N.C. Gen. Stat. § 1A-1

Service of process is presumed proper when Rule 4’s requirements are met, unless the presumption is rebutted.

Warzynski v. Empire Comfort Systems, Inc. · filed 1991-03-19Rule 4(j2)(2)

Proper service is presumed when the provisions .of Rule 4 are met. G.S. 1A-1 Rule 4(j2)(2). At the time the trial court considered Empire’s motion for summary judgment, Safel had offered no evidence to rebut that presumption.

Rule 4(d) requires an endorsement or alias or pluries summons within the specified time to keep an unserved defendant in the action, and Rule 4(e) makes the action discontinued when neither occurs.

Snead v. Foxx · filed 1991-08-14(d), (e)

In concluding that there had been a “discontinuance of the action,” the trial court did not cite pertinent subsections of Rule 4. There is no question, however, that the court was referring to Rule 4(d), which requires endorsement of the original, unserved summons and alias and pluries summonses, and Rule 4(e), which states the consequence of discontinuance for failure to follow Rule 4(d).

Rule 4(j)(1)(a) requires service on a natural person by delivering the summons and complaint to the person or leaving them at the person's dwelling with a suitable resident.

Greenup v. Register · filed 1991-12-03(j)(1)(a)

Thus, we hold that the delivery of the papers to one of defendant’s brothers at defendant’s place of business was not in compliance with Rule 4(j)(l)(a), and jurisdiction over defendant was not obtained.

Rule 4(j)(1)(a) permits service on a natural person by delivering the papers directly or leaving them at the person's dwelling or usual abode with a suitable resident.

Sun Bank/South Florida v. Tracy · filed 1991-12-03(j)(1)(a)

Service of process may be accomplished upon a natural person by delivering a copy of the papers to him or by leaving copies at the defendant’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. G.S. § 1A-1, Rule 4(j)(l)a.

Rule 4(j2)(2)’s sixty-day saving provision applies only when the plaintiff seeks a default judgment.

Taylor v. Brinkman · filed 1993-02-02Rule 4(j2)(2)

Because Taylor was not seeking the imposition of a judgment by default, the sixty-day saving provision of Rule 4(j2)(2) was not applicable.

Rule 4(j)(7) permits service on a general or limited partnership by delivering process to a general partner or leaving it in the partner’s office with the person apparently in charge.

Storey v. Hailey · filed 1994-04-05(j)(7)

Here, Mr. Wellman was the process agent for the decedent’s estate and a member of a law partnership. Pursuant to Rule 4(j)(7), service was made by a member of the Halifax County Sheriff’s Department by delivering a copy of the complaint and summons to Mr. White, Mr. Wellman’s law partner, at the law office. The service was therefore in compliance with Rule 4, since no individual liability was sought against Mr. White. Because both the process itself and the service thereof were sufficient to comply with the North Carolina Rules of Civil Procedure, we find the trial court erred in dismissing the plaintiff’s case for insufficiency of process and insufficiency of service of process.

Rule 4(h) permits the clerk to appoint a private process server when the sheriff neglects to serve process through carelessness.

Williams v. Williams · filed 1994-01-04(h)

Applying the definition of neglect used in the amercement statutes to Rule 4(h), we hold that a Clerk is not required or authorized to appoint a private process server as long as the sheriff is not careless in executing process.

Rule 6(b) allows a court to extend a time period after it expires when the failure to act resulted from excusable neglect.

Hollowell v. Carlisle · filed 1994-06-21Rule 6(b)

Since the defendant in the case sub judice 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 Rule 6(b) to extend the time for service of process under Rule 4(c), “to permit the act to be done where the failure to do the act was the result of excusable neglect.”

Rule 4 requires service on a minor through the minor’s natural parent or guardian.

Vermont Mutual Insurance v. Everette · filed 1995-02-09Rule 4

North Carolina rules of civil procedure provide that a minor must be served through her natural parent or guardian, but the Return of Service shows that Crystal Greenwood was not served through her parents or any other representative. N.C.Gen.Stat. § 1A-1, Rule 4 (1990).

Rule 4(j2)(2) allows a certificate of mailing and return receipt to establish a rebuttable presumption of valid service.

Hocke v. Hanyane · filed 1995-05-02Rule 4(j2)(2)

Therefore, the certificate of service itself indicates sufficient compliance with Rule 4 to “raise a rebuttable presumption of valid service.”

Service that complies with Rule 4(j)(1)c defeats a motion to dismiss for insufficient service of process.

Better Business Forms, Inc. v. Davis · filed 1995-10-17Rule 4(j)(1)c

We have carefully examined the record, and we conclude that defendant Woods was properly served in accordance with the requirements of N.C. Gen. Stat. § 1A-1, Rule ... 4(j)(l)c (1990).

Rule 4’s methods of serving a summons and complaint must be strictly followed to establish personal jurisdiction over a defendant.

Grimsley v. Nelson · filed 1996-02-09Rule 4

Rule 4 of the North Carolina Rules of Civil Procedure provides the methods of service of summons and complaint necessary to obtain personal jurisdiction over a defendant, and the rule is to be strictly enforced to insure that a defendant will receive actual notice of a claim against him. ... In this case, no evidence was introduced suggesting that personal service was made upon defendant Nelson by any means authorized by the North Carolina Rules of Civil Procedure.

A Delayed Service of Complaint form that does not notify the defendant to appear is not a valid substitute for a summons.

Hemmings v. Green · filed 1996-04-02Rule 4(b)

The issue in this case is whether plaintiff’s service of a “Delayed Service of Complaint” form constitutes valid service on defendant, since said form does not notify defendant of an obligation to appear at a certain place to answer the complaint. We hold that the form is not a substitute for a summons and is not a valid method of service.

Rule 4(b) governs the contents of a summons and does not apply to service of an administrative notice of violation.

Midway Grading Co. v. North Carolina Department of Environment, Health & Natural Resources, Division of Land Resources · filed 1996-08-06Rule 4(b)

Because Rule 4(b) of the Rules of Civil Procedure deals with the contents of a summons, we conclude that it was inapplicable to respondent’s service of the NOV.

Rule 4 does not impose a separate good faith requirement when a plaintiff delays delivering a summons to the sheriff.

Robinson v. Parker · filed 1996-10-15Rule 4

It is clear that the “bad faith” referred to in Starnes relates only to the Rule 11(a) good faith standard; it does not create a separate good faith standard under Rule 4.

In a child custody case, service of process is proper when the defendant receives actual notice, even if someone other than the clerk’s office mails the process.

Tataragasi v. Tataragasi · filed 1996-11-05Rule 4(j3)

However, 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.

Rule 4 permits service at a defendant’s dwelling by leaving the summons and complaint with an adult daughter staying there during a weeklong visit.

Glover v. Farmer · filed 1997-10-07Rule 4(j)(1)(a)

Thus, we conclude the requirement of Rule 4(j)(l)(a) that the summons and complaint be served on “some person of suitable age and discretion then residing therein ...” is broad enough to include an adult daughter staying with her parents during her visit that week.

A summons served within thirty days of issuance is valid despite an earlier unsuccessful attempt to serve it.

Shiloh Methodist Church v. Keever Heating & Cooling Co. · filed 1997-11-04Rule 4(c)

In this case, the summons and complaint were served by certified mail within thirty days after the issuance of the summons. ... The fact that there was a prior unsuccessful attempt at service of the summons is simply not material. The service was thus in accordance with Rule 4 and therefore valid.

Section 1A-1, Rule 4 requires a summons unless another statute provides otherwise.

Charns v. Brown · filed 1998-06-02Rule 4

A summons is required in every case unless otherwise provided by statute. N.C. Gen. Stat. § 1A-1, Rules 1, 4 (1990).

Rule 4(e) provides that a summons issued more than ninety days after the previous summons was issued or endorsed does not relate back; the new summons commences a new action.

Reese v. Barbee · filed 1998-06-16Rule 4(e)

A summons issued more than ninety days after the issuance or endorsement of the previous summons does not relate back to the date of the prior summons; issuance of the new summons commences an entirely new action.

Rule 4 permits personal service on a nonresident motorist at his residence.

