N.C. Gen. Stat. § 1A-1

Under Rule 58, improper service of a judgment does not prevent the judgment from being entered.

Huebner v. Triangle Research Collaborative · filed 2008-10-21Rule 58

In addition, under Rule 58, the issue of whether service of the judgment is proper does not affect whether judgment was entered.

Rule 58 makes the written order controlling when oral findings are omitted from it.

In Re JMD · filed 2011-03-15Rule 58

However, the trial court failed to make these findings in the 3 June 2010 order and we are bound by that written order. See N.C. Gen.Stat. § 1A-1, Rule 58 (2009) ("[A] judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court[.]").

Rule 58 requires a judgment to be written, signed by the judge, and filed with the clerk; an oral ruling alone is not an entered judgment.

Griffith v. North Carolina Department of Correction · filed 2011-04-05Rule 58

“[A] judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court.” N.C. Gen. Stat. § 1A-1, Rule 58 (2009). ... Accordingly, because there is no written order granting or otherwise ruling on defendant NCDOC’s motions for judgment on the pleadings for insufficiency of service of process or entry of a protective order, these two “verbal orders” are non-existent, and therefore, these two assignments of error are not properly before this Court.

Rule 58 treats a judgment as entered when it is written, signed by the judge, and filed with the clerk of court.

Barfield v. Matos · filed 2011-08-16Rule 58

Pursuant to N.C. Gen. Stat. § 1A-1, Rule 58 (2009), “a judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court.” We have therefore identified the orders by the date of filing as the date of entry, except as to the 8 April 2010 order, because our record does reflect the date of filing of this order.

Rule 58 permits a judgment to be signed and entered out of session unless an express objection was made on the record before that session ended.

ORANGE COUNTY EX REL. CLAYTON v. Hamilton · filed 2011-07-05Rule 58

Further, under Rule 58, the signing and entry of judgment out of term or session is expressly allowed “unless an express objection to such action was made on the record prior to the end of the term or session at which the matter was heard.” N.C. Gen. Stat. § 1A-1, Rule 58 (2009). Here, no such objection was made by Defendant at trial and entry of the order out of session was proper.

Rule 58 applies only to judgments and requires all civil judgments to be in writing.

State v. Oates · filed 2012-10-05Rule 58

Moreover, not only does Rule 58 apply exclusively to judgments, that Rule has been amended substantially since Boone was decided and now requires that all civil judgments be in writing.

Rule 58 requires an order to be written, signed, and filed with the clerk before it is entered; until entry, the time to appeal does not begin.

In re Thompson · filed 2014-02-04Rule 58

Under Rule 58, “a judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court.” ... Because the order was not filed, it was not entered. Accordingly, the time period to file notice of appeal of clerk Hinshaw’s order has not yet commenced.

Rule 58 requires an order to be signed and filed before it is entered.

Green v. Green · filed 2014-10-07Rule 58

Even if defendant had been present in court on 6 November 2012, when it seems that the trial court addressed this issue, an order is not entered until it is signed and filed, and the ED Affidavit was signed on 24 November 2012 and filed on 10 December 2012.

Rule 58 permits a trial court to enter a written order reflecting an earlier oral judgment even if an intervening event has made the claim moot.

Oltmanns v. Oltmanns · filed 2015-06-02Rule 58

Thus, the trial court must still retain the authority to enter an order accurately reflecting the judgment previously rendered, if only to permit appellate review of the trial court's action.

Rule 58 requires an order to be written, signed by the judge, and filed with the clerk of court before it is entered.

Spears v. Spears · filed 2016-02-02Rule 58

An order is entered “when it is reduced to writing, signed by the judge, and filed with the clerk of court.”

Rule 58 requires a civil judgment or order to be written, signed by the judge, and filed with the clerk before it is entered.

In re: O.D.S. · filed 2016-06-07Rule 58

Entry of judgment based upon oral rendition of judgments is no longer allowed in civil matters; currently, judgments and orders are only “entered when [they are] reduced to writing, signed by the judge, and filed with the clerk of court.”

Rule 58 requires a judgment to be filed with the clerk of court before it is entered; an email notice of a ruling is not an order.

Friday Invs., LLC v. Bally Total Fitness of the Mid-Atlantic, Inc. · filed 2016-06-07Rule 58

The email is not an order because it was not filed with the Clerk of Court. N.C. Gen. Stat. § 1A–1, Rule 58 (2015) (“[A] judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court.”) Accordingly, this opinion reviews only the 13 April 2015 Order.

Rule 58 provides that a civil judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court.

Mannise v. Harrell · filed 2016-09-06Rule 58

Here, the trial court’s order was “entered” when it was reduced to writing, signed, and filed with the clerk of court on 26 October 2015.

Rule 58 requires an order to be written, signed by the judge, and filed with the clerk before it is entered and may be appealed.

In Re Goddard & Peterson, PLLC · filed 2016-07-05Rule 58

Since a written order was never “entered” on respondent’s motion to dismiss, no appeal could be taken from it.

Rule 58 permits a court to enter a written order that differs from its earlier oral pronouncement.

Scoggin v. Scoggin · filed 2016-10-18Rule 58

We conclude that O.D.S. is controlling on the issue of the trial court’s authority to enter an order that conflicts with its oral statements in court, that the court did not err by entering an order that reached a conclusion that differed from its oral pronouncement, and that defendant’s arguments for a contrary result lack merit.

Rule 58 requires a domestic violence protective order to be written, signed by the judge, and filed with the clerk before it is entered.

Edwards v. Cole · filed 2017-02-07Rule 58

It follows that a DVPO is "entered" when it is reduced to writing, signed by the judge, and filed with the clerk of court.

Under Rule 58, an order is entered when it is signed, dated, and filed with the clerk.

In re Thompson · filed 2016-12-20Rule 58

Although the hearing before Judge Wood occurred prior to respondent's death, applying this Court's analysis from the prior appeal in this case, it is clear the Wood Order was not entered until it was signed, dated, and filed with the clerk on 24 October 2014, after the matter abated.

Rule 58 requires a judgment or order to be written, signed by the judge, and filed with the clerk before it is entered and can be appealed.

McKinney v. Duncan · filed 2017-12-05Rule 58

A “judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court.” N.C. Gen. Stat. § 1A-1, Rule 58 (2016). ... We conclude that the orders from which defendant has attempted to appeal were never entered, and we have no subject matter jurisdiction to review their contents.

Rule 58 requires a judgment to be written, signed, and filed for entry, and requires service of a copy on the other parties within three days.

State of NC v. Ortiz · filed 2019-08-06

In describing what makes a judgment final, Rule 58 of our Rules of Civil Procedure states: ... [A] judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court pursuant to Rule 5. The party designated by the judge or, if the judge does not otherwise designate, the party who prepares the judgment, shall serve a copy of the judgment upon all other parties within three days after the judgment is entered. ... Not only was the stamped notice not served on the parties, as required by Rule 58 of the Rules of Civil Procedure, the parties’ and trial court’s actions contravene Sureties’ argument.

Rule 58 requires a judgment to be written, signed by the judge, and filed with the clerk; an order signed by a judge who did not preside is a nullity.

In re C.M.C. · filed 2019-09-27Rule 58

In further confirmation of the appropriateness of this result, we note that N.C.G.S. § 1A-1, Rule 58 provides that “a judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court.” ... Thus, we conclude that the initial termination orders signed by Judge Leslie were a nullity for this reason as well.

Rule 58 provides that a judgment is entered when it is written, signed, and filed, and a trial court may change its oral findings before that happens.

In re A.U.D. · filed 2019-09-27Rule 58

Pursuant to Rule 58 of the North Carolina Rules of Civil Procedure, “a judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court.” N.C.G.S. § 1A-1, Rule 58 (2017). ... Thus, we conclude that respondent has failed to show the existence of error based merely on the fact that there were differences between the findings orally rendered at the hearing and those set forth in the written order.

