Civil Procedure: What is it?
By: Corey Brandenburg – North Carolina Licensed Associate
with Brownlee Whitlow & Praet
What is it Civil Procedure?
Civil procedure refers to the set of rules that govern most non-criminal disputes in the judicial system. Importantly, Housing Providers must adhere to these rules of process when summoned to Court or when summoning a third party to Court. Failure to comply with the rules of Civil Procedure can have a significant negative impact on your case and, therefore, knowledge of the rules is critical before commencing litigation. Civil procedure, broadly, breaks down into four phases: Pleadings, Discovery, Trial, and Post-trial.
Pleadings
Pleadings are the initial documents filed with the court that set forth the facts of a case, legal causes of action, defenses, and claims for relief. Primarily, pleadings consist of the Complaint and Answer. The Complaint is the lawsuit itself. The Complaint sets forth the Plaintiff’s legal claim or claims against a Defendant and the relief requested. With respect to an eviction, the Administrative Office of the Courts provides a standard Complaint for Summary Ejectment actions in North Carolina, and they are relatively simple to complete. The following link brings you to the Small Claims Complaint form on the North Carolina Administrative Office of the Courts website. The Answer sets forth the Defendant’s response to the Complaint, often including defenses to the allegations in the Complaint and, in certain instances, Counterclaims. In North Carolina, an Answer is not mandated in Summary Ejectment (eviction) cases because they are initiated in the Small Claims Division of the Courts. Small Claims Courts do not require written Answers. However, if filed in District Court, the rules of Civil Procedure require a written Answer to a Complaint within thirty days of being served with the lawsuit. N.C.G.S. § 1A-1 R. 12 (a)(1).
Service
Service refers to the requirement that a Defendant to a lawsuit be notified that they have been sued through receipt of a copy of the summons and complaint. The summons itself notifies a Defendant that they have been sued, apprises them of their right to defend the lawsuit, and notifies them of the date, time, and place of their court date, if the case is initiated in Small Claims Court. Otherwise, the Summons will inform the recipient that they have thirty (30) days to respond to the allegations contained within the Complaint. Generally, service must be affected through personally delivering a copy of the summons and complaint upon the Defendant, leaving a copy at the Defendant’s residence with someone of suitable age and discretion, or delivering to an authorized agent if the Defendant is a business entity. N.C.G.S. § 1A-1 R. 4 (j)(6). Importantly, Summary Ejectment actions in North Carolina may be served in a non-traditional manner. The Court inherently possesses In Rem Jurisdiction in Summary Ejectment actions because the basis of the dispute is the right to possess Real Property that is otherwise permanently affixed within the court’s jurisdiction. Pursuant to N.C.G.S. § 42-29, service in a Summary Ejectment action may be effectuated by posting the Complaint to the Defendant’s residence at least two days before the scheduled hearing. Posting the Complaint and Summons to the door of a Defendant in a Summary Ejectment case constitutes legally valid service and is ultimately a much lower service requirement than what is traditionally required under Rule 4 of Civil Procedure.
Consequential to service of a lawsuit that does not comport with the above exposes the litigant to the dismissal of the claims against the Defendant outright. Alternatively, if valid service is not achieved, the Plaintiff must issue a second summons, otherwise called an Alias and Pluries Summons, to obtain valid service before a hearing. Generally, the lax service requirement in Summary Ejectment actions, by virtue of the posting and two days’ notice requirements, permits most summary ejectment cases to be heard on the first setting of a case.
Discovery
Discovery is the phase of a lawsuit, after the Pleadings have closed, where parties have the opportunity to gather facts to support their claims and defenses at trial. Generally, parties will issue Interrogatories, Requests for Admission, Requests for Production of Documents, and take Depositions to build their case before trial. An introduction to each is provided below:
Interrogatories are written requests to an opposing party to gather information about evidence, witnesses, and documents before trial. N.C.G.S. § 1A-1 R. 33 is the reference to the law governing Interrogatories. Below is an example of an Interrogatory.
