CIVIL PROCEDURE RULES!

Question 1

Subject Matter Jurisdiction - NC SUPREME COURT JURISDICTION

Answer 1

Appeal of right if (1) dissent, (2) substantial conflict between federal and NC, (3) rate making with utility and (4) death penalty cases.

Question 2

Subject Matter Jurisdiction - NORTH CAROLINA COURT OF APPEALS JURISDICTION

Answer 2

Appeals of (1) Superior or District courts, (2) insurance rate cases, (3) admin agency, (4) workers comp and (5) Bar decisions.

Question 3

Subject Matter Jurisdiction - SUPERIOR COURT JURISDICTION

Answer 3

Exclusive over probate matters. Proper in actions >$10K, injunctive/declaratory action re statute validity, apt of guardian, and appointment of personal representation.

Question 4

Subject Matter Jurisdiction - DISTRICT COURT JURISDICTION

Answer 4

Exclusive over juvenile matters. Proper if <$10K, family, and traffic matters and misdemeanors. NO jury trial in for criminal cases, but appeal de novo to Superior court.

Question 5

Subject Matter Jurisdiction - FEDERAL SUBJECT MATER JURISDICTION

Answer 5

Federal Courts are of limited jurisdiction. The basis for subject matter jurisdiction is (1) diversity of citizenship or (2) federal question.

Question 6

Subject Matter Jurisdiction - FEDERAL SUBJECT MATTER JURISDICTION (DIVERSITY OF CITIZENSHIP)

Answer 6

In excess of $75K (not interest) and complete diversity of domiciles. Not dismissed unless there appears to be legal certainty that requirements won’t be met. Injunction: evaluate value of object, cost of compliance, and amount of damages if denied. Individuals are citizens where they are residents and have intent to remain indefinitely. Intent is looked at subjectively and objectively through evidence of voter registrations, driver’s licenses, insurance, and taxes. Corporations are citizens of state of incorporation and principle place of business. Principle by (1) muscle: most employees, and (2) nerve center: headquarters or decision making. Partnerships: every state where members are citizens. Incompetents, infants, and estates are citizens of their own state, NOT executor, administrator, or guardian.

Question 7

Subject Matter Jurisdiction - SUPPLEMENTAL JURISDICTION (PENDANT AND ANCILLARY “ADD ONS”)

Answer 7

For a pendant or ancillary to be included, (1) claim must be from the same transaction and have same common nucleus of operative facts, AND (2) court must decide, using it’s discretion to hear it even if the same nucleus/transaction.

Question 8

Subject Matter Jurisdiction - DECLINING SUPPLEMENTAL JURISDICTION

Answer 8

Considerations to decline include whether (1( claim involves novel complex issues of state law, (2) state claim predominates over federal one, (3) federal claims were dismissed, and 4 any other exceptional circumstances.

Question 9

Subject Matter Jurisdiction - PENDENT JURISDICTION

Answer 9

Hanging from. Covers claims by plaintiff which do not satisfy subject matter jurisdiction. Occurs when P adds claim in federal question case over additional defendant and no federal question or diversity, but from the same transaction or occurrence of the original claim.

Question 10

Subject Matter Jurisdiction - ANCILLARY JURISDICTION

Answer 10

Covers claims by anyone but plaintiff, such as NC v. NC in federal court based upon federal question and D asserts state law counterclaim. Federal Court still has the subject matter jurisdiction because the counterclaim likely has the same common nucleus.

Question 11

Subject Matter Jurisdiction - REMOVAL

Answer 11

Removal is proper if action could originally been brought by plaintiff in Federal court. Defendant can not remove because his defense is in Federal Law. If diversity case, ALL defendant’s must join in removal, but only can be removed if no D is a citizen of that state. If federal question, only those defendants who have a federal claim asserted against them must join. Procedure: (1) file notice of removal with Federal court and copy in State, (2) must file within 30 days of service of Complaint. If later becomes removable, 30 days from that time. Can’t remove on diversity if less than one year and unless bad faith.

Question 12

Subject Matter Jurisdiction - ERIE DOCTRINE

Answer 12

Only applicable with Diversity of Citizenship cases. Federal court will apply state substantive law. If there is a federal of procedure broad enough to cover the issue, then they apply the federal procedure, UNLESS it is outcome determinative. State laws that apply: (1) substantive areas, (2) Statute of Limitations, (3) burden of proof, and (4) choice of laws rules.