Rule 58 treats a judgment as entered when it is written, signed by the judge, and filed with the clerk; oral comments outside the written order do not become part of it.

In re J.J.B. · filed 2020-07-17Rule 58

Even assuming arguendo that the trial court had the authority to do so, the trial court’s written order contains no decree that the caregivers continue the juveniles’ relationship with respondents. See, e.g., In re A.U.D., 373 N.C. 3, 10, 832 S.E.2d 698, 702 (2019) (concluding that the trial court’s oral findings are subject to change before the final order was entered, and there was no error “based merely on the fact that there were differences between the findings orally rendered at the hearing and those set forth in the written order.”); see also N.C.G.S. § 1A-1, Rule 58 (2019) (stating that “a judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court”).

Rule 58 makes a judgment effective when it is written, signed by the judge, and filed with the clerk; a judge’s oral comments do not add terms to the written order.

In re J.J.B. and J.D.B. · filed 2020-07-17Rule 58

Even assuming arguendo that the trial court had the authority to do so, the trial court’s written order contains no decree that the caregivers continue the juveniles’ relationship with respondents. See, e.g., In re A.U.D., 373 N.C. 3, 10, 832 S.E.2d 698, 702 (2019) (concluding that the trial court’s oral findings are subject to change before the final order was entered, and there was no error “based merely on the fact that there were differences between the findings orally rendered at the hearing and those set forth in the written order.”); see also N.C.G.S. § 1A-1, Rule 58 (2019) (stating that “a judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court”).

Rule 58 treats a judgment as entered when it has been reduced to writing, signed by the judge, and filed with the clerk of court.

In re: J.T.C. · filed 2020-08-18Rule 58

Because N.C. Gen. Stat. § 1A-1, Rule 58 (2019) provides that “a judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court[,]” we deem the order entered on the date that all three requirements were satisfied.

Rule 58 makes the written, signed, and filed judgment the court’s controlling ruling unless it is appealed.

Brown v. Patel · filed 2021-07-20Rule 58

Regardless of what the judicial officer may have thought or intended, the written, signed, and filed judgment remains the final and controlling judgment of the court unless it is appealed.

Rule 58 provides that a judgment is entered when it is written, signed by the judge, and filed with the clerk; oral findings may change before entry of the final written order.

In re M.A. · filed 2021-08-27Rule 58

Pursuant to Rule 58 of the North Carolina Rules of Civil Procedure, “a judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court.” N.C.G.S. § 1A-1, Rule 58 (2019). ... Thus, even assuming the trial court had determined that respondent provided a safe home during the termination hearing, the trial court’s finding was subject to change until the final order was entered.

Rule 58 requires a judgment to be reduced to writing, signed by the judge, and filed with the clerk of court before it is entered.

State v. Wright · filed 2022-06-21Rule 58

“[A] judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court[.]” N.C.G.S. § 1A-1, Rule 58 (2017) ... Although there is a civil judgment order for attorney fees in the Record, there is no indication it has been filed with the Wake County Clerk of Court.

Rule 58 treats a judgment as entered when it is reduced to writing, signed by the judge, and filed with the clerk of court.

State Bd. of Exam'rs of Plumbing · filed 2025-05-21Rule 58

The Order was the trial court’s final judgment in this matter. Not only was ... the Order file-stamped, see N.C. Gen. Stat. § 1A-1, Rule 58 (2023) (“[A] judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court pursuant to Rule 5.”), it also included the trial court’s findings of fact and conclusions of law pursuant to section 5A-15(f), see N.C. Gen. Stat. § 5A-15(f) (2023) (“If the person is found to be in contempt, the judge must make findings of fact and enter judgment.”).

Rule 58 requires a judgment to be written, signed by the judge, and filed with the clerk before it is entered.

In re. B.W., T.W. · filed 2020-11-17

“[A] judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court.” N.C. Gen. Stat. § 1A-1, Rule 58 (2019). ... The trial court erred by adopting purported findings from the 8 November 2018 hearing.

Rule 52(b) does not apply to a superior court's appellate review of an administrative agency decision, so the judge need not entertain a motion under it.

Markham v. Swails · filed 1976-04-21(b)

In our opinion, Rule 52(b) has no application in this proceeding, and Judge McKinnon was not required to entertain a motion made pursuant thereto.

Rule 52(c) allows appellate review of whether evidence supports a trial court’s findings of fact.

Wurlitzer Distributing Corp. v. Schofield · filed 1980-01-15Rule 52(c)

The question of the sufficiency of the evidence to support findings of fact made by the trial court is a proper subject for review on appeal.

Rule 52(c) permits an appellant to challenge the evidence supporting findings of fact without objecting at trial, but the appellant must assign error in the record on appeal or the findings are conclusive.

Sharpe v. Park Newspapers of Lumberton, Inc. · filed 1986-08-12Rule 52(c)

This Court has held that Rule 52(c) allows a party to seek appellate review on the question of whether the evidence supported the findings of fact without excepting at trial to the judge’s findings, but that in the record on appeal it is “incumbent upon appellant to assign error so as to outline his objections on appeal.” ... Because the plaintiffs have not assigned error to the judge’s findings, those findings are conclusive on appeal, Askew v. Tire Co., 264 N.C. 168, 141 S.E. 2d 280 (1965), and we are only required to determine whether the findings support the trial judge’s conclusions and the entry of judgment.

Findings of fact on a Rule 60(b) motion bind the appellate court if supported by any competent evidence.

Collar v. Collar · filed 1987-06-02Rule 60(b)

Findings of fact made by a trial judge upon a Rule 60(b) motion are binding on appeal if supported by any competent evidence.

Rule 52(a)(1) does not require a superior court reviewing an agency decision to make findings of fact.

Avant v. Sandhills Center for Mental Health, Developmental Disabilities & Substance Abuse Services · filed 1999-03-16Rule 52(a)(1)

As such, the duty of the superior court, and our duty as well, is not to make findings of fact, but rather to apply the appropriate standard of review to the findings and conclusions of the underlying tribunal.

Rule 60(b) appeals are limited to whether the trial court abused its discretion in denying relief.

Surles v. Surles · filed 2002-11-19(b)

On an appeal from a Rule 60(b) motion, Mr. Surles is limited to arguing that the trial court abused its discretion in denying that motion.

Rule 41(b) permits involuntary dismissal for insufficient evidence; on appeal, the court reviews whether competent evidence supports the findings of fact and whether those findings support the conclusions of law.

Mussa v. Palmer-Mussa · filed 2012-08-24Rule 41(b)

When reviewing a trial court’s ruling to dismiss involuntarily an action on the merits pursuant to Rule 41(b), our appellate courts must determine whether the trial court’s findings of fact are supported by competent evidence and whether those findings support the court’s conclusions of law.

Rule 52(c) makes a trial judge’s findings of fact binding on appeal when competent evidence supports them.

Blackley v. Blackley · filed 1974-05-15Rule 52(c)

These rules of law must be applied in conjunction with the well-established principle that the trial judge’s findings of fact in custody Orders are binding on the appellate courts if supported by competent evidence. Teague v. Teague, supra; Thomas v. Thomas, supra; see also, G.S. 1A-1, Rule 52(c).

Rule 35 permits a trial judge to order a plaintiff to submit to a psychiatric examination.

Williams v. Williams · filed 1976-05-19

The trial judge is empowered to order the plaintiff to submit to a psychiatric examination. G.S. 1A-1, Rule 35.

Rules 4(d) and 4(e) require an alias or pluries summons or an endorsement to the original summons to revive a discontinued action.

Byrd v. Trustees of Watts Hospital, Inc. · filed 1976-06-02(d), (e)

We think Rule 4(e) mandates that something be done in the clerk’s office to revive a discontinued action — obtain an alias or pluries summons or an endorsement to the original summons.

Rule 4(e) discontinues an action when the last alias and pluries summons is not served within 90 days.

Brown v. Overby · filed 1983-03-15Rule 4(e)

The chronology of events heretofore set out discloses that the last alias and pluries summons, issued on 23 April 1981, was not served within 90 days, so the action was discontinued pursuant to N.C. Gen. Stat. § 1A-1, Rule 4(d), (e).

