Articles in the Civil Procedure-General category - Page 4 of 7

Why it matters: Rule 9(j) very briefly.

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 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 before the underlying statute of limitations expires, the complaint “shall be dismissed.”  This special pleading requirement does not apply to other types of malpractice or to ordinary negligence actions.  Rule 9(j) was enacted as an attempt to curb frivolous medical malpractice claims.  But it has had the side effect of generating more than its fair share of appellate wrangling.  Since it was enacted in 1995, well over 100 published opinions have been issued interpreting its undefined provisions, reconciling it with other procedural rules, and determining when it does and does not apply.  [See an overview here.]   One group of those opinions has examined whether the complaint actually alleged a “medical malpractice action” in the first place, or whether it merely stated a claim for ordinary negligence.  If a claim is ordinary negligence, Rule 9(j) does not apply, even if the event occurred in a medical setting and the defendant was a “health care provider.”

Falling in a medical facility

Patient falls–either from standing or lying positions—have featured somewhat prominently in these cases.  Where the court has concluded that the fall involved a provider’s clinical assessment or judgment, the claims have been classified as medical malpractice.  See Sturgill v. Ashe Memorial Hospital, Inc., 186 N.C. App. 624 (2007) (failure to restrain fall-risk patient where restraints required medical order); Deal v. Frye Reg. Med. Ctr, 202 N.C. App. 584 (2010) (unpub’d) (failure to conduct requisite fall risk screening); see also Littlepaige v. US, 528 Fed Appx 289 (4th Cir. 2013) (unpub’d) (failure to secure patient who had been placed on “falls precaution”).

Before October 1, 1994, it was not always easy to tell if and/or when a court order or judgment had been entered. The law allowed entry of judgment based on an oral rendition by the judge in certain circumstances and it was not uncommon for disputes to arise over whether a proper notation of the rendition had been made upon the court record as required for an actual entry of judgment to occur. Because it generally is very important for parties and the court to know precisely when an order or judgment is entered and enforceable, Rule 58 of the Rules of Civil Procedure was amended effective October 1, 1994, to make the moment of entry of judgment more easily identifiable. According to Rule 58, “a judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court.” This means that since October 1, 1994, statements made by the judge from the bench are not enforceable orders or judgments and a judge is not required to enter a written order or judgment that conforms to any statement made from the bench.

READ POST "Rule 58 and Entry of Civil Judgments: Statements from the bench are not court orders (May 3, 2017)"

When must a civil order include specific findings of fact and conclusions of law?  Some types of orders must always include at least some findings; some orders need only include them if a party asks for them; and for other orders, findings of fact are inappropriate whether requested or not.  Rule 52 of the North Carolina Rules of Civil Procedure gives us the core rules, but exceptions and clarifications abound.  And, of course, some types of orders are governed by separate, more specific statutes.  Here are the fundamentals:

It is increasingly common that domestic relations cases in North Carolina involve defendants who reside outside of the United States. In child custody cases, especially cases that include a request for findings related to Special Immigrant Juvenile Status, it is increasingly common for plaintiff to allege that although she knows defendant lives in another country, she has been unable to find the actual location of defendant in that foreign country. Rule 4(j2) of the Rules of Civil Procedure allows service by publication when after using appropriate due diligence to locate a defendant, plaintiff is unable to find an address to use for personal service. Notice of service must be published in the area where plaintiff believes defendant to be located. If there is no “reliable information” as to defendant’s location, notice can be published in the area where the action is pending.

Does this same rule apply when defendant is known to be in another country?

In a prior post, I discussed whether North Carolina’s Rule of Civil Procedure 59—the “new trial” rule—could be used to seek relief from final judgments not resulting from a jury or non-jury trial.  That post focused on other types of final, appealable judgments, such as summary judgment orders and default judgments.  I concluded that North Carolina case law is not crystal clear on the question, but that the recent case of Bodie Island Beach Club Ass’n, Inc. v. Wray, 215 N.C. App. 283 (2011), indicates that filing Rule 59 motions for relief from these types of judgments could imperil an appeal.  Proper Rule 59 motions toll the appeal period for the underlying judgment pending disposition of the motion.  See N.C. R. App. P. 3(c)(3).  If the basis for the Rule 59 motion is not proper, the appeal period will not have been tolled.