Question 13

Personal Jurisdiction - PERSONAL JURISDICTION

Answer 13

Power of the court to adjudicate the rights and liabilities of the defendant. Personal right and waiveable by contract prior to lawsuit, or by failure to timely or properly raise it as defense. Only an issue with out-of-state-defendants.

Question 14

Personal Jurisdiction - NON-MINIMUM CONTACTS ANALYSIS

Answer 14

WAIVER: If D has substantially participated on the merits, the NC courts deem D to have waived PJ objections. Occurs if D files (1) pre-answer motion/answer but not include personal jurisdiction, or (2) change venue and disqualify plaintiff’s counsel.
CONSENT OR CONTRACT: if D expressly or implied by consent or contract, (1) motorist statute create implied consent by driving in NC, or (2) forum selection clause in contract or where they would accept process.
PHYSICAL PRESENCE: Individuals only: If D is voluntarily in NC and served, not if present because of summons.

Question 15

Personal Jurisdiction - CORPORATIONS

Answer 15

Out of state corporations that have substantial and continuous activity in NC are doing business such that the corporation is essentially at home and subject to the general jurisdiction.

Question 16

Personal Jurisdiction - NC LONG ARM STATUTE

Answer 16

(1) acts in NC causing injury to persons and or property (2) with activity here or haven introduced goods into the ordinary flow of commerce, (3) acts from contract to perform services in NC (4) acts out of insurance contract, where plaintiff was resident when claim arose, or (5) acts out of insurance contract where event causing loss occurred in NC.

Question 17

Personal Jurisdiction - MINIMUM CONTACTS ANALYSIS (DUE PROCESS)

Answer 17

Subject to PJ by expressly satisfying DP requirements. Look at number and nature of contracts with jurisdiction. Must be acts of D targeted toward forum state. Purposefully avail himself (market, good, advertisement, customer services agents). making it reasonably foreseeable to be hauled into court? Did COA arise out of these activities (discuss which contacts related)? Jurisdiction reasonable under Asahi (burden on D. NC interest, P’s interest)?

Question 18

Personal Jurisdiction - IN REM JURISDICTION

Answer 18

Jurisdiction over a thing, so long as property is in NC, then it has jurisdiction. Still need min contacts analysis.

Question 19

Service of Process - SERVICE OF PROCESS

Answer 19

Service of process provides formal notice and personal jurisdiction; it requires (1) method used, and (2) copy of the complaint or summons.

Question 20

Service of Process - WHO MAY SERVE AND WHEN MUST SERVICE OCCUR

Answer 20

In NC, a sheriff or someone authorized to serve. Out of state, 21 or older and not a party OR authorized to. Service within 60 days after summons was issued; can be continued by endorsement on original summons for an extension for time to complete service, or by AP summons issued by clerk: extends 90 days and indefinitely. Both relate back.

Question 21

Service of Process - FIVE TYPES OF PROCESS TO EFFECT SERVICE ON A NATURAL PERSON

Answer 21

Service by: (1) personal delivery, (2) leaving a copy at dwelling with person of suitable age and discretion then residing therein (3) authorized agent, (4) registered/certified mail return receipt requested, or (5) by designated delivery service obtaining a delivery receipt.

Question 22

Service of Process - FIVE TYPE OF PROCESS TO EFFECT SERVICE ON A CORPORATION

Answer 22

By (1) delivery to officer, director, or managing agent, (2) leaving copy in office with person who is apparently in charge, (3) authorized agent or SOS, (4) certified/registered mail or designated delivery service return receipt requested to registered agent, officer, director, or managing agent of corporation.

Question 23

Service of Process - SERVICE ON MINORS

Answer 23

If under 14 years old, service must be made on parent/guardian who has custody of the child.

Question 24

Service of Process - SERVICE ON AN ADJUDICATED INCOMPETENT

Answer 24

Must be served to incompetent AND on the guardian of the incompetent.

Question 25

Service of Process - SERVICE ON PARTNERSHIPS

Answer 25

Can be on general partner, attorney in fact, authorized agent, AND on individual if you want personal liability.

Question 26

Service of Process - SERVICE ON NON-RESIDENT MOTORISTS

Answer 26

Service on a non-resident motorist can be accomplished by serving the commissioner of Motor Vehicles of NC.