Riddick v. Myers · filed 1998-12-29Rule 4(j)

In suits involving nonresident drivers of motor vehicles, service upon a nonresident driver may be accomplished by personal service pursuant to Rule 4Q) or by service upon the Commissioner of Motor Vehicles pursuant to N.C. Gen. Stat. § 1-105 (1996). In the instant case, the record reveals that plaintiff Riddick complied with the statutory requirements for service of process. A deputy sheriff in Chesapeake, Virginia, personally served Myers with a civil summons at his residence on 30 June 1997 for the action pending in Gates County, North Carolina.

Rule 4(j2)(2) provides that an affidavit of service and a return receipt signed by someone other than the addressee create a rebuttable presumption that the signer was authorized to accept service for the addressee.

Fender v. Deaton · filed 1998-09-01Rule 4(j2)(2)

The affidavit filed by the plaintiffs in this case pursuant to N.C. Gen. Stat. § 1A-1, Rule 4(j2)(2) together with the signed receipt by Mrs. Deaton, established a presumption that she acted as agent for defendant in receiving and signing for the certified mail.

Rule 4(c) provides that failing to return a summons after service on every named party does not invalidate the summons.

Parker v. Johnny Tart Enterprises, Inc. · filed 1999-10-04(c)

Even if Rule 4(c) imposed a duty on Plaintiff to file a return of service in this case, the express terms of Rule 4(c) state that failure to file said return of service would not invalidate the summons.

Rule 4(j) permits service of a summons and complaint on a natural person by registered or certified mail, return receipt requested, addressed and delivered to the person.

Thompson v. Santiago · filed 2001-04-09(j)

Rule 4(j) permits service of the summons and complaint upon a natural person by registered or certified mail, return receipt requested, addressed and delivered to the party to be served. N.C.G.S. §1A-1, Rule 4(j).

Rule 12(h)(1) waives defenses of insufficient process or service when they are not raised in a motion or responsive pleading.

City of Charlotte v. Noles · filed 2001-04-17(h)(1)

The defenses of insufficiency of process and insufficiency of service of process are waived if they are not raised in a motion or responsive pleading before the trial court.

Rule 4(j)(4)a requires service on a state agency’s appointed process agent to establish personal jurisdiction over the agency.

Croom v. Department of Commerce · filed 2001-05-15Rule 4(j)(4)a

N.C. Gen. Stat. § 1A-1, Rule 4(j) (1999) dictates the manner in which a defendant must be served with process to effect personal jurisdiction. ... Because the Employment Security Commission was never properly served with process, and did not consent to personal jurisdiction, a trial court may exercise personal jurisdiction over the Employment Security Commission only if it voluntarily appeared in the case.

An affidavit of certified-mail service accompanied by a signed delivery receipt raises a rebuttable presumption of proper service.

Granville Medical Center v. Tipton · filed 2003-10-07Rule 4(j2)(2)

In the instant case, the uncontradicted evidence established that: (1) a civil summons addressed to defendant was sent to him via U.S. Postal Service by Certified Mail, Return Receipt Requested; (2) the summons was delivered 23 July 2001, and a signature obtained on the registry receipt; (3) the plaintiff executed an affidavit attesting to these facts, and attaching the registry receipt bearing a signature showing delivery of the summons. We conclude that this evidence complies with the statutory requirements and gives rise to the rebut-table presumption of proper service.

An officer's return showing legal service under Rule 4(j)(1)(a) creates a presumption of valid service that requires more than one contradictory affidavit to rebut.

Saliby v. Conners · filed 2005-07-05Rule 4(j)(1)(a)

A defendant thus bears the burden of rebutting the presumption by evidence that consists of more than a single contradictory affidavit. ... Deputy Williamson's return of the summons indicates legal service under Rule 4(j)(1)(a), which results in a presumption of valid service of process.

Under the Rule 4 deadlines applicable in 1999, service had to occur within thirty days, and failure to obtain an endorsement, extension, or alias or pluries summons within ninety days discontinued the action and rendered a resulting judgment void.

In re A.B.D. · filed 2005-09-06Rule 4(c), (d), (e)

Civil Procedure Rule 4 required, at the time this action was instituted, that service of process be effectuated within thirty days of the issuance of a summons. N.C. Gen.Stat. § 1-1A, Rule 4 (1999). Where service does not occur within the required period and an endorsement, extension, or alias/pluries summons is not acquired within ninety days of the summons' issuance, the action is discontinued, the trial court lacks jurisdiction, and any judgment rendered is void.

Rule 4(e) discontinues an action against an unserved defendant when the plaintiff fails to obtain a timely clerk endorsement or alias or pluries summons.

Atkinson v. Lesmeister · filed 2007-10-16Rule 4(e)

However, plaintiff's action must be discontinued pursuant to Rule 4(e) for two reasons. First, he failed to have an endorsement by the clerk or an alias and pluries summons issued following the expiration of the statute of limitations.

Rule 4(c) requires service of a summons within 60 days of issuance and provides ways to continue an action when service is not completed in that period.

In Re Drb · filed 2008-08-19Rule 4(c)

Rule 4 specifically provides that service "must be made within 60 days after the date of the issuance of summons." N.C. Gen. Stat. § 1A-1, Rule 4(c). ... Service on the GAL is unavailing in the instant case because the summons which the GAL purportedly accepted on 8 March 2006 had long since expired, and for this reason the trial court did not have subject matter jurisdiction when it entered the order terminating parental rights.

Certified-mail service is invalid when the defendant rebuts the presumption of service with evidence that she did not live at the delivery address and did not receive the summons and complaint.

Lawrence v. Sullivan · filed 2008-09-16Rule 4(j)(1)c.

As defendant was never properly served with the first complaint, plaintiff’s voluntary dismissal without prejudice did not toll the statute of limitations.

A defendant may be estopped from asserting insufficient service of process when her conduct lulls the plaintiff into a false sense of security about a defect in service.

Morris v. Dixon · filed 2008-12-02Rule 4(j)(1)

Given the circumstances of this case, especially in light of the inadvertent mistake made by the Sheriff's office, and defendant Jean-Louise Dixon's prior knowledge of the pending lawsuit, notice of the pending lawsuit against the defendant's law firm, and the service of process being delivered to defendant's law partner and husband, we hold defendant is estopped from asserting the defense of insufficiency of service of process.

Rule 4(j2)(2) creates a rebuttable presumption that a person who signs for mailed process on an addressee’s behalf is authorized to accept service or is a suitable person living at the addressee’s dwelling.

In re T.D.W. · filed 2010-04-20Rule 4(j2)(2)

However, since Respondent-Mother has not cited any authority in support of her implicit claim that service of the notice and motion was improper; since N.C. Gen. Stat. § 1A-1, Rule 4(j2)(2) provides that an “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 or discretion residing in the addressee’s dwelling house or usual place of abode;” and since the record does not reflect that any attempt was made to rebut the presumption established by N.C. Gen. Stat. § 1A-1, Rule 4Q2)(2), we are not persuaded by Respondent-Mother’s suggestion that the motion and notice required by N.C. Gen. Stat. § 7B-1106.1(a) were not properly served as required by N.C. Gen. Stat. § 7B-1102(b).

Rule 4 permits service on a sheriff or deputy by certified mail; the coroner-service provision does not make personal service the only method.

Webb v. Price · filed 2011-03-01Rule 4

Defendant was not personally served with the summons and complaint; he was served by certified mail pursuant to N.C. Gen. Stat. § 1A-1, Rule 4. N.C. Gen. Stat. § 162-16 does not provide the only way of serving a sheriff or deputy.

Under Rule 4, an affidavit of service naming a defendant only individually does not override a summons naming her both individually and as executrix.

Boyd v. SANDLING · filed 2011-03-15Rule 4

Defendant argues that the affidavit of service proves that the summons was only issued to Alta D. Sandling in her individual capacity, but we can find no authority for the proposition that the affidavit of service trumps the summons in this respect.

Rule 4 generally requires service by the county sheriff and permits appointment of another server only under the conditions in Rule 4(h).

