Articles in the Civil Procedure-General category - Page 3 of 7

To end the week, I’ll point out three recent Court of Appeals opinions that remind us that a Rule 59 (“new trial”) motion will not toll an appeal period if the motion does not actually seek proper Rule 59 relief.  If, for example, the motion does not provide proper notice of the grounds for relief, or if it is being used merely as a general “motion for reconsideration,” it may not be considered “proper.”  As I’ve discussed in previous posts (here and here), North Carolina Rule of Civil Procedure 59 permits a trial judge to order a new trial (or, through Rule 59(e), amendment of judgment) for a number of reasons, including prejudicial irregularity, jury misconduct, newly-discovered evidence, insufficient evidence to justify the verdict, prejudicial error of law, and other bases.  A proper Rule 59 motion tolls the period for appeal of the underlying judgment. N.C. R. App. P. 3(c)(3); G.S. 1-279.1.  But if a court determines that Rule 59 was not the appropriate vehicle for remedy sought, the appeal period will not have been tolled. These three recent published opinions are our newest examples of this outcome:

Earlier this month the North Carolina Supreme Court issued its opinion in Vaughan v. Mashburn, an important case interpreting Rule 9(j), the special pleadings rule for medical malpractice actions.

Rule 9(j) of the North Carolina Rules of Civil Procedure requires plaintiffs filing medical malpractice complaints to include a specific allegation that the medical care and medical records have been reviewed by an expert who meets certain qualifications and who is willing to testify that there was a breach of the standard of care.  If a plaintiff fails to include the Rule 9(j) language, the complaint “shall be dismissed.”  This special pleading requirement does not apply to other types of malpractice or to ordinary negligence actions. The original aim of the rule was to reduce frivolous med mal litigation; but, as I have noted in the past, in its short life it has generated well over 100 published appellate opinions as courts have grappled with its undefined provisions, reconciled it with other procedural rules, and tried to determine when it does and does not apply.

Vaughan, the latest such case, centers on whether a party can invoke Rule of Civil Procedure 15 to amend defective language in a Rule 9(j) certification.  Before filing her action, Ms. Vaughan had timely obtained the required expert review of her medical care and medical records.  When her attorney filed the complaint, he included a Rule 9(j) certification, but it was defective in the following sense: it certified that the medical care had been reviewed, but it failed to also state that the medical records had been reviewed.  The medical “records” language had been added to Rule 9(j) in 2011, and the attorney erroneously included the pre-2011 language.  Soon after the complaint was filed, the original statute of limitations expired.  When the mistake in the Rule 9(j) certification was revealed, Ms. Vaughan’s counsel moved to amend the complaint to add the omitted phrase.  Following existing Court of Appeals precedent, the superior court denied the motion to amend as “futile” because, even if granted, the Rule 9(j) certification could not be properly made prior to expiration of the statute of limitations.  Based on its prior decisions (Fintchre (2016); Alston (2016); and Keith (1998)), the Court of Appeals affirmed.

It is not uncommon for third parties to assert rights or claims against parents litigating child custody and child support. For example, grandparents frequently want the court to grant them visitation rights as part of a custody order resolving a dispute between the child’s mother and father. Similarly, the IV-D child support enforcement agency or a non-parent who has been caring for a child often need to assert rights or claims in child support cases pending between the child’s parents.

Before these people can assert claims or rights in an existing case, they must become parties to the case through the process of intervention.

READ POST "Intervention in Custody and Child Support Cases (May 16, 2018)"

Rule 9(j)’s special pleading requirement Rule 9(j) of the North Carolina Rules of Civil Procedure requires plaintiffs filing medical malpractice complaints to include a specific allegation not required in other […]

Earlier this month the North Carolina Supreme Court issued its opinion in King v. Albemarle Hospital Authority, holding that a GAL appointment starts the running of the statute of limitations […]

Imagine this scenario: Judge A had a busy civil calendar before leaving for vacation.  Although all the hearings are complete, the judge did not make rulings on some issues.  As […]

In lawsuits against units of local government, the general rule is that the trial court must throw out the plaintiff’s claims if the unit raises the defense of governmental immunity and the complaint fails to allege a waiver of that immunity.  This blog post looks at how detailed a waiver allegation must be for a complaint to survive an assertion of governmental immunity.

The Concept of Waiver

As I’ve explained in prior blog posts (here, here, and here), the defense of governmental immunity protects cities, counties, and other units of local government from civil liability for negligence and other claims – though not constitutional claims – that arise from the performance of governmental functions.  The courts have recognized that a unit may waive this immunity through any of the three actions described in the next section.  Essentially, by acting in any of those ways, a unit consents to be sued for any civil claims that fall within the scope of the waiver.

Temporary orders are very common in domestic cases; ex parte domestic violence protective orders, temporary custody and child support orders, and orders for postseparation support are some examples. What happens to these temporary orders when plaintiff takes a voluntary dismissal of the underlying claim? Does the temporary order remain in effect until the court affirmatively sets it aside or does a voluntary dismissal automatically terminate all temporary orders? Do findings or conclusions made in the temporary orders have any impact on claims brought after the dismissal?

READ POST "What Happens to Temporary Orders When a Case is Dismissed? (October 20, 2017)"

Contracts often include agreements stating how litigation will be handled in the event the parties have a dispute.  These agreements sometimes include “choice of law” and “forum selection” provisions.  In a choice of law provision, the parties specify that the contract will be interpreted according to the law of a particular state.  In a forum selection clause, the parties specify the State—and sometimes the specific county—in which disputes will be filed.

These provisions generally are valid in North Carolina, but our courts have declined to enforce them in some specific circumstances.  This summer the General Assembly created a new Chapter 1G that attempts to remove these limits when parties choose North Carolina as the forum state and North Carolina law as the applicable law.  The new legislation only affects provisions included in business contracts.  It defines a “business contract” as “a contract or undertaking, contingent or otherwise, entered into primarily for business or commercial purposes,” and it explicitly excludes “employment contracts” and “consumer contracts.” See 1G-2(1), -5(1).  Chapter 1G became effective June 26, 2017 and it applies to business contracts entered into before, on, or after that date.  These are the main effects of Chapter 1G:

As every North Carolina litigator should know, Rule 11 of the Rules of Civil Procedure states that, by signing a pleading or “other paper” (motion, subpoena, etc.) related to the litigation, the attorney certifies that,

to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

If an opposing party decides that the paper violates one more of these requirements—legal sufficiency, factual sufficiency, or proper purpose—that party can move the court to impose “an appropriate sanction,” which may include attorney fees and other expenses.  Rule 11 does not, however, set a time limit for filing a Rule 11 motion.  So when is it too late?  I have been asked this question (or similar ones) a few times in recent months.  The short answer, of course, is that it depends on the facts.  But  I thought I would share the parameters I have observed from reviewing the case law: