GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1997

S	3 

SENATE BILL 1277*
Judiciary Committee Substitute Adopted 8/10/98
Third Edition Engrossed 9/16/98

Short Title:  Civil Procedure Rules Changes.	(Public)

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Sponsors:

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Referred to:  

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May 27, 1998

A BILL TO BE ENTITLED
AN ACT TO AMEND THE RULES OF CIVIL PROCEDURE AND TO STUDY CHANGES RELATIVE TO THE TORT CLAIMS ACT.
The General Assembly of North Carolina enacts:

SUMMONS ALIVE FOR 60 DAYS (RULE 4(c))
Section 1.  G.S. 1A-1, Rule 4(c) reads as rewritten:
"(c)	Summons – Return. – Personal service or substituted personal service of summons as prescribed by Rule 4(j)(1) a and b must be made within 60 days after the date of the issuance of summons.  When a summons has been served upon every party named in the summons, it shall be returned immediately to the clerk who issued it, with notation thereon of its service.
Failure to make service within the time allowed or failure to return a summons to the clerk after it has been served on every party named in the summons shall not invalidate the summons. If the summons is not served within the time allowed upon every party named in the summons, it shall be returned immediately upon the expiration of such time by the officer to the clerk of the court who issued it with notation thereon of its nonservice and the reasons therefor as to every such party not served, but failure to comply with this requirement shall not invalidate the summons."

