N.C. Gen. Stat. § 1A-1

Rule 36(b) gives the trial court discretion to deny withdrawal of admissions without considering whether withdrawal would prejudice the opposing party.

Interstate Highway Express, Inc. v. S & S Enterprises, Inc. · filed 1989-05-16Rule 36(b)

We hold that the language of the Rule clearly gives the trial court the discretion to allow or not allow a party to withdraw admissions and that in the exercise of that discretion it was not required to consider whether the withdrawal of the admissions would prejudice plaintiff in maintaining its action.

Rule 36 requires a party to respond within the rule’s deadline to avoid having requests for admission deemed admitted, including when the party objects.

Town of Chapel Hill v. Burchette · filed 1990-08-21(a)

In order to avoid having requests for admissions deemed admitted, a party must .respond within the period of the rule if there is any objection whatsoever to the request.

Rule 36(a) gives a defendant sixty days after service of the summons and complaint to respond to requests for admission, subject to a court-granted extension.

Moore v. F. Douglas Biddy Construction, Inc. · filed 2003-11-04Rule 36(a)

The court’s order granted defendant an extension of “an additional 30 days” from the original sixty days he had under Rule 36(a) and allowed defendant to file his responses by 13 September 2001. Defendant timely filed his responses on 31 August 2001.

Admissions resulting from an untimely response are conclusive unless withdrawn or amended and can support summary judgment.

DeCesare v. Island Games, LLC · filed 2014-02-04Rule 36(b)

Defendants’ failure to timely respond to plaintiff’ request for admissions conclusively established facts sufficient to enter judgment for plaintiff as a matter of law.

Rule 36 treats unanswered requests for admission as conclusively established unless the court permits withdrawal or amendment on motion.

Menscer v. Pac. All. Corp. · filed 2017-06-16Rule 36(a), (b)

Therefore, because Pacific Defendants failed to respond to the Menscers’ requests for admissions and have not moved the Court to withdraw or amend their admissions, the matters therein are deemed admitted by Pacific Defendants and are conclusively established for purposes of this litigation and, more specifically, for purposes of the Court’s determination of the Menscers’ Motion for Partial Summary Judgment.

Rule 36(a) deems matters in a request for admissions admitted when the receiving party fails to respond within the required time.

Islet Scis., Inc. v. Brighthaven Ventures LLC · filed 2018-08-16Rule 36(a)

The law in North Carolina is clear that the Third-Party Defendants’ failure to respond to the First Request for Admissions means that the facts in question in the First Request for Admissions are deemed judicially admitted.

Section 1A-1 applies the Rules of Civil Procedure to special proceedings and requires a reply only to a designated counterclaim, while treating other allegations as denied.

Beal v. Dellinger · filed 1978-11-21Rule 1; Rule 7; Rule 8(d)

The Rules of Civil Procedure apply to a special proceeding, G.S. 1-393; 1A-1, Rule 1, and require a reply only to a counterclaim denominated as such. G.S. 1A-1, Rule 7. No counterclaim appears here, and no reply is required. Respondents' contentions are taken as denied. G.S. 1A-1, Rule 8(d).

The Rules of Civil Procedure do not apply to private condemnation proceedings under Chapter 40A, so parties cannot use trial by consent to resolve issues outside the pleadings.

Virginia Electic & Power Co. v. Tillett · filed 1985-03-19Rule 1

Because condemnation is a special proceeding, the Rules of Civil Procedure do not apply to allow issues outside the pleadings to be tried by consent of the parties.

Rule 1 makes the Rules of Civil Procedure inapplicable when a statute prescribes a different procedure.

Gates Four v. City of Fayetteville · filed 2005-06-07Rule 1

However, while the North Carolina Rules of Civil Procedure govern civil proceedings generally, they do not apply "when a differing procedure is prescribed by statute[.]" N.C. Gen.Stat. § 1A-1, Rule 1 (2003).

The Rules of Civil Procedure apply to an action enforcing a tax summons under § 105-258, except where that statute prescribes a different procedure.

In Re Summons Issued to Ernst & Young, LLP · filed 2008-08-05Rule 1

Since we conclude N.C. Gen. Stat. § 105-258 is a civil action, the statute is subject to the rules of civil procedure, except to the extent the statute prescribes a different procedure.

Rule 1 excludes proceedings governed by a specialized statutory procedure from the Rules of Civil Procedure, including summons enforcement proceedings under § 105-258(a).

In Re the Summons Issued to Ernst & Young, LLP · filed 2009-10-09Rule 1

When the legislature has prescribed specialized procedures to govern a particular proceeding, the Rules of Civil Procedure do not apply.

The Rules of Civil Procedure apply to claims under the Open Meetings Law.

Garlock v. Wake County Board of Education · filed 2011-04-19Rule 1

Based on prior cases, it is clear that the Rules of Civil Procedure do apply to claims under the Open Meetings Law.

Rule 1 does not require satellite-based monitoring hearings to be initiated under the Rules of Civil Procedure because a statute prescribes a different procedure.

State v. Self · filed 2011-12-20Rule 1

However, contrary to defendant’s contention, SBM hearings are not required to be initiated pursuant to the North Carolina Rules of Civil Procedure.

Rule 8(d) deems only material or relevant averments of an unanswered counterclaim admitted.

Connor v. Royal Globe Insur. Co. · filed 1982-02-16Rule 8(d)

We subscribe to that view, and we state the controlling proposition in this State clearly and succinctly: when a defendant makes a counterclaim denominated as such and the plaintiff fails to make a reply, the material or relevant averments of the counterclaim are deemed admitted.

Rule 8(d) deems an affirmative defense denied or avoided when no reply is required, so a plaintiff need not file further pleadings to contest it.

Brown v. Lanier · filed 1983-02-01Rule 8(d)

Thus, defendants’ affirmative defense of release is deemed avoided or denied by Rule 8(d) and no further pleadings were required.

Rule 8(d) deems allegations admitted when a required reply is omitted, but allegations that merely deny a complaint do not require a reply.

Cornelius v. Cornelius · filed 1987-10-06Rule 8(d)

Though denominated a counterclaim, defendant’s allegations, in effect, do no more than deny plaintiffs allegations that only the property listed in the complaint is marital property. Consequently, a reply is not required.

Rule 8(c) requires a court, when justice requires, to treat an undesignated counterclaim as a counterclaim and permit a reply.

Hunt v. Hunt · filed 1994-12-06Rule 8(c)

Pursuant to Rule 8(c), justice requires that the trial court treat the defendant’s pleadings as a counterclaim for equitable distribution and permit plaintiff to reply. Accordingly, it was error to strike plaintiff’s reply.

Rule 8(d) does not treat a plaintiff’s failure to reply to a counterclaim as an admission when its allegations merely deny allegations already made in the complaint.

Crowley v. Crowley · filed 2010-04-06Rule 8(d)

We hold that a plaintiff’s failure to file a reply re-asserting allegations already made in the complaint in response to averments in a defendant’s counterclaim which do no more than present “denials in affirmative form of the allegations of the complaint[,]” does not amount to an admission pursuant to N.C.G.S. § 1A-1, Rule 8(d).

Rule 8(d) does not treat a failure to reply as an admission when the counterclaim merely restates denials of the complaint in affirmative form.

Harper v. Vohra Wound Physicians of NY · filed 2020-03-17Rule 8(d)

The counterclaims for fraud and breach of contract do no more than present denials of the complaint’s allegations in affirmative form. ... Accordingly, the trial court did not err in its determination that Dr. Harper’s failure to file a reply to the amended counterclaims did not amount to admissions under Rule 8(d).

Rule 53 permits the court to adopt, modify, or reject a referee’s report, consent to a reference waives jury trial on issues within its scope, and Rule 39(b) permits the court to order a jury trial on those issues.

