N.C. Gen. Stat. § 36C-2-205
Commencement of proceedings, pleadings, consolidation, and joinder
Redline — June 1, 2021 → current.View current text →
Current — June 1, 2022
As of June 1, 2021
(1) Contested Proceedings. — Trust proceedings before the clerk of superior court brought against adverse parties shall be commenced as is prescribed for civil actions. Upon the filing of the petition or complaint, the clerk of superior court shall docket the cause as an estate matter. All parties not joined as petitioners shall be joined as respondents. The clerk of superior court shall issue the summons for the respondents. The clerk of superior court may order that additional persons be joined as respondents and shall issue the summons for the additional persons. The summons shall notify the respondents to appear and answer the petition within 10 days after its service upon the respondents. The summons shall comply with the requirements set forth in G.S. 1-394 for a special proceeding summons except that the clerk of superior court shall indicate on the summons by appropriate words that the summons is issued in an estate matter and not in a special proceeding or in a civil action and shall be served upon the respondents in accordance with Rule 4 of the Rules of Civil Procedure. After the time for responding to the petition or complaint has expired, any party or the clerk of superior court may give notice to all parties of a hearing.
(1) Contested Proceedings. — Trust proceedings before the clerk of superior court brought against adverse parties shall be commenced as is prescribed for civil actions. Upon the filing of the petition or complaint, the clerk of superior court shall docket the cause as an estate matter. All parties not joined as petitioners shall be joined as respondents. The clerk of superior court shall issue the summons for the respondents. The clerk of superior court may order that additional persons be joined as respondents and shall issue the summons for the additional persons. The summons shall notify the respondents to appear and answer the petition within 20 days after its service upon the respondents. The summons shall comply with the requirements set forth in G.S. 1-394 for a special proceeding summons except that the clerk of superior court shall indicate on the summons by appropriate words that the summons is issued in an estate matter and not in a special proceeding or in a civil action and shall be served upon the respondents in accordance with Rule 4 of the Rules of Civil Procedure. After the time for responding to the petition or complaint has expired, any party or the clerk of superior court may give notice to all parties of a hearing.
(2) Uncontested Proceedings. - Trust proceedings before the clerk of superior court in which all the parties join in the proceeding shall be commenced by the filing of a petition, setting forth the facts entitling the petitioners to relief and the nature of the relief demanded. In these proceedings, the clerk of superior court may hear and decide the petition summarily.
(2) Uncontested Proceedings. — Trust proceedings before the clerk of superior court in which all the parties join in the proceeding shall be commenced by the filing of a petition, setting forth the facts entitling the petitioners to relief and the nature of the relief demanded. In these proceedings, the clerk of superior court may hear and decide the petition summarily.
(3) Pleadings. - The petition or complaint filed in a trust proceeding before the clerk of superior court shall contain a short and plain statement of the claim which is sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions, intended to be proved showing that the pleaders entitled to relief, and a demand for judgment for the relief to which the pleader is entitled. Each averment of a pleading should be simple, concise, and direct. No technical forms of pleadings or motions are required. A party may set forth two or more statements of a claim or defense alternatively or hypothetically. The signature of an attorney or party constitutes a certificate by that attorney or party that (i) the attorney or party has read the pleading, motion, or other paper; (ii) to the best of the attorney's or party's knowledge, information, and belief formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and (iii) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. All pleadings shall be so construed as to do substantial justice.
(3) Pleadings. — The petition or complaint filed in a trust proceeding before the clerk of superior court shall contain a short and plain statement of the claim which is sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions, intended to be proved showing that the pleaders entitled to relief, and a demand for judgment for the relief to which the pleader is entitled. Each averment of a pleading should be simple, concise, and direct. No technical forms of pleadings or motions are required. A party may set forth two or more statements of a claim or defense alternatively or hypothetically. The signature of an attorney or party constitutes a certificate by that attorney or party that (i) the attorney or party has read the pleading, motion, or other paper; (ii) to the best of the attorney’s or party’s knowledge, information, and belief formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and (iii) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. All pleadings shall be so construed as to do substantial justice.
(4) Extensions of Time. - The clerk of superior court, for cause shown at any time in the clerk's discretion, with or without motion or notice, may enter an order enlarging the period of time within which an act is required or permitted by this Article, by any applicable Rules of Civil Procedure or by order of the court, if the request is made before the expiration of the period originally prescribed, but not to exceed 10 days, except to the extent that the court finds that justice requires that the time be enlarged for a period of greater than 10 days. Upon motion made after the expiration of the specified period, the clerk of superior court may permit the act where the failure to act was the result of excusable neglect. Notwithstanding any other provision of this subsection, the parties to a proceeding may enter into binding stipulations, without approval of the clerk of superior court, enlarging the time within which an act is required or permitted by this Article, by any applicable Rules of Civil Procedure or by order of the court, not to exceed 30 days.
