N.C. Gen. Stat. § 1A-1

Damages awarded after a restraining order is dissolved must be supported by competent evidence; an attorney’s unsworn statement is insufficient.

Ronald G. Hinson Electric, Inc. v. Union County Board of Education · filed 1997-02-18Rule 65(e)

The present record indicates the trial court relied upon the unsworn statement of counsel that the Board suffered “about seven fifty” in damages in making finding of fact number seventeen. Such statements by a party’s attorney at trial are not considered evidence. ... Thus, as finding of fact seventeen was not based on competent evidence, the corresponding conclusions of law are likewise erroneous. Accordingly, we reverse the trial court’s award of damages.

Rule 65 makes a temporary restraining order expire automatically after ten days, but it does not apply to a temporary child custody order.

Campen v. Featherstone · filed 2002-06-18Rule 65

However, defendant urges this Court to apply to the ex parte order the provisions of N.C.G.S. § 1A-1, Rule 65 (2001), which establish that a temporary restraining order expires automatically after ten days. We decline to do so. The 1993 ex parte order is not a temporary restraining order issued pursuant to Rule 65, and we conclude that Rule 65 has no application here.

Rule 65 permits a court to consider a request for a temporary restraining order as a preliminary injunction motion when the opposing parties have had an opportunity to submit counter affidavits and legal memoranda.

Se. Anesthesiology Consultants, Pllc v. Charlotte-Mecklenburg Hosp. Auth. · filed 2018-06-22(a)-(b)

Because Defendants have been provided an opportunity to submit counter affidavits and memoranda of law, the Court considers the Motion as a motion for preliminary injunction and not one for a TRO.

Rule 65(b) provides for a temporary restraining order to expire ten days after issuance.

State Ex Rel. Moore v. Doe · filed 1973-08-01Rule 65(b)

The temporary restraining order would have expired on 16 March 1973 by virtue of the provisions of G.S. 1A-1, Rule 65 (b).

A plaintiff bears the burden of establishing entitlement to a preliminary injunction at the hearing.

Setzer v. Annas · filed 1975-03-12Rule 65(b)

At the hearing on 17 September 1973 the burden was on plaintiffs to establish their right to a preliminary injunction.

A party seeking a preliminary injunction must offer evidence showing probable cause that it can establish its asserted rights and either a reasonable apprehension of irreparable loss or a reasonable need for relief during the litigation.

GLYK v. Winston-Salem Southbound Railway Co. · filed 1981-12-15Rule 65(b)

This burden required Railway to offer evidence at the hearing on its motion sufficient to satisfy the trial judge that (1) there is probable cause that Railway will be able to establish the rights which it asserts and (2) there is reasonable apprehension of irreparable loss unless injunctive relief is granted or unless interlocutory injunctive relief appears reasonably necessary to protect Railway’s rights during the litigation.

Rule 56 places the burden on the party seeking summary judgment to establish that no triable issue of fact exists.

Sams v. Sargent · filed 1975-03-19Rule 56(c)

After carefully reviewing the affidavits and deposition filed by defendant in support of his motion for summary judgment, we conclude defendant has carried the burden of estalishing the lack of a triable issue of fact in this case.

Rule 56 requires a defendant seeking summary judgment to produce evidence that negates the plaintiff’s claim in its entirety and shows no genuine issue of material fact.

Caldwell v. Deese · filed 1975-07-02Rule 56

These issues must be determined at trial unless the defendant, the party moving for summary judgment, carries his burden of producing evidence of the necessary certitude to negative plaintiff’s claim in its entirety and thereby demonstrates a lack of genuine issues of material fact. ... Since the record here consists only of a complaint sufficient to state a claim upon which relief could be granted, an answer denying the material allegations of the complaint and pleading contributory negligence, and plaintiff’s deposition which reiterates the allegations of the complaint, summary judgment for defendant was inappropriate.

Rule 56 does not permit summary judgment for a party bearing the burden of proof when recovery depends on the credibility of that party’s witnesses.

Shearin v. National Indemnity Company · filed 1975-10-01Rule 56(a)

This appeal presents the question whether under the Constitution and laws of this State a summary judgment may be granted in favor of the party having the burden of proof when his right to recover depends upon the credibility of his witnesses. On authority of Cutts v. Casey, 278 N.C. 390, 180 S.E.2d 297 (1971), we conclude that the answer is NO. G.S. 1A-1, Rule 56(a) clearly contemplates the possibility of granting a summary judgment in favor of a "party seeking to recover upon a claim, counterclaim, or crossclaim," and normally such a party has the burden of proof.

Rule 56 shifts the burden to the opposing party to show a genuine issue for trial or provide an excuse for not doing so.

Brooks v. Smith · filed 1975-10-15(c), (e), (f)

The burden then shifted to the plaintiff under Rule 56(e) to show that there is a genuine issue for trial, or to provide an excuse for not doing so under Rule 56(f).

Rule 56(e) requires a party opposing summary judgment to respond with affidavits or other evidence stating specific facts showing a genuine issue for trial.

United States Steel Corp. v. Lassiter · filed 1976-01-21(e)

While the party moving for summary judgment has the burden of positively and clearly showing that there is no genuine issue as to any material fact, Brawley v. Heymann, 16 N.C. App. 125, 191 S.E. 2d 366 (1972), cert. denied 282 N.C. 425, 192 S.E. 2d 835 (1972), when the movant carries that burden the opposing party may not rest upon the mere allegations of his pleading but must respond with affidavits or other evidentiary matter which sets forth specific facts showing that there is a genuine issue for trial. G.S. 1A-1, Rule 56 (e).

Rule 56(c) requires the movant to show no genuine issue of material fact and entitlement to judgment as a matter of law, while Rule 56(e) requires an opposing party to set forth specific facts showing a genuine issue and does not relieve the movant of its burden.

Parker v. Bennett · filed 1977-01-05(c), (e)

Rendition of summary judgment is, by the rule itself, conditioned upon a showing by the movant (1) that there is no genuine issue as to any material fact, and (2) that any party is entitled to a judgment as a matter of law. G.S. 1A-1, Rule 56(c), Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E. 2d 823 (1971).

Rule 56(e) requires a party opposing summary judgment to offer proof showing a genuine issue for trial after the moving party carries its burden.

Moore v. Galloway · filed 1978-02-21(e)

It then became incumbent upon the plaintiff to take affirmative steps to defend her position by offering proof of her own that there was a genuine issue of fact for trial. See G.S. 1A-1, Rule 56(e).

Rules 8 and 56 require an unpleaded affirmative defense raised at a summary judgment hearing to be treated as part of the pleadings.

Cooke v. Cooke · filed 1977-09-21

The exclusion of evidence on the ground that an affirmative defense was not specifically pleaded may be raised properly at trial. G.S. 1A-1, Rule 8; 61 Am. Jur. 2d, Pleading (p. 584). But assuming that reconciliation is an affirmative defense which must be specifically pleaded, the nature of summary judgment procedure (G.S. 1A-1, Rule 56), coupled with our generally liberal rules relating to amendment of pleadings, require that unpleaded affirmative defenses be deemed part of the pleadings where such defenses are raised in a hearing on motion for summary judgment.

Rule 56(e) requires an opposing party to set forth specific facts by affidavit or otherwise showing a genuine issue for trial when a properly supported summary judgment motion is made.

Five Star Enterprises, Inc. Ex Rel. Grant v. Russell · filed 1977-10-19(e)

When a motion for summary judgment is made and properly supported, as in the instant case, the adverse party may not rest upon the mere allegations or denials of his pleading, but must, by affidavit or otherwise, set forth specific facts showing that there is a genuine issue for trial.

Rule 56(c) requires the party moving for summary judgment to show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.

Housing, Inc. v. Weaver · filed 1978-08-01Rule 56(c)

On the motion for summary 'judgment, the defendants had the burden of proving that there is no genuine issue as to any material fact and that on the undisputed facts they are entitled to judgment as a matter of law.

Rule 56(b) requires the movant to show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law.

Pitts v. Village Inn Pizza, Inc. · filed 1978-11-28(b)

The language of the rule itself conditions rendition of summary judgment upon a showing by the movant that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. G.S. 1A-1, Rule 56(b); Kessing v. Mortgage Corp., supra.

A defendant seeking summary judgment must forecast evidence showing no material factual issue on an essential element of the plaintiff’s claim and that the plaintiff cannot prove that element with substantial evidence.

Jenkins v. Stewart & Everett Theatres, Inc. · filed 1979-05-15Rule 56(c)

In order to bear its burden of showing that it was entitled to summary judgment, the defendant was required to present a forecast of the evidence which would be available at trial and which showed that there was no material issue of fact concerning an essential element of the plaintiff’s claim and that such element could not be proved by the plaintiff through the presentation of substantial evidence.

Under Rule 56, a party opposing a supported summary judgment motion must produce evidence of a genuine factual issue and cannot rely on allegations in the complaint.

Neihage v. Kittrell Auto Parts, Inc. · filed 1979-06-05Rule 56

Plaintiff was required to come forward with some evidence to raise a question of fact to be tried. Plaintiff could not rely on the bare allegations of his complaint.

Rule 56 requires the summary judgment movant to show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law.

Emerson v. Great Atlantic & Pacific Tea Co. · filed 1979-06-19Rule 56(c)

Upon a motion for summary judgment, the burden is on the movant to establish that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law.

Rule 56(e) does not permit summary judgment when the moving party fails to show that no genuine issue of material fact remains, even if the opposing party submits no affidavit.

Baumann v. Smith · filed 1979-12-04Rule 56(e)

The defendants did not meet their burden of proof, and we hold that summary judgment was not “appropriate” within the meaning of Rule 56(e).

Under Rule 56(e), once the summary judgment movant meets its burden, the opposing party must present evidence to controvert the movant’s case rather than rest on its pleadings.

Hotel Corp. v. Taylor and Fletcher v. Foremans, Inc. · filed 1980-10-07(e)

Since defendant-appellants had met their burden under Rule 56 as movants for summary judgment, it was incumbent upon plaintiff to come forth with evidence to controvert defendant’s case, or otherwise suffer entry of summary judgment against it.

On a motion for summary judgment, the moving party bears the burden of showing that no triable issue of fact exists.

Renfro v. Meacham · filed 1981-02-03Rule 56(c)

Upon a motion for summary judgment, the burden is on the moving party to establish the lack of a triable issue of fact.

Rule 56(c) requires a summary judgment movant to show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.

Green v. Wellons, Inc. · filed 1981-06-16Rule 56(c)

The law places the burden on a movant for summary judgment to show (1) that no genuine issue of material fact exists, and (2) that the movant is entitled to judgment as a matter of law.

Rule 56 requires a summary judgment movant to show that no genuine issue of material fact remains and that the movant is entitled to judgment as a matter of law.

O'Neal v. Kellett · filed 1981-12-15Rule 56

On a motion for summary judgment under G.S. 1A-1, Rule 56, the burden is on the movant to show to the court that there are no genuine issues of material fact to be tried in the case and that the movant is entitled to summary judgment as a matter of law.

Rule 56(c) places the burden on the party moving for summary judgment to prove that no genuine issue of material fact exists.

Kiddie Korner Day Schools, Inc. v. Charlotte-Mecklenburg Board of Education · filed 1981-12-15Rule 56(c)

We note initially that on a motion for summary judgment the moving party has the burden of proving that there are no genuine issues of material fact.

A party moving for summary judgment must establish that no genuine issue of material fact remains and that it is entitled to judgment as a matter of law.

Bernick v. Jurden · filed 1982-07-13Rule 56(c)

In order to prevail on their summary judgment motion, defendants must carry the burden of establishing the lack of a genuine issue as to any material fact and their entitlement to judgment as a matter of law.

A party moving for summary judgment must establish the absence of any triable issue of fact.

Henderson v. Provident Life & Accident Insurance · filed 1983-06-07Rule 56(e)

It is axiomatic that the party moving for summary judgment has the burden of establishing the absence of any triable issue of fact.

The party moving for summary judgment must establish that no triable issue of fact exists.

Joel T. Cheatham, Inc. v. Hall · filed 1983-11-01Rule 56(c)

The party moving for summary judgment has the burden of establishing the absence of any triable issue of fact.

Once the summary judgment movant makes a sufficient showing, Rule 56(e) requires the opposing party to present materials that negate it or raise a triable fact issue; denials in the pleadings do not suffice.

Gebb v. Gebb · filed 1984-03-06Rule 56(e)

The burden then shifted to defendant to present materials which would negate plaintiffs showing or raise a triable issue of fact. Defendant failed to do so. He could not rest upon the mere denials in his pleadings. G.S. 1A-1, Rule 56(e).

Rule 56(c) requires a summary judgment movant to show that an essential element of the opposing party’s claim is absent or cannot be supported by sufficient evidence.

Latta v. Farmers County Mutual Fire Insurance · filed 1984-04-03Rule 56(c)

The burden is upon the moving party to demonstrate that either (1) an essential element of the opposing party’s claim is nonexistent, or (2) the opposing party will be unable to produce sufficient evidence to support an essential element of its claim.

A party seeking summary judgment must establish through uncontroverted evidence that no genuine issue of material fact exists.

Anderson v. Canipe · filed 1984-07-03Rule 56(c)

To prevail on their motion for summary judgment, defendants have the burden of establishing by uncontroverted evidence the absence of any genuine issue of material fact.

Rule 56(c) requires the summary judgment movant to show that no triable issue of fact exists; the opposing party cannot rely only on allegations in the pleadings.

Johnson v. Builder's Transport, Inc. · filed 1986-03-18Rule 56(c)

The moving party, through his forecast of the evidence, has the burden of establishing a lack of triable issues of fact, but the non-moving party may not rest upon the mere allegations of his pleadings.

Rule 56(e) requires the nonmoving party to present specific facts showing a genuine issue for trial once the moving party satisfies its summary judgment burden.

Sutton v. Major Products Co. · filed 1988-10-18Rule 56(e)

If the moving party satisfies its burden of proof, then the burden shifts to the non-moving party to come forward with specific facts showing there is a genuine issue for trial. G.S. 1A-1, Rule 56(e).

Rule 56(c) requires the party moving for summary judgment to show that no triable issue of fact exists and that it is entitled to judgment as a matter of law.

Wilson Heights Church of God v. Autry · filed 1989-06-06Rule 56(c)

A party moving for summary judgment has the burden of showing that there is no triable issue of fact and that she is entitled to judgment as a matter of law. ... Carr has failed to meet his burden.

Rule 56(e) requires a party opposing a supported summary judgment motion to identify a triable factual issue.

Symons Corp. v. Insurance Co. of North America · filed 1989-07-05(e)

While we note that in some cases courts have been slow to grant summary judgment when the movant presents only his own affidavits, which are unchallenged, a non-movant is still required to point out the existence of a triable issue.

Under Rule 56(c), the summary judgment movant must first show that an essential element of the opposing claim is absent, cannot be proven at trial, or is barred by an affirmative defense before the nonmovant must forecast evidence supporting a prima facie case.

Goodman v. Wenco Foods, Inc. · filed 1992-12-18Rule 56(c)

A summary judgment motion may progress through two steps: first, the movant must meet the burden of proving an essential element of plaintiff’s claim does not exist, cannot be proven at trial or would be barred by an affirmative defense. Only after a moving party meets this burden must the nonmovant “produce a forecast of evidence demonstrating that the plaintiff will be able to make out at least a prima facie case at trial.”

Rule 56(e) requires a party opposing a supported summary judgment motion to show a genuine issue for trial rather than rely on the pleadings.

Canady v. Mann · filed 1992-08-18Rule 56(e)

If the moving party successfully presents evidence to- dispel the presence of an essential element of a claim, the opposing party may not rest upon the allegations or denials in his pleadings. Instead, he must affirmatively take steps to show that there is a genuine issue for trial. If the opposing party cannot or fails to do so, summary judgment is to be entered. N.C. Gen. Stat. § 1A-1, Rule 56(e) (1990).

Rule 56 requires the moving party to show that no genuine issue of material fact exists before summary judgment may be granted.

Morgan v. Cavalier Acquisition Corp. · filed 1993-08-17Rule 56

Given the evidence presented in this record, we conclude that defendants have failed to meet their burden of showing that no genuine issue of material fact exists as to the issue of gross negligence.

Rule 56 requires summary judgment when no genuine issue of material fact exists and a party is entitled to judgment as a matter of law.

Dunleavy v. Yates Construction Co. · filed 1994-04-05Rule 56

Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law. North Carolina General Statutes § 1A-1, Rule 56 (1990). “In summary judgment, the burden is on the moving party to (1) prove an essential element of the opposing party’s claim is non-existent, or (2) show through discovery that the opposing party cannot produce evidence to support an essential element of his or her claim.”

Rule 56(c) requires a defendant moving for summary judgment to show that the plaintiff cannot prove an essential element before the plaintiff must forecast supporting evidence.

