Opinion
No. COA11-25
Filed 2 August 2011 This case not for publication
Appeal by plaintiff from orders entered 9 July 2010 by Judge J. Gary Dellinger in Caldwell County District Court. Heard in the Court of Appeals 24 May 2011.
John Fletcher Church, pro se. Respess Jud, by Wallace Respess, Jr., and Marshall Hurley, PLLC, by Marshall Hurley for Defendant.
Caldwell County No. 01 CVD 1391.
Plaintiff John Fletcher Church appeals from orders dismissing numerous motions that he had previously filed pursuant to N.C. Gen. Stat. § 1A-1, Rule 41(b) and holding Plaintiff in contempt of court. After careful consideration of Plaintiff's arguments as to the challenged orders in light of the record and the applicable law, we conclude that the trial court erred by dismissing Plaintiff's motions for failure to prosecute without making adequate findings, that the order of civil contempt must be reversed given our holding in Church v. Decker, 2011 N.C. App. LEXIS 1219 (2011), and that this case should be remanded to the Caldwell County District Court for further proceedings not inconsistent with this opinion.
I. Factual Background
The parties were married on 23 December 1992, separated on 31 August 2001, and divorced on 22 November 2002. Two children were born as a result of the marriage: a son, born on 23 October 1993, and a daughter, born on 18 March 1998. Since separating, the parties have come before the trial and appellate courts of this State on numerous occasions for the purpose of litigating multiple issues relating to the custody and support of their children. Having provided a detailed recitation of the facts leading up to and underlying this appeal in two prior opinions, we limit our statement of the facts in this case to those substantive and procedural facts which are specifically relevant to the issues which are before us at this time.
A more detailed factual and procedural history of the controversy between the parties is contained in our decisions in Church v. Decker, 2011 N.C. App. LEXIS 1219 (2011) and Church v. Church, 2011 N.C. App. LEXIS 1315 (2011).
In May 2010, Plaintiff filed a series of motions relating to prior orders entered by the trial court concerning the custody and support of the couple's children. As best we are able to discern from the record on appeal, the motions that Plaintiff filed in May 2010 included a motion for a new trial; a motion for modification of child support; a motion to stay or vacate the child support order entered on or about 29 April 2010 with respect to the issue of medical insurance coverage; a motion to amend the 29 April 2010 child support order; a motion filed pursuant to N.C. Gen. Stat. § 1A-1, Rule 59, relating to child support issues; a motion to modify the existing custody arrangements; a motion for retroactive child support; a motion for modification of temporary child support; and a motion seeking a hearing relating to delinquent child support and medical coverage issues. Plaintiff's motions came on for hearing before the trial court at the 9 July 2010 Special Session of the Caldwell County District Court.
Prior to the scheduled hearing date, Plaintiff prepared a motion to continue informing the trial court that he had been involved in an accident that resulted in injury to his hand and that he was "unable to appear on Friday, July 9, 2010" due to his "physical condition" and an "out of town doctor's appointment with a hand specialist." As a result, Plaintiff requested that all pending motions be continued until he was "released by his doctor." Plaintiff claimed to have served the continuance motion on the Chief District Court Judge for the Twenty-Fifth District, the trial court, the Clerk of Superior Court, the trial court administrator, and counsel for Defendant Jean Marie Decker on 7 July 2010. Although Plaintiff's motion was not filed until 12 July 2010, the record clearly reflects that Defendant's counsel, the Clerk of Superior Court, and the trial court were familiar with that filing by the time of the 9 July 2010 hearing.