B. Kelley Enterprises, Inc. v. Vitacost.com, Inc. · filed 2011-05-03Rule 4(a), (h)

Service must generally be carried out by the sheriff of the county where service is to occur. ... Thus, in the Florida action, service of process should have been carried out by the Sheriff of Forsyth County — the sheriff in the county where Plaintiff was to be served. Because service of process was not properly executed, the Palm Beach County Circuit Court was not a court of “competent jurisdiction.”

Rule 4(j2)(2)’s presumption of proper service applies to service made under the applicable provisions of Rule 4.

Dougherty Equipment Co. v. M.C. Precast Concrete, Inc. · filed 2011-06-07Rule 4(j2)(2)

Considered as a whole, Rule 4 includes comprehensive provisions for service of process, and the provisions of Rule 4(J2)(2) clearly apply to service made under any of the applicable provisions of Rule 4.

Rule 4 permits service by certified mail, and unclaimed certified mail sent to the defendants’ correct dwellings did not warrant dismissal when they had notice of the action.

Johnson v. Bac Home Loans Servicing, LP · filed 2011-09-29Rule 4(j)(1)(c)

North Carolina’s requirements for service of process are virtually identical for all practical purposes with the above requirements but also provide that a plaintiff may serve an individual by registered or certified mail, or by depositing the summons and complaint with a designated delivery service, return receipt requested and delivering to the addressee. N.C. Gen.Stat. § 1A-1, Rule 4(j)(l)(c). ... Here, Defendants Hooker and Mundulak do not deny that they had notice of this action nor do they contest that Plaintiffs had the correct dwelling addresses for the them. It is clear that Plaintiffs attempted to serve Defendants Hooker and Mundulak by certified mail in a timely manner but were ultimately unsuccessful due to their failure to claim the certified mail. The court concludes that dismissal for lack of personal jurisdiction due to insufficiency of service of process is not warranted under these circumstances.

Rule 4(a) permits service outside North Carolina by a person qualified to serve process under the law of the place where service is made.

NEW HANOVER COUNTY v. Greenfield · filed 2012-03-20Rule 4(a)

Rule 4(a) states that a person is qualified to make service if they are qualified in the state in which service is made.

Rule 4(a) permits out-of-state service by a person qualified to serve process under the law of the state where service is made.

New Hanover County Child Support Enforcement ex rel. Beatty v. Greenfield · filed 2012-07-01Rule 4(a)

Rule 4(a) states that a person is qualified to make service if they are qualified in the state in which service is made.

Rule 4(j)(1)(d) requires the plaintiff to prove that a person who accepts delivery for the defendant was authorized to accept service on the defendant’s behalf.

Hamilton v. Johnson · filed 2013-08-06Rule 4(j)(1)(d)

Absent any statutory presumption, plaintiff bore the burden of proving that “KKPONI” was defendant’s agent, authorized by law to accept service of process on his behalf. ... Thus, we cannot conclude that service on “KKPONI,” an alleged concierge, satisfies Rule 4(j)(1)(d)’s requirement of “delivering to the addressee.”

Rule 4(j)(1)(d) does not require a designated delivery service to hand the summons and complaint personally to the addressee.

Washington v. Cline · filed 2013-11-05Rule 4(j)(1)(d)

Second, viewed under the doctrine of expressio unius est exclusio alterius, which means the expression of one thing is the exclusion of another, the fact that the legislature failed to include a personal delivery requirement in Rule 4(j)(l)(d) when it did so in other subsections throughout the statute indicates its intention to exclude it.

Rule 4(h1) permits service only after an authorized officer attempts service under Rule 4(j) and returns the process unexecuted.

Garrett v. Burris · filed 2015-07-07Rule 4(h1)

Upon review of Rule 4, we agree that subsection (h1) provides a method for service only after "a proper officer returns a summons or other process unexecuted[.]" N.C. Gen.Stat. § 1A-1, Rule 4(h1). Thus, before service pursuant to Rule 4(h1) is proper, there must be an attempt at service pursuant to Rule 4(j) by "the sheriff of the county where service is to be made or some other person duly authorized by law to serve summons." N.C. Gen.Stat. § 1A-1, Rule 4(a).

Rule 4(h1) does not allow a party to an action to serve process herself.

Saimplice v. Ocwen Loan Servicing Inc. · filed 2019-01-23Rule 4(h1)

The North Carolina Rules of Civil Procedure do not authorize a party to an action to effect service of process herself. See N.C. Gen. Stat. § 1A-1, Rule 4(h1).

Rule 4 requires mailed process for a business association to be addressed to an officer, director, managing agent, governing body member, or authorized agent.

Argueta v. FSC II, LLC d/b/a Fred Smith Company · filed 2019-11-26Rule 4(j)(8)(c)

Process must be mailed to an officer, director, managing agent, member of the governing body, or an agent authorized by appointment or by law to be served or to accept service of process.

Rules 4(a) and 4(h) require process to be delivered to a person authorized to serve it; an attorney’s attempted service is insufficient without evidence that the sheriff neglected service or the clerk appointed the attorney.

Durity v. Precision Walls, Inc. · filed 2020-03-26Rule 4(a), Rule 4(h)

Plaintiff offers no evidence that his then attorney, Queen, ever contacted the Wake County sheriff to effect service in accordance with Rules 4(a) and 4(h) of the North Carolina Rules of Civil Procedure. There is no evidence that the sheriff neglected to serve process, or that the clerk of Wake County Superior Court ever appointed Queen to serve process.

Rule 4(j)(4)(c) permits service on the Attorney General only if the state agency has failed to appoint a process agent.

Felix v. Dare County Sheriff's Department · filed 2020-04-08Rule 4(j)(4)(c)

However, State Rule 4 only applies if any agency of the State fails to appoint a process agent.

Rule 4(c) requires a summons to be served within 60 days after issuance.

CMBS LLC v. DAVIE COUNTY · filed 2021-03-31Rule 4(c)

Under North Carolina law, a summons must be served on a defendant “within 60 days after the date of the issuance of summons.” N.C. Gen. Stat. § 1A-1, Rule 4(c). ... It appears to the court that Plaintiffs have failed to comply with the provision of Fed. R. Civ. P. 4(m), and it does not appear Plaintiffs have complied in a timely fashion with service of the summons under North Carolina law.

North Carolina Rule of Civil Procedure 4(j) may be used to serve the identified defendants in this federal action.

Arroyo v. Lyles · filed 2021-04-14(j)(5)

Pursuant to the above stated rules, North Carolina Rule of Civil Procedure 4(j) may permissibly be followed to effectuate service of process upon Defendants Ms. Eiselt, Ms. Lyles, and Mr. Mayo in this case.

Rule 4 requires a summons to be served with the complaint.

Brinson v. Brosnan · filed 2022-02-02Rule 4(a)-(c)

Federal and North Carolina law both require the service of summonses with complaints. See Fed. R. Civ. P. 4(c)(1); N.C. Gen. Stat. § 1A-1, Rule 4(a)-(c).

Rule 4(a)-(c) requires service of a summons with the complaint.

Brinson v. Walmart Inc. · filed 2022-02-02Rule 4(a)-(c)

Federal and North Carolina law both require the service of summonses with complaints. See Fed. R. Civ. P. 4(c)(1); N.C. Gen. Stat. § 1A-1, Rule 4(a)-(c).

Rule 4(a)-(c) requires service of a summons with the complaint.

Brinson v. Brosnan Risk Consultants, Ltd. · filed 2022-02-02Rule 4(a)-(c)

Federal and North Carolina law both require the service of summonses with complaints. See Fed. R. Civ. P. 4(c)(1); N.C. Gen. Stat. § 1A-1, Rule 4(a)-(c).

Rule 4 requires a summons to be served with the complaint.

Brinson v. Walton · filed 2022-02-02Rule 4(a)-(c)

Federal and North Carolina law both require the service of summonses with complaints. See Fed. R. Civ. P. 4(c)(1); N.C. Gen. Stat. § 1A-1, Rule 4(a)-(c).

North Carolina Rule 4 requires service of a summons with the complaint.

Grey v. Lamar · filed 2022-08-25Rule 4(a), (c)

Federal and North Carolina law both require the service of summonses with complaints. See Fed. R. Civ. P. 4(c)(1); N.C. Gen. Stat. § 1A-1, Rule 4(a}{c).

