N.C. Gen. Stat. § 1A-1

Rule 11 sanctions are unwarranted when an attorney files a motion in good faith based on reasonable inferences from the record.

In re: Cranor · filed 2016-05-17Rule 11(a)

We simply conclude that the unchallenged findings and uncontroverted evidence in the record supports a conclusion that Attorney Andrews acted in good faith in filing the Rule 11 motion and the motion for attorneys’ fees. Accordingly, we hold that the superior court erred in imposing sanctions on Attorney Andrews in response to both motions.

Rule 11(a) sanctions receive de novo review and are upheld when the evidence supports the findings, the findings support the conclusions, and the conclusions support the judgment.

Chafin v. Chafin · filed 2016-10-18(a)

We review de novo the trial court’s decision to impose mandatory sanctions pursuant to N.C. Gen. Stat. § 1A-1, Rule 11(a) (2015). ... Because the sufficiency of the evidence supports the findings, the findings the conclusions, and the conclusions the judgment, the trial court properly ordered Rule 11 sanctions against defendant.

Rule 11(a) sanctions are improper when the record, viewed in the movant’s favor, contains no evidence that could support them.

Bishop v. County of MacOn · filed 2016-12-06(a)

Accordingly, because “there is no evidence in the record, considered in the light most favorable to the movant, which could support a legal conclusion that sanctions are proper[,]” we affirm the trial court’s denial of the motion for sanctions.

Rule 11 sanctions remain available after a party amends the challenged pleading.

Kure Corp. v. Peterson · filed 2017-01-05(a)

The filing of the Amended Complaint does not moot Defendants’ Rule 11 Motion, despite the fact that Defendants seek sanctions based on alleged failures in Plaintiff’s original Complaint.

Rule 11 sanctions do not follow merely because a motion was denied; denial alone does not establish that the motion lacked a factual or legal basis or was filed for an improper purpose.

In re Wadsworth · filed 2017-02-07(a)

And while Clerk Campbell determined good cause to transfer venue was not present in this case, that does not necessarily mean that Wadsworth's motion had no basis in law or fact or that it was filed for an improper purpose.

Rule 11 does not support sanctions against a client acting on an attorney's advice based on the client's signature alone, absent a finding that the client knew the motion would affect court proceedings and signed it for a tactical advantage.

Grubbs v. Grubbs · filed 2017-03-07(a)

Without a specific finding from the court which shows Plaintiff had knowledge of the effect of signing the motion would have on court proceedings and took this action to gain some temporary tactical advantage, we are unpersuaded that a signature alone would support Rule 11 sanctions against a client acting on an attorney's advice. We have also examined the record extensively and can find no evidence, that was presented at the time of the hearing which could be the basis for such a finding. We, therefore, reverse the decision of the District Court sanctioning Plaintiff as an abuse of discretion for lacking an evidentiary predicate.

Rule 11(a) does not support sanctions against a represented party for a motion’s factual or legal insufficiency when the party relied on counsel and did not mislead counsel about the facts.

Jonna v. Yaramada · filed 2020-08-18Rule 11(a)

In that Plaintiff-Father acted on the advice of counsel, and there is no evidence that he misled counsel as to the relevant facts or posture of the case, the assessment of sanctions against him on the grounds that his motions were not well grounded in fact or were not warranted by existing law is not merited.

Rule 11(a) requires a signer to certify factual support, legal sufficiency or a good faith argument for changing the law, and the absence of an improper purpose; violating any one requirement violates the Rule.

Barrington v. Dyer · filed 2022-04-05(a)

“According to Rule 11, the signer certifies that three distinct things are true: the pleading is (1) well grounded in fact; (2) warranted by existing law, or a good faith argument for the extension, modification, or reversal of existing law (legal sufficiency); and (3) not interposed for any improper purpose.”

Rule 11 sanctions may address and deter significant conduct in an ongoing lawsuit.

Preston v. Preston · filed 2022-04-05

The order of such a sanction, pursuant to Rule 11, was imposed to address and deter Defendant’s conduct, which the trial court found to be significant in the ongoing action.

Rule 11(a) requires sanctions when a pleading lacks factual support or is filed for an improper purpose.

Barrington v. Dyer · filed 2022-04-05Rule 11(a)

The trial court did not err by sanctioning Plaintiff under Rule 11.

A decision to impose Rule 11 sanctions is reviewed de novo; the choice of sanction is reviewed for abuse of discretion.

Riggan v. Andrews · filed 2025-05-07Rule 11(a)

Since the primary effect of the Order is as an order for sanctions under Rule 11, we must review the trial court’s decision to impose sanctions de novo, and if the court properly granted sanction, we review the “appropriateness of the sanction imposed,” including the denial of the motion for parenting coordinator, for abuse of discretion.

Rule 11 does not authorize sanctions based on a complaint filed before the amended rule took effect on 1 January 1987.

Brooks v. Giesey · filed 1992-07-07Rule 11(a)

We find that the trial court erred in ordering Rule 11 sanctions against appellants and their attorney based on appellants' complaint because the complaint was filed before the enactment of the current Rule 11.

Rule 17 permits a clerk to appoint a guardian ad litem for minor heirs in a proceeding to revoke letters testamentary because that proceeding qualifies as a special proceeding.

In re the Estate of Sturman · filed 1989-04-18(b)

We also conclude that this procedure should be characterized as a “special proceeding” for the purpose of applying Rule 17. We therefore affirm the Clerk’s action in appointing a guardian ad litem.

Rule 17 permits appointment of a guardian ad litem after incompetency has been determined, but does not authorize the court to adjudicate incompetency.

Culton v. Culton · filed 1989-12-19Rule 17(b)(2)

Chapter 35A does not otherwise sap the vitality of Rule 17. Rule 17 still exists as a means of appointment of a guardian ad litem where incompetency has already been determined.

Rule 17 gives the trial court sole authority to appoint a guardian ad litem.

Richard v. Michna · filed 1993-07-06

Under G.S. § 1A-1, Rule 17, only the trial court has the authority to make the appointment of the guardian ad litem.

Rule 17(b)(3) permits a court to appoint a guardian ad litem for a child when the court deems that representation expedient.

Van Every v. McGuire · filed 1997-03-04Rule 17(b)(3)

Rule 17(b)(3) authorizes the trial court to appoint a “guardian ad litem for an infant or incompetent person . . . when it is deemed by the [trial] court in which the action is pending expedient to have the infant, or insane or incompetent person so represented.” N.C.G.S. § 1A-1, Rule 17(b)(3) (1990). The trial court included in its order a finding that the appointment of the guardian ad litem was in the best interest of the child and “expedient to the administration of justice.” The plaintiff does not assign error to this finding. The guardian ad litem was thus properly appointed.

Rule 17(c)(4) calls for appointment of a guardian ad litem before or when the action begins; a later appointment requires reversal only if the delay prejudices the incompetent person's case.

In Re HW · filed 2004-04-06(c)(4)

We first must determine whether failure to appoint a guardian ad litem prior to or at the commencement of the action pursuant to Rule 17 is prejudicial error per se. ... we find that the clear mandate of the statute does not require reversal where the court makes an appointment sometime after the actual commencement of the action unless that appointment is so untimely that it results in prejudice to the incompetent person's case.

Rule 17(b) requires a guardian ad litem to be appointed for incompetent parties in civil cases.

IN MATTER OF TH · filed 2004-12-2117(b)

N.C. Gen. Stat. § 1A-1, Rule 17(b) requires the appointment of a guardian ad litem for incompetent parties in civil cases.

Rule 17(b) requires appointment of a guardian ad litem for incompetent parties in civil cases.

IN THE MATTER OF TH · filed 2004-12-21Rule 17(b)

N.C. Gen. Stat. § 1A-1, Rule 17(b) requires the appointment of a guardian ad litem for incompetent parties in civil cases.

Rule 17 does not require a trial court to appoint a guardian ad litem absent an allegation or evidence that a litigant lacks the capacity to participate in the proceedings.

In the Matter of Dw · filed 2008-01-15Rule 17

Dr. Aiello did not suggest that the diagnosis, if confirmed, would render Respondent legally incompetent, as contemplated by Rule 17 and N.C.G.S. § 7B-602(c). In the absence of any allegation or evidence that Respondent was non compos mentis or otherwise lacked the capacity to participate in judicial proceedings due to cognitive limitations or mental illness, we find no abuse of discretion by the trial court.

Once a Rule 17 guardian ad litem is appointed for an incompetent party, the guardian must be present for the proceedings to continue.