Reeves v. Musgrove · filed 1978-12-05Rule 53(g)(2); Rule 53(b)(1); Rule 39(b)

Here, however, the referee submitted a full and final report of the trial court. Upon its receipt of the referee’s report, the trial court was free to “adopt, modify or reject the report in whole or in part. . . .” G.S. 1A-1, Rule 53(g)(2). ... Where the parties to an action consent to a reference, they waive the right to have any of the issues within the scope of the reference determined by the jury. G.S. 1A-1, Rule 53(b)(1). If the issues are presented to the referee, but his report does not determine them, the trial court may properly choose not to again submit the issues to a referee. It then becomes incumbent upon the trial court to try these issues. Notwithstanding the waiver by the parties in the present case of their right to trial by jury, the trial court was authorized, in its discretion and either upon motion or on its own initiative, to order trial by jury on any or all issues presented. G.S. 1A-1, Rule 39(b).

Rule 53(b)(2) preserves a party’s right to a jury trial after a compulsory reference when the party objects to the reference, timely excepts to the referee’s findings, tenders issues based on those exceptions, and demands a jury trial.

Federal Paper Board Co. v. Hartsfield · filed 1987-12-01Rule 53(b)(2)

By objecting to the order of reference at the time of its entry, filing timely exceptions to the referee’s findings of fact, formulating and tendering issues based upon those exceptions, and demanding a jury trial on the issues, defendants have satisfied procedural requirements necessary to preserve their right to a jury trial. G.S. 1A-1, Rule 53(b)(2).

Rule 53(b)(2) requires a party to object when a compulsory reference is made to preserve a jury trial, and Rule 53(g)(2) permits the court, after reviewing the evidence, to adopt, modify, or reject a referee’s report, remand the proceedings, or enter judgment.

Gaynor v. Melvin · filed 2002-12-31Rule 53(b)(2), Rule 53(g)(2)

In order to preserve the right to a jury trial where a compulsory reference has been ordered, a party must, among other things, object to the order of reference at the time it is made. ... Failure to so object results in the waiver of a party’s right to a jury trial.

Rule 25(c) permits a court to abate an action after a party's death, insanity, or incompetency unless proper parties continue it within six to twelve months.

Deutsch v. Fisher · filed 1979-01-02(c)

It is obvious this section is not applicable to this situation.

Rule 25(a) prevents a pending annulment action from abating upon a party’s death when the cause of action survives.

Clark v. Foust-Graham · filed 2005-07-19Rule 25(a)

“No action abates by reason of the death of a party if the cause of action survives.” N.C. Gen. Stat. § 1A-1, Rule 25(a) (2003). ... Given that the annulment action was commenced on Goodwin’s behalf prior to his passing, and substantial property rights hinge on the validity of the marriage between Goodwin and Foust-Graham, we conclude that the action for annulment did not abate upon Goodwin’s death.

Rule 56(c) permits an interlocutory summary judgment on liability alone when the amount of damages remains genuinely disputed.

Tridyn Industries, Inc. v. American Mutual Insurance · filed 1979-02-05Rule 56(c)

The decree of the trial court in this case is properly denominated a partial summary judgment rendered on the issue of liability alone, the court determining that there was a genuine issue as to the amount of damages. Such a judgment is authorized by Rule 56(c) of the Rules of Civil Procedure which provides, “[a] summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is genuine issue as to the amount of damages.” Thus the rule authorizing such a judgment denominates it interlocutory.

Rule 56(d) permits partial summary judgment on issues for which no genuine issue of material fact exists.

Wilkes County ex rel. Child Support Enforcement Agency ex rel. Nations v. Gentry · filed 1983-08-02Rule 56(d)

In addition, G.S. 1A-1, Rule 56(d) allows for a partial summary judgment when there is no genuine issue as to a material fact on part of the issues.

Rule 56(c) permits summary judgment on liability alone even when the amount of damages remains disputed.

Langley v. Moore · filed 1983-10-18Rule 56(c)

As in the present case, G.S. 1A-1, Rule 56(c) allows summary judgment to “be rendered on the issue of liability alone although there is genuine issue as to the amount of damages.”

Rule 52 does not require findings of fact on summary judgment when the material facts are undisputed and only a question of law remains.

Cambridge Southport, LLC v. Southeast Brunswick Sanitary District · filed 2012-01-17

None of the material facts are in dispute. There remains only a question of law: whether the provisions of the Act apply to the Application. Having determined that the provisions of the Act do apply to the Application, and that the expiration of the Application was therefore tolled, we hold that summary judgment was appropriate and, in this instance, no findings of fact were required.

Rule 43(e) requires a judge deciding a motion to dismiss to rely only on material admissible at trial.

Hankins v. Somers · filed 1979-02-06Rule 43(e)

To the extent that Rule 43(e) applies to a motion to dismiss, we agree. A motion to dismiss can result in termination of a lawsuit just as much as a motion for summary judgment. Accordingly, the judge should rely only on material that would be admissible at trial in ruling on the motion.

Exhibits attached to a complaint control over conflicting factual allegations and may show that the complaint fails to state a claim.

Highland Paving Co. v. First Bank · filed 2013-05-07Rule 12(b)(6)

The exhibits attached to plaintiff’s complaint contradict its material factual allegations such that plaintiff cannot maintain any of its claims against First Bank. Therefore, we hold that the trial court did not err in granting First Bank’s motion to dismiss for failure to state a claim and affirm the 25 June 2011 order dismissing plaintiff’s claims against First Bank.

Rules 6 and 7 preserve constructive notice of oral motions properly made during a session at which the case is regularly calendared, so actual notice is unnecessary.

Wood v. Wood · filed 1979-03-16Rule 7(b)(1)

We therefore hold that where an oral motion is appropriately made under Rule 7, the doctrine that a party to an action has constructive notice of all orders and motions made in the cause during the session of court at which the cause is regularly calendared is preserved in Rules 6 and 7 of the North Carolina Rules of Civil Procedure. Thus, in the case at bar defendant was charged with constructive notice of plaintiffs motion for relief from the judgment entered in the action. Actual notice to defendant was not required.

Rule 6(d) requires service of a written motion and notice of hearing at least five days before the hearing, with intermediate weekends and holidays excluded when computing that period.

Gummels v. North Carolina Department of Human Resources · filed 1990-02-06(d)

Focusing our attention on G.S. 1A-1, Rule 6(d), we find the rule requires that “[a] written motion, . . . and notice of hearing thereof shall be served not later than five days before the time specified for the hearing, unless a different period is fixed . . . .” Part (a) of Rule 6 explains the method of computing time when the period prescribed is less than seven (7) days. In that case, “intermediate Saturdays, Sundays and holidays shall be excluded in the computation.”

Rule 16(6) contemplates that counsel identify at a pre-trial conference matters they will ask the court to take judicial notice of.

State v. Dancy · filed 1979-03-16Rule 16(6)

It is desirable and certainly contemplated by G.S. 1A-1, Rule 16(6), that counsel bring to the court’s attention, in pre-trial conference, those matters of which it will be asked to take judicial notice.

Members of a Rule 23(a) class must receive adequate notice before a conclusive decision on the merits.

English v. Holden Beach Realty Corp. · filed 1979-05-01Rule 23(a)

While Rule 23(a) does not require it, we believe that fundamental fairness and due process dictate that adequate notice, determined in the discretion of the trial court, be given to members of the class.

Rule 23 requires evidence of a class of persons who may be entitled to similar relief.

Susan B. ex rel. Lisa S. v. Planavsky · filed 1982-12-21

The forecast of evidence before the trial court does not indicate that there exists a class of persons, or any other persons, committed as voluntary patients to Dix Hospital who are or may be entitled to any relief similar to the claims asserted by plaintiffs in this action. See G.S. 1A-1, Rule 23 of the Rules of Civil Procedure. Summary judgment was appropriately entered as to this aspect of plaintiffs’ action.

Rule 23(c) requires court approval of all voluntary dismissals of class actions.

Lupton v. Blue Cross and Blue Shield Giduz v. Blue Cross and Blue Shield · filed 1999-06-14(c)

For the reasons cited above, this Court finds that Rule 23(c) of the North Carolina Rules of Civil Procedure requires court approval of all voluntary dismissals of class actions.

Rule 23(c) requires notice to class members before a voluntary dismissal of a class action, but not before a court dismisses it.