Rule 8(c) requires a party claiming payment to plead it affirmatively and bear the burden of proving it.

Recreatives, Inc. v. Travel-On Motorcycles Co. · filed 1976-06-16Rule 8(c)

G.S. 1A-1, Rule 8(c), specifically provides that “[i]n pleading to a preceding pleading, a party shall set forth affirmatively . . . payment. . . . ”

When estoppel first becomes a defense to issues raised in a reply, Rule 7 prevents another responsive pleading, and the defendant may raise estoppel at trial without amending the answer.

Norlin Industries, Inc. v. Music Arts, Inc. · filed 1984-03-20Rule 7

Since the issues to which estoppel was to be a defense did not arise until the plaintiffs reply, and under G.S. 1A-1, Rule 7 the defendants were precluded from alleging it in any further responsive pleading, the defendants could have raised this defense at trial without having previously alleged it.

Rule 8(c) requires a party claiming payment to plead and prove it as an affirmative defense.

Isenhour v. Icenhour · filed 1984-12-18Rule 8(c)

G.S. 1A-1, Rule 8(c) of the North Carolina Rules of Civil Procedure provides that “[i]n pleading to a preceding pleading, a party shall set forth affirmatively . . . payment.” The burden is upon the party contending payment to plead and prove payment.

Payment is an affirmative defense, and the party asserting it bears the burden of proof.

Heart of the Valley Motel, Inc. v. Edwards · filed 1993-09-07Rule 8(c)

Payment is an affirmative defense, N.C.G.S. § 1A-1, Rule 8(c) (1990), and the general rule places the burden of proving payment upon the party asserting it.

Rule 8(d) treats allegations requiring a responsive pleading as admitted when the response does not deny them, except allegations about the amount of damages.

Fagan v. Hazzard · filed 1976-06-16(d)

G.S. 1A-1, Rule 8 (d) provides: “Effect of Failure to Deny. Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.” Since the defendant did not timely file an answer, the averments of the complaint with respect to the defendant’s conversion of the piano parts were admitted; and the plaintiff was entitled to judgment for the conversion of the property provided she was able to show that the property converted had some value.

Rule 8(d) deems allegations in an unanswered complaint admitted, except the amount of damage.

Patrick v. Mitchell · filed 1979-12-18Rule 8(d)

Since defendant failed to answer the complaint, all of the allegations contained herein, with the exception of the amount of damage, are deemed admitted.

Rule 8(d)’s deemed-admission rule yields when answering a complaint would tend to incriminate the defendant.

Byrd v. Hodges · filed 1980-01-08Rule 8(d)

We hold that in this case Rule 8(d) must yield to the constitutional right of the defendant not to incriminate himself.

Rule 8(d) treats allegations not denied in an answer as admitted.

Watson v. White · filed 1982-12-21Rule 8(d)

Defendant did not deny these allegations in her answer, so they were deemed admitted. G.S. 1A-1, Rule 8(d).

Under Rule 8(b) and (d), a failure to specifically deny a material allegation in a required responsive pleading deems that allegation admitted.

Bolton v. Crone · filed 2004-01-06Rule 8(b), (d)

Plaintiff failed to make a specific denial to the receipt of the letters, and thus the averment was deemed admitted.

Under Rule 8(d), an unanswered allegation is deemed admitted on summary judgment when the defendant also offers no evidence contradicting it.

State ex rel. Cooper v. Nccs Loans, Inc. · filed 2005-11-01Rule 8(d)

We conclude that, because defendant neither filed an answer nor submitted any evidence contradicting the allegations of plaintiff's complaint, he is deemed to have admitted the allegation in the complaint that "Gill has directed, and is responsible for, all the unlawful practices alleged in this complaint."

Rule 8(d) treats an unanswered allegation as admitted at summary judgment when the defendant offers no evidence contradicting it.

State Ex Rel. Cooper v. NCCS Loans, Inc. · filed 2005-12-06Rule 8(d)

However, Gill offered no evidence contradicting plaintiff’s assertion that he directed and controlled the illegal activities of the corporate defendants. We conclude that, because defendant neither filed an answer nor submitted any evidence contradicting the allegations of plaintiff’s complaint, he is deemed to have admitted the allegation in the complaint that “Gill has directed, and is responsible for, all the unlawful practices alleged in this complaint.”

Rule 54(b) prevents immediate review of an interlocutory judgment resolving fewer than all claims unless the judge finds there is no just reason for delay.

Reid v. Reid · filed 1976-06-16(b)

Since they are interlocutory and the judge below failed to find there was “no just reason for delay” in appealing the judgment, they are not now subject to review.

Rule 54(b) does not restrict the right to appeal an interlocutory order under G.S. 1-277 or 7A-27(d); those provisions are among the “other statutes” the rule preserves.

Oestreicher v. American National Stores, Inc. · filed 1976-06-17Rule 54(b)

We hold that the 1967 General Assembly did not restrict the right of appeal provided by G.S. 1-277 and 7A-27(d) by engrafting Rule 54(b) requirements upon them. We hold that Rule 54(b) where it refers to "or other statutes" is speaking in particular of General statutes 1-277 and 7A-27(d).

Pre-trial orders entered under Rule 16 are interlocutory and unappealable.

Knight v. Duke Power Co. · filed 1977-10-05Rule 16

It is well-established that pre-trial orders entered pursuant to G.S. 1-169.1, now G.S. 1A-1, Rule 16, are interlocutory and unap-pealable.

Rule 54(b) treats an order reserving a motion for later ruling as interlocutory rather than a final judgment.

Harris v. Harris · filed 1982-07-06Rule 54(b)

Thus, plaintiff’s appeal was not from a final judgment, and was interlocutory.

An order setting aside a judgment under Rule 60(b)(1) for surprise or excusable neglect is interlocutory and cannot be appealed immediately.

Braun v. Grundman · filed 1983-07-19(b)(1)

Plaintiff purports to appeal from an order setting aside a judgment as having been entered upon surprise and excusable neglect. G.S. 1A-1, Rule 60(b)(1). Appeals from such orders must be dismissed as interlocutory.

Under Rule 58, a dismissal with leave to amend does not deny all relief, so an immediate appeal is premature.

Day v. Coffey · filed 1984-05-15Rule 58

Our rules contain the same language. N.C. Gen. Stat. § 1A-1, Rule 58 (1983). When the court allows amendment, relief in the trial court has not been entirely denied and appeal is premature.

Without a Rule 54(b) certification that there is no just reason for delay, an interlocutory order is appealable only if it affects a substantial right.

In Re Watson · filed 1984-08-21Rule 54(b)

Accordingly, since the trial court did not certify that there was no just reason for delay, G.S. 1A-1, Rule 54(b), no appeal would lie unless the order affected a substantial right.

Rule 54(b) treats summary judgment for fewer than all defendants as nonfinal; a party permitted to appeal it immediately is not required to do so.

Ingle v. Allen · filed 1984-11-06Rule 54(b)

Where summary judgment is entered as to fewer than all defendants, there is no final judgment. G.S. 1A-1, Rule 54(b). Although plaintiff in the case before us could have appealed the entry of summary judgment as to W. A. Johnson, she was not required to do so.

Rule 54(b) bars appellate review of an order resolving fewer than all claims or parties unless the trial judge determines there is no just reason for delay.

Thompson v. Newman · filed 1985-05-07Rule 54(b)

Furthermore, under G.S. 1A-1, Rule 54(b), in the absence of a determination by the trial judge that “there is no just reason for delay,” there can be no appellate review of an order which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties.

Without a Rule 54(b) certification of no just reason for delay, an order that leaves claims unresolved is appealable only if it affects a substantial right.

County of Dare v. R. O. Givens Signs, Inc. · filed 1986-06-17Rule 54(b)

No G.S. 1A-1, Rule 54(b), certification of “no just reason for delay” is contained in the 12 November 1985 order. The appeal is clearly interlocutory; it does not dispose of all the claims of the parties. Therefore, in this case the order is appealable only if it affects a substantial right. G.S. 1-277; G.S. 7A-27.