Question 27

Service of Process - SERVICE BY PUBLICATION

Answer 27

Allowed, but frowned upon; must use due diligence (phone book, dmv records) to attempt service by mail/ups.

Question 28

Venue - VENUE

Answer 28

Venue means proper location for trial. Right to have a trial in a proper venue is substantial, but not jurisdictional. Types are (1) as of right, and (2) discretionary. Venue is waived if counsel failed to raise it in first response. NCRCP 12(b) allows dismissal for improper venue. Denial of removal/dismissal due to improper venue as right is immediately appealable.

Question 29

Venue - DETERMINING VENUE

Answer 29

Proper venue: (1) in county in which any P or D resides at time action commenced, OR (2) if no D resides in NC, in county where any P resides, or (3) if no one resides in NC, in county designated on the summons/complaint.

Question 30

Venue - VENUE FOR CORPORATIONS

Answer 30

For NC corporations, venue is place of registered or principle office where it maintains place of business. If out of state, in county (1) where claim arose, (2) corporation usually did business or has property, or (3) where plaintiff resides.

Question 31

Venue - PLANTIFF'S RESIDENCE

Answer 31

If resident, for any COA where plaintiff resides. If non-resident, any county where he is regularly engaged in business, or for a non-resident Plaintiff where the claim arose or the subject of the action is situated in the state.

Question 32

Venue - OBJECTIONS TO VENUE

Answer 32

Once objection properly asserted for improper venue as of right, court can't proceed with the essential matters until resolved. Discretionary change to an adjacent county if probable grounds that fair/partial trial can be obtained or avoided.

Question 33

Venue - NC VENUE SUMMARIZED

Answer 33

Venue lies in any county where plaintiff or defendant resides. For corporations, where it has a registered office, principal office, or maintains its business. If no one resides in NC, then venue is the county named by plaintiff in summons and complaint.

Question 34

Venue - STATUTORY EXCEPTION TO VENUE (FOREIGN CORPORATION [NOT] DOMICILED IN NC)

Answer 34

If action involves penalties and forfeitures by statute or COA against public official, venue is where action arose. If the action is for recovery, rights, or determination of real property or an estate, venue is where property is. Official bond: where bond is given. Construction bond: where primary contract is performed.

Question 35

Venue - FEDERAL VENUE RULES

Answer 35

If all D's reside in one state, venue lies in any district in which a D resides OR where a substantial part of events occurred giving rise to the claim. If neither, then district where D may be located if federal question , OR district where D is subject to PJ in diversity cases. For venue, corporations are residents of any district it's subject to personal jurisdiction within.

Question 36

Pleadings - COMPLAINT (NORTH CAROLINA)

Answer 36

Notice pleading: short and plain statement of the claim sufficiently particular to give the court and parties notice of the transactions, occurrences, or series thereof; there must be an allegation.

Question 37

Pleadings - ANSWER (NORTH CAROLINA)

Answer 37

30 day to file Answer/Pre-answer. If pre-answer, Answer 20 days after notice it was ruled on or postponed disposition.

Question 38

Pleadings - VERIFIED PLEADING

Answer 38

A sworn statement and can be relied on as such (divorce/child and derivative actions). If fail to verify the complaint, it is subject to dismissal.

Question 39

Pleadings - AFFIRMATIVE DEFENSES

Answer 39

Affirmative defenses need only be alleged in answer; no special pleading requirements other than just alleging.

Question 40

Pleadings - RULE 11 REQUIREMENTS

Answer 40

Every paper of party represented be signed by attorney of record certifying (1) he read paper and to best information and belief after reasonable inquiry is factual, (2) warranted by existing law, and (3) not for any improper purpose.

Question 41

Pleadings - DEMAND FOR RELIEF REQUIREMENT

Answer 41

Must include a demand for relief. If incorrect, court obligated to still grant correct relief except default judge.

Question 42

Pleadings - MATTERS THAT MUST BE PLED WITH PARTICULARITY

Answer 42

Fraud, Duress, Mistake, and special damages require > notice pleading; they must be filed with particularity. Punitives must be specifically stated and aggravating factors that supports award shall be averred with particularity.

