N.C. Gen. Stat. § 1A-1

Rule 59(a)(6) leaves a new trial for inadequate damages to the trial judge’s discretion, reviewable for manifest abuse of discretion.

McFarland v. Cromer · filed 1995-02-07Rule 59(a)(6)

Whether to grant a Rule 59 motion for a new trial on the grounds of excessive or inadequate damages is within the sound discretion of the trial judge, and the judge’s decision may be reversed on appeal only when such decision amounts to a “manifest abuse of discretion.”

Rule 59 places a motion for a new trial based on inadequate damages within the trial court’s discretion; appellate review is limited to manifest abuse of that discretion.

Pelzer v. United Parcel Service, Inc. · filed 1997-05-20

A motion for a new trial on the grounds of inadequate damages is addressed to the sound discretion of the trial court, and “[a]ppellate review ‘is strictly limited to a determination of whether the record affirmatively demonstrates a manifest abuse of discretion by the trial judge.’ . . . ‘[A]n appellate court should not disturb a discretionary Rule 59 order unless it is reasonably convinced by the cold record that the trial judge’s ruling probably amounted to a substantial miscarriage of justice.’ ” Anderson v. Hollifield, 345 N.C. 480, -, 480 S.E.2d 661, 663 (1997), quoting Worthington v. Bynum, 305 N.C. 478, 290 S.E.2d 599 (1982).

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

Anderson v. Hollifield · filed 1997-02-10Rule 59

A “discretionary order pursuant to [N.C.]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 trial court’s decision to grant a new trial because of a question of law or legal inference is fully reviewable on appeal.

Sockwell & Associates, Inc. v. Sykes Enterprises Inc. · filed 1997-08-05(a)(9)

However, when a verdict is set aside and a trial court grants a new trial because of a question of law or legal inference, then the court’s decision is fully reviewable.

An order granting or denying a new trial under Rule 59 is reviewed for manifest abuse of discretion or clear error.

Fenz Ex Rel. Gladden v. Davis · filed 1998-02-17

Appellate review of an order of a trial court granting or denying a new trial pursuant to G.S. § 1A-1, Rule 59 is limited to the question of whether the record discloses a manifest abuse of discretion or that the ruling was clearly erroneous.

Rule 59(b) requires service of a new trial motion within ten days after entry of judgment; an untimely motion leaves the trial court without jurisdiction to consider it.

Fallis v. Watauga Medical Center, Inc. · filed 1999-01-19Rule 59(b)

Accordingly, the trial court lacked jurisdiction to entertain plaintiffs’ Rule 59 motion, ... and plaintiffs may not now complain the motion was denied.

When a judgment is served by mail, Rule 58 adds three days to Rule 59(b)’s ten-day deadline for serving a motion for a new trial.

Stem v. Richardson · filed 1999-03-04Rule 58

According to the clear language of Rule 58, the moving party is entitled to three additional days to file a motion for a new trial pursuant to Rule 59 if service of the judgment was made by mail. Therefore, the moving party is allowed a total of thirteen days from the date that the judgment is entered to serve by mail a motion for a new trial, rather than the ten-day period provided in Rule 59(b).

Rule 59 governs motions for a new trial and permits reversal only when a clear abuse of discretion is shown.

Leftwich v. Gaines · filed 1999-08-17

A “discretionary order pursuant to [N.C.]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 61 bars a new trial for erroneous jury instructions unless the error affected a substantial right.

Word v. Jones Ex Rel. Moore · filed 1999-06-25

Rule 61 of the North Carolina Rules of Civil Procedure provides that erroneous jury instructions are not grounds for granting a new trial unless the error affected a substantial right. N.C.G.S. § 1A-1, Rule 61 (1990).

Rule 59 permits a trial judge's order granting or denying a new trial to be reversed only when a clear abuse of discretion is shown.

State v. Bowen · filed 2000-07-18

“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 [emphasis in original] ground may be reversed on appeal only [emphasis added] in those exceptional cases where an abuse of discretion is clearly shown.”

Rule 59(a)(5) and (7) allows a trial judge to grant a new trial when the jury disregards the court's instructions or the verdict is contrary to law.

Roary v. Bolton · filed 2002-05-07(a)(5) and (7)

Pursuant to Rule 59 of the North Carolina Rules of Civil Procedure, trial judges may grant a motion for a new trial under certain circumstances. In the instant case, the trial court based awarding the new trial on two grounds: (1) manifest disregard by the jury of the instructions of the court; and (2) the verdict was contrary to law. See N.C. Gen. Stat. § 1A-1, Rules 59(a)(5) and (7) (1999).

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

Rhyne v. K-Mart Corp. · filed 2002-04-16Rule 59(a)(6)

While classic remittitur is not permitted in North Carolina, the concept is governed by Rule 59 of the North Carolina Rules of Civil Procedure in which a new trial may be granted to a party for excessive or inadequate damages appearing to have been awarded under the influence of passion or prejudice.

A trial court’s refusal to set aside a compensatory damages award and grant a new trial under Rule 59 is reviewed for abuse of discretion.

Nunn v. Allen · filed 2002-12-17Rule 59

Defendant also assigns error to the denial of his G.S. § 1A-1, Rule 59 motion to set aside the compensatory damage verdict for alienation of affection and grant a new trial. ... The trial court did not abuse its discretion by refusing to set aside the compensatory damages award and grant defendant a new trial on this issue.

Rule 59 permits a new trial limited to damages when the award is inadequate, subject to review for abuse of discretion.

Loy v. Martin · filed 2003-03-18(a)

Rule 59 of the North Carolina Rules of Civil Procedure allows for the granting of a new trial to all or any of the parties and on all or part of the issues in an action. ... Thus, the trial court’s decision to set aside the jury’s award of damages did not constitute an abuse of discretion.

Rule 59(a) permits a new trial for specified defects in a jury verdict, but the trial court has discretion to deny one when the jury could reasonably reject the evidence supporting the motion.

Horne v. Vassey · filed 2003-05-20(a)

We therefore hold that the trial court did not abuse its discretion in denying plaintiff’s motion for a new trial, and we overrule this assignment of error.

A trial court’s denial of a Rule 59(a) motion for a new trial is reviewed for manifest abuse of discretion.

Dunn v. Custer · filed 2004-01-20(a)

The trial court did not abuse its discretion in denying defendants’ motion for a new trial.

A motion for a new trial under Rule 59 must be served within ten days after entry of judgment.

Trivette v. Trivette · filed 2004-01-06Rule 59(b)

A motion for a new trial pursuant to G.S. § 1A-1, Rule 59 must be served not later than ten days after entry of the judgment. ... Since defendant’s Rule 59 motion was untimely, the trial court properly denied it.

Rule 59 relief is warranted when a consent judgment is entered after a party withdraws consent and the trial court abuses its discretion by denying a new trial.

Daniel v. Moore · filed 2004-06-01Rule 59

Because we conclude that plaintiffs revoked Rhodes' authority to enter the consent judgment before final entry of the judgment upon the court's records, we hold that plaintiffs have carried their burden of proving the invalidity of the consent judgment. Accordingly, we conclude that the trial court abused its discretion by denying plaintiffs' motion for a new trial.

Rule 59(a)(6) allows a new trial for inadequate damages appearing to result from passion or prejudice; a ruling on that ground is reviewed for abuse of discretion.

Di Frega v. Pugliese · filed 2004-06-01Rule 59(a)(6)

Plaintiff has failed to show that the damages are inadequate and were given “under the influence of passion or prejudice.” N.C. Gen. Stat. § 1A-1, Rule 59(a)(6) (2003). The trial court did not abuse its discretion in entering judgment based on this verdict.

Rule 59 requires a listed cause or ground for a new trial.

Whisnant v. Herrera · filed 2004-11-02Rule 59

Furthermore, after reviewing the record in the instant case, we have determined that none of the causes or grounds listed under N.C. Gen. Stat. § 1A-1, Rule 59 (2003) exist in the instant case, and thus a new trial was not required.

Rule 59(a) permits a new trial on specified grounds, and appellate reversal requires a manifest abuse of discretion.

O'BEID v. Eastwood · filed 2004-12-21(a)

N.C.G.S. § 1A-1, Rule 59(a) (2003) provides that ... [a] new trial may be granted to all or any of the parties . . . for any of the following causes or grounds: ... (1) Any irregularity by which any party was prevented from having a fair trial; ... (2) Misconduct of the jury or prevailing party; ... (5) Manifest disregard by the jury of the instructions of the court; ... (9) Any other reason heretofore recognized as grounds for new trial. ... We discern no abuse of discretion in the trial court's denial of plaintiff's motion for a new trial.

