November 9, 2021

The Supreme Court of North Carolina Adopts New Amendments to the North Carolina Rules of Appellate Procedure

Written by Christina J. Banfield

On October 13, 2021, the Supreme Court of North Carolina adopted amendments to the North Carolina Rules of Appellate Procedure, which govern the appellate process for both the North Carolina Court of Appeals and the Supreme Court of North Carolina. 

Namely, the amendments make changes to the rules related to the record on appeal, electronic filing, oral argument, and motion practice, among other things.  These amendments reflect the upcoming shift in the North Carolina Juridical Branch to electronic filing in the trial division of the court system, and new procedures adopted in light of COVID-19.

Notably, subsection (a) of Rule 26, which governs filing and service, was struck in its entirety and replaced with a new subsection (a).  Essentially, Rule 26(a) not mandates that counsel for parties must file documents with the appellate courts electronically. Only a technical failure will suffice to permit counsel to submit documents via facsimile, hand delivery, or mail.  Additionally, unrepresented parties are encouraged to file electronically, if able.  Rule 26(a) makes clear that a document is filed when it is received by the electronic filing site, or when the clerk of the court receives the document if it is filed in paper; however, if documents are filed by mail, then such documents are deemed filed on the date of mailing.

Additionally, subsection (d) to Rule 30, which previously governed the submission of cases upon written briefs, was struck in its entirety and replaced with a new subsection (d) entitled “Argument Conducted by Audio and Video Transmission.”  Rule 30(d) now sets forth that the appellate courts, at their discretion, may require oral argument to be conducted by audio and video transmission, rather than in person.  The content of the prior Rule 30(d) was kept and amended to Rule 30(f)(3).

Rule 37, which governs motion practice in the appellate courts, now includes a subsection (c) relating to notification and consent for motions.  This new Rule 37(c) states that in cases where all parties are represented by counsel, motions must include a statement reporting counsel’s good-faith effort to inform counsel for all other parties of the intended motion.  The statement must also indicate whether the other parties consent to the relief sough in the motion, and whether any other party intends to file a response to the motion.

All of the amendments to the North Carolina Rules of Appellate Procedure as adopted by the Supreme Court of North Carolina on October 13, 2021 will apply to appeals filed on or after January 1, 2022.


October 18, 2021

North Carolina Court of Appeals Affirms Doctrine of Governmental Immunity for Public Officials in Correctional Facility Healthcare Services Context

On October 5, 2021, the North Carolina Court of Appeals issued an opinion in the matter of Butterfield v. Gray, No. COA20-218, 2021, and reversed a trial court’s denial of summary judgment against Wilson County and employees of the Wilson County Sheriff’s departments’ claims of governmental immunity.  The Butterfield case involved an inmate, Todd Caveness, who was arrested and detained at the Wilson County Detention Center in 2016.  Plaintiffs, co-Administrators of the Estate of Mr. Caveness, instituted an action against the Wilson County Sheriff and two Sheriff’s Deputies (“Sheriff Defendants”) alleging negligence and liability of Wilson County, wanton conduct, and violation of Mr. Caveness’ constitutional rights. The Sheriff Defendants subsequently moved for summary judgment as to Plaintiffs’ claims arguing that governmental immunity barred the claims against them in their official capacities. 

Reversing the trial court’s order denying the Sheriff Defendants’ motion for summary judgment, the Court of Appeals held that sheriffs and sheriff’s deputies are deemed public officials and may avail themselves to the doctrine of governmental immunity.  Governmental immunity will apply to public officials in the broad operation of a detention center and its provision of medical services in a detention center as a governmental function.  The Court also reviewed several bases for potential waiver of governmental immunity, including purchase of liability insurance and the purchase of a Sheriff’s Bond.  Ultimately the Court held that the Sheriff Defendants had not waived governmental immunity as to any claims for damages in excess of the amount of the Sheriff’s Bond.  The Court also affirmed the constitutionality of the doctrine of governmental immunity and reviewed the holdings of numerous cases setting precedent establishing the constitutionality of the doctrine of governmental immunity. 



As part of his 100 county tour of courthouses across the state, on October 1, 2021, the Chief Justice of the North Carolina Supreme Court, Paul Newby visited the Craven County Courthouse in New Bern.  Chief Justice Newby met with many lawyers, court officials, and other personnel at the Craven County Courthouse during his tour.  Chief Justice Newby spoke about the challenges facing court officials in the wake of the COVID-19 pandemic and expressed gratitude to the personnel working in the Craven County Courthouse for their hard work during this time. 


September 29, 2021


Effective October 1, 2021, a single judge will preside over medical malpractice lawsuits filed in Superior Court. S.L. 2021-47 (SB 255) amends G.S. 7A-47.3 to add a new subsection (e):

     (e) The senior resident superior court judge, in consultation with the parties to the case, shall designate a specific resident judge or a specific judge assigned to hold court in the district to preside over all proceedings in a case subjection to G.S. 90-21.11(2).

The Act provides that G.S. 7A-47.3(e) becomes effective on October 1, 2021 and will apply to pending medical malpractice actions, as well as newly filed actions. 

Under the statute, the Senior Resident Judge has two options for appointment: (1) a resident judge, or (2) a judge assigned to hold court in the district.  It is currently unclear whether a non-resident judge assigned to preside over a malpractice action may only hold hearings in the case while assigned to hold court in the district, or whether by virtue of the designation, he or she may hold hearings outside the district in which the case is pending.

As of now, our courts have not implemented a uniform approach governing how the parties will be consulted per the requirement of the statute, or as to how the assignment will take place.    However, this new statute may potentially have significant impact on how medical malpractice lawsuits are adjudicated and evaluated. 

S.L. 2021-47 (SB 255) also amends Rule 51 of the North Carolina Rules of Civil Procedure.  Specifically, subsection (d) is added:

     (d) Final instructions to the jury. – In civil cases subject to G.S. 90-21.11(2), the court shall reduce the oral instructions given to the jury to writing. Upon the jury retiring for deliberation, the court is encouraged to and may provide the jury a written copy of the oral instructions for the jury to take into the jury room during deliberation.

Thus, per new Rule 51(d), judges are encouraged but not required to provide the jury with a written copy of the oral instructions.  


August 1, 2021


Harris Creech attorney Jay Salsman has been appointed to the Board of Directors for the North Carolina Association of Defense Attorneys (NCADA).  Jay’s term on the Board runs through 2024.  Jay previously served as the Chair of the NCADA’s Medical Malpractice Practice Group.

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