1 / 14

W. Mark C. Weidemaier

Civil Update N.C. Association of District Court Judges Fall Conference – October 20, 2005 Boone, N.C. W. Mark C. Weidemaier. Costs:. Statute requires costs, e.g.: G.S. 6-18: Costs “as of course” to plaintiff G.S. 6-19: Costs “as of course” to defendant RCP 41(d): Voluntary dismissal

toyah
Download Presentation

W. Mark C. Weidemaier

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. Civil UpdateN.C. Association of District Court JudgesFall Conference – October 20, 2005Boone, N.C. W. Mark C. Weidemaier

  2. Costs: Statute requires costs, e.g.: G.S. 6-18: Costs “as of course” to plaintiff G.S. 6-19: Costs “as of course” to defendant RCP 41(d): Voluntary dismissal Statute permits costs, e.g.: G.S. 6-20: “In other actions, costs may be allowed or not, in the discretion of the court, unless otherwise provided by law.”

  3. Costs: 7A-305(d): witness, jail, and counsel fees, as provided by law expense of service by certified mail and publication Costs on appeal of original transcript if essential to appeal fees for personal service fees for court appointees (GALs, mediators, etc), incl. reasonable reimbursement for stenographers interpreter fees, when authorized and approved by court premiums for surety bonds for prosecution (G.S. 1-109) 7A-314 (a), (d): Expert witness under subpoena “shall receive such compensation and allowances as the court . . . in its discretion, may authorize.”

  4. Costs: 7A-305(e): This section does not affect liability “for costs as provided by law” 7A-320 (1983): 7A costs “complete and exclusive”; “in lieu of any other costs and fees”

  5. Costs: 2 lines of cases: reasonable and necessary costs expressly delineated Department of Transportation v. Charlotte Area Mfd. Housing, Inc., 160 N.C. App. 461 (2003): adopts “explicitly delineated” line

  6. Costs: Statute requires costs Statute permits costs Must awardcosts May awardcosts 7A-305 or other authority May awardcosts? May awardcosts? Commonlaw costs

  7. Costs: Department of Transportation v. Charlotte Area Mfd. Housing, Inc., 160 N.C. App. 461 (2003) Handex of the Carolinas, Inc. v. County of Haywood, 168 N.C. App. 1 (Jan. 2005) Cunningham v. Riley, __ N.C. App. __(Apr. 2005) Miller v. Forsyth Mem’l Hosp., ___N.C. App. __ (Sep. 2005) Oakes v. Wooten, __ N.C. App. __ (Oct. 2005) Morgan v. Steiner, __ N.C. App. __ (Oct. 2005)

  8. Costs: Where are we? If statute requires award of costs, court must award those set forth in 7A-305. If statute permits, but does not require, costs, court may award those set forth in 7A-305. It is unlikely that the court may award any additional costs that were not approved at common law before 1983. Split of authority as to costs (deposition costs) approved before 1983.

  9. Presumption of Service • Saliby v. Conners, ___ N.C. App. ___, 614 S.E.2d 416 (July 2005) • Return of service showing service by authorized officer = presumption of service • Return not to be set aside unless: • - evidence consists of more than a “single contradictory affidavit” or one witness’s contradictory testimony and • - evidence is clear and unequivocal.

  10. Rule 60(b) – Excusable Neglect • JMM Plumbing & Utilities, Inc. v. Basnight Constr. Co., Inc., __ N.C. App. ___, 609 S.E.2d 487 (2005) • Scoggins d/b/a Bull City Opry House, Inc. v. Jacobs, __ N.C. App. ___, 610 S.E.2d 428 (2005) • Must show: • - excusable neglect • - meritorious defense • Standard: must give defense “the attention a person of ordinary prudence usually gives his or her important business.”

  11. Rule 60(b) – Excusable Neglect Failure to obtain attorney – N Negligence of attorney – ? Reliance on other party’s assurances – ?

  12. Compulsory Counterclaim • Senate Bill 1029/S.L. 2005-423 • Amends G.S. 7A-219: “No counterclaim, cross claim or third‑party claim which would make the amount in controversy [over $5000] . . . is permissible in a small claim action assigned to a magistrate. No determination of fact or law in an assigned small claim action estops a party thereto in any subsequent action which, except for this section, might have been asserted under the Code of Civil Procedure as a counterclaim in the small claim action. Notwithstanding G.S. 1A‑1, Rule 13, failure by a defendant to file a counterclaim in a small claims action assigned to a magistrate, or failure by a defendant to appeal a judgment in a small claims action to district court, shall not bar such claims in a separate action.”

  13. Compulsory Counterclaim • Failure to plead bars later suit. • Compulsory counterclaim: • (1) exists when the responsive pleading is served • (2) arises out of same “transaction or occurrence” and • (3) does not require presence of third parties over whom the court cannot acquire jurisdiction. • Same “transaction or occurrence” – consider: • (1) issues of fact and law largely the same? • (2) substantially the same evidence bears on both claims? • (3) logical relationship exists between claims? • Jonesboro United Methodist Church v. Mullins-Sherman Architects, L.L.P., 359 N.C. 593 (2005)

  14. Summary Judgment Hubbard v. Fewell, __ N.C. App. __, 613 S.E.2d 58 (2005) Nonmovant can’t generate material issue of disputed fact by submitting only an affidavit contradicting prior sworn testimony.

More Related