A denial of a Rule 12(b)(6) motion is ordinarily a nonappealable interlocutory order; it may be reviewed if it affects a substantial right that a later appeal cannot protect.

Bolton Corp. v. T. A. Loving Co. · filed 1986-08-12Rule 12(b)(6)

A ruling denying a motion to dismiss pursuant to N.C. G.S. § 1A-1, Rule 12(b)(6) is ordinarily a nonappealable interlocutory order. ... The ruling by the trial judge in this case does not affect a substantial right of the defendant which cannot be later protected by a timely appeal. Therefore, we decline the invitation of the trial judge to entertain an appeal from his denial of the defendant's motion to dismiss.

Rule 54(b) permits an interlocutory appeal when the judge states that there is no just reason for delay.

Butt v. Goforth Properties, Inc. · filed 1989-09-19Rule 54(b)

When an order is interlocutory, it can be appealed when, and only when, the judge who enters the order states that there is “no just reason for delay” pursuant to G.S. 1A-1, Rule 54(b), or when the court’s order affects a substantial right of the appellant.

Rule 54 treats an order that does not dispose of the cause of action as to all parties as interlocutory.

K & K Development Corp. v. Columbia Banking Federal Savings & Loan Ass'n · filed 1989-12-05Rule 54(a) and (b)

As a preliminary matter we note that this is an appeal from an interlocutory order because the trial court’s order did not dispose of the cause of action as to all of the parties. See N.C. Gen. Stat. § 1A-1, Rule 54(a) and (b) of the N.C. Rules of Civil Procedure.

Rule 54(b) does not make this interlocutory order immediately appealable.

State Ex Rel. Commissioner of Insurance v. North Carolina Rate Bureau · filed 1991-05-0754(b)

The order of the Commissioner is not immediately appealable under either G.S. 1A-1 Rule 54(b) or G.S. 1-277 and 7A-27(d).

Rule 54(b) allows an appeal of a finally adjudicated separable part of a multiple claim or party action when the trial judge certifies that there is no just reason to delay the appeal.

Baker v. Rushing · filed 1991-10-15Rule 54(b)

First, a separable portion of a multiple claim or multiple party action that has been finally adjudicated may be appealed pursuant to N.C.G.S. § 1A-1, Rule 54(b) (1990) if the trial judge certifies that there is no just reason to delay the appeal.

Rule 54(b) does not permit an appeal from a jury judgment that leaves claims unresolved and is therefore interlocutory.

Donnelly v. Guilford County · filed 1992-08-18Rule 54(b)

Since the judgment on the jury verdict did not resolve all the claims, the appeal is interlocutory. Therefore, no appeal will lie.

Rule 54(b) does not allow an immediate appeal from the denial of a Rule 12(b)(6) motion when the denial is interlocutory and does not affect a substantial right.

Murphy v. Glafenhein · filed 1993-07-06Rule 54(b)

Although Manning appeals from the trial court’s denial of both his Rule 12(b)(2) and Rule 12(b)(6) motions, Manning asserts no argument relating to the court’s denial of the Rule 12(b)(6) motions. For this reason, and for the further reason that such denial is an interlocutory order not affecting a substantial right and is therefore not immediately appealable, see N.C.G.S. § 1A-1, Rule 54(b) (1990), we do not address the propriety of the trial court’s denial of these motions.

Rule 54(b) leaves interlocutory orders unappealable until a final judgment is entered when no basis for an immediate appeal applies.

Farm Credit Bank of Columbia v. Van Dorp · filed 1993-07-06Rule 54(b)

Thus, the prior Orders of Judge Watts and Judge Griffin, which were interlocutory, could not have been appealed from because there has been no final judgment rendered on the merits. See N.C. Gen. Stat. § 1A-1, Rule 54(b) (1990); see also Hinson v. Hinson, 17 N.C. App. 505, 508, 195 S.E.2d 98, 100 (1973) (distinguishing between interlocutory and final judgments).

Rule 54(b) permits immediate appeal of a final judgment resolving fewer than all claims or parties only when the trial judge expressly finds there is no just reason for delay.

Dalton Moran Shook Inc. v. Pitt Development Co. · filed 1994-03-01(b)

First, a trial judge may enter a final judgment as to one or more but fewer than all of the claims or parties in a case, which is immediately appealable even though the litigation is not complete as to all claims or all parties, if the trial judge makes an express finding that there is no just reason for delay. N.C. Gen. Stat. § 1A-1, Rule 54(b) (1990); Industries, Inc. v. Insurance Co., 296 N.C. 486, 251 S.E.2d 443 (1979); Brown v. Brown, 77 N.C. App. 206, 334 S.E.2d 506 (1985), disc. review denied, 315 N.C. 389, 338 S.E.2d 878 (1986). In this case, the trial court made no such finding, so no appeal is available under Rule 54(b).

Rule 54(b) governs immediate appeals from interlocutory judgments, and Rule 56(c) permits summary judgment when the record shows no genuine issue of material fact and a party is entitled to judgment as a matter of law.

Reynolds v. Reynolds · filed 1994-04-19Rule 54(b); Rule 56(c)

As the judgment below did not dispose of all claims as to all parties, and the trial court did not certify it for immediate appeal, its immediate appeal would contravene the provisions of N.C. Gen. Stat. § 1A-1, Rule 54(b) of the Rules of Civil Procedure. ... Summary judgment is a device whereby judgment is 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 a judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c).

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

Moose v. Nissan of Statesville, Inc. · filed 1994-07-05(b)

An interlocutory order may, however, be appealed by one of two avenues. First, where more than one claim for relief is presented in an action or the action involves multiple parties, and the court enters a final judgment as to one or more but fewer than all of the claims or parties, the judgment may be subject to review upon certification by the trial court that there is no just reason to delay the appeal.

Rule 54(b) limits review of a child support order until entry of a final order on a related permanent alimony claim.

Gillespie v. Gillespie · filed 1994-10-18Rule 54(b)

Therefore, defendant’s assignment of error pertaining to the child support order is not reviewable on appeal until entry of a final order on plaintiff’s claim for permanent alimony. Id.-, see also N.C. Gen. Stat. § 1A-1, Rule 54(b) (1990).

Rule 54(b) requires an affirmative certification for an immediate appeal; signing an appeal entry alone does not suffice.

North Carolina Department of Transportation v. Page · filed 1995-08-15Rule 54(b)

This Court has held that “the signing of an appeal entry by the trial court cannot, in and of itself, be held to satisfy the affirmative act of certification required by Rule 54(b).” ... Thus, the trial court’s attempt to certify the case for appeal is ineffective.

Rule 54(b) makes a final judgment on fewer than all claims or parties immediately appealable when the trial court certifies that there is no just reason for delay, and requires the appellate court to hear the appeal.

DKH CORP. v. Rankin-Patterson Oil Co. · filed 1998-07-09Rule 54(b)

In addition to the appeals pursuant to N.C.G.S. § 1-277 and N.C.G.S. § 7A-27(d), Rule 54(b) provides that in an action with multiple parties or multiple claims, if the trial court enters a final judgment as to a party or a claim and certifies there is no just reason for delay, the judgment is immediately appealable. The rule provides, “Such judgment shall then be subject to review by appeal. . . .” N.C.G.S. § 1A-1, Rule 54(b). We believe this language requires the appellate court to hear the appeal.

The Rules of Civil Procedure generally make denials of Rule 12(b)(1) and Rule 12(b)(6) motions interlocutory and not immediately appealable.

Country Club of Johnston County v. USF & G · filed 1999-10-05Rule 12(b)(1), Rule 12(b)(6), and Rule 54(b)

In any event, it is well-settled that [d]enial of a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction is interlocutory ..., as is the denial of a Rule 12(b)(6) motion for failure to state a claim for which relief can be granted.... Neither affects a substantial right and neither is immediately appealable.