SERVICE BY PRIVATE MAIL DELIVERY (RULE 4(j)) AND CONFORMING CHANGES TO PROOF OF SERVICE
Section 2. G.S. 1A-1, Rule 4(j) reads as rewritten:
"(j)	Process – Manner of service to exercise personal jurisdiction. – In any action commenced in a court of this State having jurisdiction of the subject matter and grounds for personal jurisdiction as provided in G.S. 1-75.4, the manner of service of process within or without the State shall be as follows:
(1)	Natural Person. – Except as provided in subsection (2) below, upon a natural person by one of the following:
a.	By delivering a copy of the summons and of the complaint to him or by leaving copies thereof at the defendant's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.
b.	By delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to be served or to accept service of process or by serving process upon such agent or the party in a manner specified by any statute.
c.	By mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to the party to be served, and delivering to the addressee.
d.	By depositing with a private delivery service a copy of the summons and complaint, addressed to the party to be served, delivering to the addressee, and obtaining a delivery receipt.
(2)	Natural Person under Disability. – Upon a natural person under disability by serving process in any manner prescribed in this section (j) for service upon a natural person and, in addition, where required by paragraph a or b below, upon a person therein designated.
a.	Where the person under disability is a minor, process shall be served separately in any manner prescribed for service upon a natural person upon a parent or guardian having custody of the child, or if there be none, upon any other person having the care and control of the child. If there is no parent, guardian, or other person having care and control of the child when service is made upon the child, then service of process must also be made upon a guardian ad litem who has been appointed pursuant to Rule 17.
b.	If the plaintiff actually knows that a person under disability is under guardianship of any kind, process shall be served separately upon his guardian in any manner applicable and appropriate under this section (j). If the plaintiff does not actually know that a guardian has been appointed when service is made upon a person known to him to be incompetent to have charge of his affairs, then service of process must be made upon a guardian ad litem who has been appointed pursuant to Rule 17.
(3)	The State. – Upon the State by personally delivering a copy of the summons and of the complaint to the Attorney General or to a deputy or assistant attorney general; by mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to the Attorney General or to a deputy or assistant attorney general; or by depositing with a private delivery service a copy of the summons and complaint, addressed to the Attorney General or to a deputy or assistant attorney general, delivering to the addressee, and obtaining a delivery receipt.
(4)	An Agency of the State. – 
a.	Upon an agency of the State by personally delivering a copy of the summons and of the complaint to the process agent appointed by the agency in the manner hereinafter provided; by mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to said process agent; or by depositing with a private delivery service a copy of the summons and complaint, addressed to the process agent, delivering to the addressee, and obtaining a delivery receipt.
b.	Every agency of the State shall appoint a process agent by filing with the Attorney General the name and address of an agent upon whom process may be served.
c.	If any agency of the State fails to comply with paragraph b above, then service upon such agency may be made by personally delivering a copy of the summons and of the complaint to the Attorney General or to a deputy or assistant attorney general; by mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to the Attorney General, or to a deputy or assistant attorney general; or by depositing with a private delivery service a copy of the summons and complaint, addressed to the Attorney General or to a deputy or assistant attorney general, delivering to the addressee, and obtaining a delivery receipt.
d.	For purposes of this rule, the term "agency of the State" includes every agency, institution, board, commission, bureau, department, division, council, member of Council of State, or officer of the State government of the State of North Carolina, but does not include counties, cities, towns, villages, other municipal corporations or political subdivisions of the State, county or city boards of education, other local public districts, units, or bodies of any kind, or private corporations created by act of the General Assembly.
(5)	Counties, Cities, Towns, Villages and Other Local Public Bodies. – 
a.	Upon a city, town, or village by personally delivering a copy of the summons and of the complaint to its mayor, city manager or clerk; by mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to its mayor, city manager or clerk; or by depositing with a private delivery service a copy of the summons and complaint, addressed to the mayor, city manager, or clerk,  delivering to the addressee, and obtaining a delivery receipt.
b.	Upon a county by personally delivering a copy of the summons and of the complaint to its county manager or to the chairman, clerk or any member of the board of commissioners for such county; by mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to its county manager or to the chairman, clerk, or any member of this board of commissioners for such county; or by depositing with a private delivery service a copy of the summons and complaint, addressed to the county manager or to the chairman, clerk, or any member of the board of commissioners of that county, delivering to the addressee, and obtaining a delivery receipt.
c.	Upon any other political subdivision of the State, any county or city board of education, or other local public district, unit, or body of any kind (i) by personally delivering a copy of the summons and of the complaint to an officer or director thereof, (ii) by personally delivering a copy of the summons and of the complaint to an agent or attorney-in-fact authorized by appointment or by statute to be served or to accept service in its behalf, (iii) by mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to the officer, director, agent, or attorney-in-fact as specified in (i) and (ii); or by depositing with a private delivery service a copy of the summons and complaint, addressed to the officer, director, agent, or attorney-in-fact as specified in (i) and (ii), delivering to the addressee, and obtaining a delivery receipt.
d.	In any case where none of the officials, officers or directors specified in paragraphs a, b and c can, after due diligence, be found in the State, and that fact appears by affidavit to the satisfaction of the court, or a judge thereof, such court or judge may grant an order that service upon the party sought to be served may be made by personally delivering a copy of the summons and of the complaint to the Attorney General or any deputy or assistant attorney general of the State of North Carolina; mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to the Attorney General or any deputy or assistant attorney general of the State of North Carolina; or by depositing with a private delivery service a copy of the summons and complaint, addressed to the Attorney General or any deputy or assistant attorney general of the State of North Carolina, delivering to the addressee, and obtaining a delivery receipt.
(6)	Domestic or Foreign Corporation. – Upon a domestic or foreign corporation:
a.	By delivering a copy of the summons and of the complaint to an officer, director, or managing agent of the corporation or by leaving copies thereof in the office of such officer, director, or managing agent with the person who is apparently in charge of the office; 
b.	By delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to be served or to accept service of process or by serving process upon such agent or the party in a manner specified by any statute;
c.	By mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to the officer, director or agent to be served as specified in paragraphs a. and b.; or
d.	By depositing with a private delivery service a copy of the summons and complaint, addressed to the officer, director, or agent to be served as specified in paragraphs a. and b., delivering to the addressee, and obtaining a delivery receipt.
(7)	Partnerships. – Upon a general or limited partnership:
a.	By delivering a copy of the summons and of the complaint to any general partner, or to any attorney-in-fact or agent authorized by appointment or by law to be served or to accept service of process in its behalf; by mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to any general partner, or to any attorney-in-fact or agent authorized by appointment or by law to be served or to accept service of process in its behalf; by depositing with a private delivery service a copy of the summons and complaint, addressed to any general partner or to any attorney-in-fact or agent authorized by appointment or by law to be served or to accept service of process in its behalf, delivering to the addressee, and obtaining a delivery receipt; or by leaving copies thereof in the office of such general partner, attorney-in-fact or agent with the person who is apparently in charge of the office.
b.	If relief is sought against a partner specifically, a copy of the summons and of the complaint must be served on such partner as provided in this section (j).
(8)	Other Unincorporated Associations and Their Officers. – Upon any unincorporated association, organization, or society other than a partnership:
a.	By delivering a copy of the summons and of the complaint to an officer, director, managing agent or member of the governing body of the unincorporated association, organization or society, or by leaving copies thereof in the office of such officer, director, managing agent or member of the governing body with the person who is apparently in charge of the office; 
b.	By delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to be served or to accept service of process or by serving process upon such agent or the party in a manner specified by any statute;
c.	By mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to the officer, director, agent or member of the governing body to be served as specified in paragraphs a. and b.; or
d.	By depositing with a private delivery service a copy of the summons and complaint, addressed to the officer, director, agent, or member of the governing body to be served as specified in paragraphs a. and b., delivering to the addressee, and obtaining a delivery receipt.
(9)	Service upon a foreign state or a political subdivision, agency, or instrumentality thereof shall be effected pursuant to 28 U.S.C. § 1608.
For purposes of this Rule, 'private delivery service' means a private delivery service that has been certified by the Administrative Office of the Courts for service of process pursuant to this Rule."
Section 2.1.  G.S. 1A-1, Rule 4(j1) reads as rewritten:
"(j1)	Service by publication on party that cannot otherwise be served. – A party that cannot with due diligence be served by personal delivery, registered or certified mail, or private delivery service may be served by publication. Except in actions involving jurisdiction in rem or quasi in rem as provided in section (k), service of process by publication shall consist of publishing a notice of service of process by publication once a week for three successive weeks in a newspaper that is qualified for legal advertising in accordance with G.S. 1-597 and G.S. 1-598 and circulated in the area where the party to be served is believed by the serving party to be located, or if there is no reliable information concerning the location of the party then in a newspaper circulated in the county where the action is pending. If the party's post-office address is known or can with reasonable diligence be ascertained, there shall be mailed to the party at or immediately prior to the first publication a copy of the notice of service of process by publication. The mailing may be omitted if the post-office address cannot be ascertained with reasonable diligence. Upon completion of such service there shall be filed with the court an affidavit showing the publication and mailing in accordance with the requirements of G.S. 1-75.10(2), the circumstances warranting the use of service by publication, and information, if any, regarding the location of the party served. 
The notice of service of process by publication shall (i)	designate the court in which the action has been commenced and the title of the action, which title may be indicated sufficiently by the name of the first plaintiff and the first defendant; (ii) be directed to the defendant sought to be served; (iii) state either that a pleading seeking relief against the person to be served has been filed or has been required to be filed therein not later than a date specified in the notice; (iv) state the nature of the relief being sought; (v) require the defendant being so served to make defense to such pleading within 40 days after a date stated in the notice, exclusive of such date, which date so stated shall be the date of the first publication of notice, or the date when the complaint is required to be filed, whichever is later, and notify the defendant that upon his failure to do so the party seeking service of process by publication will apply to the court for the relief sought; (vi) in cases of attachment, state the information required by G.S. 1-440.14; (vii) be subscribed by the party seeking service or his attorney and give the post-office address of such party or his attorney; and (viii) be substantially in the following form:
     NOTICE OF SERVICE OF PROCESS BY PUBLICATION
STATE OF NORTH CAROLINA _____________ COUNTY
                          In the _____________ Court
[Title of action or special proceeding] To [Person to be served]:
Take notice that a pleading seeking relief against you (has been filed) (is required to be filed not later than __________, ____) in the above-entitled (action) (special proceeding). The nature of the relief being sought is as follows:
(State nature).
You are required to make defense to such pleading not later than (__________,____) and upon your failure to do so the party seeking service against you will apply to the court for the relief sought.
This, the __________ day of __________, ____
                                 ___________ (Attorney) (Party)
                                 ____________ (Address)".
Section 2.2.  G.S. 1A-1, Rule 4(j2) reads as rewritten:
"(j2)	Proof of service. – Proof of service of process shall be as follows:
(1)	Personal Service. – Before judgment by default may be had on personal service, proof of service must be provided in accordance with the requirements of G.S. 1-75.10(1).
(2)	Registered or Certified Mail or Private Delivery Service. – Before judgment by default may be had on service by registered or certified mail or by private delivery service with delivery receipt, the serving party shall file an affidavit with the court showing proof of such service in accordance with the requirements of G.S. 1-75.10(4) or G.S. 1-75.10(5), as appropriate.  This affidavit together with the return or delivery receipt signed by the person who received the mail or delivery if not the addressee raises a presumption that the person who received the mail or delivery and signed the receipt was an agent of the addressee authorized by appointment or by law to be served or to accept service of process or was a person of suitable age and discretion residing in the addressee's dwelling house or usual place of abode. In the event the presumption described in the preceding sentence is rebutted by proof that the person who received the receipt at the addressee's dwelling house or usual place of abode was not a person of suitable age and discretion residing therein, the statute of limitation may not be pleaded as a defense if the action was initially commenced within the period of limitation and service of process is completed within 60 days from the date the service is declared invalid. Service shall be complete on the day the summons and complaint are delivered to the address.
(3)	Publication. – Before judgment by default may be had on service by publication, the serving party shall file an affidavit with the court showing the circumstances warranting the use of service by publication, information, if any, regarding the location of the party served which was used in determining the area in which service by publication was printed and proof of service in accordance with G.S. 1-75.10(2)."
Section 2.3. G.S. 1-75.10 reads as rewritten:
"§ 1-75.10.  Proof of service of summons, defendant appearing in action.
Where the defendant appears in the action and challenges the service of the summons upon him, proof of the service of process shall be as follows:
(1)	Personal Service or Substituted Personal Service. –
a.	If served by the sheriff of the county or the lawful process officer in this State where the defendant was found, by the officer's certificate thereof, showing place, time and manner of service; or
b.	If served by any other person, his affidavit thereof, showing place, time and manner of service; his qualifications to make service under Rule 4(a) or Rule 4(j3) of the Rules of Civil Procedure; that he knew the person served to be the party mentioned in the summons and delivered to and left with him a copy; and if the defendant was not personally served, he shall state in such affidavit when, where and with whom such copy was left. If such service is made outside this State, the proof thereof may in the alternative be made in accordance with the law of the place where such service is made.
(2)	Service of Publication. – In the case of publication, by the affidavit of the publisher or printer, or his foreman or  principal clerk, showing the same and specifying the date of the first and last publication, and an affidavit of mailing of a copy of the complaint or notice, as the case may require, made by the person who mailed the same.
(3)	Written Admission of Defendant. – The written admission of the defendant, whose signature or the subscription of whose name to such admission shall be presumptive evidence of genuineness.
(4)	Service by Registered or Certified Mail. – In the case of service by registered or certified mail, by affidavit of the  serving party averring:
a.	That a copy of the summons and complaint was deposited in the post office for mailing by registered or certified mail, return receipt requested;
b.	That it was in fact received as evidenced by the attached  registry receipt or other evidence satisfactory to the court of delivery to the addressee; and
c.	That the genuine receipt or other evidence of delivery is  attached.
(5)	Service by Private Delivery Service. – In the case of service by private delivery service, by affidavit of the serving party averring:
a.	That a copy of the summons and complaint was deposited with a private delivery service certified by the Administrative Office of the Courts, delivery receipt requested;
b.	That it was in fact received as evidenced by the attached delivery receipt or other evidence satisfactory to the court of delivery to the addressee; and
c.	That the genuine receipt or other evidence of delivery is attached."