Rule 59(a)(9) permits a trial court to grant a new trial for a recognized ground not specifically listed in Rule 59, while Rule 60(b)(4) permits relief from a final judgment when the judgment is void.

Britt v. Britt · filed 2005-01-18(a)(9) and (b)(4)

N.C.G.S. § 1A-1, Rule 59(a)(9) (2003) is a catch-all provision which permits a trial court to grant a new trial for any reason not specifically enumerated in Rule 59 “heretofore recognized as grounds for new trial.” A ruling under Rule 59(a)(9) is consigned to the discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. ... N.C.G.S. § 1A-1, Rule 60(b)(4) (2003) provides that “[o]n motion and upon such terms as are just, [a trial] court may relieve a party ... from a final judgment... [if] [t]he judgment is void.” A Rule 60(b)(4) motion is “only proper where a judgment is ‘void’ as that term is defined by the law.”

Rule 59(a)(6) permits a new trial when passion or prejudice leads to inadequate damages; a trial court may deny one when the evidence of injury is disputed.

Caudill v. Holt · filed 2005-03-01(a)(6)

N.C. Gen. Stat. § 1A-1, Rule 59(a) (2003) provides various grounds for granting a new trial. For example, a new trial may be warranted when passion or prejudice leads the jury to award excessive or inadequate damages. ... Accordingly, we cannot conclude that the trial court engaged in a manifest abuse of discretion by denying plaintiff's motion for a new trial.

Rule 59(a) permits a new trial on specified grounds, but the trial court has broad discretion to deny a new trial motion.

Ramirez v. Little · filed 2005-03-01Rule 59(a)

N.C. Gen. Stat. § 1A-1, Rule 59(a) (2003) provides various grounds for granting a new trial. ... Therefore, the trial court did not abuse its discretion in denying the motion for a new trial.

Rule 59(a)(5)-(7) permits a new trial for a jury's manifest disregard of instructions, damages influenced by passion or prejudice, or a verdict unsupported by the evidence or contrary to law.

Munn v. North Carolina State University · filed 2005-09-06Rule 59(a)(5)-(7)

Rather, N.C. Gen.Stat. § 1A-1, Rule 59 provides that a new trial may be granted for: (5) Manifest disregard by the jury of the instructions of the court; (6) Excessive or inadequate damages appearing to have been given under the influence of passion or prejudice; (7) Insufficiency of the evidence to justify the verdict or that the verdict is contrary to law[.] N.C. Gen.Stat. § 1A-1, Rule 59(a)(5)-(7) (2003). Thus, the issue before this Court is not whether the trial court correctly stated the law. Rather, the issue for review is whether the jury manifestly disregarded the instructions of the trial court.

A court denying a Rule 59(a) motion need not make findings of fact or state its reasons unless a party timely requests specific findings.

Pipkin v. Pipkin · filed 2006-02-07Rule 59(a)

As defendant failed to make a timely request for specific findings of fact, the trial court was therefore not required to make them or to include the reasons for its decision in the order.

Rule 59 permits a new trial on damages when the jury was instructed on categories of damages the plaintiff failed to plead.

Walker v. Fleetwood Homes of North Carolina, Inc. · filed 2006-03-21Rule 59(a)(7) and (8)

Because plaintiffs' complaint did not "give defendants sufficient notice of such [claims] for damages[,]" the trial court erred in instructing the jury on emotional distress and loss of privacy, and further erred in denying defendant's motion for a new trial on damages. ... We conclude that a new trial on damages is warranted.

Rule 59(a)(8) requires a party seeking relief for an error of law to have made a proper objection at trial.

Davis v. Davis · filed 2006-06-30Rule 59(a)(8)

In order to obtain relief under Rule 59(a)(8), a defendant must show a proper objection at trial to the alleged error of law giving rise to the Rule 59(a)(8) motion.

Rule 59(a)(6) permits a new trial for excessive damages caused by passion or prejudice; denying one is within the trial court’s discretion when the record shows no manifest abuse.

Cameron v. Merisel Properties, Inc. · filed 2007-11-06(a)(6)

Defendant contends that it is entitled to a new trial on damages under N.C. Gen. Stat. § 1A-1, Rule 59(a)(6) (2005) which authorizes the court to grant a new trial for “[e]xcessive or inadequate damages appearing to have been given under the influence of passion or prejudice^]” ... The jury verdict of $1,600,000 is significantly below the minimum figure projected by Dr. Link. ... We conclude that Defendant is not entitled to a new trial on damages.

Rule 59(a) gives the trial court discretion to decide whether to grant a new trial.

Greene v. Royster · filed 2007-11-06(a)

By using the word “may,” Rule 59 expressly grants the trial court the discretion to determine whether a new trial should be granted.

A trial court may deny a Rule 59 motion for a new trial without a hearing when doing so is within its discretion.

Vigus v. Milton A. Latta & Sons Dairy Farms, Inc. · filed 2009-05-19Rule 59

Plaintiffs submitted a Motion for Reconsideration and Motion for a New Trial pursuant to N.C. Gen. Stat. § 1A-1, Rule 59 (2007), which was denied. ... Based on our discussion supra, we find there was no abuse of discretion in his decision to deny a new trial without a hearing.

Rule 59’s new-trial authority does not encompass an order setting aside entries of default in compliance with an appellate mandate to reconsider good cause.

Decker v. Homes, Inc. · filed 2009-06-16Rule 59

The trial court's order setting aside the entries of default that had been entered against Defendants did not represent an exercise of its authority under N.C. Gen. Stat. § 1A-1, Rule 59. Instead, the trial court's order was entered in compliance with the mandate of this Court to reconsider "whether defendants have shown good cause to set aside the default" using the proper legal standard.

Rule 59(a)(7) permits a new trial when the evidence is insufficient to justify the verdict or the verdict is contrary to law, but an order granting a new trial must consider all competent and relevant evidence.

Langwell v. Albemarle Family Practice, Pllc · filed 2010-05-04Rule 59(a)(7)

Pursuant to Rule 59(a)(7) of the North Carolina Rules of Civil Procedure, a judge may grant a new trial if there is insufficient evidence to justify the verdict or if the verdict is contrary to law. ... Although neglecting to mention a witness’s testimony in the court’s findings of fact is not an abuse of discretion per se, by omitting any reference to Nurse Waldrop’s critical expert testimony, the order on its face reveals that the trial court failed to consider all the competent and relevant evidence presented at trial.

Rule 59(d) requires a trial court to order a new trial on its own initiative within ten days after entry of judgment.

Jones v. Southern General Insurance · filed 2012-08-21Rule 59(d)

We find no ambiguity in the language of Rule 59(d). Under N.C.G.S. § 1A-1, Rule 59(d), the trial court may order a new trial on its own initiative “[n]ot later than 10 days after entry of judgment^]” N.C.G.S. § 1A-1, Rule 59(d).

Rule 59(a)(1) and (a)(9) provide no basis for a new trial when the evidence shows no irregularity or other recognized ground.

Roberts v. Ward · filed 2014-08-05Rule 59(a)(1), (a)(9)

On this evidence, we find no irregularity or other grounds that would serve as a basis for a new trial pursuant to Rule 59.

Rule 59 permits a new trial for excessive damages caused by passion or prejudice, or when insufficient evidence supports the verdict or the verdict is contrary to law.

Haarhuis v. Cheek · filed 2017-09-19Rule 59(a)(6), (a)(7)

Rule 59 allows for the trial court to grant a new trial in the case of “excessive . . . damages appearing to have been given under the influence of passion or prejudice[,]” N.C. Gen. Stat. § 1A-1, Rule 59(a)(6), or “insufficiency of the evidence to justify the verdict or that the verdict is contrary to law[.]” N.C. Gen. Stat. § 1A-1, Rule 59(a)(7).

A motion for a new trial must allege facts supporting a Rule 59(a) ground; merely reciting the grounds does not qualify the motion to toll the time to appeal.

Quevedo-Woolf v. Overholser · filed 2018-09-18Rule 59(a)

Plaintiff’s mere recitation of grounds laid out in Rule 59(a) was insufficient to “qualify [her motion] as a Rule 59 motion within the meaning of Rule 3 of the Rules of Appellate Procedure[.]” Id. (citations omitted).

Rule 59(a)(6)–(7) permits a new trial when excessive damages appear to result from passion or prejudice or when the evidence is insufficient to justify the verdict.