Denial of a Rule 12(b)(1) or Rule 12(b)(6) motion is interlocutory, affects no substantial right, and is not immediately appealable.

Country Club of Johnston County, Inc. v. United States Fidelity & Guaranty Co. · filed 1999-10-05Rule 12(b)(1), Rule 12(b)(6)

[d]enial of a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction is interlocutory . . ., as is the denial of a Rule 12(b)(6) motion for failure to state a claim for which relief can be granted. . . . Neither affects a substantial right and neither is immediately appealable.

Rule 54(b) permits an interlocutory appeal after a final determination of at least one claim when the trial court certifies there is no just reason for delay.

Naddeo v. Allstate Insurance · filed 2000-08-01Rule 54(b)

In 98-CvS-931, the denial of Naddeo’s motion for summary judgment is interlocutory, no claim has been determined, and the trial court has made no certification. See N.C. Gen. Stat. § 1A-1, Rule 54(b) (1999).

Rule 54(b) allows an interlocutory appeal after a final determination of at least one claim when the trial court certifies that there is no just reason to delay the appeal.

Norris v. Sattler · filed 2000-08-01(b)

Interlocutory orders may be appealed only in two instances: ... first, where there has been a final determination of at least one claim, and the trial court certifies there is no just reason to delay the appeal, [N.C.G.S. § 1A-1, Rule 54(b) (1990) (Rule 54)]; and second, if delaying the appeal would prejudice a “substantial right.” ... There is no issue of the applicability of the first avenue of appeal herein. No final determination has been made as to any claims and the trial court did not certify the present appeal pursuant to Rule 54.

Rule 54(b) recognizes certification that there is “no just reason for delay” as a means of facilitating an immediate appeal from an interlocutory order.

Prince v. Wright · filed 2000-12-29(b)

The trial court's order dismisses all claims against defendant USF & G and some but not all claims against defendant-landlords. Further, there is no certification in the order that there is "no just reason for delay" which would facilitate an immediate appeal. N.C. Gen.Stat. § 1A-1, Rule 54(b).

Rule 54(b) permits an immediate appeal after a final determination of one or more claims only when the trial court certifies that there is no just reason to delay the appeal.

Alexander Hamilton Life Insurance v. J&H Marsh & McClennan, Inc. · filed 2001-04-03(b)

We do not review interlocutory orders as a matter of course. ... There are two instances, however, where a party may appeal interlocutory orders. The first instance arises where there has been a final determination as to one or more of the claims, and the trial court certifies that there is no just reason to delay the appeal.

A denial of a Rule 12(b)(6) motion to dismiss is interlocutory and is not considered on appeal.

Cooper v. Shealy · filed 2000-12-05(b)(6)

As to defendant’s appeal from the denial of her motion to dismiss pursuant to Rule 12(b)(6), we hold that the appeal is interlocutory thus we will not consider it.

Rule 54(b) permits an appeal involving fewer than all claims when the trial court certifies that there is no just reason to delay it.

Washington v. Washington · filed 2001-12-28Rule 54(b)

This order is not a final judicial determination of all the claims raised in the pleadings. The trial court did not certify this order for appeal, and defendant has not argued that delay would affect a substantial right. We dismiss defendant’s appeal.

Rule 54(b) generally provides that interlocutory orders are not appealable.

Flitt v. Flitt · filed 2002-03-19(b)

Generally, there is no right to appeal from an interlocutory order. See N.C. Gen. Stat. § 1A-1, Rule 54(b) (1999); Veazey, 231 N.C. at 362, 57 S.E.2d at 381.

Rule 54(b) allows an interlocutory order to be appealed after a final determination of one or more claims when the trial court certifies that there is no just reason to delay the appeal.

Alford v. Catalytica Pharmaceuticals, Inc. · filed 2002-06-04(b)

However, a party may appeal an interlocutory order when there has been a final determination as to one or more of the claims, and the trial court certifies that there is no just reason to delay the appeal pursuant to Rule 54(b) of the North Carolina Rules of Civil Procedure.

Rule 54(b) provides no right to appeal an interlocutory order when the trial court has not certified that there is no just reason for delay.

Brewer v. Brewer · filed 2004-07-06Rule 54(b)

Our review of the record indicates that the trial court did not make this certification. Therefore, there is no right to appeal under Rule 54(b).

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

Oldham v. HSL AUTOMOTIVE, INC. · filed 2004-07-06Rule 54(b)

In the case sub judice, the trial court has not certified that there is no just reason to delay the appeal, and the trial court's summary judgment order does not deprive plaintiff of a substantial right. Accordingly, we dismiss this interlocutory appeal.

Rule 54(b) certification does not permit an immediate appeal when the order is not a final judgment on any claim.

City of Burlington v. Boney Publishers, Inc. · filed 2004-09-07Rule 54(b)

Our review of the complaint and counterclaims reveal that the 20 November 2002 order was not a final judgment as to any of the claims or counterclaims presented by the parties. Therefore, Rule 54 certification was not properly granted as to the 20 November 2002 order.

Rule 54(b) permits an 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.

Carr v. WAKE MEDICAL CENTER · filed 2004-09-07Rule 54(b)

The final dispositions of at least one but fewer than all the claims may be appealed if the trial judge certifies that there is no just reason to impede the appeal. N.C. Gen. Stat. § 1A-1, Rule 54(b) (2003). Here, the trial court did not make such a certification. Thus, there can be no appeal of the motion to dismiss pursuant to Rule 54(b).

Rule 12(b)(6) motions are ordinarily not immediately appealable because orders denying them are interlocutory.

Robinson v. Gardner · filed 2005-01-04(b)(6)

Similarly, “[a] ruling denying a motion to dismiss pursuant to N.C.G.S. § 1A-1, Rule 12(b)(6) is ordinarily a nonappealable interlocutory order.”

Rule 12(b)(2) permits dismissal for lack of personal jurisdiction, and denial of that motion is immediately appealable.

Leake v. AutoMoney · filed 2022-07-1912(b)(2)

Thus, Defendant’s appeal from the order denying its Rule 12(b)(2) motion is properly before us on appeal.

Rule 56(e) requires summary judgment affidavits to be based on personal knowledge, state admissible facts, and show that the affiant is competent to testify.

Rel. Ins., Inc. v. Pilot Risk Mgmt. Consulting, LLC · filed 2026-05-22Rule 56(e)

Further, Rule 56(e) requires affidavits supporting or opposing a motion for summary judgment to “be made on personal knowledge, [and to] set forth such facts as would be admissible in evidence, and . . . show affirmatively that the affiant is competent to testify to the matters stated therein.” N.C.G.S. § 1A-1, Rule 56(e).

Rule 56(e) requires a summary judgment affidavit to state admissible facts based on personal knowledge and show that the affiant is competent to testify; an unsupported belief does not suffice.

Boone v. Fuller · filed 1976-07-07Rule 56(e)

Defendants’ other allegation to his affidavit that he “believed” decedent died of pneumonia did not satisfy the requirement under G.S. 1A-1, Rule 56(e), that an affidavit “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein,” and could not have been considered by the court.

Rule 56(e) requires a summary judgment affidavit to affirmatively show that it is based on the affiant’s personal knowledge or that the affiant is otherwise competent to testify to the stated matters.

Nugent v. Beckham · filed 1978-08-15Rule 56(e)

Absent such a showing, the trial court could not, consistent with the requirements of G.S. 1A-1, Rule 56(e), consider the affidavit upon the plaintiffs’ motion for summary judgment.

Rule 56(e) requires timely objections to the form of affidavits supporting a summary judgment motion, or the objections are waived.

North Carolina National Bank v. Harwell · filed 1978-10-03Rule 56(e)

Technical objections based on G.S. 1A-1, Rule 56(e), are not timely made when they are first raised on appeal.

Rule 56(e) requires a party opposing summary judgment to set forth specific facts showing a genuine issue for trial and bars a contradictory affidavit from creating an issue based only on the affiant's credibility.