KITCHIN EX REL. KITCHIN v. Halifax County · filed 2008-09-02Rule 23(c)

Thus, while Rule 23(c) applies in cases of voluntary dismissals, it is not applicable in cases such as the one before us, where the dismissal is by a court.

Rule 16 permits pretrial orders, but admissions, agreements, and stipulations made by counsel at that stage should be evidenced by a signed writing.

Amick v. Shipley · filed 1979-11-06Rule 16

While the rule allows the court to enter an order reciting action taken at the conference, present custom and better practice require that admissions, agreements, or stipulations entered into by counsel at the pretrial stage be evidenced by a signed writing.

Rule 16(7) requires a trial judge to approve and sign a pre-trial order before it becomes effective, although stipulations in an ineffective order may still bind the parties.

Thomas v. Poole · filed 1981-10-06Rule 16(7)

Though the stipulations were contained in a “Pre-trial Order” which was never effective as a final pre-trial order under G.S. 1A-1, Rule 16(7) because never approved and signed by a trial judge, the stipulations were nevertheless judicial admissions and binding on the parties.

The pre-trial order controls which stipulations are valid.

Wall v. Stout · filed 1983-04-05Rule 16

The pre-trial order contained the only valid stipulations. N.C. Gen. Stat. § 1A-1, Rule 16. Consequently, Dr. Watson was a proper witness.

Rule 16 permits departure from a pre-trial order when its limits would cause manifest injustice.

State v. Forehand · filed 1984-03-06Rule 16

A pre-trial order “controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice.” ... Since the pre-trial order was erroneously prejudicial on statutory and constitutional grounds, the trial court correctly found facts as to the ownership of the affected tracts of land.

Rule 16 permits a trial court to exclude exhibits omitted from a pretrial order when their introduction would prejudice the opposing party.

Lay v. Mangum · filed 1987-10-06Rule 16

A pretrial order “controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice. . . .” G.S. 1A-1, Rule 16. ... However, we do not agree that the plaintiff may rebut the evidence with exhibits which were not listed on the pretrial order to the prejudice of the defendant as the trial court has determined in the exercise of its discretion.

Rule 16(a)(7) limits trial issues to matters not resolved by admissions or agreements of counsel, and permissive stipulations do not bind the trial court.

Despathy v. Despathy · filed 2002-04-02(a)(7)

The purpose of a stipulation is to “limit[] the issues for trial to those not disposed of by admissions or agreements of counsel.” N.C. Gen. Stat. § 1A-1, Rule 16 (a)(7). ... Because the language of the stipulations regarding the automobiles was permissive rather than mandatory, we hold that the trial court could properly award the automobiles according to its discretion.

Stipulations in a pretrial order bind the parties and the court unless modified to prevent manifest injustice; considering a separate property interest as a distributional factor does not change a stipulated marital classification.

White v. Davis · filed 2004-02-17Rule 16(a)

It has long been established that judicial admissions are binding on the pleader as well as the court “unless modified at the trial to prevent manifest injustice.” Inman v. Inman, 136 N.C. App. 707, 713-14, 525 S.E.2d 820, 824 (2000); see N.C.G.S. § 1A-1, Rule 16(a) (2001). ... It is clear from the judgment that the trial court did not change the stipulated classification of the medical practice but, in its discretion, granted defendant the benefit of a distributional factor out of fairness considerations.

Rule 16(a)(7) makes a pretrial order containing the parties’ stipulations controlling and limits when the court may modify it to prevent manifest injustice.

Plomaritis v. Plomaritis · filed 2012-08-07Rule 16(a)(7)

First, Rule 16(a)(7) itself states that a stipulation may be “modified at the trial to prevent manifest injustice.”

Rule 42(b) gives trial courts discretion to try separate issues in successive phases, subject to review for abuse of discretion.

In re Will of McFayden · filed 2006-10-03Rule 42(b)

Pursuant to the provisions of Rule 42(b) of the North Carolina Rules of Civil Procedure, it was with the trial court's discretion to trifurcate the proceedings. ... Therefore, the trial court did not abuse its discretion in severing these trials.

Rules 20(b) and 42(b) give trial judges discretion to sever claims and order separate trials.

Wachovia Bank & Trust Co. v. Smith · filed 1980-02-05(b)

Although the basic philosophy of the party joinder provisions is to allow relatively unrestricted initial joinder, G.S. 1A-1, Rule 20(b) and G.S. 1A-1, Rule 42(b) provide that the trial judge has discretionary authority to sever and order separate trials.

Rule 42(b) gives the trial judge discretion to sever issues for separate trial.

Pinner v. Southern Bell Telephone & Telegraph Co. · filed 1983-01-04Rule 42(b)

The decision to sever issues is in the discretion of the trial judge. ... The court here set forth on the record sound reasons for its decision, and we find no abuse of discretion.

Rule 42(b) gives the trial judge discretion to sever issues for trial to further convenience or avoid prejudice.

VANCE TRUCKING CO., INC. v. Phillips · filed 1984-02-07Rule 42(b)

The trial judge has discretion, under G.S. 1A-1, Rule 42(b) to sever issues for trial in order to further convenience or avoid prejudice.

Rule 42(b) permits a court, on a timely motion, to order separate trials of claims or issues for convenience, to avoid prejudice, or for venue considerations.

Kearns v. Horsley · filed 2001-06-19Rule 42(b)

N.C. Gen. Stat. § 1A-1, Rule 42(b) (1999) provides: ... The court may in furtherance of convenience or to avoid prejudice and shall for considerations of venue upon timely motion order a separate trial of any claim, crossclaim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, crossclaims, counterclaims, third-party claims, or issues. ... Therefore, without plaintiffs showing that the timing of defendants’ motion prejudiced her, we hold that the motion was timely.

Rule 42(b) permits separate trials for convenience or to avoid prejudice, and a decision denying severance is reviewed for abuse of discretion.

North Carolina State Bar v. Rogers · filed 2004-06-01Rule 42(b)

Under Rule 42(b) of the North Carolina Rules of Civil Procedure, a trial court may order separate trials of claims in the furtherance of convenience or to avoid prejudice. ... We therefore conclude there was no abuse of discretion on the part of the DHC in denying defendant's severance motion.

Rule 42(b) gives the trial court discretion to try distinct issues separately, subject to review for abuse of discretion.

In re Will of McFayden · filed 2006-08-01Rule 42(b)

Pursuant to the provisions of Rule 42(b) of the North Carolina Rules of Civil Procedure, it was with the trial court's discretion to trifurcate the proceedings. ... Therefore, the trial court did not abuse its discretion in severing these trials.

Rule 42(b)(3) permits a single trial of liability and damages in a tort action for good cause, and a finding of good cause is reviewed for abuse of discretion.

Clarke, ex rel v. Mikhail · filed 2015-11-03Rule 42(b)(3)

Plaintiff has failed to carry his burden to show the trial court’s “finding of good cause in this specific case was manifestly unsupported by reason . . . or so arbitrary that it could not have been the result of a reasoned decision.” Atkins, 183 N.C. at 628, 644 S.E.2d at 628.

Rule 42(b) permits negligence to be tried separately from damages when multiple claims and parties make separate trials useful.

Sanders Ex Rel. Sanders v. George A. Yancey Trucking Co. · filed 1983-06-21Rule 42(b)

Confronted with multiple claims and multiple parties, Judge Herring and trial counsel attempted to make the task of the jury and parties less complicated by separating the issues of negligence from the issues of damages. G.S. 1A-1, Rule 42(b); ... With multiple claims involved, it was commendable to resolve the problem of negligence first.

Rule 48 allows parties to stipulate to a stated majority jury verdict at any time, including after deliberations begin.

U.S. Industries, Inc. v. Tharpe · filed 1980-08-05Rule 48

The statute does not by its terms restrict the time at which the parties may stipulate to accept a stated majority verdict. In our opinion a fair interpretation of the language allows such an agreement to be made at any time.

Rule 68(a) permits attorney’s fees accrued when an offer of judgment is made to be awarded as part of the costs then accrued.