HONGDA CHEM USA, LLC v. SHANGYU SUNFIT CHEMICAL COMPANY, LTD. · filed 2020-03-10Rule 59(a)(6)–(7)

Under North Carolina law and as relevant here, a new trial may be granted for excessive damages “appearing to have been given under the influence of passion or prejudice,” as well as for “[i]nsufficiency of the evidence to justify the verdict.” N.C. Gen. Stat. § 1A-1, Rule 59(a)(6)–(7).

Rule 59 permits a new trial on damages alone but does not authorize a trial court to change the jury’s damages award without the defendant’s consent.

Davis v. Woods · filed 2022-12-06Rule 59

Therefore, we find that the trial court did not abuse its discretion in granting plaintiff’s motion for a new trial solely on the issue of damages. However, we find that the trial court lacked the authority to amend the amount of damages without defendant’s consent.

Rule 59 leaves a motion for a new trial based on the weight of the evidence to the trial judge’s discretion, subject to review for abuse of discretion.

State v. Britt · filed 1974-05-15

The motions were addressed to the sound discretion of the trial judge, and in the absence of abuse of discretion are not reviewable on appeal.

Rule 43(c) sets no strict time for a motion to record answers excluded by sustained objections, but the trial court may control the timing in its discretion.

State v. Willis · filed 1974-01-09Rule 43(c)

The trial court was likewise correct in its denial of defendant’s motion — made at the close of his case — to let the record show the answers that would have been given to questions to which the objections were sustained. Defendant is correct that G.S. 1A-1, Rule 43 (c) does not state time to be of the essence in making such a motion. Nevertheless, we do not sustain this assignment of error. We recognize the well-established right of the trial court in its discretion to control the conduct of the parties, counsel and the witnesses.

Rule 43(b) permits a party to ask a hostile witness leading questions.

Goodson v. Goodson · filed 1977-01-05(b)

In these circumstances the trial court erred in ruling that Aistrop was not a hostile witness and in denying plaintiff his right under G.S. 1A-1, Rule 43(b) to ask a hostile witness leading questions.

Rule 44 governs the admissibility of documentary evidence in civil proceedings.

Burke v. Harrington · filed 1978-03-07Rule 44

However, we do state that in our opinion some of the documentary evidence introduced by plaintiff, particularly the affidavits, was not admissible in that it did not comport with G.S. 1A-1, Rule 44, and other applicable statutes.

Rule 43(c) allows evidence to be omitted from the record in a nonjury action when it is clearly inadmissible on any grounds.

Sheppard v. Sheppard · filed 1978-11-21Rule 43(c)

In actions tried without a jury, such evidence need not be placed into the record if it is clearly not admissible on any grounds. G.S. 1A-1, Rule 43(c).

Rule 43(c) allows excluded evidence to be placed in the record without the trial judge personally taking the offer of proof.

Rhew v. Felton · filed 2006-07-18Rule 43(c)

In the present case, the trial court allowed plaintiff to introduce the excluded evidence into the record. Plaintiff cites no binding authority, and we find none, that requires a trial court to personally take an offer of proof. Therefore, the trial court’s failure to personally consider plaintiff’s offer of proof was not prejudicial.

Rule 49(b) requires submission of issues necessary to resolve material controversies, and Rule 51(a) requires the judge to explain the applicable law and relate the evidence to the issues.

Howell v. Howell · filed 1974-12-04Rule 49(b); Rule 51(a)

It is well settled that a trial judge has the duty, either of his own motion or at the suggestion of counsel, to submit such issues as are necessary to settle the material controversies arising on the pleadings. G.S. 1A-1, Rule 49 (b) [former G.S. 1-200] ; ... “It is the duty of the court to charge the law applicable to the substantive features of the case arising on the evidence, without special request, and to apply the law to the various factual situations presented by the conflicting evidence.” (Citation). Rule 51(a) of the Rules of Civil Procedure, formerly G.S. 1-180, “requires the judge ‘to explain the law of the case, to point out the essentials to be proved on the one side or the other, and to bring into view the relations of the particular evidence adduced to the particular issues involved.’ (Citation).” (Citations omitted.) ... We hold that under the pleadings and evidence in this case, the trial court erred in not submitting an issue with respect to constructive abandonment and in failing to instruct the jury on that issue.

Rule 51(a) requires the judge to submit jury issues that resolve all material controversies raised by the pleadings and evidence.

Rental Towel & Uniform Service v. Bynum International, Inc. · filed 1981-03-17Rule 51(a)

This means, among other things, that the judge must submit to the jury such issues as when answered by them will resolve all material controversies between the parties, as raised by the pleadings and the evidence.

Rule 49(a) defines a general verdict as one in which the jury generally decides all or any issues for the plaintiff or defendant.

Rogers v. Sportsworld of Rocky Mount, Inc. · filed 1999-09-07(a)

Rule 49(a) of the Rules of Civil Procedure defines a general verdict as “that by which the jury pronounces generally upon all or any of the issues, either in favor of the plaintiff or defendant.”

Rule 41(a)(1) allows a plaintiff to dismiss an action without a court order by filing a notice before the plaintiff rests the case.

Warren Bros. v. Community Building Corp. of Atlanta, Inc. · filed 1974-12-06(a)(1)

Under the North Carolina Rules of Civil Procedure which governed the action at the time plaintiff filed its notice of dismissal with prejudice, “an action or any claim therein may be dismissed by the plaintiff without order of court ... by filing a notice of dismissal at any time before the plaintiff rests his case . . . N.C.G.S. § 1A-1, Rule 41(a)(1). Plaintiff filed its notice of dismissal with prejudice on July 18, 1974. Under F.R.C.P. 41(a) (1) a plaintiff, in order to voluntarily dismiss its action without court approval, must do so before the defendant answers or files a motion for summary judgment. It would have been too late under F.R.C.P. 41(a) (1) for the plaintiff to file a voluntary dismissal since an answer had been filed by the defendant prior to the dismissal. However, the case was a North Carolina action at that time and the North Carolina Rules of Civil Procedure governed. Under N.C. Rule 41(a)(1), plaintiff was within the time limit imposed for voluntary dismissals.

Rule 41(a)(1) does not allow a plaintiff to dismiss an action when doing so would defeat a defendant’s previously asserted right to affirmative relief.

McCarley v. McCarley · filed 1975-03-04(a)(1)

We hold, therefore, that our former practice still applies and that a plaintiff may not dismiss his action by filing a notice of dismissal if to do so would defeat the rights of a defendant who has theretofore asserted some ground for affirmative relief, even though the plaintiff acts before resting his case.

Rule 41 permits voluntary dismissal without prejudice and allows refiling the same claim within one year, while imposing costs consequences for a prior dismissal.

Kahn v. Sturgil · filed 1975-03-07(a), (d)

North Carolina Rule 41(d) is explicit and mandatory in its direction to the court to dismiss an action brought by a plaintiff who has not paid the costs of a previous similar action dismissed pursuant to Rule 41(a).

Rule 41(a)(1) does not permit a plaintiff to voluntarily dismiss a claim without the defendant's consent when the defendant has asserted a counterclaim for affirmative relief arising from the same transaction.

McCarley v. McCarley · filed 1976-01-29Rule 41(a)(1)

Since the complaint alleged facts entitling either or both of the parties to the marriage to an absolute divorce, we hold that defendant's answer admitting these allegations together with his prayer "that the bonds of matrimony heretofore existing between the plaintiff and defendant be dissolved, and that the parties hereto be granted a divorce from each other" was, in effect, a counterclaim seeking affirmative relief and arising out of the same transactions alleged in the complaint. Plaintiff, therefore, could not, without defendant's consent, voluntarily dismiss her claim for relief.

Rule 41(a)(1) allows a plaintiff to take a voluntary dismissal without prejudice before the plaintiff rests the case, without a court order.

Caroon v. Eubank · filed 1976-07-21(a)(1)

Nor can he be forced to take a dismissal with prejudice under the circumstances here. To hold otherwise would be to say that G.S. 1A-1, Rule 41 (a) (1) is without efficacy.

Rule 41(d) required dismissal when a plaintiff voluntarily dismissed a prior action and brought the same claim against the same defendant without paying the prior action’s costs.

Thigpen v. Piver · filed 1978-08-01(d)

Since the order in question was entered on 2 September 1977, we must construe Rule 41 (d) as it read as of that date. We hold that the trial court properly dismissed plaintiffs action.

Rule 41 permits a voluntary dismissal only before final judgment; after final judgment, the court alone may correct, modify, amend, or set aside the judgment.