Trexler v. K-Mart Corp. · filed 1995-07-05Rule 56(c)

Because defendant did not meet its burden of showing that plaintiff was unable to prove an essential element of her claim, plaintiff had no duty to come forward with a forecast of evidence to support her claim, and summary judgment in favor of defendant was improperly granted.

Rule 56(f) permits a party opposing summary judgment to provide an excuse for failing to present evidence that raises a genuine issue of fact.

Aune v. University of North Carolina at Chapel Hill · filed 1995-10-17Rule 56(f)

In the context of summary judgment in this type of action, once a defendant, moving for summary judgment, presents evidence that the adverse employment action is based' on a legitimate non-retaliatory motive, the burden shifts to the plaintiff to present evidence, raising a genuine issue of fact, that his actions under the Act were a substantial causative factor in the adverse employment action, ... or provide an excuse for not doing so. N.C.G.S. § 1A-1, Rule 56(f) (1990).

Rule 56(c) requires the party seeking summary judgment to show that no factual issue requires trial and that it is entitled to judgment as a matter of law.

Martin v. Continental Insurance · filed 1996-09-03Rule 56(c)

On a motion for summary judgment, the burden is on the moving party (here, defendant Continental) to establish that there is no triable issue of fact and entitlement to judgment as a matter of law.

Rule 56(c) places the burden on a summary judgment movant to show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.

Barger v. McCoy Hillard & Parks · filed 1997-07-24Rule 56(c)

The trial court disposed of this case upon defendants’ motion for summary judgment. The burden is therefore upon defendants to establish that there is no genuine issue of material fact and that defendants are entitled to judgment as a matter of law.

A summary judgment movant does not meet its burden by ruling out one way the opposing party could prove an essential element when other evidence may support it.

Kennedy v. Hawley · filed 1998-01-06Rule 56(c)

This evidence, however, does not satisfy Defendant’s burden of showing that Plaintiff cannot present other evidence showing that Defendant was aware or should have been aware that his dog was likely to chase bicyclists. Summary judgment for Defendant was therefore error.

Rule 56(e) requires a nonmovant to set out specific facts showing a genuine issue of material fact after the movant meets the summary judgment burden.

Fisher v. Carolina Southern Railroad · filed 2000-12-19(e)

A party moving for summary judgment has the burden of showing no genuine issue of material fact exists, and this burden may be met by showing the nonmovant cannot produce essential evidence to support an element of his claim. ... Once a movant meets this burden, the burden shifts to the nonmovant to set forth specific facts showing a genuine issue of material fact does exist. Id.; N.C.G.S. § 1A-1, Rule 56(e) (1999).

A summary judgment movant meets its initial burden by showing that the opposing party cannot produce evidence for an essential element of its claim.

Huffman v. Inglefield · filed 2001-12-28Rule 56

To support his motion for summary judgment, defendant has the initial burden of showing either that plaintiff cannot produce evidence to support an essential element of his claim, an essential element of plaintiff’s claim does not exist, or plaintiff cannot provide an affirmative defense that would save his claim.

Rule 56(e) requires a party opposing summary judgment to present specific facts showing an issue for trial; unsubstantiated allegations do not suffice.

Smiley's Plumbing Co., Inc. v. PEP ONE · filed 2003-01-21Rule 56(e)

Thus, defendants were entitled to summary judgment as plaintiff failed to carry its burden under Rule 56(e).

When a defendant supports summary judgment with competent evidence, Rule 56(c) requires the plaintiff to forecast evidence sufficient to establish a prima facie case at trial.

Draughon v. Harnett County Board of Education · filed 2003-07-01Rule 56(c)

As defendant made a showing through competent evidence that he was entitled to summary judgment, it became incumbent upon plaintiff to produce a forecast of evidence showing that she could at least establish a prima facie case at trial.

Rule 56(c) requires the moving party to show that no genuine issue of material fact remains and that it is entitled to judgment as a matter of law; the evidence is viewed in the light most favorable to the non-moving party.

Taylor v. Gore · filed 2003-11-18Rule 56(c)

Summary judgment is proper when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2001). The evidence is considered in the light most favorable to the non-moving party, and the moving party bears the burden of establishing no triable issue of material fact remains.

Once the moving party shows no genuine issue of material fact, the burden shifts to the opposing party to show that one exists.

Kennedy v. Gardner · filed 2005-05-03Rule 56(c)

As defendants, the moving party, had established that no genuine issue of material fact existed, the burden then shifted to plaintiffs to demonstrate that a genuine issue of material fact did exist.

At summary judgment, the plaintiff must present evidence supporting every element of the claim.

NORMAN HOME FURNISHINGS, INC. v. Mayo · filed 2006-02-07Rule 56(c)

At this stage of summary judgment, the plaintiff must go forward and present evidence as to all elements of his claim or else the claim will fail.

Rule 56(c) places the burden on the party moving for summary judgment to show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.

Bolick v. County of Caldwell · filed 2007-03-06Rule 56(c)

The burden is upon the moving party to show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.

Rule 56(c) places the burden on the party moving for summary judgment to show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.

Showalter v. North Carolina Department of Crime Control & Public Safety · filed 2007-05-01Rule 56(c)

The burden is upon the party moving for summary judgment to show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.

When a summary judgment movant presents evidence that would entitle her to judgment, the opposing party must forecast specific evidence supporting a genuine issue of material fact.

Barnes v. Dancy · filed 2007-10-02Rule 56(c)

Having forecast evidence that would entitle defendant to judgment as a matter of law, it was incumbent upon plaintiffs to forecast specific evidence tending to support their claim that Ms. Barnes lacked the mental capacity required to execute a valid deed in May 1997.

Under Rule 56(e), once the summary judgment movant shows no genuine issue of material fact, the nonmovant must present specific facts establishing a genuine dispute for trial.

In Re the Will of Jones · filed 2008-12-12Rule 56(e)

If the movant demonstrates the absence of a genuine issue of material fact, the burden shifts to the nonmovant to present specific facts which establish the presence of a genuine factual dispute for trial.

Under Rule 56(c), once the moving party shows that an essential element of a claim is absent, the opposing party must forecast evidence of a genuine issue of material fact.

HACKOS v. Smith · filed 2008-12-16Rule 56(c)

It then became incumbent upon plaintiff to forecast evidence showing the existence of a genuine issue of material fact as to whether there was a breach of a duty owed to her. She failed to do so.

After the moving party shows that an essential element of a claim is missing, Rule 56 requires the opposing party to forecast specific facts supporting that element.

Defeat the Beat, Inc. v. Underwriters at Lloyd's London · filed 2008-12-02Rule 56(e)

Given that defendants established that essential elements of the non-moving party’s claims are nonexistent, the burden then shifted to plaintiff, the non-moving party, to forecast evidence or specific facts that demonstrate the existence of some sort of loss, insured under the terms of the policy, which defendants refused to pay.

Rule 56(e) requires a summary judgment movant to show that no genuine issue of fact exists; evidence addressing only one possible basis for standing does not meet that burden.

Haugh v. County of Durham · filed 2010-12-07Rule 56(e)

In support of their motion for summary judgment with respect to standing, defendants only presented evidence that plaintiffs did not pay property taxes to Durham for the 2007 tax year. Therefore, defendants failed to meet their burden pursuant to Rule 56(e) to show that no genuine issue of fact existed as to plaintiffs’ standing.

Under Rule 56, a public official seeking summary judgment on immunity bears the initial burden of showing no genuine issue of material fact as to malice.

Brown v. Town of Chapel Hill · filed 2014-04-01Rule 56

In summary, while the initial burden was on Officer Funk to show the absence of any genuine issue of material fact that he did not act with malice, we believe that he met this burden, and he was entitled to the affirmative defense of public official immunity.

A party moving for summary judgment must show that no genuine issue of material fact exists, including by showing that the opposing party cannot produce evidence to support an essential element of its claim.

Hart v. Brienza · filed 2016-04-05Rule 56(c)

Officer Brienza failed to produce evidentiary materials at the summary judgment stage to show Plaintiff would be unable to produce evidence to support his allegations. Officer Brienza failed to carry his burden to show no genuine issue of material fact exists.

Rule 56(c) bars summary judgment when genuine issues of material fact remain; the plaintiff need not forecast evidence until the moving party meets its burden.

Jenkins v. Batts · filed 2016-07-05Rule 56(c)

Plaintiff is not required to produce a forecast of evidence until defendants have met their burden; nevertheless, in this case, plaintiff has produced a sufficient forecast of evidence to demonstrate issues of material fact which prevent summary judgment.