Plaintiff did not appear to prosecute his pending motions on 9 July 2010. After a thirty minute recess, Defendant requested that "all pending motions filed by the Plaintiff" be dismissed pursuant to N.C. Gen. Stat. § 1A-1, Rule 41(b) for failure to prosecute. After orally granting Defendant's motion in open court, the trial court entered a written order dismissing the motions filed by Plaintiff on "10 May 2010, 12 May 2010, and 27 May 2010" with prejudice pursuant to N.C. Gen. Stat. § 1A-1, Rule 41(b), on 9 July 2010. The trial court entered another order on 9 July 2010 finding that Plaintiff was in willful contempt of court based on his failure to make payments to Defendant's counsel as required by prior orders of the court. On 9 August 2010, Plaintiff noted an appeal from the 9 July 2010 orders.
II. Legal Analysis A. Defendant's Motion to Dismiss Plaintiff's Appeal
Defendant urges this Court to dismiss Plaintiff's appeal based upon Plaintiff's alleged failure to file a sufficient notice of appeal as required by N.C.R. App. P. 3(d). We do not believe that Defendant's motion has merit.
In his notice of appeal, Plaintiff noted an appeal to this Court from the following orders:
1. ORDER (dismissing with prejudice Plaintiff's Motions), entered August 9, 2010, by Judge Gary Dellinger.
2. ORDERS (pending Plaintiff's timely filed Motions for reconsideration listed on trial calendar to be considered on July 9, 2010 and were considered on July 9, 2010, entered by Judge Gary Dellinger, but were all dismissed with prejudice, entered July 9, 2010, by Judge Gary Dellinger, entered via Order listed in paragraph (1) above.
3. ORDER OF CIVIL CONTEMPT, entered August 8, 2010, by Judge Gary Dellinger.
The record on appeal contains absolutely no orders dated 8 or 9 August 2010. Instead, the record contains an "Order of Dismissal Pursuant to Rule 41-B" and an "Order of Civil Contempt," both of which were entered by the trial court on 9 July 2010.
"Proper notice of appeal requires that a party `shall designate the judgment or order from which appeal is taken[.]'" Von Ramm v. Von Ramm, 99 N.C. App. 153, 156, 392 S.E.2d 422, 424 (1990) (quoting N.C.R. App. P. 3(d)). "`Without proper notice of appeal, this Court acquires no jurisdiction'[, and a] court `may not waive [] jurisdictional requirements . . ., even for "good cause shown" under Rule 2, if it finds that they have not been met.'" Id. (quoting Brooks, Com'r of Labor v. Gooden, 69 N.C. App. 701, 707, 318 S.E.2d 348, 352 (1984) and Torres v. Oakland Scavenger Co., 487 U.S. 312, 317, 101 L. Ed. 2d 285, 291, 108 S. Ct. 2405, 2409 (1988)). However, it "`is now well settled that a mistake in designating the judgment [appealed from] should not result in loss of the appeal as long as the intent to appeal from a specific judgment can be fairly inferred from the notice and the appellee is not misled by the mistake.'" Smith v. Insurance Co., 43 N.C. App. 269, 274, 258 S.E.2d 864, 867 (1979) (quoting 9 Moore's Federal Practice § 203.18 (2d ed. 1975)).
In his notice of appeal, Plaintiff specified the substantive issues that were addressed in the two orders from which he sought to appeal, which were the dismissal of his pending motions with prejudice for failure to prosecute and the trial court's decision to hold him in contempt, and identified the trial judge who entered the orders Plaintiff sought to challenge. In addition, the 9 July 2010 orders are the sole orders addressing dismissal and contempt-related issues which could have been subject to a timely-filed notice of appeal dated 9 August 2010. As a result, we have no difficulty, and do not believe that Defendant should have had any difficulty, determining that Plaintiff intended to appeal the orders entered on 9 July 2010 and that the 8 and 9 August 2010 dates were nothing more than a scrivener's error. Thus, Defendant's motion to dismiss Plaintiff's appeal should be, and hereby is, denied.
B. Substantive Legal Issues 1. Dismissal Pursuant to N.C. Gen. Stat. § 1A-1, Rule 41(b)
First, Plaintiff contends that the trial court erred by dismissing his motions with prejudice pursuant to N.C. Gen. Stat. § 1A-1, Rule 41(b), as a result of his "fail[ure] to appear and prosecute his Motions filed May 10, 2010, May 12, 2010, and May 27, 2010." We believe that Plaintiff's argument has merit.