(4) Extensions of Time. — The clerk of superior court, for cause shown at any time in the clerk’s discretion, with or without motion or notice, may enter an order enlarging the period of time within which an act is required or permitted by this Article, by any applicable Rules of Civil Procedure or by order of the court, if the request is made before the expiration of the period originally prescribed, but not to exceed 10 days, except to the extent that the court finds that justice requires that the time be enlarged for a period of greater than 10 days. Upon motion made after the expiration of the specified period, the clerk of superior court may permit the act where the failure to act was the result of excusable neglect. Notwithstanding any other provision of this subsection, the parties to a proceeding may enter into binding stipulations, without approval of the clerk of superior court, enlarging the time within which an act is required or permitted by this Article, by any applicable Rules of Civil Procedure or by order of the court, not to exceed 30 days.
(5) Rules of Civil Procedure. — Unless the clerk of superior court otherwise directs, G.S. 1A-1, Rules 4, 5, 6(a), 6(d), 6(e), 18, 19, 20, 21, 24, 45, 56, and 65 of the Rules of Civil Procedure shall apply to trust proceedings. Upon motion of a party or the clerk of superior court, the clerk may further direct that any or all of the remaining Rules of Civil Procedure, shall apply, including, without limitation, discovery rules; however, nothing in Rule 17 requires the appointment of a guardian ad litem for a party represented except as provided under G.S. 36C-2-206. In applying these Rules to a trust proceeding pending before the clerk of superior court, the term “judge” shall be construed as “clerk of superior court."
(5) Rules of Civil Procedure. — Unless the clerk of superior court otherwise directs, G.S. 1A-1, Rules 4, 5, 6(a), 6(d), 6(e), 18, 19, 20, 21, 24, 45, 52(b), 56, 58, 59, and 65 of the Rules of Civil Procedure shall apply to trust proceedings. Upon motion of a party or the clerk of superior court, the clerk may further direct that any or all of the remaining Rules of Civil Procedure, shall apply, including, without limitation, discovery rules; however, nothing in Rule 17 requires the appointment of a guardian ad litem for a party represented except as provided under G.S. 36C-2-206. In applying these Rules to a trust proceeding pending before the clerk of superior court, the term “judge” shall be construed as “clerk of superior court.
(6) Consolidation. - When a trust proceeding pending before the clerk of superior court and a civil action pending before the superior court division of the General Court of Justice involve a common question of law or fact, upon the court's motion or motion of a party to either the trust proceeding or the civil action, a superior court judge may order a consolidation of the trust proceeding and civil action, and the judge may make orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. Upon the entry of an order consolidating a trust proceeding and civil action, the jurisdiction for all matters pending in both the trust proceeding and the civil action shall be vested in the superior court.
(6) Consolidation. — When a trust proceeding pending before the clerk of superior court and a civil action pending before the superior court division of the General Court of Justice involve a common question of law or fact, upon the court’s motion or motion of a party to either the trust proceeding or the civil action, a superior court judge may order a consolidation of the trust proceeding and civil action, and the judge may make orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. Upon the entry of an order consolidating a trust proceeding and civil action, the jurisdiction for all matters pending in both the trust proceeding and the civil action shall be vested in the superior court.
(7) Joinder. — In any civil action pending before a superior court division of the General Court of Justice, a party asserting a claim for relief as an original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal or equitable, as that party has against an opposing party notwithstanding the fact that the claims may otherwise be within the exclusive jurisdiction of the clerk of superior court.
(7) Joinder. — In any civil action pending before a superior court division of the General Court of Justice, a party asserting a claim for relief as an original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal or equitable, as that party has against an opposing party notwithstanding the fact that the claims may otherwise be within the exclusive jurisdiction of the clerk of superior court. (g1) Notice of Transfer. — A notice to transfer a trust proceeding brought pursuant to G.S. 36C-2-203(a)(9) must be served within 30 days after the moving party is served with a copy of the pleading requesting relief pursuant to G.S. 36C-2-203(a)(9). Failure to timely serve a notice of transfer of a trust proceeding is a waiver of any objection to the clerk of superior court’s exercise of jurisdiction over the trust proceeding then pending before the clerk. When a notice of transfer is duly served and filed, the clerk shall transfer the proceeding to the appropriate court. The proceeding after the transfer is subject to the provisions of the General Statutes and to the rules that apply to actions initially filed in the court to which the proceeding was transferred.
(8) Notice of Transfer. - A notice to transfer a trust proceeding brought pursuant to G.S. 36C-2-203(a)(9) must be served within 30 days after the moving party is served with a copy of the pleading requesting relief pursuant to G.S. 36C-2-203(a)(9). Failure to timely serve a notice of transfer of a trust proceeding is a waiver of any objection to the clerk of superior court's exercise of jurisdiction over the trust proceeding then pending before the clerk. When a notice of transfer is duly served and filed, the clerk shall transfer the proceeding to the appropriate court. The proceeding after the transfer is subject to the provisions of the General Statutes and to the rules that apply to actions initially filed in the court to which the proceeding was transferred.