Rule 4(d) limits the time to serve process or seek an extension; service attempted after that time does not cure defective service.

Blaylock v. AKG N. Am. · filed 2022-08-16Rule 4(d)

Plaintiff’s second attempt to serve the original complaint to Defendant’s counsel was well beyond the time allotted to serve process or seek an extension under Rule 4(d).

Rule 4(j2)(2)'s sixty-day saving provision does not apply when the plaintiff is not seeking a default judgment.

Yves v. Tolentino · filed 2023-02-21Rule 4(j2)(2)

Here, Plaintiff was not seeking judgment by default, as Defendant had timely moved to dismiss the complaint for improper service. Rule 4(j2)(2) is not applicable, and the expiration of the statute of limitation bars Plaintiff from bringing the claim again.

Rule 4(h)(1) requires service of process to be made by a nonparty; a plaintiff cannot serve defendants herself.

Shreve v. Stephenson · filed 2023-03-02Rule 4(h)(1)

Plaintiff is not a “non-party under the North Carolina Rules of Civil Procedure” or the Federal Rules of Civil Procedure “to effect service of process.” ... Accordingly, she cannot effect proper service on any defendant.

Rule 4(j2)(2) requires an affidavit showing proof of service by certified mail; without it, service is insufficient.

Mixon v. Apenbrinck · filed 2023-06-28Rule 4(j2)(2)

However, as above, Plaintiff has failed to satisfy North Carolina’s proof of service requirements because Plaintiff did not file any affidavit showing proof of service in accordance with North Carolina’s Rules of Civil Procedure.

Rule 4(j)(3) requires a return receipt for service on the State by certified mail.

Das v. State of NC · filed 2023-07-18Rule 4(j)(3)

Because the North Carolina Rules of Civil Procedure expressly require a return receipt, Plaintiff has not properly served Defendant in accordance with North Carolina law.

Rule 4 supports a finding of proper service when delivery is documented by a signed receipt.

Benson Mills Inc v. Fortenberry · filed 2024-07-01Rule 4

Service was proper under Federal Rule of Civil Procedure 4(e)(1) and N.C. Gen. Stat. §1A-1, Rule 4.

Rule 4(e) discontinues an action against a defendant when the summons is not timely served and no extension or alias or pluries summons is obtained; late service does not confer personal jurisdiction.

Cole v. Cole · filed 1978-08-29Rule 4(e)

G.S. 1A-1, Rule 4(e) provides that “[w]hen there is neither endorsement by the clerk nor issuance of alias or pluries summons . . ., the action is discontinued as to any defendant not theretofore served with summons within the time allowed.” Where the summons is not served within the statutory period, it loses its vitality and does not confer jurisdiction over the person of the defendant.

Rule 4(d) requires a complaint to accompany a summons, and the complaint can help identify the defendant named in the summons.

Wearring v. BELK BROTHERS INC. · filed 1978-10-17Rule 4(d)

In addition, the complaint, which must accompany a summons pursuant to G.S. 1A-1, Rule 4(d), showed that the corporation rather than an individual was being sued. Therefore, there was no insufficiency in the service of process and the court had jurisdiction over the defendant.

In a Rule 22 interpleader, each claimant bears the burden of proving entitlement to the fund by the greater weight of the evidence, and summary judgment is available when no genuine issue of material fact arises.

Travelers Insurance Company v. Keith · filed 1973-06-01Rule 22

Thus each defendant is the adversary of the other and occupies the position of a plaintiff. Each has the burden of establishing his right to the fund by the greater weight of the evidence. If, upon the stipulations and evidence no genuine issue of material fact arises, summary judgment may be granted in favor of one claimant against the other as in any other case.

Rule 13(a)(1) measures its pending-action exception from the commencement of the action requiring the counterclaim, which may be a cross claim or third party action.

Faggart Ex Rel. Faggart v. Biggers · filed 1973-06-13(a)(1)

We are of the opinion that the term “at the time the action was commenced” as used in Rule 13(a) (1) refers to the action against which the pleader is required to counterclaim, and not necessarily the primary action originally commencing the lawsuit. Thus, where, as here, the defendant institutes a cross claim and a third party action, the court should look to the times of filing such cross claim 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.

Rule 18(a) requires a party to plead as a counterclaim any claim arising from the same transaction or occurrence as the opposing party’s claim.

Powell Manufacturing Co. v. Harrington Manufacturing Co. · filed 1976-07-0718(a)

A compulsory counterclaim is not limited to facts alleged in the original complaint, but includes logically related acts and conduct involving the parties.

Rule 13(a) does not require a claim that was unknown when the pleading was served to be asserted as a compulsory counterclaim.

Driggers v. Commercial Credit Corp. · filed 1976-12-01(a)

Since there is no showing that Driggers knew or by the exercise of reasonable diligence should have known of his alleged claim for fraud at the time he served answer in the prior action, his claim falls within the exception to Rule 13(a) and constitutes a permissive, not compulsory, counterclaim.

Rule 13(a) requires a qualifying claim arising from the opposing party's transaction or occurrence to be pleaded as a compulsory counterclaim, and a later independent action must be dismissed with leave to refile as a counterclaim or stayed until the prior action ends.

Gardner v. Gardner · filed 1978-01-24(a)

We determine, then, to apply Rule 13(a) to marital disputes as follows: Any claim which is filed as an independent, separate action by one spouse during the pendency of a prior claim filed by the other spouse and which may be denominated a compulsory counterclaim under Rule 13(a), may not be prosecuted during the pendency of the prior action but 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.

Rule 13(a) does not require a party to assert as a compulsory counterclaim a claim that had not accrued when the party was called upon to plead in the prior action.

Edwards v. Edwards · filed 1979-07-17Rule 13(a)

Under these circumstances we hold that plaintiff’s present action for an absolute divorce was not such a claim as he was compelled by G.S. 1A-1, Rule 13(a) to file in the prior pending action.

Rule 13(a) requires a logical relationship between both the factual backgrounds and the nature of the actions before a claim must be brought as a compulsory counterclaim.

Twin City Apartments, Inc. v. Landrum · filed 1980-03-04Rule 13(a)

In order to find that an action must be filed as a compulsory counterclaim pursuant to G.S. 1A-1, Rule 13(a), 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.

Rule 12(b)(6) standards for whether a complaint states a claim apply equally to a counterclaim.

Brewer v. Hatcher · filed 1981-06-16Rule 12(b)(6)

The following rules, therefore, regarding the sufficiency of a complaint to withstand a motion to dismiss made pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6), for failure to state a claim upon which relief can be granted, are equally applicable to a claim for relief stated by a defendant in a counterclaim.

Rule 13(a) does not require a negligence claim to be brought as a counterclaim in a prior summary ejectment action when the claims are highly divergent in nature and remedies.

Curlings v. MacEmore · filed 1982-05-04Rule 13(a)

We hold that plaintiffs’ negligence action and defendants’ summary ejectment action were highly divergent in nature and in remedies sought. Defendants’ affirmative defense should have been stricken from the Answer. Consequently, it was error for the trial court to dismiss plaintiffs’ claim on the ground that it should have been asserted as a compulsory counterclaim in defendants’ prior action.

A party need not plead as a compulsory counterclaim a claim it did not know about and could not reasonably discover when it served its pleading.

Stines v. Satterwhite · filed 1982-08-17Rule 13(a)

The Stines cannot be expected to plead that which they did not know, nor that which they were not able to reasonably ascertain with diligent inquiry. Hence, we find no error in the ruling by Judge Godwin denying Satterwhite's motion to dismiss the Stines' complaint.

Rule 13(a) requires claims arising from the same transaction or occurrence as a prior action to be pleaded as counterclaims in that action; a later independent action may be dismissed with leave to plead them there.

Atkins v. Nash · filed 1983-04-05Rule 13(a)

Because plaintiffs’ claims here clearly arose out of the same transaction or occurrence which formed the basis of defendant’s prior action, Rule 13(a) required that they be alleged as counterclaims in that action. The trial court, pursuant to Gardner, supra, should have treated defendant’s motion to dismiss on grounds of a prior pending action as a motion under Rule 13(a), and should have allowed the motion with leave to file the claims asserted here as counterclaims in that action.