Wood v. Wood · filed 1978-08-15

Obviously, a voluntary dismissal under Rule 41 will lie only prior to entry of final judgment. After final judgment, any correction, modification, amendment, or setting aside can only be done by the court. The purported voluntary dismissal of 23 May 1977 is of no legal efficacy.

Rule 41(a) permits a party to voluntarily dismiss its suit against another party.

Stillwell Enterprises, Inc. v. Interstate Equipment Co. · filed 1979-05-15Rule 41(a)

Defendant was entitled to dismiss his suit against the Travelers Indemnity Company under G.S. 1A-1, Rule 41(a), of the Rules of Civil Procedure. Third-party defendant was not prejudiced in any way by the dismissal nor was he discharged from liability under his guaranty.

Under Rule 41(a)(1), a counterclaim arising from the same transaction can prevent the plaintiff from voluntarily dismissing his own claim.

Layell v. Baker · filed 1980-04-01Rule 41(a)(1)

Applying the rules of practice still in effect in this State as modified by Rule 41, we conclude that defendant’s assertion of that counterclaim, nothing else appearing, could effectively deprive plaintiff not only of his ability to escape defendant’s claim against him, but also of his right under Rule 41 to dismiss his own claim.

Rule 41(a)(1) does not permit a plaintiff to dismiss an action without the defendant’s consent after the defendant pleads a counterclaim arising from the same transaction.

Swygert v. Swygert · filed 1980-04-15Rule 41(a)(1)

Because defendant-husband’s claim for divorce was based on the allegation that the parties had lived separate and apart since 29 April 1977, the same transaction alleged in plaintiff’s complaint, plaintiff-wife was thereafter bound to remain in court upon her allegations and could not dismiss her action ex parte.

Rule 41(a) does not permit a plaintiff to take a voluntary dismissal without the defendant’s consent after the defendant files a counterclaim arising from the same transaction.

Gardner v. Gardner · filed 1980-08-05Rule 41(a)

Having filed a counterclaim arising out of the same transaction alleged in plaintiff-husband’s complaint, defendant thereby deprived plaintiff of his statutory right under G.S. 1A-1, Rule 41(a) to take a voluntary dismissal without her consent.

Rule 41(a)(1) does not permit a voluntary dismissal after a conditional Rule 37 dismissal has taken effect because the party failed to comply.

Cassidy v. Cheek · filed 1982-09-07(a)(1)

Subject only to the possibility of compliance by plaintiff “before January 7, 1980,” Judge Davis’ order effectuated a Rule 37 dismissal of the action. That plaintiff failed to comply with the order is clear. Thus, when plaintiff filed her voluntary dismissal on 9 January 1980, her action had been dismissed; and the voluntary dismissal came too late.

A voluntary dismissal ends a counterclaim’s pendency; the one-year period for refiling does not keep it pending.

Banner v. Banner · filed 1987-07-21Rule 41(a)(1)

Since Mrs. Banner terminated her alimony counterclaim by taking a voluntary dismissal, there was no alimony action pending at the time the divorce judgment was granted. Therefore, once the parties were divorced, Mrs. Banner was barred from bringing a new alimony claim, despite the one year extension of Rule 41(a).

Rule 41(a)(1) permits a plaintiff to voluntarily dismiss a district court action brought on appeal from a magistrate’s judgment.

First Union National Bank v. Richards · filed 1988-07-05Rule 41(a)(1)

Plaintiff is not deprived of its right to voluntary dismissal simply because the action was originally before the magistrate, an officer of the district court pursuant to G.S. 7A-170.

Rule 41(a)(1) permits a plaintiff to dismiss during a summary judgment hearing until the plaintiff has had an opportunity to present evidence and argument and has submitted the matter for decision.

Wesley v. Bland · filed 1988-12-30Rule 41(a)(1)

For purposes of summary judgment motions, this Court holds that the record must show that plaintiff has been given the opportunity at the hearing to introduce any evidence relating to the motion and to argue his position. Having done so and submitted the matter to the Court for determination, plaintiff will then be deemed to have “rested his case” for the purpose of summary judgment and will be precluded thereafter in dismissing his case pursuant to Rule 41 during the pendency of the summary judgment motion.

Rule 41(a)(1) permits simultaneous voluntary dismissals of a complaint and a counterclaim arising from the same transaction; dismissing the counterclaim gives implied consent to dismissal of the complaint.

Gillikin v. Pierce · filed 1990-05-15(a)(1)

In this case, Gillikin’s filing of a signed voluntary dismissal of his claim against Pierce at the same instant that Pierce dismissed his complaint was in effect a stipulation of dismissal to Pierce’s claim. Gillikin’s dismissal of his counterclaim showed Gillikin’s willingness to abandon the time and effort he had expended on his claim, and to forego his right to have his claim adjudicated. Such action speaks “consent” as clearly as oral notice or written stipulation.

Rule 41(a) permits a plaintiff to voluntarily dismiss an equitable distribution claim when the defendant did not assert an affirmative right to relief before the divorce judgment.

Lutz v. Lutz · filed 1991-01-15Rule 41(a)

Because the defendant did not assert an affirmative right to relief prior to the judgment of divorce, the plaintiff was entitled to take a voluntary dismissal of his claim for equitable distribution pursuant to N.C.G.S. § 1A-1, Rule 41(a).

Rule 41(a)(1) requires a plaintiff to affirmatively take a voluntary dismissal, either orally in open court or by filing a notice; a statement of future intent is insufficient.

Thompson v. Newman · filed 1991-01-15Rule 41(a)(1)

However, in order for a voluntary dismissal to be effective, a plaintiff must state affirmatively either orally in open court or by filing a notice of dismissal that plaintiff is in fact taking a voluntary dismissal at that time. A prospective oral statement of intent would not be sufficient.

Rule 41(a)(1) allows a party to voluntarily dismiss a suit without the opposing party’s consent when no counterclaim is pending or an existing counterclaim is independent and unrelated to the complaint.

Carter v. Carter · filed 1991-04-02(a)(1)

If there is no counterclaim pending at the time the plaintiff desires to enter a voluntary dismissal pursuant to N.C.G.S. § 1A-1, Rule 41(a)(1) or if there is a counterclaim and that counterclaim is independent and does not arise out of the same transaction as the complaint, “a party may voluntarily dismiss his suit without the opposing party’s consent by filing a notice of dismissal.”

Rule 41(a) permits a plaintiff to voluntarily dismiss claims without prejudice before resting.

Faulkenbury v. TEACHERS'AND STATE EMPLOYEES'RETIREMENT SYSTEM · filed 1993-01-05Rule 41(a)

A plaintiff may take a voluntary dismissal without prejudice at any time before it rests. N.C.G.S. § 1A-1, Rule 41(a) (1990). ... We find the voluntary dismissal under Rule 41 to be proper and defendants' appeal on that issue is dismissed.

Rule 41(a) permits a plaintiff to dismiss claims voluntarily without prejudice before resting, even after an appeal is filed when the dismissal does not affect the subject matter of the appeal.

Faulkenbury v. Teachers' & State Employees' Retirement System · filed 1993-01-05Rule 41(a)

A plaintiff may take a voluntary dismissal without prejudice at any time before it rests. N.C.G.S. § 1A-1, Rule 41(a) (1990). ... There has been no final judgment rendered here, nor have the plaintiffs rested. ... We find the voluntary dismissal under Rule 41 to be proper and defendants’ appeal on that issue is dismissed.

Rule 60(b) can provide relief from a voluntary dismissal without prejudice once the one-year refiling period has elapsed and the action can no longer be revived.

Robinson v. GENERAL MILLS RESTAURANTS, INC. · filed 1993-06-15Rule 60(b)

We hold, however, that once the one-year period for refiling an action has elapsed and the action can no longer be resurrected, the voluntary dismissal acts as a final adjudication for purposes of Rule 60(b).

Rule 41(a) allows dismissal without prejudice before the plaintiff rests, by stipulation, or later only by a judge’s order upon terms justice requires.

Moore v. Pate · filed 1993-12-07(a)(1)(i), (a)(1)(ii), and (a)(2)

With the change in the Rules of Civil Procedure, a plaintiff no longer has an absolute right to take a dismissal without prejudice after he rests his case. ... Thus, since plaintiff was unable to obtain a voluntary dismissal under Rule 41(a)(1), the only other means by which plaintiff could have taken his dismissal was under Rule 41(a)(2) which requires an order of the trial court and a finding that justice so requires.

A voluntary dismissal under Rule 41(a) ends the trial court’s authority to enter further orders, except for orders apportioning and taxing costs under Rule 41(d).