SERVICE OF PLEADINGS AND PAPERS BY FAX (RULE 5(b))
Section 3.  G.S. 1A-1, Rule 5(b) reads as rewritten:
"(b)	Service – How made. – A pleading setting forth a counterclaim or cross claim shall be filed with the court and a copy thereof shall be served on the party against whom it is asserted or on his attorney of record. With respect to all pleadings subsequent to the original complaint and other papers required or permitted to be served, service with due return may be made in the manner provided for service and return of process in Rule 4 and may be made upon either the party or, unless service upon the party himself is ordered by the court, upon his attorney of record. With respect to such other pleadings and papers, service upon the attorney or upon a party may also be made by delivering a copy to him or by mailing it to him at his last known address or, if no address is known, by filing it with the clerk of court. Delivery of a copy within this rule means handing it to the attorney or to the party, leaving it at the attorney's office with a partner or employee, or by sending it to the attorney's office by telefacsimile between 9:00 a.m. and 5:00 p.m. Eastern Time on a regular business day.  If delivery by telefacsimile is outside the permitted times, service will be deemed to have been completed on the next business day.  Service by mail shall be complete upon deposit of the pleading or paper enclosed in a post-paid, properly addressed wrapper in a post office or official depository under the exclusive care and custody of the United States Postal Service."