Rule 13(a) does not bar a later claim when uncertainty about the claim’s maturity and the equitable remedy warrant balancing against strict application of the compulsory-counterclaim rule.

Moretz v. Northwestern Bank · filed 1984-03-20Rule 13(a)

At the time plaintiff filed his answer in the prior action, there was a degree of uncertainty as to the maturity of his G.S. § 75-1.1 claim against defendant sufficient to require a careful balancing of the procedural requirements of Rule 13(a) of the Rules of Civil Procedure and the equitable remedies of G.S. § 75-1.1. It would offend our sense of justice to allow defendant to avoid answering in this action for its flagrant conduct through a narrow or strict application of the provisions of Rule 13(a) of the Rules of Civil Procedure, thereby defeating the balancing process we deem necessary in this case.

Rule 13(a)’s counterclaim requirement does not deprive a plaintiff of the right to bring its claim in a county where venue is proper.

Mid-South Construction Co. v. Wilson · filed 1984-11-20Rule 13(a)

We ... do not believe that the requirement that the defendant assert his claim as a counterclaim in the action brought by the plaintiff deprives the plaintiff of its right to assert its claim in Harnett County.

Rule 13(a) does not require a breach of lease claim to be filed as a compulsory counterclaim to a libel claim when the claims share only a landlord-tenant relationship and have no logical nexus.

Winston-Salem Joint Venture v. Cathy's Boutique, Inc. · filed 1985-02-05Rule 13(a)

Here, we find no logical nexus between the action for libel and the action for breach of lease which would require that the action for breach of lease be filed as a compulsory counterclaim pursuant to G.S. 1A-1, Rule 13(a).

Rule 13(a) does not require an abuse of process claim to be brought as a compulsory counterclaim in an earlier partnership action when the claims require different proof.

Hewes v. Wolfe · filed 1985-05-21Rule 13(a)

The two claims, while possessing similar factual bases, require different proof, and the Hewes by failing to plead the counterclaim will not be barred by res judicata from asserting their claim against the Wolfes and defendant Johnston. The claim for abuse of process was not a compulsory counterclaim which had to be asserted in the Wolfe v. Hewes action.

Rule 13(a) requires an existing claim arising from the same occurrences as the opposing party’s claim to be pleaded as a compulsory counterclaim when no exception applies.

Carolina Squire, Inc. v. Champion Map Corp. · filed 1985-06-04Rule 13(a)

The claim asserted in the present suit was clearly extant during the pleading phase of the pending action for declaratory judgment. None of the exceptions to the compulsory counterclaim provisions of Rule 13(a) are applicable. Furthermore, plaintiff has made no showing that its rights will be jeopardized if all issues are adjudicated in a single action. We therefore hold that the trial court did not err in dismissing plaintiffs claim.

Rule 13(a) does not make a conversion claim a compulsory counterclaim to a contract action merely because the actions share a common factual background.

Hailey v. Allgood Construction Co. · filed 1989-09-19Rule 13(a)

Although there may be a common factual background between the two actions, this is not enough to require that plaintiff’s conversion action be designated a compulsory counterclaim in defendant Allgood’s Guilford County action.

Rule 13(a)(1) makes a counterclaim compulsory when it exists when the pleading is served, arises from the same transaction or occurrence, and does not require unavailable third parties.

United States Fire Insurance v. Southeast Airmotive Corp. · filed 1991-04-02Rule 13(a)(1)

A counterclaim is compulsory when it is in existence at the time of the serving of the pleading, when it arises out of the same transaction or occurrence, and when it does not require the presence of third parties over whom the Court cannot acquire jurisdiction. ... Therefore, a claim for reimbursement is not a claim which existed at the time of the serving of the complaint in the previous action. As such it is not in the nature of a compulsory counterclaim.

Rule 13(a) requires a party to assert as a counterclaim any claim arising from the same transaction or occurrence as the opposing party’s claim, or risk being barred from bringing it later.

Furr v. Noland · filed 1991-06-18(a)

Rule 13 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.

Rule 13(a) makes a counterclaim compulsory when it arises from the transaction or occurrence underlying the opposing party’s claim.

North Carolina Farm Bureau Mutual Insurance v. Wingler · filed 1993-06-01Rule 13(a)

A counterclaim is considered compulsory if it “arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim . . . .” N.C.G.S. § 1A-1, Rule 13(a) (1990). We have reviewed the record and find the Winglers’ counterclaims to be compulsory because they arise out of the fire and Farm Bureau’s subsequent conduct.

Rule 13(a) makes a tenant’s damages claim a compulsory counterclaim to a pending summary ejectment action when both turn on whether the tenant breached the lease, even if the parties seek different remedies.

Cloer v. Smith · filed 1999-03-16Rule 13(a)

The issues of law and fact are therefore largely the same in both actions, both require substantially the same evidence for their determination, and the actions are logically related. Although Cloer seeks damages as a remedy and Smith seeks injunctive relief, both actions rise and fall with the determination of whether Cloer breached the lease. Cloer’s action is therefore a compulsory counterclaim in the summary ejectment action filed by Smith.

Rule 13(a) requires a counterclaim arising from the same transaction as the opposing claim to be asserted in that action or ordinarily be barred later.

Walker v. Branch Banking and Trust Co. · filed 1999-06-15Rule 13(a)

Here, defendants’ claim was based on the execution of the guaranty agreement, a transaction which also served as the basis for plaintiff’s claim. If defendants had not filed their claim immediately in response to plaintiff’s claim, they would have been barred from bringing it in the future.

Rule 13(a) requires a claim arising from the same transaction or occurrence to be pleaded as a compulsory counterclaim when its exceptions do not apply.

Hudson v. Hudson · filed 1999-09-21(a)

Moreover, since plaintiff’s claim existed at the time defendant filed her action, since it does not require for its adjudication “the presence of third parties of whom the court cannot acquire jurisdiction,” N.C.G.S. § 1A-1, Rule 13(a), and since the exceptions to Rule 13(a) do not apply, we hold that plaintiff’s claim is properly denominated a compulsory counterclaim.

Rule 13 treats a counterclaim as an independent proceeding that is not automatically resolved by a ruling on the principal claim.

Augur v. Augur · filed 2002-04-16

“[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, 707, 318 S.E.2d 348, 352 (1984) (citing N.C. Gen. Stat. § 1A-1, Rule 13 (1967)).

Rule 13(a) requires a party to plead an existing claim against an opposing party as a compulsory counterclaim when it arises from the same transaction or occurrence, unless adjudication requires a third party beyond the court's jurisdiction.

COUNTRY CLUB v. US Fidelity & Guar. Co. · filed 2002-05-21(a)

Under N C. Gen.Stat. § 1A-1, Rule 13(a) (1999), 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.

Rule 13(a) requires a party to assert a counterclaim arising from the same transaction or occurrence in the pending proceeding.

Sprinkle v. N.C. Wildlife Resources Commission · filed 2004-08-17Rule 13(a)

Thus, if the State wished to assert its counterclaim, it was compulsory that it do so in the present proceedings as its claim arises out of the same transaction or occurrence.

Rule 13(a) does not make claims compulsory merely because they share a common origin; the nature of the actions and remedies sought also matters.

Murillo v. Daly · filed 2005-03-15Rule 13(a)

However, a “common origin” alone is insufficient to characterize the Murillos’ claims as compulsory counterclaims. ... The nature of the remedies are too divergent to classify the Murillos’ claims as compulsory counterclaims.

Rule 13(a) bars a later action on a compulsory counterclaim that a party failed to assert in an earlier action.

Jonesboro United Methodist Church v. Mullins-Sherman Architects, L.L.P. · filed 2005-07-01Rule 13(a)

Accordingly, JUMC’s claims against Batten were compulsory counterclaims in the Forsyth County action, and JUMC’s failure to assert those claims during that action bars their subsequent assertion in any later litigation.

Rule 13(a) requires claims arising from the same transaction to be brought as compulsory counterclaims even when they are framed as tort claims rather than contract claims.