Frames v. Shively · filed 1996-08-20Rule 41(a)

A Rule 41(a) dismissal strips the trial court of authority to enter further orders in the case, except as provided by Rule 41(d) which authorizes the court to enter specific orders apportioning and taxing costs.

A voluntary dismissal under Rule 41(a)(1) leaves the dismissed claim as if it had never been filed.

Pine Knoll Association, Inc. v. Cardon · filed 1997-05-06Rule 41(a)(1)

Once a party voluntarily dismisses its action pursuant to N.C. Gen. Stat. § 1A-1, Rule 41(a)(1) (1990), “it [is] as if the suit had never been filed.”

Rule 41(a)(1) permits a plaintiff to voluntarily dismiss an action before she has rested her case, including before submitting a summary judgment motion for decision.

Alston v. Duke University · filed 1999-04-20Rule 41(a)(1)

Accordingly, Plaintiff is not deemed to have rested her case at that point, and was free to take a voluntary dismissal of the action.

Rule 41(a)(1) gives a party absolute authority to dismiss any claim before resting their case.

Riviere v. Riviere · filed 1999-07-20(a)(1)

The plain language of Rule 41(a)(1) vests a party with the absolute authority to dismiss any of his claims at any time before he rests his case.

Rule 41(a)(1) does not nullify a properly noticed and perfected appeal or strip the appellate court of authority to hear it.

Reid v. Town of Madison · filed 2001-07-17(a)(1)

The narrow issue with which we are presented is whether plaintiffs’ filing of a notice of voluntary dismissal without prejudice under N.C. Gen. Stat. § 1A-1, Rule 41(a)(1) effectively nullified defendants’ notice of appeal and stripped this Court of its power to hear defendants’ appeal in 98 CVS 1558. We conclude that it did not.

Rule 41(a) permits a plaintiff to dismiss an action without prejudice despite a defendant's Rule 12(b)(6) motion, because that motion is not a request for affirmative relief.

Williams v. Poland · filed 2002-12-17Rule 41(a)

Here, the Rule 12(b)(6) motion to dismiss by defendants cannot survive independently without the plaintiff's underlying claim. Therefore, the Rule 12(b)(6) motion to dismiss is not a request for affirmative relief that cancels plaintiff's ability to voluntarily dismiss her case without prejudice.

Rule 41(a) permits a plaintiff to voluntarily dismiss an action without prejudice even if the plaintiff previously obtained a Rule 9(j) extension and omitted the required certification from the first complaint.

Bass v. Durham County Hospital Corp. · filed 2003-06-03Rule 41(a)

The fact that plaintiff obtained a 120-day extension under Rule 9(j) prior to filing the first complaint does not deprive her of the right to take a Rule 41(a) dismissal without prejudice.

Rule 60(b)(1) does not treat a party’s lack of an attorney, prior lawsuit experience, or knowledge of the trial date as excusable neglect when the party knew he had been sued.

Gregg v. Steele · filed 1974-12-18Rule 60(b)(1)

If a party’s neglect of a lawsuit is excusable simply because that party has no attorney, has never been involved in a lawsuit before, and lacks knowledge of when the case will come up for trial then the term “excusable neglect” has little meaning. Therefore, we hold that J. B. Steele has not shown “excusable neglect” on his part.

Rule 60(b)(1) does not treat disregard of a personally served summons and complaint as excusable neglect, regardless of the recipient’s belief about the papers’ propriety.

State v. Mitchell · filed 1983-09-20(b)(1)

Total disregard of a summons and complaint which were personally served is not the action of a person of ordinary prudence and thus is not excusable neglect, no matter what that person’s belief is concerning the propriety of the summons and complaint.

Rule 60(b)(1) does not treat a duly served party’s failure to give her defense ordinary attention as excusable neglect.

Matter of Hall · filed 1988-04-19Rule 60(b)(1)

When a party is duly served with a summons, yet fails to give her defense the attention which a person of ordinary prudence usually gives her important business, there is no excusable neglect.

Rule 60(b) does not provide relief for excusable neglect when a party fails to investigate information reasonably available to it.

Higgins v. Michael Powell Builders · filed 1999-04-06Rule 60(b)

Next, Key Benefit suggests the award should be set aside on the grounds of excusable neglect, as permitted by G.S. § 1A-1, Rule 60(b). ... Based upon the Commission’s findings of fact, plaintiff’s status as a “framer-subcontractor” in the employer’s report of injury should have prompted a reasonable investigation by Key Benefit; its failure to investigate plaintiff’s status fell short of the diligence “reasonably expected of a party in paying proper attention to his case.” The Commission did not err in refusing to grant Key Benefit relief based upon excusable neglect.

Rule 54(b) makes a judgment resolving fewer than all claims or parties interlocutory unless the judgment expressly determines that there is no just reason for delay.

Arnold v. Howard · filed 1974-12-18Rule 54(b)

In the absence of such an express determination in the judgment, Rule 54(b) makes, “any order, or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties,” interlocutory and not final.

Rule 54(b) requires an express determination that there is no just reason for delay before a judgment resolving fewer than all claims can be appealed immediately.

Raynor v. Mutual of Omaha · filed 1975-02-05Rule 54(b)

The trial court made no determination to the effect that there is no just reason for delay. ... This appeal is premature.

Rule 54(b) governs when an order resolving fewer than all claims is revisable and appealable before final judgment.

Hall v. Hall · filed 1975-12-17(b)

The order from which defendant has appealed adjudicates fewer than all claims and is not a final judgment as to that claim because the judge did not find there is no just reason for delay. The order is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties, and therefore is not subject to review by appeal. G.S. 1A-1, Rule 54 (b).

Rule 54(b) allows a trial court to revise a partial summary judgment before final judgment on the remaining claims.

Equitable Leasing Corp. v. Kingsmen Productions, Inc. · filed 1975-12-03Rule 54(b)

Under the circumstances here presented, summary judgment for plaintiff is not a final judgment, and it may be revised by the trial court at any time before the entry of a final judgment adjudicating defendant’s counterclaim.

Rule 54(b) makes a judgment resolving fewer than all claims interlocutory unless the court determines that there is no just reason for delay and enters it as final.

Hamilton v. Hamilton · filed 1978-06-20Rule 54(b)

We hold that the judgment, rendered prior to final determination of all the issues and granting absolute divorce, was interlocutory and subject to the provisions of G.S. 1A-1, Rule 54(b), for purposes of determining its finality.

Rule 54(b) requires the trial court’s determination that there is no just reason for delay to appear in the judgment; signing an appeal entry alone does not satisfy that requirement.

Equitable Leasing Corp. v. Myers · filed 1980-04-15Rule 54(b)

Additionally, Rule 54(b) expressly provides that this determination must be made in the judgment.

Rule 54(b) provides a procedure for immediate appeal of a judgment resolving fewer than all claims or parties; the judgment must certify that there is no just reason for delay.

Pasour v. Pierce · filed 1980-05-06Rule 54(b)

It should be noted that section (b) of this rule does not define a final judgment. Rather, it simply provides for (1) the entry of such a judgment as to fewer than all the claims or all the parties in a multiple claim or multiple party lawsuit, and (2) a procedure whereby such a judgment as to fewer than all the claims or all the parties is immediately appealable.

Rule 54(b) permits an immediate appeal of a judgment resolving fewer than all claims or parties only if the judgment is final and the court determines there is no just reason for delay.

Cook v. Export Leaf Tobacco Co. · filed 1980-06-03Rule 54(b)

Nor do we believe the summary judgment is appealable under Rule 54(b). The court did make a finding that Cook “shall be entitled to appeal” which might comply with the Rule’s requirement that the court determine “there is no just reason for delay.” However, the judgment is not final which is also a requirement for appealability under Rule 54(b).

Rule 54(b) makes an order resolving fewer than all claims or parties immediately appealable if the judge determines there is no just reason for delay and says so in the judgment.

Cunningham v. Brown · filed 1981-04-07Rule 54(b)

First, Rule 54(b) specifically provides that if the judge entering the order determines that there is “no just reason for delay” and includes a statement to that effect in the judgment, the judgment will be final and immediately appealable.

Rule 54(b) does not permit an immediate appeal from an order resolving fewer than all claims without a finding that there is no just reason for delay.

Boyce v. Boyce · filed 1981-04-07Rule 54(b)

It is not a final judgment since all claims have not been determined. It involves multiple claims but the superior court has not made a finding that there is no just reason for delay. For that reason, it is not appealable under G.S. 1A-1, Rule 54(b).

Rule 54(b) applies in certain cases involving multiple parties or multiple claims; three claims growing from one incident do not constitute multiple claims under the rule.

Williams v. East Coast Sales, Inc. · filed 1981-02-03Rule 54(b)

G.S. 1A-1, Rule 54(b) additionally applies in certain cases involving multiple parties or multiple claims. In the case sub judice there are not mutiple claims, rather there are three claims which grow from one incident.

Rule 54(b) does not bar an appeal from a partial judgment affecting a substantial right merely because the trial court did not determine that there was no just reason for delay.

Briggs v. Mid-State Oil Co. · filed 1981-07-21(b)

Defendant asserts that it is premature because no substantial right of plaintiffs was affected, G.S. 1-277, because there was no judgment on all of the claims, and because the trial court did not enter a final judgment, as required by G.S. 1A-1, Rule 54(b), by determining that there is no just reason for delay. ... we are compelled to reject defendant’s argument.

Rule 54(b) makes an appeal from a summary judgment resolving fewer than all claims or parties premature without a determination that there is no just reason for delay, unless a substantial right is involved.

BLUE RIDGE SPORTCYCLE CO., INC. v. Schroader · filed 1981-08-04Rule 54(b)

In a multiple claim or multiple party action, an appeal from a summary judgment granted for one party or on one claim is premature if the trial court does not make a determination under G.S. 1A-1, Rule 54(b) that there was no just reason for delay, unless a substantial right is involved as provided by G.S. 1-277 and G.S. 7A-27(d).

Rule 54(b) permits an immediate appeal of a final judgment as to some parties when the judgment states there is no just reason for delay.

Harris v. Jim Stacy Racing, Inc. · filed 1981-09-01(b)

Further, these entries are immediately appealable by virtue of the provision that, as to them, the judgment is final and “there is no just reason for delay.” G.S. 1A-1, Rule 54(b).

Rule 54(b) limits appeals from orders that adjudicate fewer than all claims before a final order is entered.

Fliehr v. Fliehr · filed 1982-03-16Rule 54(b)

To hold otherwise, moreover, would allow appeal from an order which adjudicates fewer than all claims in violation of G.S. 1A-1, Rule 54(b).

Rule 54(b) requires certification that there is no just reason for delay to appeal a judgment resolving fewer than all claims or parties, unless the judgment affects a substantial right.

Porter v. Matthews Enterprises, Inc. · filed 1983-07-05(b)

It is clear that the judgment from which defendant has appealed adjudicated fewer than all of the claims in this case and was final as to less than all of the parties. It is also clear that in his judgment, the trial judge did not certify that there was no just reason for delay. Under such circumstances, an appeal will not lie unless the judgment affects a “substantial right” under either G.S. 1-277 or 7A-27(d).

Rule 54(b) generally bars an immediate appeal from partial summary judgment unless another rule or statute permits review.

Case v. Case · filed 1985-02-19Rule 54(b)

The granting of the summary judgment motion is not appealable, G.S. 1A-1, Rule 54(b) unless the appeal is provided for elsewhere in the statute.

Rule 54(b) treats a trial judge’s finding that denial of an immediate appeal would affect a substantial right as certification that there is no just reason for delay.

Smock v. Brantley · filed 1985-07-16Rule 54(b)

The trial judge ordered that denial of an immediate appeal would affect a substantial right of plaintiffs. This was tantamount to a certification that there was no just reason for delay, and we conclude accordingly that the appeal has been effectively certified ... and is therefore properly before us. N.C. Gen. Stat. § 1A-1, R. Civ. P. 54(b) (1983).

Rule 54(b) allows an immediate appeal from an order dismissing fewer than all claims when the plaintiff’s substantial right to have all claims tried before the same judge and jury is at stake.

Hoke v. EF HUTTON AND CO., INC. · filed 1988-08-16Rule 54(b)

Given our Supreme Court’s construction of Rule 54(b) in Ostreicher v. Stores, 290 N.C. 118, 225 S.E. 2d 797 (1976) establishing the rule that a plaintiff has a substantial right to have all claims for relief tried simultaneously before the same judge and jury, we hold that plaintiffs’ appeal is properly before us.

Rule 54(b) permits an immediate appeal from a final disposition of fewer than all claims when the trial judge certifies that there is no just reason to delay the appeal.

Britt v. American Hoist & Derrick Co. · filed 1990-02-20Rule 54(b)

A summary judgment which does not dispose of the case is interlocutory, and immediate appeal lies only in two events. “First, if there has been a final disposition of at least one but fewer than all claims, the final disposition of those claims may be appealed if the trial judge in addition certifies that there is no just reason to delay the appeal. N.C.G.S. § 1A-1, Rule 54(b) (1988).” ... Since the trial judge here did not provide certification, we look to the second avenue of appeal which arises out of the pertinent provisions of § 1-277 (1983) and § 7A-27(b) (1986).

Rule 54(b) permits an immediate appeal from a judgment resolving fewer than all claims only if the judgment is final as to at least one claim or party and the trial court certifies that there is no just reason for delay.

Miller v. Swann Plantation Development Co. · filed 1991-01-15Rule 54(b)

To qualify for appeal under Rule 54(b), the judgment must be: (1) final as to one or more of the claims or parties; and (2) certified for appeal by the trial court. The trial court must determine in the judgment that “there is no just reason for delay” in appealing the order. G.S. § 1A-1, Rule 54(b). The order below was not certified and thus is not immediately appealable under Rule 54(b).

Rule 54(b) requires an express determination that there is no just reason for delay before a judgment resolving fewer than all claims or parties can be treated as final for immediate appeal.

Pitt v. Williams · filed 1991-01-15Rule 54(b)

In applying the above-mentioned principles to the case sub judice, the order granting plaintiff Pitt’s motion for partial summary judgment adjudicated fewer than all of the claims of all of the parties and clearly does not contain a determination by the trial court that there was “no just reason for delay” in entering the order.

Rule 54(b) certification does not make the denial of a summary judgment motion appealable.

Nelson v. Battle Forest Friends Meeting · filed 1993-01-19Rule 54(b)

The denial of a motion for summary judgment is a nonappealable interlocutory order. ... This is so "even if the trial court has [as it did here] attempted to certify it for appeal under Rule 54(b) of the North Carolina Rules of Civil Procedure."

Rule 54(b) does not permit an immediate appeal from an order denying summary judgment merely because the trial court certifies it as final.

Cagle v. Teachy · filed 1993-07-20Rule 54(b)

We hold that the trial court’s order denying Commercial Union’s motion for summary judgment did not constitute a “final” judgment and is therefore not appealable pursuant to Rule 54(b).

Rule 54(b) certification does not conclusively establish that an interlocutory order is immediately appealable.

McNeil v. Hicks · filed 1993-07-20Rule 54(b)

Even though the trial court certified its order as being immediately appealable, pursuant to N.C. Gen. Stat. § 1A-1, Rule 54(b) of the Rules of Civil Procedure, such certification is not disposi-tional when the order appealed from is interlocutory.

Rule 54(b) treats partial summary judgment as interlocutory; it is appealable if the trial court finds no just reason for delay or the order affects a substantial right.

Thrift v. Food Lion, Inc. · filed 1993-09-07Rule 54(b)

An appeal from a grant of partial summary judgment is also interlocutory because it does not resolve all of the claims between all of the parties. See N.C.Gen. Stat. § 1A-1, Rule 54(b). Such partial summary judgment orders are appealable only if the trial court has specifically determined in its order that "there is no just reason for delay" or if a substantial right is affected by the order.

Rule 54(b) allows immediate appeal of summary judgment for fewer than all defendants when the judgment is certified; without certification, an immediate appeal requires a substantial right.

Long v. Giles · filed 1996-07-02Rule 54(b)

It is well established that the entry of summary judgment for fewer than all defendants is not a final judgment and is not immediately appealable unless it affects a substantial right or is certified pursuant to N.C. Gen. Stat. § 1A-1, Rule 54(b) (1990).

Rule 54(b) does not permit certification for immediate appeal of an order denying a stay when the order disposes of no claims or parties.

Howerton v. Grace Hospital, Inc. · filed 1996-10-15Rule 54(b)

The denial of defendants’ motions for stay did not dispose of any of the claims or parties, and the trial court did not and could not certify the case for immediate appeal pursuant to N. C. Gen. Stat. § 1A-1, Rule 54(b) (1990).

Rule 54(b) requires a judgment to be final before it can be appealed; a finding that there is no just reason for delay is insufficient by itself.

Tinch v. Video Industrial Services, Inc. · filed 1996-11-05Rule 54(b)

A finding that “there is no just reason for delay” under Rule 54(b) is not enough. The judgment must also be final.