In re of D.L.P. · filed 2015-08-18Rule 17(e)

We hold that once the trial court appointed Respondent a Rule 17 guardian ad litem ("GAL"), the hearings should not have proceeded without the GAL being present.

Rule 17 does not govern appointment of a guardian ad litem for a minor in termination of parental rights proceedings; § 7B-1108 does.

In re A.L.Z. · filed 2017-12-05Rule 17

In A.U., this Court held that N.C. Gen. Stat. § 7B-1108 (2015), not Rule 17, sets forth the procedures a court must follow in appointing a GAL for a minor in termination proceedings, and that that statute does not require a GAL to be appointed for the minor unless a response to the termination petition is filed denying material allegations. ... Nonetheless, we find its reasoning persuasive and we hereby adopt it.

Rule 17 does not expressly require a competency hearing before appointing a guardian ad litem.

In re: A.N. · filed 2026-04-01

There is no express requirement the trial court conduct a competency hearing before appointing a Guardian ad litem under either Section 7B-1101.1 or Rule 17.

Rule 41(a)(1)'s two dismissal rule makes a second notice of dismissal of the same claim an adjudication on the merits even when the defendants differ between the actions.

City of Raleigh v. College Campus Apartments, Inc. · filed 1989-06-20(a)(1)

That "same defendant" limitation is absent in the two dismissal rule of Rule 41(a)(1). If the General Assembly had intended to limit the rule's application to cases where the defendant was the same in both suits, it could have done so.

Rule 41(a)(1) treats a second voluntary dismissal of claims arising from the same transaction or occurrence as an adjudication on the merits, barring a third action based on the same facts.

Richardson v. McCracken Enterprises · filed 1997-06-17Rule 41(a)(1)

Thus, we hold that in enacting the two dismissal provision of Rule 41(a)(1), the legislature intended that a second dismissal of an action asserting claims based upon the same transaction or occurrence as a previously dismissed action would operate as an adjudication on the merits and bar a third action based upon the same set of facts.

Rule 41(a)(1)’s two dismissal rule does not bar a later action when the earlier suits arose from separate payment defaults under the same contract.

Centura Bank v. Winters · filed 2003-08-05Rule 41(a)(1)

Although plaintiffs prior lawsuits arose from breaches of the same lease agreement, both suits were based on separate defaults. Thus, the prior suits involved claims which were based upon different transactions. Therefore, the trial court correctly determined that the two previously dismissed actions were not based on and did not include the same claim and that the present action is not barred by the provisions of Rule 41(a)(1).

Rule 41(a)'s two-dismissal bar does not apply when the earlier and later actions are based on different claims.

Sawyers v. Farm Bureau Insurance · filed 2005-05-03Rule 41(a)

Because the Florida and North Carolina actions are not based on the same claim, this action is not barred.

Rule 41(a)’s two dismissal rule does not apply when the plaintiff voluntarily dismisses an action once and the court orders the other dismissal on the opposing party’s motion.

STATE EX REL. CARTERET COUNTY v. Davis · filed 2010-10-05Rule 41(a)(1)(i)

Where a petitioner voluntarily dismissed the action on one occasion and where another dismissal was entered by order of the court granting respondent’s motion to dismiss, the “two dismissal” provision of Rule 41(a) was not implicated, and the trial court erred in concluding the two dismissal rule applied to bar petitioner’s action.

Rule 41(a)(1)'s two dismissal rule does not bar a creditor from seeking judicial foreclosure or a money judgment after voluntarily dismissing two foreclosure by power of sale proceedings.

Lifestore Bank v. Mingo Tribal Preservation Trust · filed 2014-08-19(a)(1)

The “two dismissal rule” of Rule 41 does not bar a creditor from bringing an action for judicial foreclosure or for money judgment where the creditor has filed and then taken voluntary dismissals from two prior actions for foreclosure by power of sale.

Rule 41(a)'s two dismissal rule does not bar a third foreclosure action when the earlier actions involved different periods of default.

In re Rogers Townsend & Thomas, PC · filed 2015-06-02Rule 41(a)(1)

As the claims of default and particular facts at issue in each action differed, Rule 41(a)'s two dismissal rule does not apply.

Rule 41(a)(1)'s two dismissal rule bars a third action arising from the same transaction or occurrence as two voluntarily dismissed actions, even when the third action alleges negligence by a different employee.

Gentry v. N.C. Dep't of Health & Human Services · filed 2015-08-04Rule 41(a)(1)

Accordingly, the Full Commission did not err by dismissing plaintiff's third action based on the "two dismissal" rule and by granting defendant's motion for summary judgment.

A confession-of-judgment proceeding can qualify as an action under Rule 41(a)(1)’s two-dismissal rule after intervention and relief from the confession of judgment.

Eq. Tr. Co. v. S&R Grandview · filed 2019-11-19Rule 41(a)(1)

On these facts, after the trial court’s Intervention Order and Order granting Ganer’s 2011 Motion for Relief, the Pender County Case constituted an “action” for purposes of Rule 41.

Rule 23(b) requires a plaintiff bringing a shareholder derivative action to maintain a beneficial interest in the corporation throughout the litigation.

Ashburn v. Wicker · filed 1989-08-15Rule 23(b)

We hold that plaintiff had no standing to bring this suit because he failed to maintain his status as a holder of a beneficial interest throughout the pendency of the litigation. We find that such a requirement may be inferred from the language in N.C. Gen. Stat. § 55-55(a) and N.C. Gen. Stat. § 1A-1, Rule 23(b).

Rule 23(b)’s verification requirement for a shareholder derivative complaint is procedural, so failure to verify the complaint when filed does not deprive the court of subject matter jurisdiction.

Alford v. Shaw · filed 1990-12-05Rule 23(b)

However, we hold that because N.C.G.S. § 1A-1, Rule 23(b) addresses the procedure to be followed in, and not the substantive elements of, a shareholder’s derivative suit, plaintiffs’ failure to comply with the verification requirement at the time the complaint was filed is not a jurisdictional defect.

Rule 13 permits a corporation named as a nominal defendant in a shareholder derivative action to assert counterclaims against the shareholder when the dispute concerns the shareholders’ rights against one another.

Gao v. Sinova Specialties, Inc. · filed 2018-07-16Rule 13(a)-(b)

The Court finds persuasive the reasoning of the federal courts that have confronted this issue and, in the absence of contrary case law from our appellate courts, concludes that Sinova US may assert counterclaims against Gao. As Gao has conceded, Sinova US could initiate a separate lawsuit against Gao, (Pl.’s Sur-Surreply Supp. Mot. Dismiss 3, ECF No. 265), and the Court sees no reason why Sinova US should be prohibited from asserting its claims against Gao in this action, whether they be styled as counterclaims or crossclaims, as opposed to requiring Sinova US to file a separate action against Gao.

Rule 53(g)(2) allows a judge to adopt, modify, or reject a referee’s report; its text does not require mandatory review of the referee’s findings.

Quate v. Caudle · filed 1989-08-15Rule 53(g)(2)

The unambiguous wording of Rule 53(g)(2) reveals the options available to a judge with respect to a report filed after a hearing. There is nothing in the plain language of the statute from which defendant could infer a mandatory review of the referee’s findings of fact and conclusions of law.

After a compulsory reference, Rule 53(g)(2) bars the trial court from adopting in full a referee’s report containing findings that require assessing witness credibility.

Dockery v. Hocutt · filed 2003-06-13Rule 53(g)(2)

Consistent with this canon of construction and with a party’s right to jury trial following a compulsory reference, we hold that in the context of a compulsory reference the trial court cannot adopt in full a referee’s report containing findings of fact requiring assessment of witnesses’ credibility.

A report prepared under a settlement agreement can be a Rule 53 referee report when the original action remains unresolved and subsequent court orders continue the referee’s assignment.

Culbreth v. Manning · filed 2021-05-04

Accordingly, it is apparent from the trial court’s subsequent orders and the parties communications, Blake continued to serve as a Rule 53 referee until the entry of the trial court’s Order in 2019. The Blake Report, as contemplated in the parties’ Settlement Agreement and the trial court’s Approval Order, is a referee report.

Rule 17(c) requires appointment of a guardian ad litem for a minor child in a termination proceeding, even if the respondent has not denied material allegations in an answer.

In Re Barnes · filed 1990-02-06Rule 17(c)

Furthermore, N.C.G.S. § 1A-1, Rule 17(c) mandates that a guardian ad litem must always be appointed for a minor child in a termination proceeding regardless of whether a respondent filed an answer denying material allegations of the petition.