Wachovia Mortgage Co. v. Autry-Barker-Spurrier Real Estate, Inc. · filed 1978-12-05(e)

The question thus presented for our review is whether a party opposing a motion for summary judgment by filing an affidavit contradicting his prior sworn testimony has “set forth specific facts showing that there is a genuine issue for trial” as required by G.S. § 1A-1, Rule 56(e). We think a party should not be allowed to create an issue of fact in this manner and thus hold that contradictory testimony contained in an affidavit of the nonmovant may not be used by him to defeat a summary judgment motion where the only issue of fact raised by the affidavit is the credibility of the affiant.

Rule 56(e) requires a party opposing summary judgment to submit affidavits stating specific facts showing a genuine issue for trial.

Miller v. Lemon Tree Inn of Wilmington, Inc. · filed 1978-12-19(e)

However, the rule is well established that a party opposing a motion for summary judgment is required to produce affidavits setting forth specific facts showing that there is a genuine issue for trial. G.S. 1A-1, Rule 56 (e).

Rule 56(e) requires an affiant to have personal knowledge of the matter addressed in the affidavit.

Moye v. Thrifty Gas Co., Inc. · filed 1979-03-20Rule 56(e)

The “personal knowledge” required by the rule refers to personal knowledge of the matter about which the affiant testifies. Here, Kirk had personal knowledge of the Wallace report and affidavit and limited his testimony to an evaluation of them.

A verified complaint offered in opposition to summary judgment must affirmatively show that the person who verified it is competent to testify to the facts asserted.

Talbert v. Choplin · filed 1979-03-20Rule 56(e)

Although the complaint was verified by Betty L. Talbert and in this respect might be considered as an affidavit, it failed to show affirmatively that the affiant was competent to testify concerning the identity of the driver. Unless she was present when the accident occurred, which is not alleged in the complaint, it is manifest that she was not competent to testify as to who was driving. The verified complaint, therefore, failed to meet the requirements for an affidavit to be considered under Rule 56(e).

Rule 56(e) requires supporting affidavits to be based on personal knowledge but does not require them to say so expressly.

Middleton v. Myers · filed 1979-06-05Rule 56(e)

G.S. 1A-1, Rule 56(e) requires that supporting affidavits be made “on personal knowledge,” but it does not require that the affidavit state specifically that this is the case.

Rule 56(e) requires summary judgment affidavits to be based on personal knowledge and admissible facts; statements made on information and belief cannot be considered.

Stroup Sheet Metal Works, Inc. v. Heritage, Inc. · filed 1979-09-18Rule 56(e)

Rule 56(e) specifically requires that “[supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” The statement made on information and belief in the affidavit relied on by the defendant meets none of these criteria, and thus the trial court could not consider this portion of the affidavit.

Rule 56(e) requires a party opposing a supported summary judgment motion to set forth specific facts showing a genuine issue for trial; an affidavit asserting lack of knowledge of the disputed transactions is insufficient.

Pearce Young Angel Co. v. Don Becker Enterprises, Inc. · filed 1979-11-20Rule 56(e)

He presented only his affidavit, in which he denied "having any knowledge of ever having executed such a guarantee" and stated further that he had no knowledge of sales to the Harbor View Restaurant, or of credits or payments. This was insufficient to meet the requirement of G.S. 1A-1, Rule 56(e) that defendant set forth "specific facts" showing that there was a genuine issue for trial.

Rule 56(e) permits an affiant to limit a statement to the best of the affiant’s personal knowledge.

Faulk v. Dellinger · filed 1979-11-20Rule 56(e)

However, in the case at hand, we do not have a situation of manufactured fact but merely a self-imposed limitation to the af-fiant’s personal knowledge which is all the rule requires.

Rule 56(e) requires sworn or certified copies of papers referred to in a summary judgment affidavit to be attached or served with it; the court must disregard papers submitted without those copies.

First Citizens Bank & Trust Co. v. Northwestern Insurance · filed 1980-01-08Rule 56(e)

G.S. 1A-1, Rule 56(e), of the Rules of Civil Procedure provides in pertinent part: “Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.” Plaintiff failed to comply with the dictates of G.S. 1A-1, Rule 56(e), of the Rules of Civil Procedure. It did not submit “sworn or certified copies of all papers or parts thereof” referred to in its joint affidavit. Therefore, the court erred in considering the Manufacturer’s Statement of Origin and the bill of sale.

Rule 56 permits summary judgment based on affidavits when the opposing affidavit does not create a triable factual issue.

Nye v. Lipton · filed 1980-01-06Rule 56(e), (f)

We hold that the defendant's affidavit does not so contradict the plaintiff's affidavits as to create a triable issue.

Rule 56(e) requires summary judgment affidavits to rest on personal knowledge, state admissible facts, and show that the affiant is competent to testify.

Chrysler Credit Corp. v. Belk · filed 1982-02-16Rule 56(e)

Wilson’s affidavit also raises the affirmative defense of payment and meets the requirements of Rule 56(e) of the North Carolina Rules of Civil Procedure. Pursuant to Rule 56(e), “[supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”

Rule 56(e) does not require a summary judgment affidavit to expressly recite its required elements if the affidavit can be read as complying on its face.

Fuller v. Southland Corp. · filed 1982-05-04Rule 56(e)

Although G.S. 1A-1, Rule 56(e) states that affidavits in support of a motion for summary judgment must have these elements, we do not interpret the rule to require that such affidavits specifically state the elements as defendant suggests; it is sufficient that the affidavits can be interpreted so as to comply upon their faces.

Rule 56(e) requires summary judgment affidavits to state admissible facts; a conclusory assertion may be stricken.

Tucker v. Charter Medical Corp. · filed 1983-02-15Rule 56(e)

Affidavits filed in support of a summary judgment motion “shall set forth such facts as would be admissible in evidence.” G.S. 1A-1, Rule 56(e). Although Mr. Blackburn was present at several public meetings in which the proposed road was discussed, his statement merely contains his conclusion that Tucker could have rejected the road if he had so chosen. We agree that the statement was correctly stricken from the affidavit.

An affidavit based on the affiant’s “best recollection” satisfies Rule 56(e)’s personal-knowledge requirement.

Wilson Brothers v. Mobil Oil · filed 1983-07-19Rule 56(e)

The phrase “best recollection” is equivalent to the phrase “to the best of my knowledge” that was held to be on personal knowledge in Faulk v. Dellinger, 44 N.C. App. 39, 259 S.E. 2d 782 (1979).

Rule 56(e) requires affidavits opposing summary judgment to be based on personal knowledge; allegations made on information and belief do not satisfy that requirement.

Wachovia Bank & Trust Co. v. Grose · filed 1983-10-04Rule 56(e)

The counterclaims are not based on personal knowledge but are alleged upon advice, information and belief. Therefore, they do not meet the requirements for affidavits specified in G.S. 1A-1, Rule 56(e).

Rule 56(f) permits a court to give a party additional time to file affidavits opposing summary judgment.

Jones v. All American Life Insurance · filed 1984-06-05Rule 56(f)

The court had authority under G.S. 1A-1, Rule 56(f) to allow defendant additional time.

Under Rule 56(e), a nonmovant’s expert affidavit that conflicts with the movant’s expert evidence can raise a genuine issue of material fact.

Rorrer v. Cooke · filed 1984-07-03Rule 56(e)

“When a motion for summary judgment is made and supported ... , an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided . . . , must set forth specific facts showing that there is a genuine issue for trial.” G.S. 1A-1, Rule 56(e). Where, as here, defendant offered experts’ opinions regarding the negligence issue and plaintiff offered her own expert’s opinion in opposition, a question of material fact was raised.

Rule 56(e) requires a party opposing summary judgment to provide specific facts; a conclusory affidavit asserting payment does not create a genuine issue for trial.

Murphrey v. Winslow · filed 1984-08-21Rule 56(e)

Plaintiffs conclusory allegation that the payment was simply “made” is insufficient in this factual context because it fails to provide specific facts with regard to how the alleged payment was delivered, on what date it was made, and who received it.