Hendrix v. ADVANCED METAL CORP. · filed 2009-02-17Rule 13(a)

Plaintiffs cannot avoid the provisions of Rule 13(a) by casting their claims to sound in tort rather than contract.

Rule 13(a) does not make a counterclaim compulsory merely because it shares some factual issues with the opposing claim.

Townsend v. Shook · filed 2011-03-15Rule 13(a)

Although these two actions have certain common factual issues, this is not sufficient to require that plaintiffs wrongful termination action be designated a compulsory counterclaim in Shook’s defamation action.

Rule 13(a) does not require a counterclaim that was not mature when the responsive pleading was filed.

Holloway v. Holloway · filed 2012-06-05Rule 13(a)

Given that plaintiffs claim was not yet mature at the time of defendant’s prior summary ejectment proceedings, the lower court did not err in denying defendant’s motion to dismiss based on Rule 13(a) of the North Carolina Rules of Civil Procedure and principles of res judicata.

Rule 13(a) cannot require a lender to bring a North Carolina power of sale foreclosure as a compulsory counterclaim in federal court.

In re the Foreclosure of a Deed of Trust from Draffen · filed 2012-08-07Rule 13(a)

Consequently, N.C. Gen. Stat. § 1A-1, Rule 13(a) could not compel petitioner to pursue its foreclosure in the federal action.

Rule 13(a) makes a counterclaim compulsory only if it arises from the same transaction or occurrence and exists when the party serves its responsive pleading.

Ferguson v. Hawkins · filed 2015-05-19Rule 13(a)

Thus, a counterclaim is compulsory under Rule 13(a) only if it arises out of the same transaction or occurrence and existed at the time the party filed their responsive pleading.

Rule 13(a) makes a claim a compulsory counterclaim only if it belongs to a pleader in the action.

Chesson v. Rives Rives v. Chesson · filed 2017-12-13Rule 13(a)

The language of Rule 13(a) specifies that to be a compulsory counterclaim, a claim must belong to a pleader in the action.

Rule 70 provides procedures to enforce a judgment requiring a specific act when a party fails to perform it on time.

Elliott v. Burton · filed 1973-08-29Rule 70

Where a judgment directs a party to perform a specific act and the party fails to comply within the time specified, various methods by which enforcement of the judgment may be effected are set forth in G.S. 1A-1, Rule 70. ... We hold that it was error for the trial court to enter the judgment awarding plaintiff monetary damages under the procedures disclosed by the present record. Resort should be had to other procedures, which may include one or more of those provided for in Rule 70, to obtain in this action defendants’ compliance with the obligation imposed upon them by the consent judgment of 6 January 1973.

Rule 70 requires a hearing and a finding of willful disobedience before a defendant may be held in contempt.

Elmwood v. Elmwood · filed 1977-12-21

The trial court complied with the procedural requirements of finding the defendant in contempt, and the contempt order remains valid.

Rule 70 permits a judge to execute a wage assignment after a party fails to comply with a judgment within the specified time, but it does not authorize an assignment for future alimony payments before such a failure.

Sturgill v. Sturgill · filed 1980-12-02

Since the intent and effect would be the same whether the judge executed the assignment or some third person (e.g., defendant’s lawyer) executed it, we hold that the judge acted properly in authorizing the Rule 70 assignment ex mero motu. ... We believe that the defendant is correct in interpreting Rule 70 to require that he first fail to comply with a judgment within the time specified before authorizing the judge to proceed thereunder. ... The judge acted outside the authority of Rule 70, however, when he assigned 15% of defendant’s net earnings in satisfaction of future alimony payments.

Rule 70 permits a court to charge a party who fails to comply with a judgment the costs of seizing property to enforce it, even if no sale occurs.

Coastal Production Credit Ass'n v. Goodson Farms, Inc. · filed 1984-11-20

The fact a sale was not conducted does not, as defendants would suggest, strip the trial court of its authority to order costs. The procedures as set forth by Rule 70 were substantially complied with and gave the trial court the authority to order defendants to pay the costs of seizing the property.

Rule 70 permits a court order to transfer title to real property, but an order calling for a future conveyance does not itself convey title.

Martin v. Roberts · filed 2006-05-02Rule 70

We hold the Consent Order entered on 28 January 1997 constituted a statement concerning a planned future conveyance, and did not constitute a conveyance of defendant’s interest in the subject property to his former wife.

Rule 59 does not permit a party to reargue matters already argued or present arguments that could have been made in the trial court.

Sellers v. Ochs · filed 2006-11-21Rule 59

A Rule 59 motion “cannot be used as a means to reargue matters already argued or to put forth arguments which were not made but could have been made” at the trial court level.

Rule 59(d) requires an order granting a new trial on the court’s own initiative to specify the trial errors on which it is based.

In Re the Will of Herring · filed 1973-09-12Rule 59(d)

Since the trial court erred in setting aside the verdict and ordering a new trial for errors of law committed at trial without specifying the errors upon which his action was based, we would usually reverse the order and remand the case for entry of judgment on the verdict rendered.

Rule 59(a)(6) permits a judge to grant a new trial when inadequate damages appear to have been awarded under the influence of passion or prejudice.

Setzer v. Dunlap · filed 1974-10-16Rule 59(a)(6)

Under G.S. 1A-1, Rule 59(a) (6), a judge may grant a new trial to any party on the grounds that inadequate damages were awarded which appear to have been given under the influence of passion or prejudice.

Rule 59(a)(1) permits a new trial for any irregularity that prevents a party from receiving a fair trial and gives the trial judge broad latitude without requiring stated grounds.

Philco Finance Corp. v. Mitchell · filed 1975-06-18(a)(1)

G.S. 1A-1, Rule 59 (a) (1) provides that a new trial may be granted for “[a]ny irregularity by which any party was prevented from having a fair trial.” 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.

Rule 59 permits a new trial when a jury manifestly disregards the court’s instructions, but does not authorize the court to reduce the jury’s damages verdict without the interested party’s consent.

Industrial Circuits Co. v. Terminal Communications, Inc. · filed 1975-07-16Rule 59(a)(5), (d)

We find nothing in the new Rules of Civil Procedure which would grant to the court the authority to modify the verdict by changing the amount of the recovery.

Rule 59 gives the trial court discretion over a motion to set aside a verdict, and an appellate court will not review the decision absent an abuse of discretion.

Board of Transportation v. Harvey · filed 1976-01-07

This assignment of error is without merit since a motion under Rule 59 is addressed to the sound discretion of the trial court, and will not be reviewed on appeal in the absence of abuse of discretion.

Rule 59(a)(4) and (9) allow a new trial for newly discovered evidence and other recognized grounds.

State v. Beaver · filed 1976-11-04(a)(4), (a)(9)

The courts may grant new trials in criminal cases when the defendant is found guilty, under the same rules as are applicable in civil cases. G.S. 15-174. A new trial may be granted for newly discovered evidence when it is shown that the moving party could not, with reasonable diligence, have discovered and produced the evidence at the trial, or for all other reasons which were heretofore recognized as grounds for a new trial prior to the passage of the statute. G.S. 1A-1, Rule 59(a) (4),(9).

Rule 59 gives the trial judge discretion to grant a new trial, and the ruling is not reviewable on appeal absent an abuse of discretion.

Hoover v. KLEER-PAK OF NORTH CAROLINA, INC. · filed 1977-07-20

It is well established that a motion for a new trial under G.S. 1A-1, Rule 59, is addressed to the sound discretion of the trial judge, whose ruling is not reviewable on appeal absent an abuse of discretion.

Rule 59(a)(1) permits a new-trial motion alleging an irregularity that could have prevented a fair trial, and Rule 59(b) allows the motion to be served within 10 days after judgment.

State v. Johnson · filed 1977-11-02Rule 59(a)(1), (b)

We merely hold that, in our opinion, he has filed a proper motion under Rule 59(a)(1), that he filed his motion within the time allowed by Rule 59(b), and that he is entitled to a proper hearing on the motion.

Rule 59(a)(6) allows a trial judge to consider whether damages were awarded under passion or prejudice when deciding a motion to set aside a verdict for excessive or inadequate damages.