Rule 56 imposes a heightened burden on a party seeking summary judgment on its own claim.

Futures Grp., Inc. v. Brosnan · filed 2023-01-19Rule 56(c)

For affirmative summary judgment on a party’s own claim, the burden is heightened.

Rule 56(c) requires the nonmoving party to forecast evidence establishing a prima facie case once the moving party shows entitlement to summary judgment.

Griffin v. Brown · filed 2026-02-04Rule 56(c)

Defendants made a showing through competent evidence to rebut Plaintiff’s claims and to show entitlement to summary judgment. Upon such showing, it became incumbent upon Plaintiff to produce a forecast of evidence showing he could at least establish a prima facie case at trial.

Rule 15(b) treats an issue outside the pleadings as pleaded when the parties expressly or impliedly consent to trying it; failing to object to evidence can establish implied consent.

In Re LTR · filed 2007-01-16Rule 15(b)

Rule 15(b) of the North Carolina Rules of Civil Procedure provides that "[w]hen issues not raised by the pleadings are tried by the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." N.C. Gen.Stat. § 1A-1, Rule 15(b) (2005). In the present case, Respondent Stepfather gave his implied consent by failing to object to the evidence when it was offered.

Rule 15(b)'s amendment by implied consent does not apply when the omitted allegation is necessary to confer jurisdiction.

Eudy v. Eudy · filed 1975-04-02Rule 15(b)

We are aware of the amendment of the pleadings by implied consent principle envisioned by G.S. 1A-1, Rule 15(b), and approved in Roberts v. Memorial Park, 281 N.C. 48, 187 S.E. 2d 721 (1972), but do not think the principle would apply in this case where the omitted allegation was necessary to confer jurisdiction.

Rule 15(b) does not amend pleadings by consent when evidence also supports a pleaded issue and the parties did not understand that an unpleaded issue was being tried.

Eudy v. Eudy · filed 1975-06-26Rule 15(b)

Here, the evidence supports issues embraced by the pleadings without indicating in any manner that the parties introducing the evidence sought to raise a new issue. There is nothing to indicate that the evidence was such that defendant understood or reasonably should have understood that any issue other than those embraced in the pleadings was being tried. Under these circumstances the provisions of Rule 15(b) do not apply so as to amend the pleadings to conform to the evidence.

Rule 15(b) authorizes amendments to pleadings to conform to the evidence.

ITT-Industrial Credit Co. v. Milo Concrete Co. · filed 1976-11-17(b)

Suffice it to say, the amendment was fully authorized by G.S. 1A-1, Rule 15 (b).

Rule 15(b) allows an issue not raised in the pleadings to be treated as if pleaded when the parties try it by consent.

McRae v. Moore · filed 1977-05-04(b)

Therefore, under G.S. 1A-1, Rule 15(b), the rule of “litigation by consent” applied, and it was not error for the court to receive evidence and to decide the case on an issue not formally raised by the pleadings.

Rule 15(b) allows conforming amendments within the court's discretion and bars amendments that do not support the action or defense on the merits.

Murphy v. Murphy · filed 1977-12-21(b)

Conforming amendments under G.S. 1A-1, Rule 15(b) are within the sound discretion of the court and should not be allowed where they fail to support the action or defense upon the merits.

Rule 15(b) permits amendments to conform pleadings to the evidence and generally requires leave to be freely given unless the opposing party shows material prejudice.

Auman v. Easter · filed 1978-06-06(b)

Another assignment of error relates to the amendment of defendant Howell’s answer so as to conform to the evidence. G.S. 1A-1, Rule 15(b). The trial judge is allowed broad discretion in ruling on such motions. ... Leave to amend should be freely given except where the party objecting can show that he would be materially prejudiced. ... There was no error in allowing the amendment.

Rule 15(b) permits a complaint to be amended to conform its allegations to evidence sufficient to support the amended claim.

Lewis v. Boling · filed 1979-08-21Rule 15(b)

Plaintiff’s evidence was amply sufficient to show grounds for imposing a constructive trust in this case, and the court did not err in permitting him to amend his complaint to conform his allegations to his evidence. G.S. 1A-1, Rule 15(b).

Rule 15(b) does not permit litigation of an unpleaded theory by consent when defendants object to evidence outside the pleadings and the plaintiff does not move to amend the complaint.

Coker v. Stevens · filed 1979-10-16Rule 15(b)

The record reveals that this is not a case wherein the doctrine of litigation by consent applies pursuant to G.S. 1A-1, Rule 15(b), of the Rules of Civil Procedure. Defendants objected to the introduction of the evidence as set out above and further indicated to the court that such was outside the scope of the pleadings. Plaintiff failed to move to amend his complaint to conform with the evidence as required by Rule 15(b).

Rule 15(b) permits amendment to conform to the evidence only when the parties understood, or reasonably should have understood, that the evidence was directed to an issue outside the pleadings.

W & H GRAPHICS, INC. v. Hamby · filed 1980-08-05Rule 15(b)

The evidence presented in the present case was clearly sufficient to raise an issue as to the reasonable necessity of involuntary dissolution under G.S. 55-125 (a)(4), thereby satisfying the first requirement established in Eudy v. Eudy, supra for amendment under Rule 15 (b). The question remains, however, whether the second requirement of Eudy was met, that is, that the parties understood, or reasonably should have understood, that this evidence was directed to that issue. We hold that it was not.

Rule 15(b) allows pleadings to be amended to conform to unobjected-to evidence when the amendment makes existing allegations more specific and the opposing party shows no prejudice to its defense.

Vance Trucking Co., Inc. v. Phillips · filed 1981-03-03(b)

We agree with plaintiffs and hold that the pleadings should have been amended pursuant to G.S. 1A-1, Rule 15(b). The proposed paragraphs do nothing more than make more specific certain allegations contained in the original complaints. The testimony the amendments are based on was unobjected to at trial. The contention that the evidence was known to plaintiffs at the time they drew up their complaint and thus was no surprise to them is irrelevant since defendants failed to show how the amendments would prejudice them in maintaining their defense.

Rule 15(b) provides that failure to amend pleadings to conform to the evidence does not affect the trial of issues not raised by the pleadings.

Coley v. Eudy · filed 1981-04-07Rule 15(b)

G.S. 1A-1, Rule 15(b) clearly states that a failure to amend pleadings to conform to the evidence does not affect the result of the trial of issues not raised by the pleadings.

Rule 15(b) does not allow an unpleaded issue to be treated as tried by consent when the party does not seek amendment and the opposing party objects.

Cochran v. City of Charlotte · filed 1981-08-18Rule 15(b)

At no time did plaintiffs seek to amend their complaint to allege a further taking upon opening of the new runway in June 1979. In view of this failure to seek amendment and of defendant’s objection, the court had no basis for allowing the evidence on the theory that the issue of a further taking was being “tried by the express or implied consent of the parties.” G.S. 1A-1, Rule 15(b).

Rule 15(b) treats an issue as tried by implied consent when a party fails to object specifically that the evidence is outside the pleadings.

Lea Co. v. North Carolina Board of Transportation · filed 1982-06-01(b)

Failure of a party to object to evidence offered at trial on the specific grounds that the evidence was outside the pleadings results in trial of those issues by implied consent.

Rule 15(b) treats an issue as tried by implied consent when evidence on that issue is admitted and the opposing party’s general objection is overruled.

Harris v. Bridges · filed 1982-10-19Rule 15(b)

Since the evidence of defendant’s speeding in excess of sixty-five miles per hour was admitted at trial, and opposing counsel’s general objection was overruled, the issue of speeding was tried by the implied consent of the parties.

A trial court has discretion to deny a Rule 15(b) amendment sought after a mistrial to add a negligence theory that was not tried, especially when the proposed pleading omits proximate causation.

James v. Charlotte-Mecklenburg Board of Education · filed 1983-02-15Rule 15(b)

Plaintiff has brought forward one additional assignment of error, to the trial court’s denial of plaintiffs G.S. 1A-1, Rule 15(b) motion to amend his complaint to assert the negligence of the principal of the school. Plaintiffs motion was not made until after the jury indicated its inability to reach a verdict and the trial court had declared a mistrial. ... While plaintiffs proposed amendment did assert negligence on the part of the principal, it did not allege that such negligence proximately caused Kristin’s injury. Under these circumstances, the decision as to whether to allow the amendment was in the discretion of the trial court, and we see no abuse of that discretion in denying the motion.

Rule 15(b) deems pleadings amended to conform to the evidence when an issue is tried by consent without timely objection.