Rule 17 permits a guardian ad litem appointed for a parent to give otherwise admissible testimony, including testimony against the parent’s interests, in a termination proceeding.

In Re Shepard · filed 2004-01-20(e)

In this portion of the opinion we hold: Ms. Staley was free to testify as to all otherwise admissible evidence as the GAL for Ms. Shepard, including what she believes is in the best interest of Ms. Shepard; and that this testimony can be used as evidence to establish grounds for termination.

Rule 17 requires a competency inquiry when the record raises a substantial question whether a parent needs a guardian ad litem.

In Re NAL · filed 2008-10-07Rule 17

Given the allegations made by DSS and the diagnosis of respondent-mother, we believe the record indicates the trial court should have "properly inquired into" respondent-mother's competency pursuant to N.C. Gen.Stat. § 1A-1, Rule 17 and determined whether respondent-mother was in need of a guardian ad litem.

Rule 17 requires a trial court to inquire into a parent's competency when the circumstances raise a substantial question about the need for a guardian ad litem.

In Re of N.A.L. · filed 2008-10-07Rule 17

By this remand we do not hold the trial court abused its discretion and erred by not appointing a guardian ad litem; however, based on the facts of this case it appears the trial court abused its discretion by failing to conduct an inquiry as to whether respondent-mother should be appointed a guardian ad litem.

Rule 17 requires appointment of a guardian ad litem for a minor child who is a party to a special proceeding.

In Re Papathanassiou · filed 2009-02-03Rule 17

However, regardless of whether Section 49-12.1 required this, appointment of a guardian ad litem for the minor child is mandated by Rule 17 of the'North Carolina Rules of Civil Procedure.

Rule 17 requires an appointed guardian ad litem to participate in a termination proceeding before the court may enter a valid judgment against the represented parent.

In Re ASY · filed 2010-12-21(e)

Finally, once a parent has been appointed a GAL according to Rule 17, the presence and participation of the GAL is necessary in order for the trial court to "proceed to final judgment, order or decree against any party so represented...." N.C. Gen.Stat. § 1A-1, Rule 17(e).

When a guardian ad litem is appointed for a parent under Rule 17, the guardian’s presence and participation are required for the court to enter a valid judgment while the need for representation persists.

In re A.S.Y. · filed 2010-12-21Rule 17(e)

Since the trial court determined that respondent-mother could not adequately represent her own interests and appointed a GAL to represent respondent-mother pursuant to N.C. Gen. Stat. § 7B-602(c), the requirements of Rule 17 applied to the termination proceedings. Thus, the trial court erred by conducting the termination hearing without the presence and participation of a GAL for respondent-mother, and the trial court’s order terminating respondent-mother’s parental rights to Amanda was invalid.

Rule 17(e) gives a guardian ad litem a substitutive role when a parent is incompetent; a guardian appointed to assist a parent with diminished capacity does not make the parent's decision to waive counsel.

In re A.Y. · filed 2013-01-15Rule 17(e)

Although In re P.D.R. involved the appointment of a GAL for a termination of parental rights proceeding under N.C. Gen. Stat. § 7B-1101.1(c) (2011), its analysis applies equally to N.C. Gen. Stat. § 7B-602(c). ... Rule 17(e), which addresses the duties of a GAL for an incompetent person, should apply if the parent is incompetent — the role of the GAL should be one of substitution. ... Because the GAL was acting only in an assistive capacity, respondent mother had the ability to waive counsel, so long as that waiver was knowing and voluntary.

A court does not abuse its discretion by declining to inquire into a parent’s competency when the evidence of disability does not suggest incompetence requiring a guardian ad litem.

In re Z.V.A. · filed 2019-12-06Rule 17

The evidence which supported these findings of fact does not suggest that respondent-mother’s disability rose to the level of incompetence so as to require the appointment of a guardian ad litem to safeguard respondent-mother’s interests. Accordingly, we conclude that the district court did not abuse its discretion when it did not conduct an inquiry into respondent-mother’s competency.

Rule 17(c) does not require a county department of social services to request appointment of a guardian ad litem for a parent it believes is incompetent.

In re Q.B. · filed 2020-12-11(c)

We do not discern any language in Rule 17(c) that actually imposes a requirement on a county department of social services to request the appointment of a GAL for a parent believed to be incompetent.

Rule 17 does not require a guardian ad litem to speak frequently at a hearing; inadequate representation must be shown from the record.

In re W.K. · filed 2020-12-18(e)

We therefore reject respondent-father’s first appellate argument because he has failed to show any reversible error by his Rule 17 GAL in the execution of his role in respondent-father’s case.

A trial court may appoint a Rule 17 guardian ad litem for an incompetent parent; evidence supporting the parent's competence bears on whether the court must inquire into competency.

In re M.S.E. · filed 2021-06-18Rule 17

Section 7B-1101.1(c) of the North Carolina General Statues permits the trial court “[o]n motion of any party or on the court’s own motion” to appoint a GAL for a parent who is incompetent in accordance with N.C.G.S. § 1A-1, Rule 17. ... After careful review of the record, we believe the record contains “an appreciable amount of evidence tending to show that [respondent was] not incompetent” at the time of the termination hearing.

A court must inquire into a parent’s competency before appointing a Rule 17 guardian ad litem when the circumstances raise a substantial question about competency.

In re M.S.E and K.A.E. · filed 2021-06-18Rule 17

Section 7B-1101.1(c) of the North Carolina General Statues permits the trial court “[o]n motion of any party or on the court’s own motion” to appoint a GAL for a parent who is incompetent in accordance with N.C.G.S. § 1A-1, Rule 17. ... “A trial judge has a duty to properly inquire into the competency of a litigant in a civil trial or proceeding when circumstances are brought to the judge’s attention [that] raise a substantial question as to whether the litigant is non compos mentis.” ... After careful review of the record, we believe the record contains “an appreciable amount of evidence tending to show that [respondent was] not incompetent” at the time of the termination hearing.

Rule 41(d) requires costs after a voluntary dismissal to be taxed in the first action; if the plaintiff refiles the same claim against the same defendant before paying, the second court must order payment within 30 days on the defendant’s motion and dismiss the action if the plaintiff does not comply.

Fields v. Irvin H. Whitehouse & Sons Co. · filed 1990-05-01Rule 41(d)

The trial court or the clerk of the court in the first action shall tax the costs of the action to the plaintiff taking a voluntary dismissal under Rule 41(d). Then, if the plaintiff commences an action against the same defendant based upon or including the same claim before the costs of the previous action have been paid, the trial court in the second action shall, upon motion of the defendant, order the plaintiff to pay the costs of the first action within 30 days. If the plaintiff does not comply with the order, the court shall dismiss the action.

Rule 41(d) permits a court to tax deposition expenses as costs after a voluntary dismissal, with the inclusion of those expenses subject to the court’s discretion under § 6-20.

Alsup v. Pitman · filed 1990-05-01Rule 41(d)

The trial court in the case below had full authority to tax, in its discretion, deposition expenses as costs pursuant to N.C. Gen. Stat. §§ 1A-1, Rule 41(d), and 6-20.

Rule 41(a)(1) permits a new action on properly asserted alimony and equitable-distribution claims within one year after dismissal when the claims were not voluntarily dismissed until after the divorce judgment.

Stegall v. Stegall · filed 1994-06-17(a)(1)

We now hold that if alimony and equitable distribution claims are properly asserted, whether by the filing of an action or raising of counterclaims, and are not voluntarily dismissed pursuant to Rule 41(a)(1) until after judgment of absolute divorce is entered, a new action based on those claims may be filed within the one-year period provided by the rule.

Rule 41(d) requires a plaintiff who voluntarily dismisses an action to pay its costs and, when refiling the same claim against the same defendant before paying, requires payment within 30 days and stays the new action until payment.

Sealey v. Grine · filed 1994-06-21(d)

Therefore, the trial court in 93 CVS 283 had authority under Section 1A-1, Rule 41(d) to tax against plaintiff costs incurred by defendants in 90 CvS 0635.

Rule 41(a) does not permit parties to voluntarily dismiss a final custody and child support order.

Massey v. Massey · filed 1996-01-02Rule 41(a)

Our holding provides that under Rule 41(a) and existing case law, parties may not voluntarily dismiss a final custody and child support order.

Rule 41(a) permits a plaintiff to voluntarily dismiss an action without prejudice, and Rule 41(d) requires the plaintiff to pay the action's costs unless the action was brought in forma pauperis.