Rule 6(d) requires timely service of a supporting affidavit, but a court may admit one filed on the hearing day when the late filing causes no prejudice.

Gillis v. Whitley's Discount Auto Sales, Inc. · filed 1984-09-04Rule 6(d)

Although filing the affidavit on the day of the hearing violated the technical requirements of G.S. § 1A-1, Rule 6(d) (1983), nevertheless, on these facts, we find no prejudice in the admission of the affidavit.

Rule 56(e) does not permit a court to consider an unsigned, unverified affidavit when deciding summary judgment.

Eagle's Nest, Inc. v. Malt · filed 1984-09-18Rule 56(e)

The Ferguson affidavit is unsigned and unverified and cannot properly be considered by this court. G.S. 1A-1, Rule 56(e).

Rule 56(e) allows affidavits stating specific facts based on personal knowledge to provide a sufficient forecast of evidence even without documentary proof of the payments at issue.

Hyde v. Taylor · filed 1984-10-02Rule 56(e)

The pleadings, interrogatory answers, affidavits and other materials do not contain documentary evidence of payments made through March 1976, but the affidavits do allege specific facts based on personal knowledge concerning the payments made by defendants. Accordingly, defendants presented a sufficient forecast of evidence to satisfy the requirements of G.S. 1A-1, Rule 56(e).

Rule 56(e) requires authentication of materials used to support summary judgment; an unsworn, uncertified statement did not eliminate a factual dispute with contrary sworn testimony.

Smith-Douglass v. Kornegay · filed 1984-09-04Rule 56(e)

In view of the authentication requirements for materials used to support summary judgment, this conflicting evidence presented a material issue as to the adequacy of consideration.

Rule 56(c) requires an affidavit offered for a summary judgment hearing to be served before the day of the hearing unless the court permits later service.

Doby v. Lowder · filed 1984-12-18Rule 56(c)

Plaintiffs may not rely upon the tendered affidavit of Malcolm Lowder to show that the corporate defendant retained possession. It was not served before the day of the hearing as required by G.S. 1A-1, Rule 56(c). There is no showing that the court’s permission to allow later service was requested or granted pursuant to G.S. 1A-1, Rule 6(d) or 56(e). Since the court did not rule on the admissibility of the affidavit, it was not properly before the court.

An objection to inadmissible material offered on summary judgment must be raised at the hearing or it is waived.

Yamaha International Corp. v. Parks · filed 1985-02-05Rule 56(e)

Assuming without deciding that defendants’ contention has merit, defendants waived any objection they may have had by not raising it at the hearing on plaintiffs motion. On a motion for summary judgment, uncertified or otherwise inadmissible documents may be considered if not challenged by timely objection.

Rule 56(e) gives a trial judge wide discretion to permit supplemental affidavits on a summary judgment motion.

Rolling Fashion Mart, Inc. v. Mainor · filed 1986-04-01Rule 56(e)

Although affidavits in support of a motion for summary judgment are required by G.S. 1A-1, Rules 6(d) and 56(c) to be filed and served with the motion, Rule 56(e) grants to the trial judge wide discretion to permit further affidavits to supplement those which have already been served.

Rule 56(e) does not permit summary judgment based solely on assertions in an unverified complaint that the opposing party denies.

Smith v. Rushing Construction Co. · filed 1987-03-17Rule 56(e)

Plaintiffs bare assertions in his unverified complaint, which were denied by defendant, are insufficient to support entry of summary judgment for plaintiff. G.S. 1A-1, Rule 56(e).

Rule 56(e) does not permit a party to defeat a supported summary judgment motion through general denials in unverified answers.

First American Savings Bank, F.S.B. v. Adams · filed 1987-10-06Rule 56(e)

Defendants cannot rely on general denials in their unverified answers to defeat the showing by plaintiff that First American Savings Bank, F.S.B., is the same corporate entity as First American Savings and Loan Association. G.S. 1A-1, Rule 56(e).

Rule 56(e) permits a summary judgment affidavit to recount a conversation within the affiant's personal knowledge when the account is admissible to show notice.

Ward v. Durham Life Insurance · filed 1988-05-31Rule 56(e)

N.C.Gen.Stat. § 1A-1, Rule 56(e) provides that "[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein...." The first two portions of plaintiff's affidavit stricken by the trial court satisfy these requirements. ... Rather, they were offered to show that defendant's agent had notice of Mr. Ward's driving while impaired conviction and his high blood pressure condition. ... Therefore, these statements were admissible into evidence and the trial court erred in striking them from the affidavit.

Under Rule 56(e), an uncontradicted affidavit can establish costs for summary judgment when the affiant is familiar with the projects and has reviewed the business records.

Bell Arthur Water Corp. v. North Carolina Department of Transportation · filed 1991-01-15Rule 56(e)

Rule 56(e) provides that "[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and show affirmatively that the affiant is competent to testify to the matters stated therein." N.C.G.S. § 1A-1, Rule 56(e). Plaintiff's affidavit stated that he was familiar with the projects in question and that he had reviewed the business records before giving his affidavit. The defendant presented no contradicting affidavit. We hold that the plaintiff adequately met his burden. The trial judge should have also entered summary judgment in plaintiff's favor with respect to the costs as indicated in the plaintiff's affidavit.

A party waives objections to a summary judgment affidavit by failing to raise them before appeal.

Mozingo Ex Rel. Thomas v. Pitt County Memorial Hospital, Inc. · filed 1991-02-19Rule 56(e)

The record discloses no prior objection to the defendant's affidavit on the grounds of a lack of personal knowledge or upon the possible grounds that the defendant's affidavit testimony violated the best evidence rule. Therefore, because the plaintiffs did not make a timely objection to the defendant's affidavit, they have waived any objection they may have had regarding it.

Rule 56 requires opposing affidavits to be served before the hearing and supporting affidavits to be filed and served sufficiently beforehand.

Battle v. Nash Technical College · filed 1991-06-04(c)

G.S. 1A-1, Rule 56 provides that "[t]he adverse party prior to the day of hearing may serve opposing affidavits." G.S. 1A-1, Rule 56 does not contain a specific provision with respect to when affidavits in support of a motion for summary judgment must be filed and served. Nevertheless, it seems implicit in Rule 56(c) that such affidavits must be filed and served prior to the day of the hearing.

Rule 56(c) requires a party opposing summary judgment to file affidavits before the day of the hearing.

Phelps v. Vassey · filed 1993-12-21Rule 56(c)

N.C.G.S. § 1A-1, Rule 56(c) provides that a party opposing a motion for summary judgment may file affidavits prior to the day of the hearing.

Rule 56(e) requires supporting and opposing affidavits to state facts that would be admissible in evidence.

Universal Leaf Tobacco Co. v. Oldham · filed 1994-02-01(e)

However, even if we assume that the trial court could properly consider evidence which contradicted INA’s pleading, the court should not have considered the affidavits because they did not set forth facts which would have been admissible in evidence.

Rule 56(e) does not permit a court to consider unverified pleadings as opposing affidavits on a motion for summary judgment.

VENTURE PROPERTIES I, LLC v. Anderson · filed 1995-11-21Rule 56(e)

Rule 56(e) provides that "[s]upporting or opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." N.C.Gen.Stat. § 1A-1, Rule 56(e) (1990). Since defendant's pleadings were unverified, the trial court acted properly in refusing to consider them.

When an opposing summary judgment affidavit is served by mail, Rule 6(e) adds three days to the service period, requiring service four days before the hearing.

Precision Fabrics Group, Inc. v. Transformer Sales & Service, Inc. · filed 1995-11-21Rule 6(e)

In this case, because the service of the plaintiff’s affidavit was made by mail, the plaintiff was required to serve the documents four days prior to the date of the hearing. In computing the four days, the days of 2 July through 4 July must be excluded. Thus, in order for the service to be timely it had to be mailed on 27 June 1994. Accordingly, the service by mail on 1 July 1994 was not timely and the trial court properly refused to consider the plaintiffs documents.