Yesterday the Court of Appeals again addressed Rule 59’s applicability to orders other than trial judgments, but this time analyzed a pretrial, interlocutory order.  In Tetra Tech Tesoro, Inc. v. JAAAT Tech. Services, LLC, a construction dispute, a subcontractor sued a contractor for unpaid work.  The trial judge granted the subcontractor a preliminary injunction requiring the contractor

Depositions are primarily a discovery tool.  When it comes to trial, live witness testimony is “more desirable,” Investors Title Ins. Co. v. Herzig, 330 N.C. 681, 690 (1992), and Rule of Civil Procedure 43 states that, “[i]n all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules.”  In “sharply limited” circumstances, however, deposition testimony may be used at trial, Warren v. City of Asheville, 74 N.C. App. 402, 408 (1985), and Rule 32 of the North Carolina Rules of Civil Procedure sets out (most of) those circumstances.

Under Rule 32, deposition testimony may be used at trial if it meets three criteria:

• It is being used against a party who was present or represented at or had reasonable notice of the deposition;
• It falls within one of the categories in Rule 32(a)(1) through (a)(4); and
• It is admissible under the Rules of Evidence (applied as though the witness were present and testifying).

My post last week discussed the decision in Mannise v. Harrell that told us a Chapter 50B proceeding is an in personam proceeding that requires all three prongs of personal jurisdiction. That case also reminded us that a plaintiff has the burden of producing evidence, “direct or indirect,” to establish prima facie that personal jurisdiction exists when a defendant properly objects to personal jurisdiction. As illustrated in Mannise, many plaintiffs in 50B proceedings are not prepared to meet this burden.

READ POST "Domestic Violence: more on Mannise and personal jurisdiction (September 16, 2016)"

Nunc pro tunc is a phrase used in an order or judgment when the court wants the order or judgment to be effective as of a date in the past rather than on the date the judgment or order is entered into the court record. Black’s Law Dictionary defines the term “nunc pro tunc” to mean “now for then; [a term signifying] ‘a thing is now done which should have been done on the specified date.’” Recent cases from the North Carolina Court of Appeals have made it clear that nunc pro tunc is a tool available only in extremely limited circumstances.

What happens when a creditor gets a judgment against a debtor in Alabama (or another state) but then the judgment debtor moves to North Carolina, or the bulk of its property is in North Carolina?  Can the creditor can get its “foreign” (meaning out-of-state, not out-of-country) judgment enforced in North Carolina?  Yes, and typically the most efficient way is to follow the steps in North Carolina’s version of the Uniform Enforcement of Foreign Judgments Act (“UEFJA”), G.S. 1C-1703 through -1708.

If the creditor follows the UEFJA’s filing and notice requirements, the foreign judgment will be “docketed and indexed in the same manner as a judgment of this State.”  The creditor can seek enforcement of the judgment just as if it had originally been entered in North Carolina.  But the UEFJA further provides that the judgment “is subject to the same defenses as a judgment of this State[.]” G.S. 1C-1703(c).  To that end, before enforcement can begin, the judgment debtor has a 30-day window to file a motion for relief from (or notice of defenses to) the judgment.  G.S. 1C-1704(b).  The UEFJA goes on to state that the debtor can raise “any other ground for which relief from a judgment of this State would be allowed.” 1C-1705(a).

On the face of things, the UEFJA’s “same defenses” and “any other ground” language seems pretty broad and appears to open up all kinds of challenges.  But does it really mean all defenses that a debtor might raise to enforcement of a North Carolina judgment?  More pointedly, does every Rule 60(b) basis for “relief” from judgment apply?

It is not always clear when a court can exercise authority sua sponte, or to put it in English, on its own motion, without a party specifically requesting that the court act.  Last week, the court of appeals held that a trial court does not have the authority to change venue sua sponte. Unless a defendant files a timely motion requesting a change and establishes grounds for moving the case to another county, a plaintiff has the right to prosecute a civil case in the county of his or her own choosing.

READ POST "No Sua Sponte Change of Venue Allowed (August 26, 2016)"