Trial court judgments in bench trials must contain findings of fact and conclusions of law. Orders disposing of motions, on the other hand, normally only need findings and conclusions if a party requests that the trial court make them. There are some situations, however, where a trial court should not make findings of fact in an order, even if a party requests them. This is because of the trial court’s particular role in those specific proceedings and the possibility for meaningful appellate review of the trial court’s orders without the inclusion of findings and conclusions. This post explores this exception-to-an-exception regarding findings and conclusions for certain dispositive motions.Continue Reading
UPDATE: On March 26, 2019, the NC Court of Appeals in Gray v. Federal National Mortgage Association interpreted Lucks and held while the doctrine of collateral estoppel does not apply to an order not authorizing a non-judicial foreclosure sale, it does apply to an order authorizing a sale.
On December 21, 2016, the North Carolina Supreme Court published a final set of opinions for the year. Without a doubt, one case in particular stopped me in my tracks. The case, In re Foreclosure of Lucks, will have a significant impact on G.S. Chapter 45 power of sale foreclosures going forward. ____ N.C. ____ (Dec. 21, 2016). Here’s both the general and the specific about what the court had to say. Continue Reading
*This post was amended on January 29, 2016 to add Rule 45 (subpoena) and on February 22, 2017 to specifically reference Rule 12(b)(3)
Have you ever felt like you’re playing a game of one potato, two potato when figuring out if a Rule of Civil Procedure applies to your abuse, neglect, dependency, or termination of parental rights action? Let me provide you with a guide instead. Continue Reading