Cullen v. Carolina Healthcare System · filed 2000-02-01(a) and (d)

We find no abuse of discretion by the trial court in failing to continue the matter, hold that the voluntary dismissal entered by the plaintiffs was sufficient to dismiss the case without prejudice pursuant to Rule 41(a), and hold that the trial court did not err in taxing costs to the plaintiffs as the provisions of Rule 41(d) required the court to do so.

Rule 41(d) permits costs taxed after a voluntary dismissal to include costs allowable under N.C. Gen. Stat. § 6-20.

Lewis v. Setty · filed 2000-11-07Rule 41(d)

Thus, costs which are to be taxed under Rule 41(d) may also include those costs allowable under N.C. Gen.Stat. § 6-20.

Rule 41(d) requires a plaintiff who voluntarily dismisses an action under Rule 41(a) to pay the action's costs unless the action was brought in forma pauperis.

Lewis v. Setty · filed 2000-11-07Rule 41(a), Rule 41(d)

Here, plaintiff voluntarily dismissed his claim without prejudice pursuant to N.C. Gen. Stat. § 1A-1, Rule 41(a), which governs voluntary dismissals by plaintiffs. Costs are discussed under subsection (d) of Rule 41, whereby it states “[a] plaintiff who dismisses an action or claim under section (a) of this rule shall be taxed with the costs of the action unless the action was brought in forma pauperis.”

After resting, a plaintiff needs a court order under Rule 41(a)(2) to dismiss with leave to refile; a voluntary dismissal taken without that order is with prejudice.

Pardue v. Darnell · filed 2001-12-28(a)(2)

Additionally, plaintiffs failed to apply to the trial court for a voluntary dismissal under Rule 41(a)(2). We conclude that the dismissal taken by plaintiffs was a voluntary dismissal with prejudice, barring them from refiling suit against defendant.

Rule 41(a) requires a new action after a voluntary dismissal to be refiled within one year.

Fender v. Deaton · filed 2002-10-02(a)

In the instant case, the facts show that on 1 October 1990, Mr. Deaton voluntarily dismissed the Allen action without prejudice under Rule 41(a) which requires that any new action after a voluntary dismissal, must be re-filed within one year after the dismissal.

Rule 41(d) requires an award of costs on a defendant’s motion after a plaintiff voluntarily dismisses and refiles, but does not require taxing non-statutory common law costs.

Cosentino v. Weeks · filed 2003-10-07Rule 41(d)

Accordingly, it would appear that N.C.G.S. § 1A-1, Rule 41(d) does not require the taxing of any non-statutory common law costs.

Rule 41(d) requires dismissal for failure to pay costs taxed after a voluntary dismissal.

Leverette v. BATTS TEMPORARY SERVICES, INC. · filed 2004-07-06Rule 41(d)

However, Rule 41 does not authorize the trial court's dismissal in this case. Indeed, under Rule 41(d), dismissal of an action is required when a plaintiff fails to pay the costs taxed upon him as a result of a voluntary dismissal.

Rule 41(d) requires taxing costs after a voluntary dismissal even when the plaintiff intends to refile.

Massey v. PRIME INTERNAL MEDICINE, PA · filed 2007-08-07Rule 41(d)

The rule does not distinguish between types of voluntary dismissal, nor does it state that this rule is suspended where plaintiff intends to reinstate the suit.

Rule 41(d) permits a trial court to deny discretionary expert witness fees after a plaintiff voluntarily dismisses an action.

Bennett v. Equity Residential · filed 2008-09-02Rule 41(d)

Despite the monetary amounts involved in this case, the trial judge, who presided over twenty days of trial, is fully familiar with the merits of this case and is in a far better position than this Court to assess whether an award of costs is justified when considering the purposes of Rule 41(d). Just as the trial court here could have exercised its discretionary authority to award expert witness fees, the court equally has the discretionary power to deny them; we find no abuse of that discretion, and thus defendant’s argument is overruled.

Rule 41(d) does not let a plaintiff avoid costs ordered in an action by voluntarily dismissing and refiling it.

Williams v. Kane · filed 2009-05-19Rule 41(d)

Plaintiff can not avoid costs ordered by the trial court by taking a voluntary dismissal and then re-filing his case.

Rule 41(a)(1)’s one-year period for refiling after voluntary dismissal does not shorten an unexpired statute of limitations.

Guyton v. FM LENDING SERVICES, INC. · filed 2009-08-18(a)(1)

On the other hand, as noted in Whitehurst, N.C. Gen. Stat. § 1A-1, Rule 41(a), does not operate to shorten the applicable statute of limitations.

Rule 41(d) requires costs after a voluntary dismissal unless the action was brought in forma pauperis; on the defendant's motion, the court must order payment within 30 days and stay proceedings until payment.

Arwine v. N.C. Department of Health · filed 2011-06-20Rule 41(d)

Pursuant to N.C. Gen. Stat. § 1A-1 , Rule 41(d), a Plaintiff who dismisses an action under N.C. Gen. Stat. § 1A-1 , Rule 41(a), shall be taxed with the costs of the action unless the action was brought in forma pauperis . This Rule further provides that the Court, upon motion of the Defendant shall make an Order for payment of the costs within 30 days and shall stay the proceedings until Plaintiff has complied with the Order.

Rule 41(d) requires costs to be taxed against a plaintiff who voluntarily dismisses an action under Rule 41(a).

Lassiter, ex rel. v. North Carolina Baptist Hospitals, Incorporated · filed 2015-11-06Rule 41(d)

Although costs in civil actions are ordinarily taxed to one party or the other pursuant to N.C.G.S. § 6-20, which provides that such an award is discretionary with the trial judge subject to the limitations set out in N.C.G.S. § 7A-305(d), the costs at issue here were subject to being taxed against plaintiff pursuant to N.C.G.S. § 1A-1, Rule 41(d), which makes the taxing of costs mandatory when a plaintiff has voluntarily dismissed an action pursuant to Rule 41(a).

Rule 41(a)(1)’s one-year refiling period requires the same parties; an initial complaint filed by a plaintiff lacking standing cannot support relation back.

Gantt v. City of Hickory · filed 2023-09-05(a)(1)

Accordingly, we conclude that Plaintiff cannot avail himself of relation back under Rule 41(a), because the second action does not involve the “same parties” as the first, and the named plaintiff in the first action lacked standing to bring suit against Defendant for assessing allegedly ultra vires water capacity fees.

When a Rule 12(b)(2) motion is denied without requested findings of fact, the appellate court presumes findings sufficient to support the ruling if competent record evidence supports them.

Cherry Bekaert & Holland v. Brown · filed 1990-08-07Rule 12(b)(2)

We note that the trial court did not make any findings of fact to support his ruling denying defendant’s motion to dismiss. However, when there is no request of the trial court to make such findings, “we presume that the judge found facts sufficient to support the judgment. . . .” ... In summary, we determine that competent record evidence supports the necessary presumed findings of fact sufficient to warrant the trial judge’s denial of defendant’s motion to dismiss for lack of personal jurisdiction.

Rule 43(e) permits a court to decide a challenged personal-jurisdiction issue through an evidentiary hearing or affidavits.

Bruggeman v. Meditrust Acquisition Co. · filed 2000-07-05Rule 43(e)

If the exercise of personal jurisdiction is challenged by a defendant, a trial court may hold an evi-dentiary hearing including oral testimony or depositions or may decide the matter based on affidavits. N.C. Gen. Stat. § 1A-1, Rule 43(e).

On a Rule 12(b)(6) motion, the court does not make findings of fact.

Dunn Holdings I, Inc. v. Confluent Health LLC · filed 2018-08-24Rule 12(b)(6)

The Court does not make findings of fact on motions to dismiss under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure.

Rule 12(b)(2) requires dismissal when the plaintiff fails to make a prima facie showing of personal jurisdiction.

Green v. Howell · filed 2020-11-03Rule 12(b)(2)

Accordingly, Plaintiff has failed to make out a prima facie case that jurisdiction exists, and the trial court erred by denying Defendant’s Rule 12(b)(2) motion to dismiss.

Rule 43(e) permits a court to consider affidavits, oral testimony, or depositions when a motion to dismiss for lack of personal jurisdiction relies on facts outside the record.

Williams v. Institute for Computational Studies at Colorado State University · filed 1987-05-05Rule 43(e)

When the defendant’s motion to dismiss is based on facts not appearing in the record, the court may hear the matter on affidavits, or may direct that the matter be heard wholly or partly on oral testimony or depositions. G.S. 1A-1, Rule 43(e).