Yates Motor Co., Inc. v. Simmons · filed 1981-04-07Rule 68(a)

We reject defendants’ argument and hold that the trial court clearly had the authority to award plaintiffs attorney’s fees accrued at the time the offer of judgment was made as a part of the costs then accrued.

Rule 68(a) requires an offer of judgment to include accrued attorney’s fees when those fees are part of the recoverable costs.

Purdy v. Brown · filed 1982-04-20Rule 68(a)

An exclusion of attorney’s fees for services through the time of offer thus renders an offer in non-conformance with the requirement of the rule that the offer include “costs then accrued.”

Rule 68(a) requires an offeree whose final judgment is less favorable than a rejected offer to pay costs incurred after the offer.

Scallon v. Hooper · filed 1982-08-03Rule 68(a)

Since in this case the offer was made and served on 21 May 1979 and the judgment was for less than the sum offered, the trial court erred in taxing costs against the plaintiff up to and including 15 October 1979. Under Rule 68(a) the judgment should have ordered the plaintiff to pay the costs incurred after 21 May 1979. However, we have determined that the judgment must be reversed and the case remanded again for a new trial. Thus, the assessment of costs by the trial court depends upon the judgment finally obtained by the plaintiff.

Under Rule 68, attorney’s fees are not costs accrued at the time of an offer if they could not then have been taxed against the offeror.

Purdy v. Brown · filed 1982-11-03Rule 68(a)

In this case, we reach the conclusion that attorney’s fees were not part of the “costs then accrued” when defendant made his offer to plaintiff because attorney’s fees could not properly have been taxed against defendant at that time.

Rule 68(a) requires an offer of judgment to specify the amount offered to each plaintiff when multiple plaintiffs have independent claims.

True v. T & W Textile Machinery, Inc. · filed 1993-10-19(a)

When, however, multiple plaintiffs in the same complaint have independent claims for relief, as in this case, an offer of judgment can be valid only if it is specific as to the offer made to each plaintiff.

Rule 68(a) permits a lump sum offer of judgment, but the offer must clearly convey that it includes the judgment amount and accrued costs.

Aikens v. Ludlum · filed 1994-03-01(a)

Therefore, after Marek it is clear that a lump sum offer of judgment is permissible, but it is incumbent on the defendant to make sure that he has used language which conveys that he is making a lump sum offer.

Rule 68(a) permits a lump sum offer of judgment that includes damages, attorney’s fees taxable as costs, and accrued costs, barring additional recovery of those amounts after acceptance.

Harward v. Smith · filed 1994-04-05(a)

In this case however, the Offer of Judgment created no ambiguity; it specifically offered to allow judgment to be taken against defendant “in the lump sum amount of $7,001.00 for all damages, attorney’s fees taxable as costs, and the remaining costs accrued at the time this offer is filed.” This language evinces an unmistakable intent that the $7,001.00 lump sum be payment not only for plaintiff’s damages, but for her attorney’s fees and the costs accrued at the time the Offer of Judgment was filed on 6 May 1993.

Rule 68(a) governs offers of judgment and requires a lump sum offer to state clearly whether accrued costs are included.

Craighead v. Carrols Corp. · filed 1994-06-21(a)

We conclude that, as in Aikens, the phrase “together with costs accrued” is ambiguous as to whether the “costs accrued” are included in the $45,001.00 figure or whether the costs are left to be separately determined by the court.

Under Rule 68(a), the judgment finally obtained is the final amount entered by the court, including applicable adjustments to the jury’s verdict, for comparison with an offer of judgment.

Poole v. Miller · filed 1995-12-08Rule 68(a)

For these reasons, we conclude that, within the confines of Rule 68, "judgment finally obtained" means the amount ultimately entered as representing the final judgment, i.e., the jury's verdict as modified by any applicable adjustments, by the respective court in the particular controversy, not simply the amount of the jury's verdict.

Rule 68(a) does not require a lump sum offer to make a judgment final as to damages and costs.

Estate of Wells Ex Rel. Morley v. Toms · filed 1998-05-05Rule 68(a)

Accordingly, the offer need not be a “lump sum” offer in order to ensure finality of judgment as to both damages and costs.

Rule 68(a) requires an offeree to pay costs incurred after an offer of judgment when the final judgment is no more favorable than the offer.

Blackmon v. Bumgardner · filed 1999-10-05Rule 68(a)

Consistent with Rule 68(a) and the holding in Scallon, plaintiff must bear defendants’ costs incurred since the making of the offer on 8 October 1997. The trial court did not err in awarding post-offer of judgment costs to defendants.

Rule 68 requires the court to exclude costs incurred after an offer of judgment when calculating the judgment finally obtained.

Roberts v. Swain · filed 1999-11-16

In calculating the “judgment finally obtained” under N.C.G.S. § 1A-1, Rule 68, the court should not include any costs incurred after the offer of judgment.

Rule 68(a) requires post offer costs to be paid by an offeree when the final judgment is not more favorable than the offer, with those costs included in calculating the final judgment.

Roberts v. Swain · filed 2000-12-21(a)

As such, we hold that costs incurred after the offer of judgment but prior to the entry of judgment should be included in calculating the "judgment finally obtained," even where attorney's fees are awarded under a federal statute.

Rule 68(a) requires an offeree to pay costs incurred after an offer when the judgment finally obtained is not more favorable than the offer.

Tew v. West · filed 2001-05-15(a)

Finally, defendant argues the trial court erred in denying her Rule 68 motion for costs. We disagree. To recover costs under Rule 68, the amount of the offer of judgment must exceed plaintiff’s total recovery. Poole v. Miller, 342 N.C. 349, 353-55, 464 S.E.2d 409, 411-12 (1995), reh’g denied, 342 N.C. 666, 467 S.E.2d 722 (1996). Specifically, under Rule 68, “[i]f the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer.” N.C. Gen. Stat. § 1A-1, Rule 68(a). We have held that the judgment finally obtained was more favorable than defendant’s offer. Thus, defendant cannot have costs paid on her behalf.

Rule 68 permits a lump sum offer of judgment to toll prejudgment interest in an action other than contract once the judgment finally obtained is available for comparison.

Phillips v. Warren · filed 2002-09-03Rule 68

We believe that prejudgment interest in actions other than contract can be tolled by a lump sum Rule 68 offer of judgment.

Rule 68 shifts costs when a party who rejects an offer of judgment obtains a final judgment that is not more favorable than the offer.

Reinhold v. Lucas · filed 2005-01-04Rule 68

Specifically, defendant argues that plaintiff should pay defendant’s attorney’s fees and costs because costs are shifted to the party who fails to accept an offer of judgment when “the judgment finally obtained is not more favorable than the offer.” See N.C. Gen. Stat. § 1A-1, Rule 68 (2003). ... Attorney’s fees are properly included when calculating the amount of the final judgment. See Roberts, 353 N.C. at 249, 538 S.E.2d at 568. The trial court properly found that “[t]he judgment of $13,382.65, exclusive of interest, exceeds the offer of judgment of [$3,000] even if reduced by $5,000.00 paid by the third-party defendant.” The trial court did not err in awarding attorney’s fees and costs to plaintiff and in denying them to defendant.

Rule 68 requires an offer of judgment to create a binding final judgment; an offer addressing only one marital asset while other issues remain does not qualify.

Lauterbach v. Weiner · filed 2005-10-18(a)

Because "[t]he Rule prompts both parties to a suit to evaluate the risks and costs of litigation, and to balance them against the likelihood of success," the offer must create a binding final judgment. ... Her partial offer to distribute the marital residence was insufficient to create a binding final judgment on all pending issues.

Rule 6(b) does not authorize a trial court to extend the time to accept an offer of judgment under Rule 68.

Ennis v. Henderson · filed 2006-03-21Rule 6(b)

Thus, the principle question before this Court is whether Rule 6(b) grants authority to the trial court to enlarge the time to accept offers of judgment pursuant to Rule 68. We hold it does not.

Under Rule 68(a), costs awarded to the offeree are included in the final judgment when comparing it with a rejected offer of judgment.

