Bill Summary for H 795 (2021-2022)

Summary date: 

May 3 2021

Bill Information:

View NCGA Bill Details2021
House Bill 795 (Public) Filed Monday, May 3, 2021
Intro. by Turner, White.

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Bill summary

Enacts new GS Chapter 1H, to be cited as the NC Abusive Litigation Act. Sets forth five defined terms. Defines abusive litigation to exist when the litigation consists of (1) opposing parties that have a personal relationship; (2) the filing party has been found by a court to have committed an act of domestic violence against the opposing party in a court order, as specified; or (3) an intent on the part of the filing party to harass, intimidate, maintain contact with, or retaliate against the opposing party, and either (1) claims, allegations, and other legal contentions made in the litigation are not warranted by existing law or a reasonable argument for the extension, modification, or reversal of existing law or the establishment of new law; (2) allegations and other factual contentions made in the litigation are without the existence of evidentiary support; or (3) an issue or issues that are the basis of the litigation have previously been filed or litigated or disposed of unfavorably to the filing party. Deems abusive litigation to exclude any initial complaint filed in good faith for custody of a minor child under GS 50-13.1, any filing made pursuant to GS 50-13.7 for modification of a child custody or support order that in good faith alleges a substantial change of circumstance, or any criminal process based upon evidence provided by the filing party. 

Requires a court to set a matter for hearing on the next available court date if an opposing party asserts that they are being subjected to abusive litigation. Provides that evidence of any of the following four facts creates a rebuttable presumption that litigation is being filed, initiated, advanced, or continued for the purpose of harassing, intimidating, maintaining contact with, or retaliating against the opposing party: (1) the same or substantially similar issues between the same or substantially similar parties have been litigated within the past five years; (2) the same or substantially similar issues between the same or substantially similar parties have been raised, pled, or alleged in the past five years and were dismissed on the merits or with prejudice; (3) within the last ten years the filing party has been sanctioned for filing, initiating, advancing, or continuing litigation that was found to be frivolous, vexatious, intransigent, or brought in bad faith involving the same opposing party; or (4) a court has previously determined that the filing party engaged in abusive litigation or similar conduct and has been subject to a court order imposing prefiling restrictions. 

Directs a court that finds by a preponderance of the evidence that any or all of the pending litigation constitutes abusive litigation to (1) dismiss, deny, strike, or resolve by other disposition the abusive litigation with prejudice and (2) enter an order prohibiting abusive litigation which imposes all abusive litigation costs against the filing party, awards the opposing party attorneys' fees and costs associated with abusive litigation, and identifies the protected person and imposes prefiling restrictions upon the restricted person for 48-72 months. Requires written findings of portions of litigation found not to be abusive, which must proceed.

Allows for the restricted person to request to engage in litigation against a protected party, which must be heard by the judicial official who imposed the prefiling restrictions. Requires that the protected party receive notice and an opportunity to be heard, with remote appearance permissible, but does not require attendance. Allows the judicial official considering the request to examine witnesses, court records, and other evidence to determine whether the proposed litigation would constitute abusive litigation, and either deny, dismiss or otherwise dispose of the application with prejudice, or issue an order permitting the proposed litigation to proceed, which must be served upon the protected party and attached to the litigation filed. Provides for a protected person to respond to litigation filed by a restricted person in violation of an order imposing prefiling restrictions. Provides that the period between filing the application and the issuance of an order permitting the litigation to proceed is not applicable to the statute of limitations for the matter. Provides for a court's authority to stay proceedings later found to constitute abusive litigation and requires the matter to be referred to the judicial official who granted the application to proceed. 

Requires the court to dismiss, deny, or otherwise dispose of litigation engaged by a restricted person in violation of an order imposing prefiling restrictions, with authority to do so on the court's own motion. Authorizes the court to impose additional sanctions against the restricted party. Makes violations of an order imposing prefiling restrictions punishable by criminal contempt. Provides for assignment of a judicial official to replace the judicial official who imposed prefiling restrictions against a restricted party when the official is unavailable.

Provides for appeals as otherwise provided by law, that the Chapter has no effect on the court's authority over proceedings and litigants, and that the Chapter has no effect on a protected party's other legal remedies. 

Applies to actions, motions, pleadings, petitions, and other court filings filed on or after October 1, 2021. 

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