Question 43

Pleadings - MEDICAL MALPRACTICE PLEADING

Answer 43

P must allege (1) specific assertion that the med care was reviewed by person who is reasonable expected to qualify as an expert under NCRE 702 and willing to testify that D failed applicable standard, (2) that party will seek to have the expert qualified by judge, OR (3) allege that case is based on res ipsa with facts.

Question 44

Pleadings - FOREIGN LAW PLEADING

Answer 44

If issue concerning the law of foreign country, shall give written notice, and pleaded and proven with particularity.

Question 45

Pleadings - RIMING (NCRCP RULE 4)

Answer 45

If the last day in which to respond falls on Saturday/Sunday/legal holiday, it moves to the next business day. If response time is , 7 days, weekends/holidays do not count. First day is the day AFTER the motion is received.

Question 46

Rule 12 (Motions and Defenses) - 12(e)

Answer 46

MOTION TO STRIKE - Must motion before responding to pleading: redundant, irrelevant, immaterial, scandalous, insufficient defenses.

Question 47

Rule 12 (Motions and Defenses) - 12(c)

Answer 47

MOTION FOR JUDGMENT ON THE PLEADINGS - Motion made after pleading closed and no material facts at issue. Based on pleadings and any matter attached to which became part of them. If court considers matters outside pleadings, it will be treated as Summary Judgment.

Question 48

Rule 12 (Motions and Defenses) - 12(b)(6)

Answer 48

FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED - If (1) the allegations, even if taken as true, do not state a legal COA because they are missing some of the necessary allegations/elements, or (2) it is not a recognized COA in NC. If court considers matter outside pleading, its SJ.

Question 49

Rule 12 (Motions and Defenses) - 12(b) DEFENSES

Answer 49

The 7 defenses listed in 12(b) may be raised either as a defense in the answer or in a pre-answer motion: 12(b)(1) - Lack of Subject Matter Jurisdiction. 12(b)(2) - Lack of Personal Jurisdiction. 12(b)(3) - Improper Venue. 12(b)(4) - Insufficiency of Process (wrong information in Summons). 12(b)(5) - Insufficiency of Service of Process (method used to serve was improper). 12(b)(6) - Failure to State a Claim upon which Relief can be Granted 12(b)(7) - Failure to Join a Necessary Party

Question 50

Rule 12 - MUST BE TIMELY RAISED

Answer 50

Lack of PJ, Improper Venue, Insufficient Process, and Insufficiency of Service can be waived if not timely raised. Thus, once pre-answer motion is filed, the others are waived if not alleged; can't later put them in answer.

Question 51

Pleading Amendments - THREE WAYS TO AMEND A PLEADING

Answer 51

(1) Anytime before responsive pleading served. (2) With written consent. (3) Justice not if delay/prejudice or bad faith.

Question 52

Pleading Amendments - RELATION BACK IN AMENDING

Answer 52

[NCRCP 15(c)] - Claim asserted in amended pleading may relate back to the date of the original pleading if original gave notice of the transactions, occurrences, or series thereof contained in the Amended Pleading (misspellings are fine)

Question 53

Pleading Amendments - SUPPLEMENTAL PLEADINGS

Answer 53

[NCRCP 15(d)] - Asserts claim/defense which has arisen since the initial one; should be freely given unless unfair to party.

Question 54

Joinder - JOINDER OF PARTIES

Answer 54

[NCRCP 19 & 20] - All persons may join as P's if they assert any right arising out of the same transaction or occurrence AND if any question of law or fact common to all parties will arise in the action. Same with D's.

Question 55

Joinder - COMPULSORY COUNTERCLAIMS AGAINST ANY OPPOSING PARTY

Answer 55

[NCRCP 13(a)] - Those arising out of the same transaction which is the subject matter of the opposing party's claim (use it or lose it).

Question 56

Joinder - PERMISSIVE COUNTERCLAIMS AGAINST ANY OPPOSING PARTY

Answer 56

[NCRCP 13(b)] - There are any claims against an opposing party NOT arising out of the same transaction or occurrence.

Question 57

Joinder - CROSS CLAIM AGAINST A CO-PARTY

Answer 57

[NCRCP 13(g)] - A party may state any claim against a co-party that arises out of the same transaction or occurrence.

Question 58

Joinder - IMPLEADER/3RD PARTY CLAIMS

Answer 58

[NCRCP 14] - D may use Impleader to bring in non-party who is/may be liable to him for all (indemnification) or part (contribution) of the Plaintiff's claim against him.