Carter v. Parsons · filed 1983-04-05Rule 15(b)

Moreover, since the issue of whether plaintiff was induced by defendant’s representations to give $12,500.00 to Finger was tried by the consent of the parties and since defendant made no timely objection to evidence admitted pertaining to that issue, the pleadings must be deemed amended to conform to the evidence and to entitle plaintiff to a recovery based on his proof.

Rule 15(b) does not treat a party’s failure to object as implied consent to try a new issue when the evidence also supports an issue already raised by the pleadings.

Gilbert v. Thomas · filed 1983-10-18Rule 15(b)

When, however, the evidence used to support the new issue would also be relevant to support the issue raised by the pleadings, the defendant has not been put on notice of plaintiffs new or alternate theory. Therefore, defendant’s failure to object does not constitute “implied consent.”

Rule 15(b) permits pleadings to be amended by implied consent when a party does not object to evidence outside the pleadings.

Taylor v. Gillespie · filed 1984-02-07Rule 15(b)

Because no objection was made to the introduction of the evidence, the pleadings were amended by implication. Formal permission of the court was not required, although the better practice is that the party benefited should move to amend the pleadings to reflect the theory of recovery.

Rule 15(b) permits a court to deny a motion to amend a complaint to conform to the evidence when the proposed complaint fails to state a claim.

Griffin v. Baucom · filed 1985-04-16Rule 15(b)

Because the amended complaint fails to state a claim upon which relief may be granted, the trial court did not abuse its discretion in denying plaintiffs’ Rule 15(b) motion.

Rule 15(b) does not require an amendment to add a separate cause of action that the parties did not consent to try and that would severely prejudice the opposing party.

Paris v. MICHAEL KREITZ JR., PA · filed 1985-07-02Rule 15(b)

Allowing the amendment proffered by plaintiffs would have allowed' plaintiffs to plead a new cause of action and would have severely prejudiced defendants.

When parties impliedly consent to try an issue outside the pleadings, Rule 15(b) treats it as pleaded; a formal amendment is unnecessary, though moving to amend is better practice.

Mobley v. Hill · filed 1986-04-01Rule 15(b)

Even though technically no amendment is required when issues are tried by implied consent, the better practice is to move to amend the pleadings to actually reflect the theory of recovery.

Rule 15(b) treats an unpleaded issue tried by the parties’ implied consent as if it had been raised in the pleadings.

Perry v. Perry · filed 1986-04-01(b)

The issue of the constitutionality of retroactive application is necessarily considered in determining the controversy, however, and that issue was raised at trial and tried by the implied consent of the parties. “When issues not raised by the pleadings are tried by the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” G.S. 1A-1, Rule 15(b). The constitutional issue, having been raised and passed upon by the superior court, is properly before us.

Rule 15(b) treats pleadings as amended by implication when evidence outside their scope is admitted at trial without objection.

Wohlfahrt v. Schneider · filed 1986-07-15Rule 15(b)

Where no objection is raised at trial on the grounds that the proffered evidence is not within the scope of the pleadings no formal amendment is required and the pleadings are deemed amended by implication.

Rule 15(b) does not treat a failure to object as implied consent to try an unpleaded issue when the evidence also supports an issue raised by the pleadings.

Tyson v. Ciba-Geigy Corp. · filed 1986-09-02Rule 15(b)

Where the evidence which supports an un-pleaded issue also tends to support an issue properly raised by the pleadings, no objection to such evidence is necessary and the failure to object does not amount to implied consent to try the unpleaded issue.

Rule 15(b) permits a trial court to allow an amendment to the pleadings at any time when it serves the merits and causes no material prejudice to the opposing party.

Williams v. Sapp · filed 1986-10-21Rule 15(b)

Plaintiff made the motion to amend her complaint pursuant to G.S. 1A-1, Rule 15(b). ... The trial court has authority under this rule to permit an amendment to the pleadings at any time when there is no material prejudice to the opposing party and such amendment will serve to present the action on its merits. ... In the present case, defendants have failed to demonstrate that they were prejudiced by the amendment to the complaint. We hold, therefore, that the trial court did not abuse its discretion in allowing the amendment.

Rule 15(b) allows an unpleaded issue to be tried by consent only when evidence admitted without objection is clearly irrelevant to the pleaded claims.

J. M. Westall & Co. v. Windswept View of Asheville, Inc. · filed 1990-01-16Rule 15(b)

We cannot say the parties litigated a negligent misrepresentation issue by consent based on the evidence admitted to prove fraudulent misrepresentation which may also tend to prove some elements of negligent misrepresentation. To give rise to the Mangum exception to the pleading requirement, the evidence admitted without objection must be clearly irrelevant to any causes of action properly pled. Otherwise a defendant would not be on notice that he was litigating an issue other than those pled.

Rule 15(b) permits a court to consider an unpleaded damages issue tried by consent when the opposing party does not object to the evidence, even without a formal amendment.

Sharrard, McGee & Co. v. Suz's Software, Inc. · filed 1990-10-16Rule 15(b)

G.S. 1A-1, Rule 15(b). Although the plaintiff failed to formally move to amend its complaint to allow recovery for damages involving special circumstances as under G.S. § 25-2-714(2), under the rule of “litigation by consent,” failure by defendant to object to the offered evidence permitted the trial judge to admit and consider the additional damages.

Issues tried by the parties’ express or implied consent are treated as though they were raised in the pleadings.

Rite Color Chemical Co., Inc. v. VELVET TEXTILE CO. INC. · filed 1992-01-07(b)

“When issues not raised by the pleadings are tried by the express or implied consent of the parties, they shall-be treated in all respects as if they had been raised in the pleadings.” ... Because the parties tried the issues of bribery, conspiracy, interference, and fraud at the hearing on unconscionability without objection, the law deemed the defendant’s answer as having been properly amended to include these allegations as grounds for a determination of unconscionability.

Rule 15(b) permits amendment based on evidence admitted without objection only when the parties understand that it addresses an unpleaded issue; evidence that also supports a pleaded issue does not establish implied consent.

Members Interior Construction, Inc. v. Leader Construction Co. · filed 1996-10-15Rule 15(b)

When, as here, evidence is introduced without objection, a Rule 15(b) motion should be granted only if the parties understand the evidence is aimed at an issue not expressly pleaded. ... Where the evidence which supports an unpleaded issue also tends to support an issue properly raised by the pleadings, however, failure to object does not amount to implied consent to try the unpleaded issue.

Rule 15(b) permits pleadings to be amended to conform to issues tried by express or implied consent when the opposing party had a fair opportunity to defend and was not prejudiced.

Shore v. Farmer · filed 1999-06-01(b)

The effect of Rule 15(b) is to allow amendment by implied consent to change the legal theory of the cause of action so long as the opposing party has not been prejudiced in presenting his case, i.e., where he had a fair opportunity to defend his case.

Rule 15(b) allows pleadings to be amended by implied consent when the opposing party had a fair opportunity to defend and was not prejudiced.

Yancey v. Lea · filed 2000-07-1815(b)

The effect of Rule 15(b) "is to allow amendment by implied consent to change the legal theory of the cause of action so long as the opposing party has not been prejudiced in presenting his case, i.e., where he had a fair opportunity to defend his case."

Rule 15(b) does not require a further formal amendment to add an affirmative defense when the court has granted leave to amend, the opposing party had notice and a fair opportunity to respond, and the opposing party shows no prejudice.

McDevitt v. Stacy · filed 2002-02-05Rule 15(b)

We hold that when the trial court grants defendants' motion to amend their pleadings to include contributory negligence, the evidence supports the issue of contributory negligence, and plaintiff: (1) is put on notice of an affirmative defense of contributory negligence by defendants' conditional pleading, (2) does not move to strike the allegations and replies denying negligence, asserting the last clear chance doctrine and defendant's gross negligence, (3) avails himself of all opportunities to fairly and fully prosecute his case, (4) fails to argue or show any prejudice to the trial court in presenting his case, (5) requests the instructions of last clear chance, gross negligence, and reckless driving, (6) appeals from the denial of those requested instructions, and (7) fails to argue any prejudice on appeal, the issue of contributory negligence is within the scope of the pleadings, and no further amendment is required.

Rule 15(b) allows pleadings to be amended to conform to issues tried by consent, but a court may deny a late amendment when the opposing party had no notice or opportunity to defend and did not impliedly consent.