(8) Orders Upon Consolidation/Joinder/Transfer. — Upon the consolidation of a trust proceeding and a civil action, joinder of claims under subsection (f) or (g) of this section, or transfer to the Superior Court Division of the General Court of Justice pursuant to subsection (g1) of this section, the clerk of superior court or the judge may make appropriate orders to protect the interests of the parties and to avoid unnecessary costs or delay. Notwithstanding the consolidation, joinder of claims under subsection (f) or (g) of this section, or transfer to the Superior Court Division of the General Court of Justice under subsection (g1) of this section, the clerk of superior court’s exclusive jurisdiction as set forth in G.S. 36C-2-203(a)(1) through (8) shall not be stayed unless so ordered by the court.
(9) Notice to Attorney General. — In every trust proceeding with respect to a charitable trust, the Attorney General shall be notified and given an opportunity to be heard.
History
(2005-192, s. 2; 2007-106, ss. 9, 9.1, 10; 2011-344, ss. 11, 12; 2012-18, s. 3.11.)
NORTH CAROLINA COMMENT
Subsection (a) is substantially the same as former G.S. 36A-26.1. Former G.S. 36A-26.1 referred to joining "interested persons" as defined in former G.S. 36A-22.1(3). The drafters did not include the reference to "interested persons" and the definition of "interested persons" because existing case law defining necessary and proper parties is clear, and the definition of "interested persons" in prior law did not assist a pleader in determining what parties must be joined in a trust proceeding and what parties can be joined. See Pittman v. Barker, 117 N.C. App. 580, 452 S.E.2d 326 (1995) (defining necessary and proper parties).
Subsection (b) regarding uncontested proceedings has no counterpart in the Trust Administration Act.
Subsection (c) is generally consistent with former G.S. 36A-26.3(1) of the Trust Administration Act in not requiring the formality in pleadings in proceedings before the clerk that is required under the Rules of Civil Procedure. The drafters added the provision to the effect that the signature of an attorney or party constitutes a certificate that the pleading is well-grounded in fact and law and not interposed for an improper purpose. In keeping with the informal nature of proceedings before the clerk, the drafters did not incorporate as a part of this section or Article Rule 11 which provides procedures for the court to award sanctions for meritless pleadings.
Subsection (d) has no equivalent in the Trust Administration Act in providing the procedure for the court to grant extensions of time in trust proceedings and in allowing parties to a trust proceeding to enter into binding stipulations, without approval of the court, to enlarge the time within which an act is required or permitted as currently allowed in Rule 6(b) of the Rules of Civil Procedure.
Subsection (e) clarifies the application of the Rules of Civil Procedure in trust proceedings before the clerk. The former Trust Administration Act did not specifically refer to the Rules of Civil Procedure, and it was not clear what rules, if any, applied. Discovery is only permitted if ordered by the clerk upon motion of a party or the clerk. Additionally, Rule 45, which provides the procedure for issuing and objecting to subpoenas, now applies to trust proceedings pending before the clerk.
Subsection (f) has no counterpart in the Trust Administration Act in authorizing a trust proceeding before the clerk, such as the removal of a trustee, to be consolidated with a civil action in the superior court, such as an action against the trustee for breach of trust, with jurisdiction for all matters vested in the superior court.
Subsection (g) is also new to North Carolina law in providing that in cases in which the superior court trial division had original jurisdiction, a party may join any related claims that could otherwise only be asserted in a proceeding before the clerk.
SUPPLEMENTAL NORTH CAROLINA COMMENT (2007)
Effective October 1, 2007, this section is amended to add a new subsection (g1) which sets forth the rules governing how and when a party may transfer a trust proceeding brought pursuant to G.S. 36C-2-203(a)(9) to superior court. In addition, effective October 1, 2007, this section is amended to add a new subsection (i) which makes clear that in any trust proceeding involving a charitable trust, the Attorney General must receive notice and an opportunity to be heard.
SUPPLEMENTAL NORTH CAROLINA COMMENT (2012)
Effective January 1, 2012, subsection (d) is amended to allow the clerk of superior court to enlarge the period of time within which an act is required or permitted for period greater than 10 days if the clerk finds that justice requires that the time be so enlarged. The amendment is consistent with the extensions of time applicable to estate proceedings in G.S. 28A-2-6(d).
Effective January 1, 2012, subsection (e) is amended to add Rules 4, 56 and 65 to the list of the Rules of Civil Procedure that automatically apply to all trust proceedings and to provide that the clerk of superior court shall have the authority to direct that any or all of the remaining Rules of Civil Procedure, including discovery rules, may apply to a specific trust proceeding. The amendment is consistent with the application of Rules of Civil Procedure to estate proceedings in G.S.28A-2-6(e).
Special Case Note. - In Keith v. Wallerich, 201 N.C. App. 550, 687 S.E.2d 299 (2009), the Court of Appeals stated: "A proceeding by a trustee for the purpose of resigning his trust is a special proceeding." The Court of Appeals cited a 1950 case in support of this statement but did not reference G.S. 36C-2-205(a), which provides that all trust proceedings before the clerk are estate proceedings, not special proceedings. G.S. 36C-2-205 was effective in 2006 and, therefore, supersedes the case cited by the Court of Appeals.
Official source: North Carolina General Assembly. Reproduced from public-domain North Carolina statutes; confirm against the official source for the current text. Not legal advice.