Rule 14(a) permits a third-party complaint against a person who is or may be liable to the defendant for all or part of the plaintiff’s claim against the defendant.

McCollum v. McCollum · filed 1991-03-19Rule 14(a)

Rule 14(a) of the Rules of Civil Procedure governs the filing of a third-party complaint. This rule allows a defendant, as a third-party plaintiff, to file a summons and complaint “upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him. . . .” N.C. Gen. Stat. § 1A-1, Rule 14(a) (1990). Plaintiff’s claims against Mr. McCollum were for an absolute divorce and for an equitable distribution of the marital property. Obviously, the Bank could not be held liable to Mr. McCollum should an absolute divorce be granted.

Rule 14(a) allows a third-party defendant to assert against the plaintiff any defense available to the third-party plaintiff, including failure to state a claim under Rule 12.

Honeycutt v. Farmers & Merchants Bank · filed 1997-07-15Rule 14(a)

Pursuant to N.C. Gen. Stat. § 1A-1, Rule 14(a) (1990), Newsome, as the third party defendant, may assert against Honeycutt [plaintiff] any defense which the Bank [third party plaintiff] has to Honeycutt’s claim, including the right of a third party defendant to assert the Rule 12 defense that the original complaint fails to assert a claim for which relief can be granted.

Rule 14 permits a court to add third-party defendants and then sever the third-party claims to keep an action manageable.

Ruff v. Parex, Inc. · filed 1998-12-01Rule 14

In the instant case, the trial court could protect defendants’ rights to bring in third-party defendants, as well as keep the class action manageable, by adding the parties and then severing the third-party claims.

Rule 14 permits a plaintiff to bring a claim against the State after it is added as a third-party defendant, if the claim arises from the same transaction or occurrence as the plaintiff’s original claim.

Batts v. NORTH CAROLINA DEPT. OF TRANSP. · filed 2003-10-07(a), (c)

By adding subsection (c) to' Rule 14, the General Assembly waived the State’s immunity to claims brought by a plaintiff under Rule 14(a), subject to the express limitations contained therein.

Rule 14(a) permits a defendant to bring a third-party claim for liability derived from the plaintiff’s claim; the third-party claim ceases when the plaintiff dismisses its claims against the defendant.

Zizzo v. Pender County Board of Education · filed 2006-01-03Rule 14(a)

In filing a third-party complaint against Little under Rule 14, Pender County pled derivative and not direct damages against Little. Because plaintiffs have dismissed all claims against Pender County, Pender County has not asserted any remaining claims against Little.

Rule 14(a) third-party claims for indemnity or contribution are derivative of the plaintiff's claim and do not survive its dismissal.

Zizzo v. Pender County Bd. of Educ. · filed 2006-01-03Rule 14(a)

In filing a third-party complaint against Little under Rule 14, Pender County pled derivative and not direct damages against Little. Because plaintiffs have dismissed all claims against Pender County, Pender County has not asserted any remaining claims against Little.

Rule 14 does not permit a third-party plaintiff to maintain contribution or indemnity claims tied to underlying claims that have been dismissed.

Anderson v. Crouch · filed 2008-07-01Rule 14

As the third-party plaintiffs in the Hight v. Anderson v. Crouch action, once the Hights' claims for unfair and deceptive trade practices and fraud were dismissed, the Andersons could no longer maintain a third-party action against Mr. Crouch, Ms. Collins, and Intracoastal Realty for contribution and indemnity on those claims.

Rule 14 allows a plaintiff to bring in a third-party defendant without leave of court by filing a third-party complaint within 45 days after replying to an amended counterclaim, even if the amendment adds no new claims.

Ap Atl., Inc. v. Crescent Univ. City Venture, LLC · filed 2017-10-05Rule 14(a)–(b)

By virtue of Rule 14(b) then, a plaintiff need not obtain leave to serve a third-party defendant when he has served a reply to any amended counterclaim and has filed a third-party complaint within the required time period.

Rule 14(a) permits impleader when a third-party claim is derivative of the defendant’s possible liability to the plaintiff.

The Ascot Corp., LLC v. I&R Waterproofing · filed 2022-11-15(a)

At the heart of Rule 14 is the notion that the third-party complaint must be derivative of the original claim. ... Thus, I&R’s claim is derivative of Plaintiffs’ claim and properly impleaded under Rule 14.

Rule 14(c) does not permit a local school board to be joined as a third-party defendant in court on claims for contribution or indemnity arising from school bus negligence.

Devore v. Samuel · filed 2022-12-20Rule 14(c)

Strictly construing these provisions, as we must, local school boards are not “the State” for purposes of Rule 14 and N.C. Gen. Stat. § 1B-1(h).

Rule 46(a)(1) preserves an objection to a specified line of questioning for subsequent evidence involving the same line when the line is apparent to the court and parties.

Department of Transportation v. Fleming · filed 1993-11-16(a)(1)

However, Rule 46(a)(1) of the N.C. Rules of Civil Procedure states that “when there is objection to the admission of evidence involving a specified line of questioning, it shall be deemed that like objection has been taken to any subsequent admission of evidence involving the same line of questioning.” G.S. 1A-1, Rule 46(a)(1). Rule 46(a)(1) does not modify the general rule but preserves the effect of a seasonably made objection to a specified line of questioning. Id. A general objection will not come within Rule 46(a)(1) unless the line of questioning objected to is apparent to both the court and the parties.

Rule 46 does not preserve an objection to the admission of a statement merely because questions about its contents may be treated as objected to.

Jackson v. N.C. Dep't of Commerce · filed 2015-07-21Rule 46(a)(3)

However, Rule 46 does not preserve any objection to the introduction of the statement itself.

Rule 54(a) treats an order as interlocutory when it does not finally dispose of the case and leaves it for further action to resolve the controversy.

Transtector Systems, Inc. v. Electric Supply, Inc. · filed 1993-12-21Rule 54(a)

A judgment or order of a trial court is either interlocutory or is a final determination of the rights of the parties. N.C. Gen. Stat. § 1A-1, Rule 54(a) (1990).. Interlocutory orders are those made during the pendency of a proceeding which do not finally dispose of the case but leave it for further action by the trial court in order to settle and determine the entire controversy.

Rule 54(a) classifies judicial orders as either interlocutory or final determinations of the parties' rights.

Embler v. Embler · filed 2001-04-17(a)

A judicial order is either “interlocutory or the final determination of the rights of the parties.” N.C.G.S. § 1A-1, Rule 54(a) (1999).

Rule 54(a) treats an order requiring further proceedings without resolving the merits as interlocutory.

Reeves v. Yellow Transportation, Inc. · filed 2005-06-07Rule 54(a)

An order “is either interlocutory or the final determination of the rights of the parties.” N.C.G.S. § 1A-1, Rule 54(a) (2003). ... The order in Docket 03(UI)7400 is clearly interlocutory; it did not address the merits of petitioner’s appeal, and it requires further action by the ESC.

Rule 54(a) treats an order as interlocutory when a pending claim for attorney’s fees remains unresolved.

Webb v. Webb · filed 2009-05-05Rule 54(a)

An order “is either interlocutory or the final determination of the rights of the parties.” N.C. Gen. Stat. § 1A-1, Rule 54(a) (2007). ... We conclude that, inasmuch as it did not resolve Plaintiff’s pending claim for attorney’s fees, the trial court’s order in this case was interlocutory.

Rule 54(a) treats a summary judgment order as interlocutory when damages and class certification remain unresolved.

Hill v. StubHub, Inc. · filed 2012-03-06Rule 54(a)

According to N.C. Gen. Stat. § 1A-1, Rule 54(a), a “judgment is either interlocutory or the final determination of the rights of the parties.” ... Given that the trial court’s order granted summary judgment in favor of Plaintiffs with respect to their individual claims without making a specific damage award or addressing Plaintiffs’ request for class certification, the order from which Defendant has attempted to appeal is clearly interlocutory in nature.

Rule 54(b) leaves uncertified interlocutory orders subject to revision until final judgment.

Radiator Specialty Co. v. Arrowood Indem. Co. · filed 2017-05-16(b)

Because these orders were not Rule 54(b)-certified, they are subject to change until entry of a final judgment.

Rule 54(a) treats an order that leaves issues unresolved and requires further trial court action as interlocutory.

Beroth Oil Co. v. N.C. Dep't of Transp. · filed 2017-11-21Rule 54(a)

An order is either “interlocutory or the final determination of the rights of the parties.” N.C. Gen. Stat. § 1A-1, Rule 54(a) (2015). ... Here, the appealed order did not resolve all issues of this case and is interlocutory. The trial court, along with NCDOT, had further actions required before a final determination of all rights of all parties could be made.