Howard v. Mercer · filed 1978-04-18(a)(6)

With regard to the second ground — the verdict was excessive — we think the rule stated in Taylor is sound. We also think Rule 59(a)(6) adds a new factor for consideration by the trial judge in passing upon a motion to set aside a verdict on the ground of excessive or inadequate damages, namely, that the damages were awarded “under the influence of passion or prejudice”.

Rule 50(d) authorizes an appellate court to grant a new trial after finding that a directed verdict was wrongly denied.

Plyler v. Moss & Moore, Inc. · filed 1979-04-17Rule 50(d)

Although the defendant made the necessary motions for a directed verdict and judgment notwithstanding the verdict, we have determined in the exercise of our authority under G.S. 1A-1, Rule 50(d), that the plaintiffs should be, and they are hereby, granted a New trial.

A motion for a new trial based on inadequate damages is committed to the trial judge’s discretion, and denial is reviewed for abuse of discretion.

Southern Railway Co. v. Jeffco Fibres, Inc. · filed 1979-06-19Rule 59

A motion for a new trial on the grounds of inadequate damages is addressed to the sound discretion of the trial judge, ... and a ruling by the trial judge will not be set aside except upon a showing of abuse of discretion.

Rule 59(e) motions to amend a judgment are addressed to the trial court’s discretion.

Hamlin v. Austin · filed 1980-10-07Rule 59(e)

We hold that a motion under Rule 59(e) is similarly addressed to the court’s discretion.

Rule 61 does not require a new trial for an evidentiary error unless the error adversely affected the party’s case.

Fisher v. Thompson · filed 1981-03-03Rule 61

This error does not, however, require a new trial unless plaintiff’s case was adversely affected by the exclusion. G.S. 1A-1, Rule 61. ... We hold that the record demonstrates that plaintiff did not suffer any prejudice.

Rule 61 treats an evidentiary error as harmless when similar testimony appears elsewhere in the record and the error affects no substantial right.

Lowery v. Newton · filed 1981-06-02Rule 61

Assuming such testimony was hearsay and unresponsive, it is harmless in view of the fact that the record discloses that similar testimony occurs elsewhere. Defendants lost no substantial right, and no grounds exist for granting a new trial. G.S. 1A-1, Rule 61.

Rule 59(a)(9) permits a new trial when the verdict is contrary to the evidence; the trial judge’s decision is reviewed only for manifest abuse of discretion.

Johnson v. Dunlap · filed 1981-08-04Rule 59(a)(9)

The ground “contrary to the evidence” has been so recognized and interpreted as giving to the trial judges broad discretionary authority to set aside a verdict and order a new trial. No issue of law is raised, and the ruling is not reviewable on appeal in the absence of manifest abuse of discretion.

Rule 59(a)(6) requires an appellate court reviewing a new-trial motion to determine whether passion or prejudice influenced the verdict.

Worthington v. Bynum · filed 1981-08-18Rule 59(a)(6)

When a motion is made under Rule 59(a)(6) an appellate court must also determine if the verdict was given under the influence of passion or prejudice.

Under Rule 59, an appellate court may reverse a discretionary order granting or denying a new trial only when an abuse of discretion is clearly shown.

Worthington v. Bynum · filed 1982-05-04

In sum, it is plain that a trial judge's discretionary order pursuant to G.S. 1A-1, Rule 59 for or against a new trial upon any ground may be reversed on appeal only in those exceptional cases where an abuse of discretion is clearly shown.

Rule 59(a)(1) does not warrant a new trial based on evidence that merely corroborates or repeats trial evidence or contradicts the opposing party’s evidence.

Horne v. Trivette · filed 1982-07-06(a)(1)

Evidence which is merely corroborative or cumulative of evidence offered at trial or which contradicts evidence of the opposing party is insufficient to warrant granting a new trial.

Rule 59(a)(9) permits a new trial when doing so would serve the ends of justice.

Sizemore v. Raxter · filed 1982-07-06Rule 59(a)(9)

That justice would be served thereby was, when Rule 59 was adopted, a recognized ground for granting a new trial.

Rule 59 permits a new trial for an irregularity that prevents a fair trial, but a party may lose that remedy by failing to object promptly when the irregularity occurs.

State ex rel. Everett v. Hardy · filed 1983-12-06Rule 59

While a new trial may be granted for any irregularity which prevents a party from obtaining a fair trial G.S. § 1A-1, Rule 59 of the Rules of Civil Procedure, “[t]he possible right to a new trial . . . may be lost if it is not protected by the taking of a proper exception when the irregularity occurs.” ... Here, defendant failed to object and move for a mistrial promptly following Ms. Tankard’s testimony, and this assignment is therefore overruled.

A Rule 59(a) motion for a new trial may be denied when the asserted errors lack merit and the evidence supports the verdict.

Wachovia Bank & Trust Co., NA v. Guthrie · filed 1984-04-03(a)

Finally, plaintiff excepts to and assigns as error the trial court’s entry of judgment and the denial of its motion under G.S. 1A-1, Rule 59(a), for a new trial. The arguments advanced in support of these assignments of error depend on our finding merit in plaintiffs previous arguments, considered and rejected above. Accordingly, we find that the evidence does support the verdict and that judgment was properly entered thereon.

A trial court’s discretionary decision to grant or deny a new trial under Rule 59 receives highly deferential appellate review and is reversed only for a manifest abuse of discretion.

Pearce v. Fletcher · filed 1985-05-07Rule 59

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. ... In light of the evidence here, we cannot conclude that the trial court’s decision to defer to the finality and sanctity of the jury’s findings was a manifest abuse of discretion or probably amounted to a substantial miscarriage of justice.

A denial of a new-trial motion that turns on a question of law or legal inference is reviewable for legal error.

Watts v. Schult Homes Corp. · filed 1985-06-04Rule 59

In this case, for reasons that follow, we conclude that the court’s denial of the motion for a new trial “involves a ‘question of law or legal inference’ and is therefore subject to reversal for legal error.”

Rule 59(a)(6) permits a new trial when damages are inadequate or excessive and appear to reflect passion or prejudice; the decision rests in the trial court’s discretion.

Haas v. Kelso · filed 1985-07-16Rule 59(a)(6)

Under G.S. 1A-1, Rule 59(a)(6), a trial court may grant a new trial to any party on the grounds that damages awarded are inadequate or excessive and which appear to have been given under the influence of passion or prejudice. A motion in this regard is directed to the sound discretion of the trial court.

A Rule 59 motion without a valid ground under Rule 59(a)(1) through (9) does not warrant a new trial or amendment of the judgment.

Dewey v. Dewey · filed 1985-11-19(a)(1)-(9)

We have examined defendant’s motion and it does not contain any valid grounds ... under G.S. 1A-1, Rule 59(a)(l)-(9) for granting a new trial or amending the judgment.

Rule 59(d) requires a statement of reasons only when the court orders a new trial on its own motion.

Edge v. Metropolitan Life Insurance · filed 1985-12-31Rule 59(d)

R. Civ. P. 59(d), requiring a statement of reasons, applies only to cases in which the trial court orders a new trial on its own motion.

A Rule 59 motion for a new trial is addressed to the trial judge’s discretion, and the ruling is reviewable on appeal only for manifest abuse of discretion.

Watkins v. Watkins · filed 1986-12-30Rule 59

A motion for a new trial pursuant to G.S. 1A-1, Rule 59 is addressed to the discretion of the trial judge, and the court's ruling thereon is not reviewable on appeal absent a manifest abuse of discretion.

A motion for a new trial under Rule 59(a) is addressed to the trial judge’s discretion.

Frye v. Anderson · filed 1987-06-02(a)

Although the order in the case sub judice states that plaintiff should receive a new trial “as a matter of law,” the order was in fact an exercise of the trial judge’s discretion under Rule 59(a).

A discretionary Rule 59 order granting or denying a new trial may be reversed only when the record clearly shows an abuse of discretion.