Bartlett Milling Co., LP v. Walnut Grove Auction and Realty Co., Inc. · filed 2008-08-19Rule 68(a)

However, when we combine the judgment award of $44,232.88 with the costs awarded plaintiff, $11,776.05, as we are required to do, ... we reach a final judgment in favor of plaintiff in the amount of $56,008.93, which is more than the amount proffered in defendants offer of judgment.

A judgment entered under Rule 68(a) is a final court adjudication, and its satisfaction discharges other tortfeasors from liability for the same injury under § 1B-3(e).

Akins v. Mission St. Joseph's Health System, Inc. · filed 2008-10-07Rule 68(a)

Thus, to treat a judgment entered pursuant to Rule 68 as a release or covenant not to sue, rather than as a final adjudication of the court, would require a construction of the term “judgment” that is inconsistent with its plain meaning and with the definition that has already been adopted by our Supreme Court.

Rule 68(a) requires an offeree to pay costs incurred after an unaccepted offer when the final judgment is no more favorable than the offer.

Smith v. White · filed 2011-07-05Rule 68(a)

As defendant’s offer to plaintiff exceeded plaintiff’s jury award, the trial court properly awarded costs incurred after the offer to defendant, and there was no abuse of discretion.

Under Rule 68, the judgment finally obtained is the trial court’s judgment, including applicable interest, costs, and attorney fees, rather than the jury verdict alone.

Robinson v. Shue · filed 2001-07-17Rule 68

It should be noted that the jury verdict, costs and interest exceeded the offer of judgment without considering the attorney fees. ... Here, the trial court’s judgment awarded plaintiffs the $1,600.00 jury verdict, interest at a rate of eight percent (8%) per year from 11 February 1998 until the judgment was paid in full, $4,410.00 in attorney fees, and $486.00 in costs.

Rule 68 compares an offer of judgment with the judgment finally obtained, including applicable costs and reasonable attorney fees.

Thorpe v. Perry-Riddick · filed 2001-07-03Rule 68

Proper inclusion of attorney fees into plaintiffs final judgment only increases the disparity between defendant’s offer of judgment ($4,801.00) and plaintiff’s judgment finally obtained ($1,134.30 + $4,880.00 + $4,500.00 = $10,514.30). The trial court did not err in concluding that the judgment finally obtained by plaintiff was greater than the amount offered by defendant. We agree with the trial court that plaintiff’s costs and attorney fees should be taxed against defendant pursuant to N.C. Gen. Stat. § 6-21.1 and Rule 68.

Rule 5 does not apply to motions by counsel to withdraw.

Hensgen v. Hensgen · filed 1981-08-04Rule 5

To begin with, we note that the rules governing withdrawal of counsel are set forth in Rule 16 of the General Rules of Practice for the Superior and District Courts (adopted pursuant to the provisions of G.S. 7A-34), published in Appendix I in Volume 4A of the General Statutes, and in Canon 43 of the Canons of Ethics of The North Carolina State Bar, published in Appendix VII of Volume 4A, and that the provisions of Rule 5 of the Rules of Civil Procedure are not applicable to motions of counsel to withdraw.

Rule 61 treats an evidentiary error as harmless when the appellant fails to show prejudice and that a different result likely would have followed without the error.

Hasty v. Turner · filed 1981-09-15Rule 61

The burden is on the appellant not only to show error, but also to enable the Court to see that he was prejudiced and that a different result would have likely ensued had the error not occurred. ... Hence, we hold that the trial court’s erroneous admission of Agent Dowdy’s testimony with respect to appellant was harmless.

Rule 61 does not require a mistrial for an improper opening statement when the error does not deny a substantial right.

In the Matter of Farmer · filed 1983-01-18Rule 61

In a civil trial, however, such an impropriety may not necessarily require an order of mistrial. G.S. 1A-1, Rule 61 of the Rules of Civil Procedures provides: ... No error in either the admission or exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action amounts to the denial of a substantial right. ... Under these circumstances, we are persuaded that Judge Reid’s refusal to order a mistrial did not result in the denial of respondent’s right to a trial de novo.

Rule 61 permits a court to disregard a harmless error in excluding testimony.

Barber v. Dixon · filed 1983-06-07Rule 61

Although no expertise is necessary to distinguish the structures based on their appearance, it was harmless error to refuse to let Longo answer that question. See G.S. 1A-1, Rule 61.

Rule 61 requires an appellant to show that an error was prejudicial and that a different result likely would have followed without it.

Responsible Citizens in Opposition to the Flood Plain Ordinance v. City of Asheville · filed 1983-05-03Rule 61

The burden is on the appellant not only to show error, but to show prejudicial error, i.e., that a different result would have likely ensued had the error not occurred.

Rule 61 requires a party claiming error to show that it denied a substantial right.

Sloop v. Friberg · filed 1984-10-16Rule 61

Assuming error, arguendo, Friberg still must show that the effect amounted to the denial of a substantial right. G.S. 1A-1, Rule 61; Responsible Citizens v. City of Asheville, 308 N.C. 255, 302 S.E. 2d 204 (1983). Considering the discretionary nature of the award, and the amounts awarded, we conclude from the present record that he has failed to make such a showing.

Rule 61 requires an error to affect a substantial right before it justifies reversal.

Andrews v. Andrews · filed 1986-02-04Rule 61

Error alone will not justify reversal; the error must affect some substantial right of the appellant. G.S. 1A-1, R. Civ. P. 61.

Rule 61 requires a party asserting trial court error to show from the record both the error and resulting prejudice.

Lawing v. Lawing · filed 1986-06-03Rule 61

The party asserting error must show from the record not only that the trial court committed error, but that the aggrieved party was prejudiced as a result.

Rule 61 permits a court to disturb a judgment for manifest error only when failing to correct the error would deny a party a substantial right.

Tompkins v. Tompkins · filed 1990-05-01Rule 61

Nevertheless, such error will not be grounds for disturbing a judgment or order unless the failure to take corrective action amounts to the denial of a substantial right. N.C.Gen.Stat. § 1A-1, N.C.R.Civ.P., Rule 61 (1983).

Rule 61 makes an evidentiary error harmless when it does not affect a substantial right.

Segrest v. Gillette · filed 1992-03-05

The erroneous exclusion of evidence did not deny the plaintiff a substantial right. Warren v. City of Asheville, 74 N.C.App. 402, 328 S.E.2d 859, cert. denied, 314 N.C. 336, 333 S.E.2d 496 (1985). N.C.G.S. § 1A-1, Rule 61 (1990).

Rule 61 requires an error to affect a substantial right before a judgment may be disturbed on appeal.

Bumgarner v. Reneau · filed 1992-02-18Rule 61

Therefore, because dedication of a public road cannot be established without evidence of a proper acceptance, the failure of the trial court to admit the deed into evidence did not affect any substantial right of plaintiffs. See N.C.G.S. § 1A-1, Rule 61 (1990) (trial court's error must "amount[ ] to denial of a substantial right" in order for judgment to be disturbed on appeal).

Rule 61 requires a party seeking a new trial to show that a different result would have been reached absent the error.

Matter of Ezzell · filed 1994-01-18

In any event, were we to hold that Ezzell has standing to raise the constitutional issue and were we to hold that it was error for the district attorney to present the charges in a Section 173(c) proceeding, Ezzell would be entitled to a new trial only if he could show that a different result would have been reached had the district attorney not appeared. N.C. Gen. Stat. § 1A-1, Rule 61 (1990); Lee v. Keck, 68 N.C. App. 320, 327, 315 S.E.2d 323, 328, disc. rev. denied, 311 N.C. 401, 319 S.E.2d 271 (1984). Ezzell is not entitled to a new trial for the same reasons we have given for holding he does not have standing. He simply cannot show that a different result would probably have occurred had the district attorney not appeared in the case.

Rule 61 requires courts to disregard errors that do not affect a party’s substantial rights.

Sheppard v. Zep Manufacturing Co. · filed 1994-03-15

We conclude that any error arising from the trial court’s instruction was harmless. G.S. 1A-1, Rule 61.