Rule 56(c) does not require an opposing summary judgment affidavit to be filed before the day of the hearing.

Precision Fabrics Group, Inc. v. Transformer Sales & Service, Inc. · filed 1996-11-08Rule 56(c)

Since nothing in Rule 56(c) or any other rule specifically requires “filing” of the opposing affidavit prior to the day of the summary judgment hearing, we must decline to, in effect, amend the Rules.

Rule 56(e)'s personal-knowledge requirement is satisfied by an attorney's affidavit identifying policies produced by the opposing party and its broker in discovery.

Home Indemnity Co. v. Hoechst Celanese Corp. · filed 1998-01-06Rule 56(e)

This affidavit was based on personal knowledge and satisfies Rule 56(e).

Rule 56(e) requires summary judgment affidavits to state facts based on personal knowledge rather than legal conclusions.

Hixson v. Krebs · filed 1999-12-21(e)

However, the record shows that the affidavits provided by petitioner contain facts from personal knowledge, independent of any legal conclusions, see N.C. Gen. Stat. § 1A-1, Rule 56(e), and therefore we reject respondent’s contention.

Rule 56(e) requires affidavits supporting summary judgment to be made on personal knowledge.

Hylton v. Koontz · filed 2000-07-05(e)

Affidavits supporting a motion for summary judgment must “be made on personal knowledge.”

Rule 56(e) requires supporting and opposing affidavits to be based on personal knowledge, contain admissible facts, and show the affiant is competent to testify.

Williamson v. Bullington · filed 2000-08-15(e)

Rule 56(e) of the North Carolina Rules of Civil Procedure governs the form of affidavits and provides in pertinent part: Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.

Rule 56(e) requires affidavits supporting or opposing summary judgment to set forth admissible facts rather than conclusions.

In Re Estate of Whitaker · filed 2001-06-19(e)

Such conclusions in an affidavit, as opposed to statements of fact, are not properly considered on a motion for summary judgment. See N.C. Gen.Stat. § 1A-1, Rule 56(e) ("affidavits shall set forth such facts as would be admissible in evidence"); Ward v. Durham Life Ins. Co., 325 N.C. 202, 208, 381 S.E.2d 698, 701 (1989) (portions of affidavit containing conclusions as opposed to statements of fact properly stricken); Butler v. Berkeley, 25 N.C.App. 325, 332, 213 S.E.2d 571, 575 (1975) ("mere conclusions of the pleader are not to be considered in opposition to or in support of a motion for summary judgment.").

Rule 56(e) requires affidavits to set forth facts admissible in evidence, so conclusory opinions are not considered on summary judgment.

Wrenn v. Holyfield · filed 2001-06-19(e)

This conclusory statement of opinion does not meet the requirement of specific evidence establishing that Whitaker did not understand her property, to whom she wished to give it, and the effect of her act in making a will at the time the will was executed. Such conclusions in an affidavit, as opposed to statements of fact, are not properly considered on a motion for summary judgment. See N.C. Gen. Stat. § 1A-1, Rule 56(e) (“affidavits shall set forth such facts as would be admissible in evidence”); Ward v. Durham Life Ins. Co., 325 N.C. 202, 208, 381 S.E.2d 698, 701 (1989) (portions of affidavit containing conclusions as opposed to statements of fact properly stricken); Butler v. Berkeley, 25 N.C. App. 325, 332, 213 S.E.2d 571, 575 (1975) (“mere conclusions of the pleader are not to be considered in opposition to or in support of a motion for summary judgment.”).

Unserved affidavits may be admitted at a foreclosure hearing within the trial court’s discretion.

In Re Foreclosure of Real Property · filed 2003-03-18Rule 6(d)

With respect to the trial court’s admission into evidence of unserved affidavits, we find no reason why this Court should distinguish between affidavits filed in support of a motion for summary judgment and affidavits filed in support of a petition for foreclosure, and we hold that the unserved affidavits of Maitin and Milchak were properly received into evidence within the trial court’s discretion.

Rule 56(e) bars a nonmovant from creating a genuine factual dispute solely by contradicting earlier sworn testimony in an affidavit.

Allstate Insurance v. Lahoud · filed 2004-12-07(e)

Lahoud, the nonmovant, may not generate a conflict simply by filing an affidavit contradicting his earlier sworn testimony.

Rule 56(e) requires supporting and opposing affidavits to be based on personal knowledge, state admissible facts, and show that the affiant is competent to testify.

GALLIS v. M&R INVESTORS · filed 2004-12-21(e)

Petitioner's contention that at least portions of the affidavit should have been excluded by the trial judge under Rule 56(e) of the North Carolina Rules of Civil Procedure is also without merit. Rule 56(e) provides, in pertinent part, that: Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. ... A review of the affidavit indicates that it does comply with the requirements of Rule 56(e).

Rule 56(e) requires summary judgment affidavits to be based on personal knowledge and to state facts admissible in evidence.

Duncan v. Cuna Mutual Insurance Society · filed 2005-07-05Rule 56(e)

Because Ringer’s opinions were neither based on his personal knowledge, nor proffered as expert opinions, his affidavit does not meet the requirement of N.C.G.S. § 1A-1, Rule 56(e) that affidavits be “made on personal knowledge, [and] shall set forth such facts as would be admissible in evidence.”

Rule 56(e) requires a summary judgment affidavit to show the affiant's personal knowledge; an affidavit that fails this requirement cannot be considered.

Eugene Tucker Builders v. Ford Motor Co. · filed 2005-12-20Rule 56(e)

As the content of the Rhyne affidavit does not satisfy the personal knowledge requirement of Rule 56(e), it could not have been considered by the trial court in ruling on the summary judgment motion.

Under Rule 56, a witness’s interest in the case alone does not make a supporting affidavit inherently suspect on summary judgment.

Van Reypen Associates, Inc. v. Teeter · filed 2006-01-17Rule 56(c)

Standing alone, the fact that a witness has an interest in a case is insufficient to render his supporting affidavit inherently suspect for purposes of summary judgment.

Rule 56(e) requires summary judgment affidavits to present facts based on personal knowledge that would be admissible in evidence; unsupported hearsay cannot establish a material fact.

Gilreath v. North Carolina Department of Health & Human Services · filed 2006-05-16Rule 56(e)

These statements should not have been considered by the trial court in ruling on defendant's motion for summary judgment. Affidavits supporting or opposing a motion for summary judgment "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." N.C. Gen.Stat. § 1A-1, Rule 56(e) (2005).

Rule 56(e) requires summary judgment affidavits to state facts admissible in evidence; inadmissible affidavit evidence must be stricken and cannot be considered on summary judgment.

Hammer v. Hammer · filed 2006-09-05Rule 56(e)

Affidavits offered in support of or in opposition to motions for summary judgment “shall set forth such facts as would be admissible in evidence[.]” N.C. Gen. Stat. § 1A-1, Rule 56(e) (2006). Conversely, evidence set forth in affidavits that would be inadmissible at trial must be stricken and may not be considered by the court in rendering summary judgment.

Rule 56(c) permits a court to proceed without considering an opposing affidavit that was not served at least two days before the summary judgment hearing.

Emerging Display Technologies, Corp. v. Unicomp, Inc. · filed 2007-02-06Rule 56(c)

It is undisputed that Defendant's affidavit was offered at the hearing on Plaintiff's motion for summary judgment, and not before. Thus, according to the language of the rule, the trial court acted properly by proceeding with the hearing without considering Defendant's untimely affidavit.

Rule 56(e) requires summary judgment affidavits to contain admissible facts based on the affiant’s personal knowledge and competence; a valuation attributed to someone else is hearsay.

Young v. Gum · filed 2007-09-04Rule 56(e)

There is no indication that Mr. Casterline is competent to testify as to the value of the marital estate or that he has personally determined the value of the estate. In fact, the statement in his affidavit that the estate “has been valued at approximately $20 million” indicates that someone else has valued the estate, so this is hearsay and not admissible evidence as to value.