Question 59

Joinder - JOINDER OF CLAIMS

Answer 59

(NCRCP 18) Party may bring as many claims it has against an opposing party once he first complies with rules on cross-claims and third-party claims (Bundling).

Question 60

Joinder - INTERVENTION

Answer 60

(NCRCP 24) Intervention is a device by which a non-party enters the case on his own motion. Intervention of Right exists when (1) statute gives the right, OR (2) one claims an interest related to the property or transaction who may have their interest impair or who otherwise won't be able to protect their interest AND their rights are not adequately protected by those who are already a party. Permissive intervention exists when (1) statute gives a conditional right to the intervener, OR (2) when an intervener has a question of law or fact common to the lawsuit.

Question 61

Joinder - INTERPLEADER

Answer 61

(NCRCP 22 & FED STAT INTERPLEAD & FRCP 22 INTERPLEADER) Interpleader permits a party facing conflicting claims to bring all claimants in one case (multi-party litigation). Rule 22 Interpleader: STAKEHOLDER v. CLAIMANTS. Federal Statutory Interpleader: CLAIMANTS v. CLAIMANTS.

Question 62

Joinder - Class Action

Answer 62

(NCRCP 23) Class action certification left to discretion, but MUST consider (1) existence of a class, (2) numerous make joinder impractical, (3) class members within jurisdiction must adequately represent outsiders, (4) named party must fairly insure representation of all, (5) adequate notice given to members in time to opt in or opt out, and (6) members share common interest of law and fact question AND which are dominant over individual ones. Diversity relaxed in federal court pursuant to Class Action Fairness Act for some class action plaintiffs. Under CAFA, SMJ is established if (1) any P is diverse from any D, (2) amount exceeds $5million, and (3) at least 100 class members.

Question 63

Discovery - DISCOVERY

Answer 63

Must be relevant to the subject matter and not privileged; reasonably calculated to lead to admissible evidence.

Question 64

Discovery - WORK PRODUCT

Answer 64

NC uses SOLE PURPOSE TEST: sole purpose in gathering for preparation of case. Attorney/representative mental impression; conclusions, opinions, legal theories are ABSOLUTELY privileged. Document and tangible objects are not absolute.

Question 65

Discovery - EXPERT WITNESSES

Answer 65

Testifying work product experts; those who developed facts and opinions in anticipation/preparation for trial and expecting to testify at trial. If a party inquires about experts by interrogatory, receiving party must provide info if there is a testifying expert: (1) name, (2) subject matter, and (3) substance and basis of his opinions. (also) Non-testifying WP Experts consulted in anticipation or preparation of litigation BUT are NOT testifying; Nothing Discoverable.

Question 66

Discovery - PROTECTIVE ORDERS

Answer 66

NCRCP 26(c) Must show good cause that person needs protection from unreasonable annoyance, embarrassment, oppression, or will suffer undue burden/expense. Must be brought before discovery due; NOT limited to parties.

Question 67

Discovery - SUPPLEMENTATION OF DISCOVERY RESPONSES

Answer 67

NCRCP 26(e) Duty to supplement if response (1) concerns ID and location of person who knows of discoverable matters, (2) concerns testifying expert, (3) was incorrect, or (4) was correct when made but no longer true.

Question 68

Discovery - INTERROGATORIES

Answer 68

NCRCP 33 Limit of 50 interrogatories to a party unless leave of court for good cause show or agreement of party (fed rule 25)

Question 69

Discovery - DEPOSITIONS

Answer 69

NCRCP 30, 31, & 32 Oral or writing, non-parties may be compelled to attend by subpoena; parties only require notice of deposition.

Question 70

Discovery - PRODUCTION OF DOCUMENTS AND THINGS AND ENTRY UPON LAND

Answer 70

NCRCP 34 Subpoena Duces Tecum required to get docs from non-party (45c). 30 days to respond/45 if served with complaint.

Question 71

Discovery - PHYSICAL AND MENTAL EXAM OF PERSONS

Answer 71

NCRCP 35 Physical or mental condition of a party or his agent may be examined if (1) in controversy, and (2) good cause shown. Examinee can get copy of report on request, opens door for prior exams.