Bass v. Johnson · filed 2002-03-05Rule 15(b)

From the record, it is clear that plaintiffs did not seek to amend their pleadings to include a claim of gross negligence until after all of the evidence of the case had been presented. Defendant was not given notice or opportunity to prepare a defense to a gross negligence claim, nor did defendant impliedly consent to trying the issue of gross negligence. Accordingly, we hold that the trial court did not abuse its discretion by denying plaintiffs’ motion to amend.

Rule 15(b) does not treat an unpleaded defense as tried by implied consent when the parties did not understand that the defense was being tried.

Boykin v. Kim · filed 2005-11-01Rule 15(b)

Insulating negligence was not pled in this case by Dr. Kim and it is not evident from the record that both parties understood this issue to be tried by implied consent. Where the evidence tended to show independent acts of negligence by two parties which united to cause a single injury, the doctrine of trial by implied consent should not have been invoked in this instance and there was no error in excluding an instruction on insulating negligence.

Rule 15(b) treats an unpleaded issue argued at trial without objection as tried by consent.

Nesbit v. Cribbs · filed 2010-03-16Rule 15(b)

Although Plaintiffs did not plead equitable estoppel in their complaint, the issue was argued extensively at trial without objection by Defendants, invoking the rule of "litigation by consent." See N.C. Gen. Stat. § 1A-1, Rule 15(b) (2009) ("When issues not raised by the pleadings are tried by the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, either before or after judgment, but failure so to amend does not affect the result of the trial of these issues.").

Rule 15(b) treats an unpleaded issue as raised when the parties try it by implied consent without objecting to evidence outside the pleadings.

Young & McQueen Grading Co. v. Mar-Comm & Associates, Inc. · filed 2012-06-05(b)

Accordingly, because the pleadings were impliedly amended to raise the issue of agency, the lender Defendants’ challenge to the trial court’s adequately-supported conclusions regarding agency must fail.

Rule 15(b) permits a court to consider an unpleaded affirmative defense when the parties impliedly consent to trying it.

T-Wol Acquisition Co. v. Ecdg South, LLC · filed 2012-05-01Rule 15(b)

The record shows that both parties argued extensively and specifically for and against the application of judicial estoppel at the 11 April 2011 hearing on plaintiffs’ motion for summary judgment and plaintiffs made no objection to the consideration of judicial estoppel on the grounds that it was not included in defendants’ pleadings. Therefore, by the “implied consent” of the parties, the trial court properly considered the doctrine of judicial estoppel.

Rule 15(b) does not treat unpleaded claims as tried by consent when the opposing party had no notice of those claims and did not agree to litigate them.

Justice v. Mayes · filed 2014-08-19Rule 15(b)

Simply put, having asserted nothing more than a claim for malicious prosecution in his original complaint and having failed to put Defendant on notice of his intentions in advance of trial by seeking leave to amend his complaint to assert the additional claims, we are unable to accept Plaintiff’s contention that his attempt to substantially expand the scope of this litigation to include multiple additional claims that he had never attempted to assert in his pleadings and that Defendant had never agreed, explicitly or implicitly, to have heard, amounted to nothing more than the trial of additional issues by consent as authorized by N.C. Gen. Stat. § 1A-1, Rule 15(b).

Rule 15(b) allows a court to consider claims supported by evidence at summary judgment, even if they have not been formally pleaded, when the opposing party had fair notice.

Sitelink Software, LLC v. Red Nova Labs, Inc. · filed 2018-08-20Rule 15(b)

At least for purposes of determining whether Red Nova is entitled to summary judgment against SiteLink on all claims, the Court, in its discretion and based on its review of the entire record, concludes that the Amended Complaint gave Red Nova fair notice of the claims for which it now claims unfair surprise and that, as a result, the Court may properly consider SiteLink’s arguments based on claims that arise from the evidence, whether or not such claims have yet been formally pled.

Rule 42(a) permits a trial court to consolidate actions arising from the same transaction with substantially the same defenses if consolidation causes no prejudice or harmful complications.

Wood Ex Rel. Wood v. Brown · filed 1975-04-02Rule 42(a)

It is well-settled that the trial court in the exercise of its discretion may consolidate several cases involving different plaintiffs against a common defendant when the causes of action grow out of the same transaction and substantially the same defenses are interposed if such consolidation does not result in prejudice or harmful complications to either party.

Rule 14(a) provides for consolidating principal and third-party actions for trial when all three parties' rights center on a common factual setting.

Falls Sales Co. v. Board of Transportation · filed 1977-04-14(a)

The provision for consolidated trials contained in G.S. 1A-1, Rule 14(a) was designed to deal with this type of situation.

Rule 42(a) permits a superior court judge to consolidate actions pending in the superior and district court divisions of the same county when they share questions of law and fact.

Oxendine v. Catawba County Department of Social Services · filed 1980-12-02Rule 42(a)

G.S. 1A-1, Rule 42 (a) authorizes a superior court judge to order the consolidation of actions pending in both the superior and district court divisions of the same county when the actions to be consolidated involve common questions of law and fact.

Rule 42(a)(1) does not allow one superior court judge to impose a consolidation order on the judge who will preside at trial.

Oxendine v. Catawba County Department of Social Services · filed 1981-08-31Rule 42(a)(1)

In accordance with this general rule, we find that the discretionary ruling of one superior court judge to consolidate claims for trial may not be forced upon another superior court judge who is to preside at that trial.

Rule 42(a) permits a superior court judge to consolidate custody and adoption proceedings concerning the same child when they have common questions of law or fact.

Griffin v. Griffin · filed 1995-04-04Rule 42(a)

Because, however, the superior court has concurrent jurisdiction to adjudicate custody disputes, N.C.G.S. § 7A-240 (1989), and because custody and adoption proceedings relating to the same child have “common questions of law or fact,” the judge of the superior court may consolidate the proceedings for disposition in the superior court. N.C.G.S. § 1A-1, Rule 42(a) (1990); see Oxendine v. Department of Social Servs., 303 N.C. 699, 703, 281 S.E.2d 370, 373 (1981).

Rule 42(a) gives the trial court discretion to deny consolidation when combining actions would make the case cumbersome and burden the jury.

Markham v. Nationwide Mutual Fire Insurance · filed 1997-03-04Rule 42(a)

Consolidation of the instant action and the Smith case would therefore have created an extremely cumbersome case for the trial court to manage while also unnecessarily increasing the burden on the jury. Accordingly, the trial court did not abuse its discretion by denying Nationwide’s motion to consolidate.

Rule 42 permits a court to deny consolidation when the later action is abated by an earlier action involving the same parties and subject matter.

Barrier Geotechnical Contractors, Inc. v. Radford Quarries of Boone, Inc. · filed 2007-07-17Rule 42

Plaintiff's action predates defendant's, and as such abates defendant's. The trial court was thus correct in denying defendant's motion to consolidate the two.

Rule 15(b) allows pleadings to be amended to conform to issues tried by consent, while Rule 15(d) permits supplemental pleadings for events occurring after the original pleading.

McKnight v. McKnight · filed 1975-04-02(b), (d)

The distinction between supplemental pleadings and amendments is that supplemental pleadings relate to occurrences, transactions and events which may have happened since the date of the pleadings sought to be supplemented; whereas, amendments relate to occurrences, transactions and events that could have been, but for some reason were not, alleged in the pleadings sought to be amended. ... Therefore, although designated as an “amendment”, plaintiff’s allegations with respect to the failure of the defendant to make his support payments from January 1974 to the date of trial was in effect a supplementary pleading.

Rule 15(d) permits supplemental pleadings for later occurrences, while Rules 13(a) and (b) require that compulsory and permissive counterclaims be permitted.

vanDOOREN v. vanDOOREN · filed 1978-08-01Rule 15(d); Rule 13(a), (b)

Since these alleged occurrences happened after the date the original pleadings were filed, plaintiff’s motion was made pursuant to G.S. 1A-1, Rule 15(d). ... Even under the modern notice theory of pleading, a complaint cannot give notice of occurrences that do not take place until after the complaint is filed. ... The counterclaim provisions of G.S. 1A-1, Rule 13(a) and (b) are quite liberal, permitting a pleading to “state as a counterclaim any claim against an opposing party.” Generally, if the claim arises “out of the transaction or occurrence that is the subject matter of the opposing party’s claim,” the counterclaim is compulsory; otherwise, it is permissive. In either event, however, the counterclaim must be permitted.

Rule 15(d) permits supplemental pleadings for events occurring after the original pleading; denying a motion to supplement without unfairness to the opposing party or another apparent reason is an abuse of discretion.