Rule 61 permits a new hearing for wrongly excluded evidence only when the exclusion denied a substantial right, requiring prejudice and a likely different result.

Matter of Chasse · filed 1994-08-16Rule 61

An error in the exclusion of evidence, however, is not ground for a new hearing unless the exclusion amounted to the denial of a substantial right. N.C. Gen. Stat. § 1A-1, Rule 61 (1990). To show that he was denied such a right, an appellant must show that the error prejudiced him and that it is likely that a different result would have ensued had the error not been committed.

Rule 61 treats an erroneous exclusion of evidence as harmless unless the appellant shows prejudice and that a different result likely would have followed.

Raintree Homeowners Ass'n v. Bleimann · filed 1994-10-18Rule 61

While we agree that evidence of the committee’s reasons for disapproval has some bearing on whether the committee acted reasonably and in good faith and was thus relevant, we hold, pursuant to N.C. Gen. Stat. § 1A-1, Rule 61 (1990), that the exclusion of the memorandum was harmless error.

Rule 61 does not allow a new trial or a verdict to be set aside for evidentiary error unless the error denies a substantial right.

Madden v. Carolina Door Controls, Inc. · filed 1994-11-15Rule 61

Even if the trial court erred in the admission of the witness’ testimony, that error “is not grounds for granting a new trial or for setting aside a verdict unless the admission amounts to the denial of a substantial right.” N.C. Gen. Stat. § 1A-1, Rule 61 (1990); ... Defendant Carolina cannot show prejudice, and we hold the admission of the evidence was at most harmless error.

Rule 61 permits a new trial for the erroneous exclusion of evidence when the error denies a party a substantial right.

Addison v. Moss · filed 1996-06-04

We next consider whether the exclusion of Brown’s testimony was prejudicial to defendants. See N.C.G.S. § 1A-1, Rule 61 (error in exclusion of evidence must amount to denial of substantial right to warrant new trial). ... We therefore hold the exclusion of Brown’s testimony constituted error prejudicial to defendants and grant them a new trial.

Rule 61 requires a party challenging a jury instruction to show that the alleged error likely changed the result.

NationsBank of North Carolina, N.A. v. American Doubloon Corp. · filed 1997-03-04Rule 61

It is not enough for defendant guarantors to merely allege error, they must also show that absent the trial court’s allegedly erroneous instruction, a different result would have obtained.

Rule 61 requires an appellant seeking relief from an error to show that the error was material and prejudicial.

Crutchfield v. Crutchfield · filed 1999-02-02Rule 61

However, defendant makes no argument, showing, or claim that she was prejudiced in any way by this omission. ... See N.C. Gen. Stat. § 1A-1, Rule 61 (1990). Defendant asked for, and received, an equal distribution of marital property. As such, her assignment of error is overruled.

Rule 61 requires courts to disregard errors that do not affect a party's substantial rights.

Wells v. Consolidated Judicial Retirement System · filed 2000-03-07

However, even if the affidavit had been excluded, the trial court would likely have reached the same result in this case by identifying and applying the relevant statutes. See N.C. Gen. Stat. § 1A-1, Rule 61 (1990). See also Warren v. City of Asheville, 74 N.C. App. 402, 328 S.E.2d 859, disc. review denied, 314 N.C. 336, 333 S.E.2d 496 (1985). We conclude that the error was harmless.

Rule 61 requires an appellant challenging the admission of evidence to show prejudice and that a different result was likely without the evidence.

IN RE SDG · filed 2005-03-01Rule 61

Assuming arguendo that admission of the testimony was error, it is respondent's burden to prove that absent the erroneous testimony the verdict would have likely been different. ... We have thoroughly reviewed the record and hold that even if the testimony in question was improperly admitted at trial, respondent was not prejudiced thereby.

Rule 61 requires a party challenging the exclusion of evidence to show that the exclusion prejudiced a substantial right.

Nolan v. Town of Weddington · filed 2007-04-03Rule 61

N.C. Gen. Stat. § 1A-1, Rule 61 (2005) (“No error in either the admission or exclusion of evidence ... is ground for granting a new trial... unless refusal to take such action amounts to the denial of a substantial right.”). ... Petitioners have not shown the exclusion of Chief Deputy Bailey’s testimony prejudiced the outcome of this case.

Rule 61 requires an appellant challenging the admission of evidence to show that the alleged error was prejudicial.

O'Mara Ex Rel. Reavis v. Wake Forest University Health Sciences · filed 2007-07-03Rule 61

However, plaintiffs do not articulate how the exclusion of this evidence would have been likely to change the outcome of the trial. Thus, even assuming, arguendo, that this testimony was inadmissible, plaintiffs have not shown prejudice.

Rule 61 requires a showing of prejudice before an error can justify disturbing a judgment or order.

In Re Tm · filed 2007-12-18Rule 61

N.C. Gen.Stat. § 1A-1, Rule 61 states: No error in either the admission or exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action amounts to the denial of a substantial right. ... As respondent-father has not shown how he was prejudiced, this assignment of error is overruled.

Rule 61 permits relief from an error in a ruling or order only when refusing relief would deny a substantial right; the party claiming error must show prejudice.

In Matter of T.M. · filed 2007-12-18Rule 61

N.C. Gen.Stat. § 1A-1, Rule 61 states: No error in either the admission or exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action amounts to the denial of a substantial right. N.C.G.S. § 1A-1, Rule 61 (2005). Respondent-father has failed to cite any finding made by the trial court "out of Court," and none appear on the face of the record. As respondent-father has not shown how he was prejudiced, this assignment of error is overruled.

Rule 61 requires a party seeking to disturb a judgment because of an alleged evidentiary error to show prejudice.

McIntyre v. McIntyre · filed 2008-01-15Rule 61

Assuming arguendo that the trial court erred by relying on a Douglas Forms book, Plaintiff must still demonstrate that he was prejudiced as a result of the trial court's actions. ... Therefore, Plaintiff has not demonstrated that he was prejudiced by the trial court's allegedly improper reliance on a Douglas Forms book.

Rule 61 permits relief for an evidentiary error in a civil case when the error prejudices a substantial right, making a different result likely.

Nicholson v. Thom · filed 2014-09-16Rule 61

We also note that, when considering alleged evidentiary errors in civil cases, “[n]o error . . . is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action amounts to the denial of a substantial right.” N.C. Gen. Stat. § 1A-1, Rule 61 (2013). An error affects a substantial right of the appellant when it prejudiced her and, thus, when “it is likely that a different result would have ensued had the error not been committed.”

Rule 61 does not permit relief for an erroneous directed verdict when the plaintiff could not have prevailed on the claim and therefore cannot show prejudice.

Gregory v. Old Republic Home Prot. Co. · filed 2014-09-16Rule 61

Even assuming arguendo the trial court erred in directing verdict for Defendant on Plaintiff’s UDTP claim, Plaintiff cannot show prejudice pursuant to N.C. Gen. Stat. § 1A-1, Rule 61, which states: ... Because Plaintiff could not have prevailed on her UDTP claim, Plaintiff cannot show prejudicial error.

Rule 61 permits an appellate court to leave an order undisturbed when an error in admitting evidence was harmless.

Simmons v. Waddell · filed 2015-06-16Rule 61

Any error in the trial court's admission of the expert testimony was harmless to defendant, and we will not disturb the trial court's order on this ground.

Rule 61 requires a showing of prejudice before a trial error can justify setting aside a verdict.

Chappell v. N.C. Dep't of Transp. · filed 2020-05-01Rule 61

To set aside a verdict, any errors made by the trial court must also be shown to be prejudicial.

Rule 61 subjects an effective exclusion of evidence to harmless error analysis.

Schroeder v. Oak Grove Farm Homeowners Ass'n · filed 2025-08-22Rule 61

Additionally, a decision to effectively exclude evidence is subject to harmless error analysis. State v. Cotton, 329 N.C. 764, 767 (1991); N.C.G.S. § 1A-1, Rule 61 (2023).

Rule 61 permits reversal for an erroneous exclusion of evidence only if the error denies a substantial right.