Rule 37(b)(2) permits sanctions including striking pleadings and entering default when a party disobeys a court order.

Triad MacK Sales and Service, Inc. v. Clement Bros. Co. · filed 1994-01-18(b)(2)

Rule 37(b)(2) permits the imposition of sanctions “as are just” in- ... eluding “[a]n order striking out pleadings or parts thereof . . . or rendering a judgment by default against the disobedient party.”

Rule 37(b)(2)(c) permits sanctions including striking pleadings, dismissing an action, or entering default judgment for disobedience.

Mohamad v. Simmons · filed 2000-08-15(b)(2)(c)

Assuming arguendo the trial court’s Order enforcing the arbitration award thereby implicitly imposed the sanctions of striking defendants’ request for trial de. novo or of entering judgment against defendants, such action appears well within the purview of Rule 37(b)(2)(c) and in no event constitutes an abuse of the court’s discretion.

Rule 12(e) and Rule 41(b) require a trial court to consider lesser sanctions before imposing dismissal as a sanction in a civil case.

Page v. Mandel · filed 2002-11-1912(e), 41(b)

Given the identical result in cases where the trial court imposes involuntary dismissal as a sanction, irrespective of the authority under which the trial court is acting, we hold that the trial court must at least consider lesser sanctions before imposing dismissal as a sanction in a civil case pursuant to N.C.G.S. § 1A-1, Rule 12(e) or Rule 41(b).

Rule 37 permits dismissal with prejudice for a discovery violation, but the trial court must first consider less severe sanctions.

Global Furniture, Inc. v. Proctor · filed 2004-07-06Rule 37(b)(2)

As in Goss, the trial court has the discretionary authority, on remand, to dismiss defendant’s counterclaim with prejudice, but must first consider less severe sanctions.

Rule 6(d) requires a supporting affidavit to be served with the motion, but a technical failure does not require relief when the opposing party was not prejudiced.

Crowell Constructors, Inc. v. State Ex Rel. Cobey · filed 1994-03-15(d)

Although petitioner’s failure to serve its supporting affidavit with its petition for attorney’s fees violated the technical requirements of Rule 6(d), nevertheless, we find that DEHNR was not prejudiced.

Rule 6(d) requires opposing affidavits to be served at least two days before the hearing; service five days before the hearing complies.

Johnson v. Crossroads Ford, Inc. · filed 2013-10-15Rule 6(d)

First, we note that Woods’ affidavit was filed and served on defense counsel on 18 July 2012, five days prior to the 23 July 2012 hearing. This was in compliance with rule 6(d) of the North Carolina Rules of Civil Procedure which states that “opposing affidavits shall be served at least two days before the hearing.”

Rule 6(d) requires an affidavit supporting a motion to be served with the motion, and a trial court may decline to admit a late-filed affidavit.

Rossi v. Spoloric · filed 2016-01-05Rule 6(d)

Defendant’s proposed affidavit failed to comply with Rule 6(d) of the North Carolina Rules of Civil Procedure. Defendant has failed to show the trial court abused its discretion in denying Defendant’s oral motion to introduce his late-filed affidavit in the absence of his personal appearance.

Rule 6(d) requires service of a written motion and hearing notice at least five days before the hearing unless the rules or a court order sets a different period.

Knotts-Thomas v. City of Sanford · filed 2001-02-06Rule 6(d)

As this finding indicates that “a different period [was] fixed ... by order of the court,” N.C. Gen. Stat. § 1A-1, Rule 6(d), there can be no violation of the Rule 6(d) notice requirements.

Rule 6(d) requires a written motion and notice of hearing to be served at least five days before the hearing, unless another period applies; a court may refuse to hear an untimely motion.

FNB SOUTHEAST v. Lane · filed 2003-10-07Rule 6(d)

Under N.C. Gen. Stat. § 1A-1, Rule 6(d), “a written motion . . . and notice of the hearing thereof shall be served not later than five days before the time specified for the hearing, unless a different period is fixed by these rules or by order of the court.” ... Since the motion was not timely filed under Rule 6, we find no abuse of discretion by the trial court in refusing to hear the motion.

Rule 6(d) requires prior notice of a hearing on a motion; a judgment entered on a motion heard without the required notice is irregular and must be vacated.

Janu Inc v. Mega Hospitality · filed 2023-02-07(d)

Here, Defendant failed to provide the required prior notice regarding its intention for the court to hear personal jurisdiction at the hearing, as is required under Rule 6(d) of the North Carolina Rules of Civil Procedure and under the Tenth Judicial District Local Rules for Civil District Court Rule 3.2.

A party challenging a motion hearing under Rule 6(d) must show both a violation of the notice rule and resulting prejudice.

Evans v. Full Circle Productions, Inc. · filed 1994-05-17Rule 6(d)

To establish an error by the trial court for failing to sustain plaintiff’s objection, plaintiff must show an actual violation of Rule 6(d) and must demonstrate prejudicial harm as a result.

Rule 23 does not authorize a trial court to review and modify an earlier class certification order.

Dublin v. UCR, Inc. · filed 1994-06-21

Rule 23 of the North Carolina Rules of Civil Procedure contains no such provision, ... and we will not judicially legislate one. Accordingly, we hold that the trial court was not authorized by our version of Rule 23 to review and modify Judge Bowen’s order.

Rule 23 permits modification of a class certification order when changed circumstances relate to the legal foundation of the original order.

Ruff v. Parex, Inc. · filed 1999-06-17

Inherent in those principles is the recognition that Rule 23 was designed as a tool for discretionary use by trial judges to manage claims efficiently and effectively and that decisions on how best to manage such claims may change as the legal process moves forward. The requirement that there must be a change in circumstances related to the legal foundation of the prior certification order serves to prevent the arbitrary change of class designation without reason or basis.

Rule 4(j4) bars a party who received timely actual notice from attacking a default judgment because due diligence for service by publication was lacking.

Creasman v. Creasman · filed 2002-08-06Rule 4(j4)

Defendant’s own affidavit and motion unequivocally state that he had actual notice of the pending action. The trial court properly ruled that Rule 4(j4) precluded defendant from attacking the default judgment. The trial court did not abuse its discretion in denying defendant’s motion.

Rule 55(c) requires a bond for a default judgment against a defendant served by publication, but not for one served by certified mail.

Kbt Realty Servs., Inc. v. Appycity, LLC · filed 2021-08-09(c)

This bond requirement only applies to the judgments entered against Fields and Crete, and not AppyCity, since Fields and Crete were served by publication while AppyCity was served by certified mail through its registered agent.

Rule 6(c) permits a judge to sign an order out of session and district without the parties’ consent if the related hearing was held in term and district.

Capital Outdoor Advertising, Inc. v. City of Raleigh · filed 1994-07-29Rule 6(c)

We believe the correct rule to be, as stated by a contemporary writer of the subject, “Rule 6(c) permits a judge to sign an order out of term [which we interpret to mean both out of the session and out of the trial judge’s assigned term] and out of district without the consent of the parties so long as the hearing to which the order relates was held in term and in district.” W. Brian Howell, Howell’s Shuford North Carolina Civil Practice and Procedure § 6-7, at 68 (4th ed. 1992).

Rule 6(c) permits a superior court judge to sign a written order after the court session expires without the parties’ consent when the related hearing was held in term.

Pinckney v. Van Damme · filed 1994-09-06Rule 6(c)

G.S. § 1A-1, Rule 6(c) provides that the expiration of the court’s session has no effect on the power of the court “to do any act or take any proceeding” which rule “clearly allows a superior court judge to sign a written order out of session without the consent of the parties so long as the hearing to which the order relates was held in term.”

Rule 6(c) permits a district court judge to enter an order or judgment out of session when the related merits trial was held at a regularly scheduled session.

Ward v. Ward · filed 1994-10-18Rule 6(c)

The foregoing statutes, considered together, lead us to the conclusion that a district court judge has the authority to enter an order and judgment out of session as long as the trial on the merits, to which the judgment or order relates, was conducted at a regularly scheduled trial session.

Rule 6(c) permits a court to enter a supplemental judgment after the session in which the case was heard has expired.

Buford v. General Motors Corp. · filed 1994-12-30Rule 6(c)

Under this rule, expiration of the 30 March 1992 session of Superior Court, Forsyth County, had no impact on the trial court’s jurisdiction to enter a supplemental judgment on 11 May 1992.

