court may relieve a party from a judgment if, among other reasons, it is no longer equitable that the judgment have prospective application. G.S. 1A-1, Rule 60(b)(5).