Foy v. Foy · filed 1982-05-04Rule 15(d)

In the present case, the trial judge should have allowed plaintiff’s motion to supplement her pleadings. We perceive no unfairness that would result to defendant if the motion is granted. Further, we find no apparent or declared reason for its denial. Since granting the motion would facilitate the litigation of related issues in a single action, the trial judge abused his discretion by denying plaintiff’s motion.

Rule 15(d) leaves permission to file a supplemental pleading to the trial court’s discretion; denial is upheld absent an abuse of that discretion.

Miller v. Ruth's of North Carolina, Inc. · filed 1984-06-19Rule 15(d)

No abuse of discretion having been shown, we hold that the trial court properly denied the plaintiffs motion under Rule 15(d) and properly granted the defendants’ motion to strike the supplemental claim in the document labeled “Answer to Counterclaim.”

Rule 15(a) permits a court to deny an amendment when relating it back would materially prejudice another party.

In Re the Adoption of Clark · filed 1990-07-26Rule 15(a)

Rule 15(a) provides that leave to amend "shall be freely given when justice so requires," N.C.G.S. § 1A-1, Rule 15(a) (1983), "unless some material prejudice to the other party is demonstrated." ... Mr. Lampe took appropriate action to avoid losing his parental rights after he found out about the child, and allowing the affidavit to relate back to the time when he did not know about the child would materially prejudice him. Under these circumstances, the trial judge did not abuse his discretion in not treating the affidavit, submitted two years after the adoption petition, as having been filed with the adoption petition.

Rule 15(d) governs requests to plead events occurring after the original complaint, and denial of such a request is reviewed for abuse of discretion.

Brackett v. SGL Carbon Corp. · filed 2003-06-03(d)

Plaintiff’s motion to amend to assert an additional REDA claim based on an alleged post-complaint incident of discrimination falls under Rule 15(d). A trial court’s decision to grant or deny a motion to serve supplemental pleadings is reviewable only for abuse of discretion.

Rule 13(f) requires leave of court to add an omitted counterclaim by amendment.

Business Communications, Inc. v. KI Networks, Inc. · filed 2003-05-20(f)

Where a litigant “fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim by amendment.” ... At the trial level, defendant at no time requested leave to file a counterclaim. ... We decline to do so.

Rule 15(d) permits a supplemental pleading for matters arising after the original pleading was filed, not matters that could have been asserted in it.

Pender Farm Dev., LLC v. Ndco, LLC · filed 2020-09-25Rule 15(d)

Under Rule 15(d), the matters (i.e., transactions, occurrences, or events) contained in a supplemental pleading must be matters that could not have been asserted in the original pleadings, since the supplemental matters allowed by this rule are those arising after the original pleadings were filed.

Rule 56(e) permits a verified complaint containing admissible facts to be treated as an affidavit on summary judgment.

Butler v. Berkeley · filed 1975-04-16Rule 56(e)

In any event, considering the deposition with plaintiff’s verified complaint, and treating the complaint as an affidavit in compliance with G.S. 1A-1, Rule 56(e), containing allegation of facts admissible in evidence, and viewing all the material considered by the court in the light most favorable to plaintiff, as we are required to do, we are constrained to hold that on the present record the court committed error in granting defendant’s motion for summary judgment as to the plaintiff’s first cause of action.

Rule 56(e) does not permit a verified complaint to serve as an opposing affidavit when its allegations are outside the affiant's personal knowledge.

Draughon v. Harnett County Board of Education · filed 2003-06-03Rule 56(e)

The verified dismissed complaint upon which plaintiff rests was not treated as an affidavit. Its allegations (1) are based upon the personal knowledge of someone other than the affiant, (2) are not within the purview of plaintiff's personal knowledge, and (3) are based upon the opinions and knowledge allegedly articulated to her by others.

Rule 56(e) permits a court to consider factual allegations in a verified complaint on summary judgment, but not allegations in an unverified answer.

Ramey Kemp & Associates, Inc. v. Richmond Hills Residential Partners, LLC · filed 2013-02-05Rule 56(e)

As a result, while the trial court was entitled to consider the factual allegations in Plaintiff’s verified complaint in ruling on Plaintiff’s summary judgment motion, the same is not true of Defendants’ responsive pleading, which was not verified.

Rule 56(e) prevents courts from considering unverified pleadings when deciding a summary judgment motion.

Mann v. Huber Real Est. · filed 2023-06-20Rule 56(e)

However, the trial court may not consider unverified pleadings when ruling on a motion for summary judgment because they do not comply with the requirements of Rule 56(e).

Rule 24(a)(2) permits successful auction bidders to intervene when a proceeding to enjoin conveyance may affect their interest in the property.

Northwestern Bank v. Robertson · filed 1975-04-16Rule 24(a)(2)

As the purported purchasers of the property in question the appellants are entitled to intervene under G.S. 1A-1, Rule 24, which provides in part: ... In the case at bar, appellants’ bid was accepted by the auctioneer and they entered into a contract with the trustee. Having an interest in both the property and the transaction, they were certain to be affected by a proceeding to enjoin the trustee from executing the deed.

Rule 24 requires applications to intervene to be timely.

Berta v. North Carolina State Highway Commission · filed 1978-06-20

G.S. 1A-1, Rule 24, is the rule of Civil Procedure relating to intervention. With respect to intervention of right and permissive intervention, the rule requires “timely application.”

Rule 24(a)(2) requires an interest, possible impairment of that interest, and inadequate representation, while Rule 24(b)(2) permits intervention when the claim or defense shares a legal or factual question with the main action.

Ellis v. Ellis · filed 1978-09-19(a)(2), (b)(2)

Rule 24(a)(2) requires three prerequisites to non-statutory intervention as a matter of right: (1) an interest relating to the property or transaction; (2) practical impairment of the protection of that interest; and (3) inadequate representation of that interest by existing parties. ... In summary, we hold that: (1) the applicant-intervenors were not entitled to intervene pursuant to Rule 24(a)(2) as a matter of right; (2) the trial court did not abuse its discretion in denying applicant-intervenors permission to intervene pursuant to Rule 24(b)(2); and (3) better practice would require applicant-intervenors to specify the section of Rule 24 they wished to proceed under.

An intervenor granted permission to join an existing action may serve the motion and accompanying complaint under Rule 5 without issuing a Rule 4 summons, if the other requirements for personal jurisdiction are met.

Kahan v. Longiotti · filed 1980-03-04Rule 24(c)

We hold that an in-tervenor party who is granted permission to intervene pursuant to Rule 24(b)(2) is not required to then issue a summons and complaint pursuant to Rule 4 but that the service pursuant to Rule 5 of the motion to intervene accompanied with the complaint is sufficient service upon the party against whom relief is sought or denied in the intervenor’s pleading and is sufficient process to acquire jurisdiction over the party if all other requisites for jurisdiction over the party are met.

A party allowed to intervene under Rule 24 may defend his own interest; a judgment against an existing party does not bind him.

Harrington v. Overcash · filed 1983-04-19

We hold that the judgment of 11 June 1981 is not binding on the intervening defendant so that he may defend as to himself the plaintiffs claim of a lien on the vehicle.

Rule 24(a) requires a timely motion to intervene; a motion filed after entry of default may be untimely under the circumstances.

State Employees' Credit Union, Inc. v. Gentry · filed 1985-06-18Rule 24(a)

Timeliness is the threshold question to be considered in any motion for intervention. ... We therefore conclude that Interstate’s motion to intervene after entry of default was untimely.

Rule 24(a)(2) permits intervention as of right only in a pending action; once summary judgment ends the controversy, there is no proceeding in which to intervene.

Colon v. Bailey · filed 1985-09-03Rule 24(a)(2)

Rule 24(a)(2), however, permits one who has met its requirements "to intervene in an action ...." (Emphasis supplied.) Here, summary judgment having been properly granted for defendants, "there is no controversy in which [Insurance Company] may intervene."

Rule 24(a)(2) permits intervention of right when resolving an action would practically impair an applicant’s interest, even if the judgment would not bind the applicant.

State by and Through Pender County Child Support Enforcement Agency Ex Rel. Crews v. Parker · filed 1987-04-07Rule 24(a)(2)

Clearly Mrs. Crews’ interest would be impaired by any judgment involving defendant’s child support obligation which failed to take her claim for reimbursement into account, regardless of whether she would be bound by that judgment. ... This is precisely the type of situation contemplated by the rule for intervention of right. For this reason as well as those stated above, the decision of the Court of Appeals is reversed and the case remanded to that court for further remand to the trial court with instructions to allow intervention pursuant to N.C.R. Civ. P. 24(a)(2).