Question 72

Discovery - MOTION TO COMPEL

Answer 72

NCRCP 37(a) Motion must include certification that he, in good faith, attempted to seek it from the party.

Question 73

Discovery - PRETRIAL CONFERENCES WITH TRIAL JUDGE

Answer 73

NCRCP 16 In NC, the holding of a pretrial conference will generally occur within 7 days of trial. Judicial economy; matters typically include: amendments, simplify issues, admission and stipulations of facts, admissibility, judicial notice.

Question 74

Procedural Devices for Terminating a Case Without Trial - DEFAULT JUDGMENTS

Answer 74

NCRCP 55 Two stages: (1) Entry of Default: party fails to plead, clerk is to enter the default when fact is made known to him by motion: must show PJ and service. (2) Judgment of Default: can be by clerk if damages certain: this requires an affidavit or verified pleading by claimant; or by the judge anytime. If defaulting party has made an appearance, notice must be given before damages hearing (notice of damages). Can't vary/exceed relief sought.

Question 75

Procedural Devices for Terminating a Case Without Trial - VOLUNTARY DISMISSAL

Answer 75

NCRCP 41(a) Party can file VC anytime before P rests, and gives notice of dismissal. You get 1. NC allows for dismissal without anyone's permission at any time before plaintiff rests. 1 year to re-file, SOL relates back. In federal, plaintiff may VD without court order by filing notice of VD before answer or SJ or if signed by all parties. P rests if he participates in SJ hearing; if so, you need consent. If party has compulsory counterclaim against party it's with prejudice UNLESS dismissal is consented to, SMJ, venue, or failure to join.

Question 76

Procedural Devices for Terminating a Case Without Trial - INVOLUNTARY DISMISSAL

Answer 76

NCRCP 41(b) If P (1) fails to prosecute his claim, OR (2) obey a court order, the court can dismiss with Prejudice.

Question 77

Procedural Devices for Terminating a Case Without Trial - SUMMARY JUDGMENT

Answer 77

NCRCP 56 To grant, there must be no genuine issue of material fact. Any party is entitled to judgment as a matter of law. All affidavits must be in the form of sworn statements or party can object; if no objection they can be admitted. Federal Court will only grant judgment to the moving party. NC will grant SJ to moving or non-moving party.

Question 78

Trials - RIGHT TO JURY

Answer 78

A demand for jury must be in writing within 10 days after last pleading served. Judge can impanel even if waived.

Question 79

Trials - CHALLENGES TO JURORS

Answer 79

Unlimited challenging for cause (unfair/partial). Peremptory Challenges: no basis need be given but, EP clause cannot be violated. 8 peremptory allowed for each side; if multiple D's, then 56 for each D.

Question 80

Trials - DIRECTED VERDICT MOTION

Answer 80

NCRCP 50(a) DV motion may be made after presentation of evidence. D may motion after P has rested and it may be renewed at end of evidence. P can after D has had opportunity to present evidence. Judge applies sufficiency of the evidence standard: insufficient to justify a verdict as a matter of law for the Non-Moving party, judge should direct the verdict (not enough evidence to create jury questions and no facts in dispute).

Question 81

Trials - POST VERDICT MOTION: JUDGEMENT NOTWITHSTANDING THE VERDICT (JNOV)

Answer 81

NCRCP 50(b) JNOV is a renewed Directed Verdict; (1) must be made within 10 days of the entry of judgment, and (2) moving must have made a motion for directed verdict at the end of all evidence. Pair with Motion for New Trial in alternative.

Question 82

Trials - MOTION FOR A NEW TRIAL

Answer 82

NCRCP 59 Motion must be served no later than 10 days AFTER entry of judgment. Grounds: (1) irregular/prejudicial, (2) jury misconduct, (3) accident/surprise not preventable by reasonable safeguards, (4) new material evidence not discoverable with diligence, (5) jury manifestly disregards instruction, (6) high/inadequate damages based on passion/prejudice, (7) insufficient evidence or contrary to law, (8) error in law at trial (with objection).

Question 83

Trials - JURY INSTRUCTIONS

Answer 83

In NC, trial judge is NOT allowed to comment on the evidence OR comment on the verdict in front of the jury.

Question 84

Trials - OBJECTIONS TO JURY INSTRUCTIONS

Answer 84

Counsel must object to instruction before jury retires to consider verdict AND must state specific instruction that he is objecting to and the particular grounds for the objection.