Meyer v. Gribben · filed 2026-01-21Rule 61

An error in the exclusion of evidence does not warrant reversal unless the error amounted to the denial of a substantial right. N.C. Gen. Stat. § 1A-1, Rule 61 (2023).

Rule 61 permits setting aside a verdict for an evidentiary error only when leaving it in place would deny a substantial right.

Marley v. Gantt · filed 1984-12-28Rule 61

G.S. 1A-1, Rule 61 provides that an error in the admission of evidence is not a ground for setting aside a verdict unless the refusal to do so “amounts to the denial of a substantial right.” ... We do not believe we can hold she was so impeached that she was denied a substantial right when the verdict was not set aside.

Rule 49 requires jury issues to be framed concisely and directly, but prescribes no particular form.

Shreve v. Combs · filed 1981-10-06Rule 49

The Rules of Civil Procedure require only that “[ijssues shall be framed in concise and direct terms, and prolixity and confusion must be avoided by not having too many issues.” G.S. 1A-1, Rule 49. No particular form is required.

Rule 49(b) does not require a trial court to submit a jury issue unsupported by the pleadings and evidence.

Rental Towel & Uniform Service v. Bynum International, Inc. · filed 1981-10-06Rule 49(b)

The Court of Appeals concluded that the trial court should have submitted an issue as to whether the parties intended to enter into a contract for a renewal term as contended by defendant. We disagree with this conclusion for the reason that defendant’s contention on this point is not supported by the pleadings and the evidence.

Rule 49 requires the trial judge to submit issues raised by the evidence that, when answered, resolve all material controversies between the parties.

Wooten v. Nationwide Mutual Insurance · filed 1983-01-04Rule 49

It is the duty of the trial judge to submit to the jury issues which are raised by the evidence, and which, when answered, will resolve all material controversies between the parties. G.S. § 1A-1, Rule 49. In the present case, the questions submitted to the jury confused the material issues which were raised by the evidence.

Rule 49(b) calls for concise, direct jury issues; a single issue is sufficient when it adequately presents the controversies raised by the pleadings and evidence.

Pittman v. First Protection Life Insurance · filed 1985-02-05Rule 49(b)

Our Rules of Civil Procedure specify that "[i]ssues shall be framed in concise and direct terms, and prolixity and confusion must be avoided by not having too many issues." G.S. 1A-1, Rule 49(b). ... With these principles in mind, we believe that the single issue submitted to the jury by the trial court adequately presented the controversies fairly raised by the pleadings and evidence as well as the issues tendered by plaintiff.

Rule 49(b) requires an ambiguously worded jury issue to be submitted in proper form.

Fallston Finishing, Inc. v. First Union National Bank · filed 1985-08-20Rule 49(b)

Because under these facts the issues are ambiguous, we hold the issue of whether the bank breached its commitment to loan L & L Hosiery money must be submitted to the jury in proper form. See G.S. 1A-1, Rule 49(b).

Rule 49 requires the trial judge to submit issues raised by the evidence that, when answered, will resolve all material controversies between the parties.

La Notte, Inc. v. New Way Gourmet, Inc. · filed 1986-12-16Rule 49

It is the duty of the trial judge to submit to the jury issues which are raised by the evidence, and which, when answered, will resolve all material controversies between the parties. G.S. 1A-1, Rule 49; Wooten v. Nationwide Mutual Ins. Co., 60 N.C.App. 268, 298 S.E.2d 727, disc. rev. denied, 308 N.C. 392, 302 S.E.2d 258 (1983).

Rule 49(b) permits a trial court to combine jury issues when the resulting questions resolve the material controversies without unnecessary complexity.

Griffis v. Lazarovich · filed 2003-12-02(b)

Further, N.C.R. Civ. P. 49(b) provides that “[i]ssues shall be framed in concise and direct terms, and prolixity and confusion must be avoided by not having too many issues.” N.C. Gen. Stat. § 1A-1, Rule 49(b) (2001). ... The trial court did not abuse its discretion by combining the issues. The issues as presented allowed the jury to render judgment fully determining the cause.

Rule 49(b) permits a verdict sheet to combine elements of a claim into one issue when the issues submitted resolve the material controversies.

Walker v. TOWN OF STONEVILLE · filed 2011-04-19Rule 49(b)

Further, N.C. R. Civ. P. 49(b) provides that “issues shall be framed in concise and direct terms, and prolixity and confusion must be avoided by not having too many issues.” N.C. Gen. Stat. § 1A-1, Rule 49(b) (2009). ... The trial court did not abuse its discretion by failing to submit one element of negligent misrepresentation as a separate issue or by combining the elements of the offense of negligent misrepresentation into one issue.

Rules 50(b) and 59(e) permit a trial court to act on a timely postjudgment motion after the term in which judgment was entered has adjourned.

Housing, Inc. v. Weaver · filed 1982-05-04Rules 50(b) and 59(e)

Therefore, a trial court may alter or amend a judgment pursuant to Rule 59 and a trial court may enter judgment n.o.v. pursuant to Rule 50 (including the alteration of a judgment entered upon such a verdict) after the adjournment of the term during which the judgment was entered.

Rule 59 gives the trial court no authority to alter or amend a judgment on a motion filed more than 10 days after entry of the judgment.

Coats v. Coats · filed 1986-02-18Rule 59

The trial court has no authority to alter or amend a judgment under this rule pursuant to a motion made more than 10 days after entry of the judgment sought to be altered or amended.

A Rule 59(e) motion suspends the appeal period only if it is timely served and satisfies Rule 7(b)'s requirements to state the grounds and relief sought.

Dusenberry v. Dusenberry · filed 1987-11-03Rule 59(e)

In order to suspend the running of the appeal clock, a Rule 59(e) motion must not only be timely served, it must also meet the demands of Rule 7(b).

Rule 50(b) does not permit a party whose oral motion was denied in open court to renew the same request in writing to extend the time for appeal.

Middleton v. Middleton · filed 1990-04-17(b)(1)

Their Rule 50(b) and Rule 59 motions having been denied in open court at that time, plaintiffs were not entitled to file written motions requesting the same relief and thereby toll the period for filing written notice of appeal.

Rule 59(d) permits a trial court with jurisdiction to reconsider its oral summary judgment ruling on its own initiative after giving the parties notice and a hearing.

Pate v. Eastern Insulation Service of New Bern, Inc. · filed 1991-01-15Rule 59(d)

We hold that the trial court had jurisdiction and that its actions were proper under N.C. Gen. Stat. § 1A-1, Rule 59(d).

Denial of a motion for relief under Rules 52, 59, or 60(b) is reviewed for abuse of discretion.

Burnham v. S&L Sawmill, Inc. · filed 2013-09-03Rules 52, 59, and 60(b)

A challenge to a trial court’s decision to grant or deny a motion for relief from judgment pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b) or a motion for a new trial or other relief pursuant to N.C. Gen. Stat. § 1A-1, Rules 52 and 59, is reviewed under an abuse of discretion standard.

Rule 53(a)(1) bars references in specified annulment, divorce, and alimony actions.

Crutchley v. Crutchley · filed 1982-08-03(a)(1)

G.S. § 1A-1 Rule 53(a)(1) provides, however, that a reference cannot be made in “actions to annul a marriage, actions for divorce, actions for divorce from bed and board, actions for alimony without the divorce or actions in which a ground of annulment or divorce is in issue.”

Rule 43(c) supports counsel’s ability to make a record for appellate review, but a failure to comply is not always prejudicial error.

State v. Rudd · filed 1983-01-18Rule 43(c)

While it is fundamental that trial counsel be allowed to make a trial record sufficient for appellate review, see G.S. 15A-1446(a), G.S. 1A-1, Rule 43(c) of the Rules of Civil Procedure and Shuford’s North Carolina Civil Practice and Procedure (2nd Ed.), § 43-5, not every failure by the trial court to comply with the Rule will be deemed prejudicial error.

Rule 52(c) permits appellate review of the sufficiency of evidence supporting findings made in a bench trial without a trial-level objection, but requires the party to assign error and state the objections in the appellate record and brief.