Rule 36 governs requests for admission and makes admitted matters conclusively established unless the court permits withdrawal or amendment.

Eury v. NC EMPLOYMENT SEC. COM'N · filed 1994-08-02Rule 36(a), (b)

This Court has held in civil actions in our General Courts of Justice that a trial court's decision whether or not to grant a G.S. 1A-1, Rule 36 motion is a discretionary one.

Rule 36 requires each requested admission to be separately stated and makes admitted matters conclusive unless the court permits withdrawal or amendment.

Eury v. North Carolina Employment Security Commission · filed 1994-08-02Rule 36(a)-(b)

See G.S. 1A-1, Rule 36(a) (“Each matter of which an admission is requested shall be separately set forth”). We note that the request for admissions specifically defines several terms, but that the term “supervisors” is not one of them. Given this lack of specificity and the rules of construction set forth in Contractors, Inc., supra, the Personnel Commission’s construction of the admissions cannot be said to be manifestly unsupported by reason on this record. Accordingly, we find no abuse of discretion by the Personnel Commission.

Under Rule 36(a), a party’s failure to answer requests for admissions within the allowed time causes the requested matters to be deemed admitted.

Rahim v. Truck Air of the Carolinas, Inc. · filed 1996-08-20Rule 36(a)

Pursuant to N.C.R. Civ. P. 36(a), plaintiffs failure to answer within the allowed time period established it had submitted no formal claim to defendant within the 270 days permitted by Carmack and required by defendant’s waybill.

Rule 36(b) limits admissions to the pending action; they cannot be used against the admitting party in a later proceeding.

Fieldcrest Cannon, Inc. v. Fireman's Fund Insurance · filed 1996-11-05Rule 36(b)

However, Rule 36(b) is clear in its mandate that admissions made in one action may not be used against the party who made them in any other proceeding outside of the one pending.

Rule 36 treats an unanswered request as admitted; absent withdrawal or amendment, an admission negating an essential element can require summary judgment.

Goins v. Puleo · filed 1999-04-09Rule 36(a), (b)

Moreover, plaintiff did not move the court, expressly or impliedly, to withdraw or amend her admissions. ... Therefore, the facts are deemed admitted by plaintiff pursuant to Rule 36(a). ... Because plaintiff's admission that defendants did not breach the applicable standard of medical care was before the trial court in the present case, the trial court was required to grant defendants' motion and enter an order of summary judgment in their favor.

Rule 36 makes unanswered requests for admissions admitted and conclusively established, subject to withdrawal when the merits will be served and withdrawal will not prejudice the requesting party.

Southland Amusements & Vending, Inc. v. Rourk · filed 2001-04-17(a), (b)

Therefore, we conclude that the present plaintiff did not waive its right to the deemed admissions, and the trial court properly concluded that “withdrawal or amendment of the deemed admissions would prejudice plaintiff in maintaining [its] action on the merits.”

Rule 36(b) admissions can support summary judgment.

Brown v. Foremost Affiliated Insurance Services, Inc. · filed 2003-07-01Rule 36(b)

Facts that are admitted under Rule 36(b) are sufficient to support a grant of summary judgment.

Rule 36(a) requires a timely response to a request for admission; an answer to the complaint does not count, even when it addresses identical matters.

Excel Staffing Service, Inc. v. HP Reidsville, Inc. · filed 2005-08-02Rule 36(a)

We hold that an answer to allegations in a complaint does not serve as a response to a request for admission, even if the matters addressed in both are identical.

Rule 36(a) gives the trial court discretion to deem a matter admitted when a response to a request for admission does not comply with the rule.

In re Pedestrian Walkway Failure · filed 2005-09-20Rule 36(a)

Further, Rule 36 provides that a trial court "may" order that a matter be deemed admitted upon determining that a response to a request for admission is noncompliant; therefore, trial courts are vested with the discretion to impose this sanction.

Rule 36(a) gives a trial court discretion to deem a matter admitted when an answer to a request for admission does not comply with the rule.

Baker v. Speedway Motorsports, Inc. · filed 2005-09-20Rule 36(a)

Further, Rule 36 provides that a trial court “may” order that a matter be deemed admitted upon determining that a response to a request for admission is noncompliant; therefore, trial courts are vested with the discretion to impose this sanction.

Rule 37(c) does not allow an award of expenses for a failure to admit when the party had reasonable grounds to believe it might prevail or good reason, such as lack of knowledge, for not admitting.

Oakes v. Wooten · filed 2005-10-04Rule 37(c)

Defendants, therefore, met their burden of proof in showing that at the time for request of admission, reasonable grounds existed to believe that they might prevail on some matters denied, and good reasons, i.e. defendants’ lack of knowledge, existed for the failure to admit other issues at that time. Accordingly, we find the trial judge abused her discretion in awarding plaintiffs’ attorneys’ fees and costs pursuant to N.C. Gen. Stat. § 1A-1, Rule 37(c).

Rule 36 deems matters admitted when a party fails to respond to requests for admissions.

Watson v. Millers Creek Lumber Co., Inc. · filed 2006-07-18Rule 36

Furthermore, pursuant to Rule 36 of the North Carolina Rules of Civil Procedure, defendant Counts is deemed, by virtue of his failure to respond to plaintiffs' request for admissions, to have admitted he not only had both actual and constructive knowledge of plaintiffs' recorded "Bond for Title," but also took title to the land subject to plaintiffs' recorded "Bond for Title."

Rules 36(b) and 26(e)(2) allow testimony contradicting an incorrect admission when the party promptly supplements the response and the correction does not prejudice the opposing party.

Papadopoulos v. State Capital Insurance · filed 2007-05-15Rule 36(b); Rule 26(e)(2)

In this case, where it is clear that the admission was incorrect, and plaintiff attempted to supplement his response, the trial judge’s allowance of the testimony was not error. Moreover, even if it had been, defendant’s assertion that it was prejudiced by the allowance is disingenuous given its concession that it received the correction a mere fifteen minutes after the admission was made.

Rule 36(a) permits a trial court to deem requested matters admitted when a party fails to respond within the applicable deadline.

Discover Bank v. Calhoun · filed 2008-09-02Rule 36(a)

We note, however, that even assuming arguendo that defendant's assertion is correct, defendant did not respond to plaintiff's request for admissions within the 30-day window provided by Rule 36. Thus, the trial court acted within its discretion in deeming the plaintiff's allegations as admitted.

Rule 36 requires a party challenging the sufficiency of responses to requests for admissions to seek a trial court ruling before asking that the requests be deemed admitted.

UNIFUND CCR PARTNERS v. Dover · filed 2009-07-21Rule 36

A party claiming insufficient answers to requests for admissions, and seeking to have those requests deemed admitted, must first move the trial court to determine the sufficiency of the responses and obtain a ruling.

A party's failure to respond to a properly served request for admissions establishes facts that can support summary judgment.

Kluttz v. NEXT SAFETY, INC. · filed 2010-01-19Rule 36(a)

Facts admitted as a result of a party's failure to respond to a properly served, written request for admissions are sufficient to support a trial court's grant of summary judgment.

Unanswered requests for admissions conclusively establish the matters stated, but those admissions do not automatically require summary judgment.

Davis v. Cook · filed 2010-01-19Rule 36(a)

Plaintiff is correct that failure to respond to requests for admissions results in the matters concerned being conclusively established as stated in the request. N.C. Gen. Stat. § 1A-1, Rule 36(a) (2007); Town of Chapel Hill v. Burchette, 100 N.C. App. 157, 162, 394 S.E.2d 698, 701 (1990). Plaintiff is incorrect, however, in stating that the admissions thus established constitute a basis on which summary judgment must have been granted in his favor.

Rule 36(b) does not prevent a trial court from awarding less than an admitted damages amount when the requesting party’s own evidence contradicts that amount.

Garner v. Cheek · filed 2010-01-19Rule 36(b)

Although Plaintiff correctly characterizes Goins, the trial court in the present case did not err in determining that it had the discretion to amend the amount of damages awarded. ... Plaintiff's own evidence contradicted the amount of damages requested in her Request for Admissions.

Rule 36(b) calls for an opportunity to show prejudice to the defense before deemed admissions are withdrawn.

Brown v. Dept. of Transportation · filed 2010-02-24Rule 36(b)

However, since Defendant has not had an opportunity show that withdrawal of Plaintiff's deemed admissions will prejudice Defendant in maintaining its defense of this claim on the merits, Defendant should be allowed to present evidence on this issue.