Campbell v. Pitt County Memorial Hospital, Inc. · filed 1987-02-17Rule 59

A " discretionary order pursuant to G.S. 1A-1, Rule 59 for or against a new trial upon any ground may be reversed on appeal only in those exceptional cases where an abuse of discretion is clearly shown." ... Applying the Worthington standard to the "cold record" here, we hold that it contains no indication of a manifest abuse of the court's discretion.

Rule 59 leaves a motion for a new trial based on inadequate damages to the trial judge’s discretion.

Blow v. Shaughnessy · filed 1988-02-02

A motion for a new trial on the grounds of inadequate damages is addressed to the sound discretion of the trial judge.

Rule 61 permits a new trial for an error only when the error denies a substantial right; the complaining party must show prejudice.

Robinson v. Seaboard System RR, Inc. · filed 1987-11-17Rule 61

Finally, G.S. 1A-1, Rule 61, provides that error is not grounds for a new trial unless it amounts to the denial of a substantial right. ... Southern has not demonstrated that it was prejudiced in any manner by the fact that the Seaboard memorandum or the photographs were taken to the jury room.

Rule 50(d) permits the court to order a new trial in its discretion, but a party's tactical choice to withhold evidence is insufficient reason to do so.

Booe v. Shadrick · filed 1988-06-30Rule 50(d)

In a cross assignment of error, the defendants ask that if we hold there was sufficient evidence of damages to support the jury award, that we exercise our discretion pursuant to N.C.G.S. § 1A-1, Rule 50(d) and order a new trial on the damage issue. ... We do not believe the trial tactics employed by the defendants is sufficient reason for us to exercise our discretion and order a new trial.

Rule 59(a)(6) permits a new trial for an excessive or inadequate award when the award was given under the influence of passion or prejudice.

Lusk v. Case · filed 1989-06-06Rule 59(a)(6)

G.S. 1A-1, Rule 59(a)(6) allows for a new trial when it is shown the excessive or inadequate award was given “under the influence of passion or prejudice”; plaintiff has presented no such evidence and none appears from the record.

A Rule 59(a)(6) motion for a new trial is addressed to the trial court's discretion, and its decision will be disturbed on appeal only for manifest abuse of that discretion.

New Bern Pool & Supply Co. v. Graubart · filed 1989-07-18Rule 59(a)(6)

Defendant's motion for a new trial was made pursuant to G.S. § 1A-1, Rule 59(a)(6) of the North Carolina Rules of Civil Procedure and was addressed to the trial court's discretion. Worthington v. Bynum and Cogdell v. Bynum, 305 N.C. 478, 290 S.E.2d 599 (1982). The trial court's decision will not be disturbed on appeal in the absence of a showing of manifest abuse of that discretion.

Rule 59(a) permits a new trial for specified grounds, but a new trial is unavailable when none of those grounds exists.

Kinlaw v. North Carolina Farm Bureau Mutual Insurance · filed 1990-04-03Rule 59(a)

G.S. § 1A-1, Rule 59(a) provides that 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 several causes or grounds none of which existed in this proceeding.

A trial court lacks jurisdiction to hear a Rule 59 motion for a new trial filed after notice of appeal when no exception applies.

American Aluminum Products, Inc. v. Pollard · filed 1990-03-20Rule 59

Defendants first assign as error the trial court’s denial of their motion for a new trial pursuant to G.S. 1A-1, Rule 59. ... Here defendants moved for a new trial after giving notice of appeal. None of the Bowen exceptions apply. Accordingly, the trial court was without jurisdiction to hear the motion for new trial and this assignment of error must fail.

Rule 59(a)(5), (6), and (7) provide discretionary grounds for setting aside a verdict and granting a new trial.

Burgess v. Vestal · filed 1990-07-17Rule 59(a)(5), (6), and (7)

The trial court’s order clearly specifies three of the discretionary grounds for setting aside the verdict formalized in Rule 59, none of which are matters of law.

Rule 59 governs motions for a new trial and limits appellate reversal of the trial judge’s ruling to exceptional cases involving a clear abuse of discretion.

Boyd v. LG DeWitt Trucking Co., Inc. · filed 1991-07-16

“[A] trial judge’s discretionary order pursuant to G.S. 1A-1, Rule 59 for or against a new trial upon any ground may be reversed on appeal only in those exceptional cases where an abuse of discretion is clearly shown.”

A motion for a new trial may be treated as a Rule 59 motion despite being labeled as a Rule 60 motion when the trial court’s order shows it was treated under Rule 59.

Perry-Griffin Foundation v. Proctor · filed 1992-10-06Rule 59

As an initial matter, we note that defendant’s motion for a new trial was improperly identified as a motion pursuant to N.C. Gen. Stat. § 1A-1, Rule 60 (1990), rather than pursuant to N.C. Gen. Stat. § 1A-1, Rule .59 (1990). However, it is clear from the trial court’s order that the motion for a new trial was treated as having been made pursuant to Rule 59, despite the improper designation. Therefore, we examine the trial court’s order for a new trial by applying the standards applicable to a Rule 59 motion.

A trial court’s decision on a Rule 59 new-trial motion involving no question of law or legal inference is reviewed for abuse of discretion.

Mabry v. Nationwide Mutual Fire Insurance · filed 1992-11-03Rule 59

It is well established that a trial court’s decision on a motion for a new trial pursuant to Rule 59, where no question of law or legal inference is involved, cannot be disturbed absent a showing of abuse of discretion.

Rule 59(a)(6) permits a new trial for excessive damages appearing to result from passion or prejudice; whether to grant one rests in the trial judge’s discretion.

Lovell v. Nationwide Mutual Insurance · filed 1993-01-05Rule 59(a)(6)

Rule 59 of the North Carolina Rules of Civil Procedure provides that a new trial may be granted on the grounds of "[e]xcessive or inadequate damages appearing to have been given under the influence of passion or prejudice...." N.C.G.S. § 1A-1, Rule 59(a)(6)(1990). It is within the sole discretion of the trial judge to determine whether to grant a Rule 59 motion for new trial on the grounds of excessive damages.

A ruling on a Rule 59 motion for a new trial is within the trial judge’s discretion and is reversible only for manifest abuse of discretion.

Jones ex rel. Jones v. Hughes · filed 1993-05-18

We note that a ruling under Rule 59 is within the sound discretion of the trial judge and will not be reversed absent a manifest abuse of discretion.

Rule 59 permits a new trial on damages when an award remains excessive under the evidence after remittitur.

Munie v. Tangle Oaks Corp. · filed 1993-03-16Rule 59(a)(6)-(7)

However, the judge only remitted the award to $60,000, which we believe is still excessive under the evidence presented and constituted a manifest abuse of discretion. ... Because we find error we must remand this case for a new trial on the issue of damages.

Rule 59(a)(8) permits a new trial when an error in law occurred at trial and the moving party objected.

Giles v. Smith · filed 1993-11-02(a)(8)

Rule 59 provides in pertinent part: ... (a) 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 grounds: ... (8) Error in law occurring at the trial and objected to by the party making the motion. ... N.C. Gen. Stat. § 1A-1, Rule 59 of the Rules of Civil Procedure. ... When the trial court instructs the jury on an issue not raised by the evidence, a new trial is required. See Jacobs v. Locklear, 310 N.C. 735, 314 S.E.2d 544 (1984). That is what occurred in this case, and, for that reason, we must affirm the trial court’s order.

Rule 59(a)(9) permits a court to grant a new trial for any other reason previously recognized as a ground for a new trial.

Guilford County Planning & Development Department v. Simmons · filed 1994-06-07(a)(9)

Rule 59(a)(9) is a catch-all provision, permitting a new trial for “[a]ny other reason heretofore recognized as grounds for new trial.”

Rule 59(b) requires a motion to be served within ten days after entry of judgment.

Muse v. Charter Hospital of Winston-Salem, Inc. · filed 1995-01-03Rule 59(b)

We note that Rule 59 requires that the motion be served, not filed, within ten days after entry of judgment. ... Thus, plaintiffs' 1 March motion was served within ten days of entry of judgment, as required by Rule 59(b).

Rule 59 requires a trial court deciding a new trial motion to evaluate the jury's actual damages award, rather than an amount increased by additur.

Allen v. Beddingfield · filed 1995-02-21Rule 59(6)

Thus, 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.