Question 85

Verdicts - GENERAL VERDICTS

Answer 85

NCRCP 49 Jury asked who wins. Then P asks, if relevant, how much in damages.

Question 86

Verdicts - SPECIAL VERDICTS

Answer 86

Jury is asked specific questions of fact (what color was the traffic signal?), then judge applies the law.

Question 87

Verdicts - GENERAL VERDICT WITH SPECIAL FINDINGS OF FACT

Answer 87

Jury answers specific fact questions of judge. Special controls.

Question 88

Verdicts - ENTRY OF JUDGMENT

Answer 88

NCRCP 58 This occurs when judgment is reduced to writing, signed by judge and filed with the clerk. Served within 3 days.

Question 89

Appeal - NOTICE OF APPEAL

Answer 89

Party has 30 days from entry of judgment to file notice of appeal, filed with clerk and served. If party filed new trial motion or JNOV, then time begins to run from the entry of order on the motion.

Question 90

Appeal - APPEALING FINAL JUDGMENTS

Answer 90

NCRCP 54(a) Final judgments dispose all claims/parties leaving nothing to be judicially determined. Immediately Appealable.

Question 91

Appeal - APPEALING INTERLOCUTORY JUDGMENTS

Answer 91

NCRCP 54(b) Interlocutory are those that don't dispose of all claims or persons. Court may enter a final judgment on a particular claim or party, but must be specific, stating in the judgment final to that claim or party.

Question 92

Appeal - appealing INTERLOCUTORY JUDGMENTS (rights affected)

Answer 92

NCRCP 54(b) A substantial right is affected when it will clearly be lost or irremediable aversely affected if the order is not reviewable before final judgment. Thus, immediately appealable. Includes: (1) denial of motion to dismiss for lack of PJ, (2) denial of motion to dismiss for failing to have brought claim as compulsory counter in previous action, (3) denial of motion to change venue as of right, and (4) grant of a new trial where it's based upon legal questions. Appellant no longer has to state each ground for appeal as an assignment of error.

Question 93

Relief from Judgments or Orders

Answer 93

NCRCP 60 Only if (1) clerical error, OR (2) significant reason to do so. Clerical errors: court can correct clerical errors or defects to reflect the truth (misnomers and math errors). Relief from Judgment: court can vacate and change final judgments/orders. 6 bases for relief from judgment: (1) mistake, inadvertence, surprise, or excusable neglect (must be filed within reasonable time not > 1 year; (2) newly discovered evidence that would not have been discovered with due diligence in time for trial ( must be filed within reasonable time not > 1 year; (3) fraud, misrepresentation, or other misconduct of an adverse party (must be filed within a reasonable time, not > 1 year; (4) judgment is void (lots of discretion by judge - no time limit; (5) satisfied/released/discharged; (6) extraordinary circumstances (fraud on court /juror bribed)

Question 94

Injunctions - TRO

Answer 94

NCRCP 65(a) Must (1) show irreparable harm if not granted, and (2) provide bond. Interlocutory without automatic right of appeal.

Question 95

Injunctions - PRELIMINARY INJUNCTIONS

Answer 95

Must provide notice, its interlocutory without automatic right of appeal. Bond required and damages if dissolved.

Question 96

Injunctions - PERMANENT INJUNCTION

Answer 96

Automatic right of appeal.

Question 97

Claim and Issue Preclusion - CLAIM PRECLUSION (RES JUDICATA)

Answer 97

Claimant cannot re-litigate a COA that has been subject to a final judgment on its merits. Thus, to be precluded, (1) it was the same claim or a claim that could have been brought in the first action, (2) claim was ripe, (3) against same parties or party in privity, and (4) there was a final judgment on the merits which include default judgments, summary judgments, and dismissals with prejudice.

Question 98

Claim and Issue Preclusion - ISSUE PRECLUSION (COLLATERAL ESTOPPEL)

Answer 98

Claimant cannot re-litigate the same issue of fact in an earlier case that was actually and necessarily litigated against the same party or party in privity. Thus, to be precluded, it must be (1) the same issue of fact (not the same legal claim), (2) that was actually litigated (not default judgment), (3) necessarily litigated (same factual issue reached in earlier case), and (4) the party was estopped from re-litigating the issue is the same party that lost the issue in the first case.