FINDINGS OF FACT & CONCLUSIONS OF LAW Albert Diaz Special Superior Court Judge Sanford L. Steelman Judge, N.C. Court of Appeals

Purpose of FOF/COL Dispose of issues raised by pleadings Collateral estoppel/res judicata Evoke care on part of trial judge Allow for meaningful appellate review

General Principles Considering Evidence/De Novo Review Accepted Facts/Appellate Court

What is Required? Find Facts Declare Conclusion Enter Judgment

WHEN REQUIRED?

CRIMINAL CASES Motions to Suppress Evidence (N.C.G.S. § 15A-977(f)) Proceedings re Capacity (N.C.G.S. § 15A ) Mistrials (N.C.G.S. § 15A-1064) MAR (N.C.G.S. § 15A-1420) Contempt (N.C.G.S. § 5A-14 & 15) Delayed Rulings

CIVIL CASES

N.C.R. Civ. P. 52 FOF/COL mandatory for bench trials Rule 41(b) Dismissals – Requires FOF/COL – Court to consider and weigh all competent evidence – Directed verdict does not apply Discretionary FOF/COL – Standard on appeal

Timing of Request – Relevant Deadline: Entry of written Order

Preparation of Order – May request/adopt proposed FOF/COL from attorneys – Possible caveat: wholesale adoption in court opinions

Amendment of FOF/COL – Rule 52(b)—10 day window after entry of judgment – Effect of Notice of Appeal

SPECIFIC LEGAL ISSUES

TRIAL MATTERS TRO/Preliminary Injunctions – FOF/COL Generally not required – Same rule applies to other provisional remedies – Effect of delay in entering Order Consent Judgments – FOF/COL Not required

TRIAL MATTERS Rule 12(b)(6) Motions – FOF/COL not required-facts of opposing party accepted as true Rule12 (c) – Same rule applies Summary Judgment – Same rule applies – Recitation of undisputed facts may be OK

TRIAL MATTERS Rule 60(b) Motions – FOF/COL not required, might be better practice Civil Contempt – FOF required

TRIAL MATTERS Rule 11 Sanctions – FOF/COL Required for appellate review – Generally reversible error, unless evidence admits of only one result Award of Attorneys Fees – Order requires meaningful analysis of relevant factors – E.g. time expended, skill required, customary fee, experience of atty

APPEALS Appeals from Clerk – Chapter 28 Petitions – Guardianship Proceedings Agency Appeals – APA and “whole record” review – De Novo Review

AVOIDING REVERSAL Judge Steelman