IN THE MATTER OF NMB · filed 2005-01-04(c)

When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may be raised on appeal whether or not the party raising the question has made in the trial court an objection to such findings or has made a motion to amend them or a motion for judgment, or a request for specific findings. ... However, the party must assign error and outline the objections in the record on appeal and the party's brief.

Rule 8(a)(1) requires a complaint to give the court and parties sufficient notice of the transactions or occurrences supporting the claim.

Wright v. Fiber Industries, Inc. · filed 1983-02-01Rule 8(a)(1)

Clearly, plaintiffs complaint alleges sufficient information to give the court and the parties notice of the transactions and occurrences which he intends to prove to entitle him to relief under G.S. 97-6.1.

Rule 8 requires a complaint to give notice of the alleged wrong; vagueness and ambiguity should be addressed through a motion for a more definite statement, not dismissal.

Hull v. Floyd S. Pike Electrical Contractor, Inc. · filed 1983-10-04Rule 8

The purpose of the complaint is to give the defendant notice of the wrong to which plaintiff complains. ... Defendant’s responsive pleading showed its understanding of the nature of the wrong alleged. Vagueness and ambiguity in plaintiffs complaint are not grounds for a motion to dismiss, but should have been attacked by defendant with a motion for a more definite statement.

A complaint can survive a Rule 12(b)(6) motion without using the words “acting in concert” when its factual allegations give defendants notice of that theory.

McMillan Ex Rel. McMillan v. Mahoney · filed 1990-07-17Rule 12(b)(6)

Although the complaint does not contain the words “acting in concert,” we believe that under the recognized tort theories discussed above the complaint alleges facts sufficient to give defendants notice of the theory under which plaintiffs are proceeding. Therefore, the trial court erred in dismissing the complaint against the minor defendants pursuant to a motion under Rule 12(b)(6).

Rule 8(a)(1) permits a pleading that describes an alleged agreement sufficiently to give the opposing party notice of the claim.

Dillingham v. Dillingham · filed 2010-02-02(a)(1)

We find that this statement sufficiently describes the alleged agreement between the parties, enough that petitioner would have notice of respondent’s claim. See N.C. Gen. Stat. § 1A-1, Rule 8(a)(1) (2009) (requiring pleadings to contain only “[a] short and plain statement of the claim sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved”).

Rule 9(c) permits a general allegation that required notice was given; whether notice was actually given is a matter for proof at trial.

Plemmons Ex Rel. Teeter v. City of Gastonia · filed 1983-06-07Rule 9(c)

That the record does not reflect how, when or by whom the notice was allegedly given is of no moment at this juncture, since only the complaint’s adequacy as a pleading is being considered. N.C. Gen. Stat. § 1A-1, Rule 9(c) (1969) expressly authorizes and encourages the general averment of conditions precedent. In compliance therewith, plaintiff has alleged that the requisite notice was given. Since the allegation is not necessarily untrue, it is a matter to be proved at trial like other allegations.

Rule 9(c) requires a plaintiff to plead compliance with conditions precedent, including applicable statutes of repose.

Tipton & Young Construction Co. v. Blue Ridge Structure Co. · filed 1994-08-16Rule 9(c)

We find that under North Carolina law statutes of repose are conditions precedent which must be specially pled.

Rule 9(c) permits a party to plead generally that all conditions precedent have been satisfied, including the demand required before a shareholder derivative action.

Norman v. Nash Johnson & Sons' Farms, Inc. · filed 2000-11-07Rule 9(c)

Rule 9(c) provides that "[i]n pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred." N.C. Gen.Stat. § 1A-1, Rule 9(c) (1999). In the case before us, plaintiffs alleged in their complaint that "[a]ll conditions precedent to the filing of this action by Plaintiffs have been complied with." It appears that plaintiffs' allegation complies with the requirement of Rule 9(c).

Rule 9(c) requires a party denying that conditions precedent occurred to do so specifically and with particularity; a general denial is insufficient.

Mills International, Inc. v. Holmes (In re Mills International, Inc.) · filed 2017-03-15Rule 9(c)

The Defendants have not identified any condition precedent in the agreement between the parties, and the Defendants’ general denial that conditions precedent were met is insufficient to defeat the Plaintiffs breach of contract claim.

Rule 12(b)(1) permits dismissal for lack of subject matter jurisdiction when a plaintiff has not exhausted an effective statutory administrative remedy.

Snuggs v. Stanly County Department of Public Health · filed 1983-07-05Rule 12(b)(1)

Presnell, a remarkably analagous case, clearly holds to the long-established North Carolina rule that “where the legislature has provided by statute an effective administrative remedy, that remedy is exclusive and its relief must be exhausted before recourse may be had to the courts.” ... Defendants moved to dismiss plaintiffs wrongful discharge claim and under Rule 12(b)(1) for lack of subject matter jurisdiction. ... We must reach the same result here on plaintiffs’ Section 1983 actions for wrongful discharge.

Rule 12(b)(1) permits dismissal for lack of subject matter jurisdiction when a plaintiff has failed to exhaust administrative remedies.

Johnson v. University of North Carolina · filed 2010-02-02Rule 12(b)(1)

“An action is properly dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction where the plaintiff has failed to exhaust administrative remedies.”

Rule 8 does not require a party to plead evidence supporting a claim already alleged in the complaint.

Lea Co. v. North Carolina Board of Transportation · filed 1983-07-07Rule 8

It was not necessary that such matters going to prove the claim for relief already alleged in the complaint be included as a part of the complaint. A party is not required to plead evidence.

Rule 46(b) preserves an exception to the grant of a motion when the party states the action sought and the grounds for it at the time of the ruling.

McKay v. Parham · filed 1983-07-19Rule 46(b)

G.S. 1A-1, Rule 46(b) provides that an exception to grant of a motion like this one is preserved if the party “makes known the action which he desires the court to take and his ground therefor” when the ruling is made.

Rule 46(a)(1) requires a party seeking to preserve an evidentiary issue for appeal to make at least a general objection when the evidence is offered at trial.

Beaver v. Hampton · filed 1992-05-05Rule 46(a)(1)

As in Wilson, to preserve for appeal matters underlying a motion in limine, the movant must make at least a general objection when the evidence is offered at trial.

Rule 46(b) requires a party to make its grounds known to the trial court to preserve an objection for appeal.

Myers v. McGrady · filed 2005-06-07Rule 46(b)

Moreover, North Carolina General Statutes section 1A-1, Rule 46, quoted and discussed by the dissent, requires that a party "make[ ] known" not only the action the party desires the court to make, but also "the party's grounds for its position." N.C. Gen.Stat. § 1A-1, Rule 46(b) (2004). Here, the Division of Forest Resources failed to make this ground known prior to its appeal, for which it is not preserved.

Rule 56(c) permits summary judgment for a non-moving party when no material fact is disputed and that party is entitled to judgment as a matter of law.

Stegenga v. Burney · filed 2006-10-18Rule 56(c)

Summary judgment for a non-moving party is proper “when the evidence presented demonstrates that no material issues of fact are in dispute, and the non-movant is entitled to entry of judgment as a matter of law.”

Rule 56(c) does not require a party to file a motion to receive summary judgment.

McNair Const. Co., Inc. v. Fogle Bros. Co. · filed 1983-10-04Rule 56(c)

Furthermore, it makes no difference that King did not file a motion for summary judgment. G.S. 1A-1, Rule 56(c) does not require that a party move for summary judgment in order to be entitled to it.

An unverified motion’s bare allegations are not a forecast of evidence requiring a response to avoid summary judgment.

Towery v. Anthony · filed 1984-05-01Rule 56(c)

The bare allegations of an unverified motion could not constitute a forecast of evidence which required plaintiff to respond at peril of summary judgment.

When a timely summary judgment motion prompts consideration of an untimely motion, the court may grant the untimely motion only on issues raised by the timely motion.

Messer v. Laurel Hill Associates · filed 1991-03-19Rule 56(c)

Accordingly, the trial court may only grant summary judgment for an untimely movant on the issues raised by the timely movant’s summary judgment motion.