“Identify each person answering these interrogatories. In addition to the information requested in the definition herein, state the date of birth, employment title and length of employment of each person answering these interrogatories. If the answer is the combined response of more than one person, identify all persons who contribute information to the answer.”
Requests for Admissions are sworn discovery requests mandating the opposing party admit or deny specific facts with the goal of narrowing the issues for trial. N.C.G.S. § 1A-1 R. 36 is the reference to the law governing Requests for Admissions. Below is an example of a Request for Admission.
“Admit that the documents that you have produced in response to the above Requests for Production of Documents are authentic.”
Request for Production of Documents refer to a party’s formal request for any and all documentary evidence that could be used at trial. In a Summary Ejectment case, documents requested would usually include the lease, ledger, and notices issued to a Defendant. N.C.G.S. § 1A-1 R. 34 is the reference to the law governing Requests for Production of Documents. Below is an example of document request.
Documents to be Produced
“All documents identified by Plaintiff in its responses to Defendant’s First Set of Interrogatories.”
Depositions are formal, out-of-court statements provided by the deponent in a case, usually a party to a case or someone with personal knowledge. N.C.G.S. § 1A-1 R. 30, 31 is the reference to the law governing depositions. Below is an example of a deposition question.
“Please state your full name and address for the record.”
Failure to disclose what is requested in Discovery can lead to significant penalties called sanctions. You must always answer discovery requests completely and honestly or risk the opposing party filing a motion to compel.
A motion to compel is a request by a party to the lawsuit for the court to opine on the sufficiency of the opposing parties discovery responses. If the court finds that the responding party did not give sufficient responses, was being evasive in their responses, or otherwise provided too little information, the court can sanction the responding party. Typical sanctions look like monetary awards or attorney’s fees for the moving party, or, in severe cases, the court can limit the evidence a party may present at trial, strike pleadings, or enter default judgment against the sanctioned party.
Trial
After Discovery is issued, judges may require a Pretrial Conference before trial to ensure all necessary discovery has been exchanged and ensure the case is proceeding as needed. Typically, a Pretrial Conference is not necessary or required in a Summary Ejectment matter unless the case has made its way to the District Court on Appeal, and even then, it is rare. Those are more common in lawsuits that are initiated at the District Court or Superior Court level.
At a trial of the action, parties will give opening and closing statements to the court and have an opportunity to present both documentary and testimonial evidence through the examination of witnesses. This is the part of litigation where you bring everything together and make your case. Two forms of trial exist: jury trials and bench trials. Jury trials permit a claimant to have their case heard by a pool of their peers under the Seventh Amendment, where the jury determines the outcome of the action. A bench trial is heard before a judge, where the judge ultimately decides the case. Summary Ejectment cases are inherently heard by a magistrate judge in Small Claims Court, and claimants have no right to a jury trial. However, upon appealing the magistrate’s judgment, parties can then demand a jury trial.
Post-trial/Appeal
Generally, after a final judgment is rendered in District or Superior Court, parties have thirty days to appeal to the Court of Appeals. Alternatively, parties in a Summary Ejectment action are entitled to appeal as a matter of right, similar to in District and Superior Court, but must do so within 10 days of the entry of the judgment, and the appeal will be heard at the District Court level, “De Novo” or as a new trial by a District Court Judge.
This is a brief summation of what can generally be referred to as the “lifecycle of litigation.” Of course, components within each category can become more complex. But usually, for simple nonpayment summary ejectment cases, the above is a great place for housing providers to start learning the basics of Civil Procedure and court processes.
*The information provided in this article does not, and is not intended to, constitute legal advice; instead, all information in this article is for general informational purposes only. Information in this article may not constitute the most up-to-date legal or other information. Viewers of this material should contact their attorney to obtain advice with respect to any particular legal matter. No viewer of this material should act or refrain from acting on the basis of information in this presentation without first seeking legal advice from counsel in the relevant jurisdiction. Only your individual attorney can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation. Use of, and access to, this article does not create an attorney-client relationship between the reader and Brownlee Whitlow & Praet, PLLC or any contributing law firms. All liability with respect to actions taken or not taken based on the contents of this article are hereby expressly disclaimed.