Rule 54(b) certification does not permit an immediate appeal when delaying review would not be unjust.

Town Center Associates v. Y & C Corp. · filed 1997-09-02Rule 54(b)

It cannot fairly be said that delay of appellate review of Crosland’s contingent liability would be unjust. Under such circumstance, the trial court’s denomination of its judgment as “final” based upon no just reason for delay was error.

Rule 54(b) permits immediate appeal of a judgment final as to some claims or parties when the trial court certifies there is no just reason to delay the appeal.

Burchette v. Lynch · filed 1997-12-02Rule 54(b)

First, a party may immediately appeal an interlocutory order or judgment if the order or judgment is final as to some but not all of the claims or parties, and the trial court certifies there is no just reason to delay the appeal. N.C. Gen. Stat. § 1A-1, Rule 54(b) (1990). ... In the instant case, the trial court did not certify that there was no just reason to delay the appeal.

Rule 54 permits immediate appellate review of a judgment final as to a particular party when the trial court certifies that there is no just reason for delay.

Jackson v. Howell's Motor Freight, Inc. · filed 1997-06-17Rule 54

In both instances, the order is the final judgment as to that particular party and the trial court certified that there is no just reason for delay thereby subjecting it to appellate review under N.C. Gen. Stat. § 1A-1, Rule 54 (1996).

Rule 54(b) permits an immediate appeal from a judgment resolving fewer than all claims or parties when the trial court makes the required certification.

Abe v. Westview Capital, L.C. · filed 1998-07-21Rule 54(b)

Although the dismissal does constitute a final adjudication of the claims against defendant Cass and defendant law firm, there is no Rule 54(b) certification.

Rule 54(b) certification requires consideration of whether delaying the appeal would affect a substantial right.

First Atlantic Management, Corp. v. Dunlea Realty, Co. · filed 1998-11-03Rule 54(b)

While perhaps not the sole consideration, we hold application of the substantial right analysis was prerequisite to the court’s decision regarding Rule 54(b) certification that there existed “no just reason to delay the appeal.”

Rule 54(b) treats an order resolving fewer than all claims as interlocutory; it is not immediately appealable without a basis for immediate review.

Wells v. Wells · filed 1999-03-02Rule 54(b)

This order was “final ... as to one or more but fewer than all of the claims,” N.C.G.S. § 1A-1, Rule 54(b) (1990), and therefore interlocutory and not subject to immediate appeal, see Fliehr v. Fliehr, 56 N.C. App. 465, 466, 289 S.E.2d 105, 106 (1982) (order for child support “entered in conjunction with orders awarding alimony pendente lite” not appealable “until entry of a final order on the plaintiff’s claim for permanent alimony”), save under circumstances not present sub judice, see First Atl. Mgmt. Corp. v. Dunlea Realty Co., 131 N.C. App. 242, 246, 507 S.E.2d 56, 60 (1998) (interlocutory order immediately appealable only if trial court properly certifies “there is no just reason to delay the appeal” or order “deprives the appellant of a substantial right which would be lost absent immediate review”).

Rule 54(b) permits immediate appeal only after claims have been finally adjudicated.

Anderson v. Atlantic Casualty Insurance · filed 1999-09-07(b)

However, Rule 54(b) “does not authorize the appeal of claims that have not been finally adjudicated.”

Rule 54(b) permits a trial court to certify an immediate appeal after entering final judgment on fewer than all claims or parties when there is no just reason to delay the appeal.

Department of Transportation v. Rowe · filed 1999-12-03Rule 54(b)

A party may appeal an interlocutory order under two circumstances. First, the trial court may certify that there is no just reason to delay the appeal after it enters a final judgment as to fewer than all of the claims or parties in an action. N.C.G.S. § 1A-1, Rule 54(b) (1990).

Rule 54(b) permits an immediate appeal from an order final as to some but not all claims or parties when the trial court certifies there is no just reason to delay the appeal.

Bishop v. Lattimore · filed 2000-04-04(b)

First, if the order or judgment is final as to some but not all of the claims or parties, and the trial court certifies there is no just reason to delay the appeal pursuant to North Carolina Rule of Civil Procedure 54(b), an immediate appeal may lie. ... The record does not show that the trial court certified that there was no just reason for delay under Rule 54(b).

Rule 54(b) permits an immediate appeal of a final judgment on one claim or party in a case involving multiple claims or parties when the trial court certifies that there is no just reason for delay.

Gilbert v. North Carolina Farm Bureau Mutual Insurance · filed 2002-12-31Rule 54(b)

Parties may appeal orders where (1) the denial of an appeal would affect a substantial right, N.C. Gen.Stat. § 1-277 (2001); or (2) in cases involving multiple claims or parties, a final judgment is entered as to one claim or party and the trial court certifies pursuant to Rule 54(b) that there is no just reason for delay. N.C. Gen.Stat. § 1A-1, Rule 54(b) (2001). As the trial court did certify that there was no just reason for delay, the order is properly before this Court.

Rule 54(b) makes an order deciding fewer than all claims or parties nonfinal and generally not immediately appealable unless the rules or another statute expressly allow review.

Munden v. Courser · filed 2002-12-31(b)

A ruling on a motion for partial summary judgment that leaves issues remaining for trial is not a final judgment, but is interlocutory in nature, and therefore is not immediately appealable. N.C. Gen. Stat. § 1A-1, Rule 54(b) states in part: In the absence of entry of such a final judgment, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and shall not then be subject to review either by appeal or otherwise except as expressly provided by these rules or other statutes.

Rule 54(b) certification cannot make an order denying a motion to compel immediately appealable because the order is not a final judgment.

In Re the Will of Johnston · filed 2003-04-15Rule 54(b)

In the instant case, although the trial court attempted to certify the appeal pursuant to Rule 54(b), an order denying a motion to compel is clearly not a "final judgment" and certification was therefore inappropriate.

Rule 54(b) permits an immediate appeal from a judgment resolving fewer than all claims when the trial court certifies that there is no reason to delay final judgment.

Hunter-McDonald, Inc. v. Edison Foard, Inc. · filed 2003-05-06Rule 54(b)

In the case at bar, after determining summary judgment was proper on the airport job claim, Judge Johnston stated, “[i]t appear[s] to the Court that there is no reason for delaying entry of the final judgment on the Plaintiff’s First Claim for Relief.” This statement certifies the judgment is subject to immediate appeal pursuant to Rule 54(b).

Rule 54(b) certification does not permit an immediate appeal of a partial summary judgment when the resolved and pending claims are inextricably intertwined.

SMITHFIELD FINANCIAL SERVICES, INC. v. Conway · filed 2004-07-06Rule 54(b)

As the parties conceded at oral argument, the claims are inextricably intertwined, and the failure of plaintiffs to prove Conway's liability might foreclose the civil conspiracy and unfair and deceptive trade practices claims. Under these circumstances, we conclude the partial summary judgment order is interlocutory,notwithstanding the trial court's attempt to certify it for immediate review.

Rule 54(b) certification can make an interlocutory judgment immediately appealable.

LITTLE RIVER SOIL FARM v. Hill · filed 2004-07-06Rule 54(b)

The trial court did not certify this judgment as being immediately appealable according to Rule 54(b), see N.C. Gen. Stat. § 1A-1, Rule 54(b), nor did defendants argue that the judgment affected any of their substantial rights.

Rule 54(b) permits review of a judgment resolving fewer than all claims or parties when the trial court certifies that there is no just reason for delay.

City of Concord v. Stafford · filed 2004-07-20Rule 54(b)

Because defendants failed to obtain a Rule 54(b) certification from the trial court and the order does not affect a substantial right that cannot be addressed after entry of a final judgment, wedecline to consider the merits of defendants' assignments of error.

Rule 5 does not apply to service of a case on appeal required by G.S. 1-282.

Thurston v. Salisbury Zoning Board of Adjustment · filed 1974-12-18Rule 5

We are of the opinion that G.S. 1A-1, Ride 5, has no applicability to service of case on appeal as required by G.S. 1-282 and the case law of this State.

A Rule 59 motion for a new trial or modification of judgment does not extend the time to file the record on appeal after notice of appeal.

C. C. Woods Construction Co. v. Budd-Piper Roofing Co. · filed 1980-05-06Rule 59

The chronology of events set out above with respect to the giving of the notice of appeal, the making of the motion for a new trial or a modification of judgment pursuant to Rule 59, the orders fixing the time for the service of the record on appeal, and the orders denying the third-party plaintiff’s Rule 59 motion, did not and could not extend the time within which the appellant is required to file the record on appeal in this Court after giving notice of appeal from the judgment.