Rule 24(a)(2) requires an interest relating to the property or transaction, practical impairment of that interest, and inadequate representation by existing parties for intervention as of right.

Howell v. Howell · filed 1988-03-01(a)(2)

Further, he is not entitled to intervene as of right under G.S. 1A-1, Rule 24(a)(2). ... There are three prerequisites to nonstatutory intervention as a matter of right: “(1) an interest relating to the property or transaction; (2) practical impairment of the protection of that interest; and (3) inadequate representation of that interest by existing parties.”

A third party seeking to intervene to claim attached property must apply timely under Rule 24.

Loman Garrett, Inc. v. Timco Mechanical, Inc. · filed 1989-04-18Rule 24(a)(1)

With respect to subsection (2), the language of Rule 24 would govern, and the third party’s motion to intervene must be made “upon timely application.”

Rule 24(a)(2) does not give individuals a right to intervene when an existing party adequately represents their interest.

River Birch Associates v. City of Raleigh · filed 1990-02-07Rule 24(a)(2)

Moreover, the Homeowners Association adequately represented such interest that the individual home owners did have. The Homeowners Association asserted every claim that the individuals sought to assert, and, as members of the Homeowners Association, many of the individual home owners testified at trial.

Rule 24(a)(2) permits timely intervention when an applicant has an interest in the property or transaction, the disposition may impair protection of that interest, and existing parties do not adequately represent it.

In Re Gertzman · filed 1994-08-02(a)(2)

Pursuant to Rule 24(a)(2) of the North Carolina Rules of Civil Procedure, a party can intervene in an action upon timely application when he “claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.” N.C. Gen. Stat. § 1A-1, Rule 24(a)(2) (1990). ... Because we find that appellants did not have an interest in the funds held by the trustee/conservator, we hold that the trial court properly denied appellants’ motion for intervention.

Rule 24(a)(2) permits an agency assigned child support rights to intervene in a parental rights termination proceeding when the outcome would impair those rights and the existing parties do not adequately represent them.

Hill v. Hill · filed 1996-02-06Rule 24(a)(2)

Consequently, we conclude the trial court erred by denying DSS’ motion to intervene of right pursuant to Rule 24(a)(2).

Rule 24(a)(2) permits plaintiffs in an underlying tort action to intervene as of right in an insurer’s coverage action when the coverage decision could impair their ability to recover and the existing parties do not adequately represent their interests.

United Services Automobile Ass'n v. Simpson · filed 1997-06-03Rule 24(a)(2)

The Kaplans contend they have an interest in whether the policies issued by USAA to defendants Simpson provide coverage for the claims asserted against the Simpsons by the Kaplans in the underlying action. We agree and hold that the Kaplans are entitled to intervene in the declaratory judgment action as a matter of right.

Rule 24 did not give the former attorney a statutory right to intervene to pursue his fee claim.

Pryor v. Merten · filed 1997-10-07Rule 24

First, he did not have a statutory right to intervene. G.S. 1A-1, Rule 24; Howell v. Howell, 89 N.C. App. 115, 365 S.E.2d 181 (1988).

Rule 24(a)(2) requires a significantly protectable interest for intervention as of right; an alleged tortfeasor’s interest in identifying wrongful death beneficiaries to limit potential liability does not qualify.

Alford v. Davis · filed 1998-10-20Rule 24(a)(2)

Appellants, as alleged tortfeasors, will not be permitted to intervene in this action to obtain an interpretation of the intestate succession laws, in order to limit their own liability, in the event they are determined to have negligently caused the death of plaintiff’s intestate. Moreover, because we hold that appellants have no significantly protectable interest in this action and have therefore failed to meet the first prong of the three requirements necessary for non-statutory intervention as of right, we need not address the remaining requirements.

Rule 24(a) permits intervention as of right when the applicant has a direct interest that may be impaired and is inadequately represented.

Virmani v. Presbyterian Health Services Corp. · filed 1999-06-25(a)

Because we conclude that the Observer has no direct interest in Dr. Virmani’s action against Presbyterian and that the Observer’s indirect interest may be adequately asserted in a timely manner by other means, we hold that the Observer was not entitled to intervene as a matter of right pursuant to N.C.G.S. § 1A-1, Rule 24(a).

Rule 24(a)(2) permits an interested party to intervene in a pending lawsuit when the party's interest may be impaired and existing parties do not adequately represent it.

Dunkley v. Shoemate · filed 1999-06-25Rule 24(a)(2)

Thus, intervention is an appropriate mechanism by which an interested party may attempt to protect its interests in pending litigation.

Rule 24 requires an application to intervene to be timely.

State Ex Rel. Easley v. Philip Morris Inc. · filed 2001-06-19Rule 24

N.C. Gen.Stat. § 1A-1, Rule 24 (1999) requires that an application to intervene be "timely."

Rule 24 permits timely intervention as of right for a statutory right or protectable interest, and permits intervention when the applicant’s claim or defense shares a legal or factual question with the main action.

Hamilton v. Freeman · filed 2001-11-20(a)-(b)

North Carolina General Statutes section 1A-1, Rule 24, governs intervention by parties in an action. ... We also conclude the trial court properly allowed Ward to intervene in the action. ... Thus, the trial court did not abuse its discretion in granting Ward’s motion to intervene, and we therefore overrule defendants’ first assignment of error.

Rule 24 permits intervention by a person with an interest in the property at issue when an existing party does not adequately represent that interest and the person moves promptly.

Taylor v. Abernethy · filed 2002-03-19Rule 24(a)(2)

We hold the trial court did not abuse its discretion in allowing Abernethy to intervene. There is support in the record for the trial court’s findings that Abernethy had an interest in the property, was seeking to have Romer’s estate distributed according to the holographic will, and that his interest in defeating plaintiff’s claim to Romer’s estate was not being adequately represented by Weir as administrator of the estate. Further, we agree with the trial court that Abernethy’s motion was timely in that he moved to intervene as soon as he discovered he would no longer be a party to the case.

Rule 24(a)(2) requires a proposed intervenor to show that existing parties inadequately represent its interest, and appellate review is de novo.

Harvey Fertilizer & Gas Co. v. Pitt County · filed 2002-09-17(a)(2)

In that our appellate courts have not heretofore adopted a specific standard of review for N.C.G.S. § 1A-1, Rule 24(a)(2) decisions, we expressly adopt the de novo standard.

The Rules of Civil Procedure do not permit Rule 24 intervention when it would violate a different procedure prescribed by statute.

Home Builders Ass'n of Fayetteville North Carolina Inc. v. City of Fayetteville · filed 2005-06-07Rule 1

Although the North Carolina Rules of Civil Procedure generally do apply to civil proceedings, they are not utilized “when a differing procedure is prescribed by statute.” ... Because Rule 24 intervention would have violated the statutory procedure of N.C. Gen. Stat. § 160A-50, intervention was not available.

Rule 24(a)(2) permits intervention as of right when a person shows an interest in the property or transaction, practical impairment of that interest, and inadequate representation by existing parties.

Bailey & Associates, Inc. v. Wilmington Board of Adjustment · filed 2010-02-02Rule 24(a)(2)

As a result, a party is entitled to intervene pursuant to N.C. Gen. Stat. § 1A-1, Rule 24(a)(2) in the event that he or she can demonstrate (1) an interest relating to the property or transaction, (2) practical impairment of the protection of that interest, and (3) inadequate representation of the interest by existing parties.

An estate beneficiary seeking intervention as of right must show that the personal representative does not adequately represent its interest; disagreement with a settlement alone is insufficient.

Charles Schwab & Co. v. McEntee · filed 2013-03-05Rule 24(a)(2)

We conclude that the Association has failed to satisfy the third of the three requirements for intervention — namely, that its interests were not adequately represented by the personal representative in the interpleader action — and, accordingly, that the Association’s motion for intervention as of right was properly denied.

Rule 24(a)(2) gives a necessary party the right to intervene when a valid judgment cannot be entered without that party.

Anderson v. Seascape at Holden Plantation, LLC · filed 2014-01-21Rule 24(a)(2)

We hold that the POA had a right to intervene as a necessary party under Rule 24(a)(2).

Rule 24(a)(2) permits an insurer to intervene as of right when it meets the rule’s requirements, whether it is partially or fully subrogated.

David Wichnoski, O.D., P.A. v. Piedmont Fire Prot. Sys. · filed 2016-12-30Rule 24(a)(2)

We conclude that the right to intervene under N.C.G.S. § 1A-1, Rule 24(a)(2), does not turn upon whether a proposed intervenor-insurer has been partially or fully subrogated to the claim(s) of its insured.