State v. Briggs (Lawyers Weekly No. 011-292-16, 9 pp.) (Lucy Inman, J.) Appealed from Union County Superior Court (Christopher Bragg & W. David Lee, JJ.) N.C. App. Holding: Even if the trial court was merely correcting a mistake in defendant’s ...

Tagged with: Amendment

A provision in the North Carolina Rules of Civil Procedure that allows litigants to amend a pleading “once as a matter of course” means only once in the whole life of the litigation, not once after each new response by ...

Tagged with: Amendment

Raether v. GCO Energy Corp Although the trial court found that there was no meeting of the minds between the parties to form a valid lease, the evidence shows that there was a landlord/tenant relationship between the parties. Therefore, summary ejectment was an available remedy.

Tagged with: Amendment Commercial Lease Landlord/Tenant

Taddei v. Village Creek Property Owners Association, Inc. Even though one paragraph of the subdivision’s restrictive covenants only allows the declarant, or its successors or assigns, to amend the covenants in order to bring them into compliance with town ordinances, another paragraph of the covenants allows a majority of property owners to amend the covenants before they are renewed every 10 years. The defendant-homeowners’ association followed the latter paragraph’s requirements to amend the covenants.

Tagged with: Amendment Breach of Fiduciary Duty Claim Real Property restrictive covenants Tort/Negligence

Kearney v. Barker Plaintiff made it clear that his original complaint was intended to sue only the father, Phillip Junior Barker, and not the son, Phillip Renard Barker. After the statute of limitations had run, plaintiff filed an amended complaint adding the son as a defendant.

Tagged with: Amendment Breach of Contract Civil Practice pleadings Relation Back Statute of Limitations

Robinson v. Smith Defendants had not filed a responsive pleading when plaintiffs filed their amended complaint; therefore, N.C. R. Civ. P. 20 (permissive joinder) and 21 (misjoinder and nonjoinder) do not apply, despite the fact that the amended complaint named additional defendants.

Tagged with: Amendment Civil Practice Insurance pleadings sovereign immunity

Estate of Livesay v. Livesay Forty-two days after the complaint and summonses had been issued - but before any responsive pleadings had been filed - plaintiff’s counsel discovered that the complaint had not been signed or verified. Counsel quickly filed an amended, signed complaint. Pursuant to N.C. R. Civ. P. 11 and 15, the trial court had subject matter jurisdiction over the complaint.

Tagged with: Amendment Civil Practice first impression pleadings Relation Back rule 11

Taddei v. Village Creek Property Owners Association, Inc. Even though paragraph 33 of the Village Creek restrictive covenants says the covenants can only be amended to bring them into conformity with town ordinances or actions, paragraph 3 says the covenants are effective for 20 years with automatic 10-year renewals and that the covenants can be amended before any term. The covenants were properly amended pursuant to paragraph 3.

Tagged with: Amendment fiduciary duty Real Property restrictive covenants

Bowers v. TempleIn a prior lawsuit, the court struck down an amendment to a condominium declaration because it was not properly recorded. Even though the court went on to opine that unanimous consent by owners was required to amend the declaration and to delineate the amendment’s effect on owners’ rights, these statements were not material, relevant, necessary or essential to the judgment, so they do not collaterally estop the litigation of these issues in the present lawsuit.

Tagged with: Amendment Civil Practice Real Property Res Judicata & Collateral Estoppel

Treadway v. Diez The Court of Appeals upheld the trial court’s grant of plaintiff’s motion to amend her complaint to name the sheriff as a defendant in place of the originally-named defendant, the sheriff’s department. We reverse for the reasons stated in Judge Jackson’s dissent: The amendment at issue constitutes more than a simple correction of a misnomer. Plaintiff sought to substitute a new party-defendant over whom she could obtain jurisdiction - the sheriff — in place of an entity that is not subject to suit - the sheriff’s department.

Tagged with: Amendment Civil Practice pleadings