SERVICE OF BRIEFS AND MEMORANDA (RULE 5(f))
Section 4.  G.S. 1A-1, Rule 5 is amended by adding the following new subsection:
	"( f) Service of Briefs and Memoranda. – Except by leave of court or consent of the parties, to be considered by the presiding judge, other than a magistrate, a brief or memorandum in support of a motion shall be served by the moving party upon the adverse party no later than the fifth business day preceding the scheduled hearing date on the motion and a brief or memorandum shall be served by the adverse party upon the moving party no later than the second business day prior to the scheduled hearing date on the motion."

MOTION STATED WITH PARTICULARITY (RULE 7(b))
Section 5.  G.S. 1A-1, Rule 7(b) reads as rewritten:" (b) Motions and other papers. –(1)	An application to the court for an order shall be by motion which, unless made during a hearing or trial or at a session  at which a cause is on the calendar for that session, shall be made in writing, shall state with reasonable particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.
(2)	The rules applicable to captions, signing, and other matters  of form of pleadings apply to all motions and other papers provided for by these rules.
(3)	A motion to transfer under G.S. 7A-258 shall comply with the directives therein specified but the relief thereby obtainable may also be sought in a responsive pleading pursuant to Rule 12(b)."

ATTORNEY'S EMPLOYEE NOT DISQUALIFIED FOR VIDEOTAPE DEPOSITION (RULE 28(c))
Section 6.  G.S. 1A-1, Rule 28(c) reads as rewritten:
"(c)	Disqualification for interest. – No deposition shall be taken before a person who is a relative or employee or attorney or counsel of any of the parties, or is a relative or employee of such attorney or counsel, or is financially interested in the action unless:
(1)	The parties agree otherwise by stipulation as provided in Rule 29; or
(2)	The deposition is taken by videotape in compliance with Rule 30(b)(4) and Rule 30(f), and the notice for the taking of the deposition states the name of the person before whom the deposition will be taken and that person's relationship, if any, to a party or a party's attorney."

DISCOVERY DISPUTES (RULE 37)
Section 7. G.S. 1A-1, Rule 37(a) reads as rewritten:
"(a)	Motion for order compelling discovery. – A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:
(1)	Appropriate Court. – An application for an order to a party or a deponent who is not a party may be made to a judge of the court in which the action is pending, or, on matters relating to a deposition where the deposition is being taken in this State, to a judge of the court in the county where the deposition is being taken, as defined by Rule 30(h).
(2)	Motion. – If a deponent fails to answer a question propounded or submitted under Rules 30 or 31, or a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a), or a party fails to answer an interrogatory submitted under Rule 33, or if a party, in response to a request for inspection submitted under Rule 34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action. When taking a deposition on oral examination, the proponent of the question shall complete the examination on all other matters before he adjourns the examination in order to apply for an order. If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to Rule 26(c).
(3)	Evasive or Incomplete Answer. – For purposes of this subdivision an evasive or incomplete answer is to be treated as a failure to answer.
(4)	Award of Expenses of Motion. – If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.
		If the motion is denied, the court shall, after opportunity for hearing, require the moving party to pay to the party or  deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.
		If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner."