Rule 43(b) permits a party to impeach an adverse party whom the party called as a witness.

Ballance v. Wentz · filed 1974-12-30Rule 43(b)

Under the new rule, Dr. Wentz, though called by the plaintiff as her witness, nevertheless may be impeached by his letter.

Rule 43(b) permits a party to impeach an adverse and hostile witness whom it called.

Bost v. Riley · filed 1980-02-05Rule 43(b)

Dr. Myers, though called by plaintiff, was an adverse and hostile witness, and was therefore subject to impeachment by plaintiff. G.S. 1A-1, Rule 43(b).

Rule 43(b) gives a party the right to ask leading questions on direct examination of an adverse party’s agents or employees.

State ex rel. Ingram v. North Carolina Farm Bureau Insurance Agency, Inc. · filed 1981-06-02Rule 43(b)

Whether denominated as agents or employees of defendant, we hold that the two witnesses come within the provisions of Rule 43(b), and the State had a right to ask leading questions of them on direct examination.

The court determines whether a witness is unwilling or hostile under Rule 43(b).

Shields v. Nationwide Mutual Fire Insurance · filed 1983-04-05Rule 43(b)

Determination of who falls within the coverage of Rule 43(b) is, however, for the court.

Rule 65(d) binds an injunction or restraining order only on the parties and specified persons with actual notice, including those in active concert or participation with them.

Trotter v. Debnam · filed 1975-01-02(d)

Therefore, under Rule 65(d), to find them in contempt, we think it was necessary for the trial court to find that they were “in active concert or participation” with one or more of the named parties to the action or their officers, agents, servants, employees, or attorneys.

Rule 65(d) binds a party’s employee to an injunction when the employee has actual notice of the order.

State v. West Lake Development, Inc. · filed 1984-12-18Rule 65(d)

The conclusive findings that Brock was defendant’s manager and directed its operation, and that he had notice of the order, bring him within the express provisions of Rule 65(d). As a party’s employee with actual notice, he was bound by the order.

Rule 65(d) does not automatically bind a successor property owner to an injunction against the previous owner; without active concert or participation, the successor cannot be bound by that injunction.

Evans v. Lochmere Recreation Club, Inc. · filed 2006-03-21Rule 65(d)

As there was no evidence offered of any "active concert or participation" between defendant and the previous owners, plaintiffs could not enforce the previous ... injunction against defendant and thus were entitled to bring a new suit against defendant requesting relief in the form of an injunction.

Rule 60(b) does not treat a later medical opinion that an injury is permanent as newly discovered evidence.

Grupen v. Thomasville Furniture Industries · filed 1975-12-17Rule 60(b)

We hold that evidence presented by Dr. Palmer’s affidavit is not “newly discovered evidence” within the meaning of G.S. 1A-1, Rule 60 (b).

Rule 60(b)(2) permits relief for newly discovered evidence only when due diligence could not have uncovered it within the ten days allowed for a new-trial motion under Rule 59(b).

Lang v. Lang · filed 1993-01-05Rule 60(b)(2)

According to G.S. 1A-1, Rule 60(b)(2), a trial court may grant a party relief from a final judgment or order when there is “[n]ewly 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 59(b) provides that a party has ten days after the entry of judgment to move for a new trial. ... Defendant has failed to establish that the evidence could not have been discovered with due diligence within ten days after the summary judgment was entered on 13 September 1990.

Rule 59 permits relief based on newly discovered evidence that an arbitrator failed to disclose significant relationships bearing on impartiality.

William C. Vick Construction Co. v. North Carolina Farm Bureau Federation · filed 1996-07-02Rule 59(a)(4)

Because of Mr. Kirby’s failure to affirmatively disclose these relationships, the trial court erred in not granting Vick’s Rule 59 motion.

Newly discovered evidence supports a new trial under Rule 59(a)(4) only if it existed at the time of trial and the movant was excusably unaware of it.

Faulkenberry v. Faulkenberry · filed 2005-04-05Rule 59(a)(4)

As any evidence related to these allegations did not exist at the time of trial, it is therefore not useful as a basis for granting a new trial.

Rules 59 and 60 permit relief based on newly discovered evidence only when reasonable diligence could not have uncovered and produced it at trial.

Coleman v. Town of Hillsborough · filed 2005-10-04Rules 59(a)(4) and 60(b)(2)

Rules 59 and 60 provide for the possibility of relief under limited circumstances, including when there is newly discovered evidence that could not have been discovered and produced at trial through the reasonable diligence of the party seeking relief under one of these rules.

Relief under Rules 59 and 60 based on newly discovered evidence requires evidence that could not have been obtained for the original proceeding through due diligence.

HEALTH MANAGEMENT ASSOCIATES, INC. v. Yerby · filed 2011-08-16Rules 59 and 60

In order for evidence to be considered “newly discovered,” it “must be such that it could not have been obtained in time for the original proceeding through the exercise of due diligence.” ... The document was not “newly discovered” after the summary judgment hearing in the instant case had concluded. The trial court did not err in denying plaintiffs’ motions pursuant to Rules 59 and 60.

Rule 59(a)(4) requires newly discovered evidence to have existed at trial and to have been undiscoverable through due diligence.

In re S.M. · filed 2014-05-20Rule 59(a)(4)

Based on respondent-mother’s own allegations, the report prepared by Dr. Kraft does not qualify as “newly discovered evidence” for purposes of Rules 59(a)(4) or 60(b)(2). “In order for evidence to be ‘newly discovered evidence’ under these rules, it must have been in existence at the time of the trial, and not discoverable through due diligence.”

Rule 60(b)(2) governs motions for a new trial based on newly discovered evidence in civil cases, and the prerequisites for relief remain unchanged.

State v. Blalock · filed 1972-03-29(b)(2)

Motions for new trials for newly discovered evidence in civil cases are now controlled by the provisions of G.S. 1A-1, Rule 60(b) (2). The prerequisite that must be established by the moving party to obtain a new trial on the grounds of newly discovered evidence has not been changed and is set forth in State v. Casey, 201 N.C. 620, 161 S.E. 81 (1931). The facts found do not meet these requirements.

Rule 59(a)(4) permits a new trial for material evidence that reasonable diligence could not have uncovered for trial, and denial of such a motion is reviewed for abuse of discretion.

State v. Hammock · filed 1975-03-05(a)(4)

A motion for new trial on the grounds of newly discovered evidence is addressed to the sound discretion of the trial court ... and is not subject to review absent a showing of an abuse of discretion. ... Suffice it to say, we have reviewed the entire record and hold that the defendant has not shown any abuse of discretion in the trial court’s denial of his motion for a new trial.

Rule 65(b) permits a temporary restraining order without notice upon a showing of immediate and irreparable harm; the rule is constitutional because the order preserves the status quo pending a hearing.

Jolliff v. Winslow · filed 1975-03-11Rule 65(b)

A temporary restraining order is not predicated upon illusory injury, loss, or damage, as is stated by defendant, but is entered only upon a showing of immediate and irreparable injury, loss, or damage. ... We see nothing unconstitutional about a rule that permits the issuance of a temporary restraining order.

Rule 65(b) requires a temporary restraining order issued without notice to state why the injury is irreparable and why the order was issued without notice.

Herff Jones Co. v. Allegood · filed 1978-03-07(b)

Clearly the order does not state why the injury is irreparable nor why the order was issued without notice.

Rule 65(c) allows a restraining order without security when one spouse’s out-of-state divorce action interferes with the other spouse’s pending suit.

Huff v. Huff · filed 1984-07-03Rule 65(c)

We believe it properly could view defendant-husband’s Florida action as a type of “interfering with . . . plaintiff . . . during pendency of [this] suit.” Its restraining order thus fell within the G.S. 1A-1, Rule 65(c) express exclusion from the usual security requirements.

Rule 65(b) causes a temporary restraining order to expire by operation of law when its term ends, leaving no order to vacate.

Democratic Party of Guilford County v. Guilford County Board of Elections · filed 1995-02-07Rule 65(b)

Under this statute, the temporary restraining order entered by Judge John expired by operation of law on 16 November 1990, some twenty (20) days before the defendants filed their motion asking Judge Freeman to vacate Judge John’s temporary restraining order. There was no temporary restraining order in existence at that time for Judge Freeman to vacate.

Rule 65(b) limits every temporary restraining order to a maximum of ten days.

Taylor v. Centura Bank · filed 1996-12-03Rule 65(b)

Rule 65(b) clearly limits every TRO to a maximum of 10 days.