Rule 36(b) permits withdrawal of deemed admissions when it serves consideration of the merits and the opposing party fails to show prejudice to its defense on the merits.

Brown v. Department of Transportation · filed 2010-09-24Rule 36(b)

The Full Commission finds and concludes that the presentation of the merits of this claim will be subserved if Plaintiff's deemed admissions are not withdrawn, and Defendant failed to establish that such withdrawal would be prejudicial to it in maintaining its defense on the merits of this claim. The Full Commission therefore ORDERS that Plaintiff's deemed admissions are hereby withdrawn, and that Plaintiff's claim shall proceed to a full evidentiary hearing on the merits of the claim.

Rule 36(b) permits a trial court to deny withdrawal or amendment of admissions even when the other party would not be prejudiced.

J.M. Parker & Sons, Inc. v. William Barber, Inc. · filed 2010-12-21Rule 36(b)

The trial court is not required to allow amendment or withdrawal under Rule 36 where the other party is not prejudiced, nor must the trial court weigh evidence or arguments in any particular way.

Rule 36(b) makes admitted matters conclusive at trial, allowing the court to base findings of fact on them.

NGUYEN v. Taylor · filed 2012-02-21Rule 36(b)

Consequently, the admissions were conclusively established facts for purposes of that trial. Thus, the trial court did not err by making findings of fact based upon Taylor’s admissions.

Under Rule 36(a), an unanswered request for admission is treated as admitted when the court decides a summary judgment motion.

Armstrong v. Velasquez · filed 2014-04-01Rule 36(a)

As a result, given that Defendant appears to have failed to respond to Plaintiffs’ requests for admissions, we are required to assume for the purpose of deciding the issues raised by Defendant’s challenge to the trial court’s order that Defendant “failed to truly assess the basis, specifically for probable cause,” for the criminal charges that she initiated against Plaintiffs.

Rule 36(b) permits a court to withdraw admissions when doing so serves presentation of the merits and the party who obtained them fails to show prejudice in maintaining its case on the merits.

Taidoc Tech. Corp. v. Ok Biotech Co., Ltd · filed 2014-10-09Rule 36(b)

Based on its review, the Court concludes, in the exercise of its discretion, that the presentation of the merits of this action will be subserved by the withdrawal of the admissions to Plaintiff’s RFAs 3, 7, 8, 14 (as it relates to Exhibit A), 15 (as it relates to Exhibit A), 16, 17, 37, 38, and 42-46. The Court further concludes that Plaintiff has not satisfied the Court that withdrawal of these admissions will prejudice Plaintiff in maintaining this action on the merits.

Facts admitted under Rule 36 are conclusively established and may support summary judgment.

Wells Fargo Bank, N.A. v. Stocks · filed 2021-08-13Rule 36(b)

Facts admitted in a request for admissions under Rule 36 of the North Carolina Rules of Civil Procedure are “conclusively established.” N.C.G.S. § 1A-1, Rule 36(b) (2019). Therefore, such facts are “sufficient to support a grant of summary judgment.”

Rule 51(c) prohibits a judge from commenting on a verdict in jurors’ presence, but a comment made after the verdict is returned does not warrant reversal when it has no effect on the jury.

Haymore v. Thew Shovel Co. · filed 1994-08-16Rule 51(c)

Applying Worrell to the instant case, we find that there is no “effect on the jury” from the judge’s remarks in the instant case. The remarks were made after the verdict was returned. Plaintiff does not contend that the judge was unfair or impartial during the trial. While the remarks made by the court were perhaps not appropriate under a strict reading of Rule 51, they do not constitute reversible error.

Rule 51(a) prohibits a judge from telling the jury that a defendant physician is an expert when the physician's professional competence is at issue.

Sherrod v. Nash General Hospital, Inc. · filed 1998-07-09Rule 51(a)

Accordingly, we conclude that while it was entirely proper for the trial court to rule that defendant Thompson could testify as an expert, with the legal parameters and privileges incident to such ruling, it was prejudicial error for the trial court to announce to the jury that it in fact and law found defendant Thompson to be an expert.

Rule 43(b) permits a party to call an adverse party who appears at the proceeding to testify without a subpoena.

Matter of Davis · filed 1994-09-20Rule 43(b)

DSS was therefore free to call Mrs. Davis to testify as an adverse party when she appeared at the proceeding, and a subpoena was not required. N.C.G.S. § 1A-1, Rule 43(b) (1990) (party may call an adverse party and interrogate him).

Rule 25(f) automatically substitutes a successor public officer in an action against the former officeholder in an official capacity.

Simeon v. Hardin · filed 1994-12-30Rule 25(f)

Because plaintiffs’ action was commenced against Mr. Stephens in his official capacity as the District Attorney for the Fourteenth Prosecutorial District, Mr. Hardin was automatically substituted as the defendant in this action, pursuant to Rule 25(f) of the North Carolina Rules of Civil Procedure.

Rule 52(a)(1) requires a trial judge in a custody case to make specific findings of fact before entering judgment; insufficient findings require a new hearing.

Garrett v. Garrett · filed 1995-12-19Rule 52(a)(1)

It is settled law that, “when the trial court fails to find the material facts to dispose of the issues the case must be remanded for a new trial.” Lawing v. Jaynes, 20 N.C. App. 528, 536, 202 S.E.2d 334, 340, cert. allowed, 285 N.C. 234, 204 S.E.2d 24, modified on other grounds, 285 N.C. 418, 206 S.E.2d 162 (1974); see also N.C. Gen. Stat. § 1A-1, Rule 52(a)(1) (1990) (trial judge in a custody case must find the facts specially before entering an appropriate judgment).

Rule 7 distinguishes pleadings from motions; a pre-answer motion to dismiss is not a responsive pleading that prevents entry of default.

Eden's Gate, Ltd. v. Leeper · filed 1995-12-19Rule 7(a), (b)

In spite of defendants’ arguments to the contrary, “pleadings” are quite different from “motions” in this context. Sections (a) and (b) of Rule 7 of the North Carolina Rules of Civil Procedure clearly delineate the difference between pleadings and motions.

Rule 12(b)(6) permits dismissal when a complaint's allegations, treated as true, are legally insufficient to state a claim.

Governor's Club, Inc. v. Governors Club Ltd. Partnership · filed 2002-08-20(b)(6)

In reviewing a Rule 12(b)(6) motion to dismiss, the factual allegations in plaintiff's complaint are treated as true. "A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint by presenting `the question whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief can be granted under some [recognized] legal theory.'"

A denial of a Rule 12(b)(6) motion to dismiss is not reviewable on appeal from a final judgment on the merits.

Shadow Group, LLC v. Heather Hills Home Owners Ass'n · filed 2003-02-18Rule 12(b)(6)

However, it is well established that the denial of a Rule 12(b)(6) motion to dismiss is not reviewable upon an appeal from a final judgment on the merits.

Rule 12(f) allows a judge to strike insufficient, redundant, irrelevant, immaterial, impertinent, or scandalous matter from a pleading.

LaVALLEY v. LaVALLEY · filed 2005-01-04(f)

The purpose underpinning Rule 12(f) is to avoid expenditure of time and resources before trial by removing feigned issues, introduced in the complaint, from consideration. ... Having reviewed the above paragraphs in context of the entire complaint and the record as a whole, we conclude these paragraphs contain material that is irrelevant, immaterial, impertinent, confusing, and/or incomprehensible. The trial court properly granted the motion to strike. This assignment of error is overruled.

Rule 7(a) defines which documents are pleadings; a stipulation that a child was neglected is not one.

State v. Sellers · filed 2015-08-04Rule 7(a)

First, this document is not a pleading as defined by North Carolina Civil Procedure Rule 7. The document is not a complaint, an answer, a reply to a counterclaim, an answer to a crossclaim, a third-party complaint, or a third-party answer.

Rule 26(b) requires the trial court to resolve asserted work product and privilege claims before releasing disputed documents to another party.

Hall v. Cumberland County Hospital System, Inc. · filed 1996-02-06Rule 26(b)

The defendant was therefore entitled to a determination by the trial court as to (1) whether the documents were prepared in anticipation of litigation, (2) if so, whether the plaintiffs were in “substantial need” of the materials and that they were unable without “undue hardship” to obtain the substantial equivalent by other means, (3) whether the documents included “mental impressions, conclusions, opinions, or legal theories” of the defendant’s attorney or other representative of the defendant concerning the litigation at issue, (4) whether the documents represent the “work product” of the defendant’s attorney, and (5) whether the documents represent communications between the defendant and its attorneys.