DEFAULT JUDGMENT WITHOUT HEARING (RULE 55(b))
Section 8.  G.S. 1A-1, Rule 55(b) reads as rewritten:
"(b)	Judgment. – Judgment by default may be entered as follows:
(1)	By the Clerk. – When the plaintiff's claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the plaintiff and upon affidavit of the amount due shall enter judgment for that amount and costs against the defendant, if the defendant has been defaulted for failure to appear and if the defendant is not an infant or incompetent person. A verified pleading may be used in lieu of an affidavit when the pleading contains information sufficient to determine or compute the sum certain.
		In all cases wherein, pursuant to this rule, the clerk enters judgment by default upon a claim for debt which is secured by any pledge, mortgage, deed of trust or other contractual security in respect of which foreclosure may be had, or upon a claim to enforce a lien for unpaid taxes or assessments under G.S. 105-414, the clerk may likewise make all further orders required to consummate foreclosure in accordance with the procedure provided in Article 29A of Chapter 1 of the General Statutes, entitled "Judicial Sales."
(2)	By the Judge. –
a.	In all other cases the party entitled to a judgment by default shall apply to the judge therefor; but no judgment by default shall be entered against an infant or incompetent person unless represented in the action by a guardian ad litem or other such representative who has appeared therein. If the party against whom judgment by default is sought has appeared in the action, that party (or, if appearing by representative, the representative) shall be served with written notice of the application for judgment at least three days prior to the hearing on such application. If, in order to enable the judge to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to take an investigation of any other matter, the judge may conduct such hearings or order such references as the judge deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by the Constitution or by any statute of North Carolina. If the plaintiff seeks to establish paternity under Article 3 of Chapter 49 of the General Statutes and the defendant fails to appear, the judge shall enter judgment by default.
b.	A motion for judgment by default may be decided by the court without a hearing if:
1.	The motion specifically provides that the court may decide the motion for judgment by default without a hearing if the party against whom judgment is sought fails to serve a written response, stating the grounds for opposing the motion, within 30 days of service of the motion; and
2.	The party against whom judgment is sought fails to serve the response in accordance with this sub-subdivision."

ENHANCED NOTICE FOR TEMPORARY RESTRAINING ORDER (RULE 65(b))
Section 9.  G.S. 1A-1, Rule 65(b) reads as rewritten:
"(b)	Temporary restraining order; notice; hearing; duration. – A temporary restraining order may be granted without written or oral notice to the adverse party or that party's attorney only if (i) it clearly appears from specific facts shown by affidavit or by verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition, and (ii) the applicant's attorney certifies to the court in writing the efforts, if any, that have been made to give the notice and the reasons supporting the claim that notice should not be required.  Every temporary restraining order granted without notice shall be endorsed with the date and hour of issuance; shall be filed forthwith in the clerk's office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after entry, not to exceed 10 days, as the judge fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. In case a temporary restraining order is granted without notice and a motion for a preliminary injunction is made, it shall be set down for hearing at the earliest possible time and takes precedence over all matters except older matters of the same character; and when the motion comes on for hearing, the party who obtained the temporary restraining order shall proceed with a motion for a preliminary injunction, and, if he does not do so, the judge shall dissolve the temporary restraining order. On two days' notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the judge may prescribe, the adverse party may appear and move its dissolution or modification and in that event the judge shall proceed to hear and determine such motion as expeditiously as the ends of justice require. Damages may be awarded in an order for dissolution as provided in section (e)."

STUDY CHANGES RELATIVE TO THE TORT CLAIMS ACT
Section 10.  The Legislative Research Commission shall study the applicability of the public duty doctrine to the Tort Claims Act in light of North Carolina Supreme Court decisions in Stone v. NC Department of Labor, 347 NC 473 (1998), and Hunt v. NC Department of Labor, 348 NC 192 (1998), and shall study the application of uninsured and underinsured insurance coverage to claims made under the Tort Claims Act.  The Commission shall make recommendations to the General Assembly on whether or not changes are needed to the Tort Claims Act or the insurance laws to clarify when damages should be paid under the Tort Claims Act or under uninsured or underinsured insurance coverage, and if so, what those changes should be.  The Commission shall report to the 1999 Session of the 1999 General Assembly.

OFFICIAL COMMENTS
Section 11.  The Revisor of Statutes shall cause to be printed along with this act the following statement to the official Comment for G.S. 1A-1, Rule 5(b):
"To be considered by the presiding judge on a motion calendar for a Monday, for example, a brief or memorandum must be served by the close of business on the preceding Monday.  The rule does not require the filing of a brief or memorandum; it only governs instances in which a brief or memorandum is filed.  The rule would not preclude a party from providing the judge with copies of cases or statutes at the hearing."
This addition to the official Comment shall only be for annotation purposes and shall not be construed to be the law.

EFFECTIVE DATE
Section 12.  Sections 1 through 9 of this become effective January 1, 1999, and apply to actions filed on or after that date.  The remaining sections of this act are effective when they become law.