N.C. Gen. Stat. § 1A-1, Rule 41(b) allows a trial court to involuntarily dismiss an action or claim "[f]or failure of the plaintiff to prosecute or to comply with [court orders or] rules[.]" Wilder v. Wilder, 146 N.C. App. 574, 575, 553 S.E.2d 425, 426 (2001). "In general, a trial court is required to `consider lesser sanctions before dismissing an action under [N.C. Gen. Stat. § 1A-1,] Rule 41(b).'" Wilder, 146 N.C. App. at 575, 553 S.E.2d at 426 (quoting Goss v. Battle, 111 N.C. App. 173, 176, 432 S.E.2d 156, 158 (1993)). As a result, "lesser sanctions must be considered by a trial court before dismissing a claim pursuant to [N.C. Gen. Stat. § 1A-1,] Rule 41(b) for failure to prosecute[, and] `[t]he trial court must make findings and conclusions which indicate that it has considered . . . less drastic sanctions.'" Id. at 576-77, 553 S.E.2d at 426-27 (quoting Foy v. Hunter, 106 N.C. App. 614, 620, 418 S.E.2d 299, 303 (1992)). In addition, the trial court must also consider "whether the plaintiff acted in a manner which deliberately or unreasonably delayed the matter[, and ] the amount of prejudice, if any, [plaintiff's failure to prosecute caused to] defendant[.]" Id. at 578, 553 S.E.2d at 428. If the record reflects that the trial court conducted the required analysis, the trial court's dismissal order "`will be reversed on appeal only for an abuse of discretion.'" Id. at 577, 553 S.E.2d at 427 (citing Foy, 106 N.C. App. at 620, 418 S.E.2d at 303).
In her brief, Defendant suggests that the legal principles outlined in Wilder and Foy do not apply to this case. According to Defendant, the principles outlined in those decisions are only meant to "protect [] pending actions and claims against premature dismissal." In other words, Defendant appears to contend that the trial court need not make the findings required by Wilder and Foy in situations involving the dismissal of motions rather than claims asserted in complaints. Defendant cites no authority in support of the distinction upon which she relies, and we know of none. Moreover, we note that a number of Plaintiff's motions amounted to substantive claims of the type that would ordinarily be asserted in such a pleading outside the domestic relations context. As a result, we conclude that this aspect of Defendant's response to Plaintiff's challenge to the trial court's dismissal order has no merit.
A careful review of the transcript from the 9 July 2010 hearing demonstrates that the trial court failed to consider less drastic sanctions, the extent to which the delay upon which the dismissal order was predicated was deliberate or unreasonable, or any prejudice to Defendant resulting from Plaintiff's failure to appear. Similarly, the trial court's written order dismissing Plaintiff's motions for failure to prosecute is equally devoid of any indication that the trial court considered the required factors in making its dismissal decision. Instead, the trial court's only findings of fact state that:
1. The July 9, 2010, session is a Special Session for the hearing only of the Plaintiff and the Defendant[']s pending Motions.
2. The Plaintiff had notice of the Special Session.
3. The Plaintiff failed to appear at 9:30 a.m. upon the opening of Court. The Court stood in recess for thirty-eight (38) minutes awaiting the Plaintiff[']s appearance.
4. The Court inquired of the Family Court Case Manager, the Courtroom Clerk as well as Defendant[']s counsel as to whether any messages had been received regarding the Plaintiff[']s absence. All parties reported that no messages had been received.
5. The Plaintiff has failed to appear and prosecute his Motions filed May 10, 2010, May 12, 2010, and May 27, 2010.
6. Pursuant to Rule 41-B of the North Carolina Rules of Civil Procedure, the Plaintiff has failed to prosecute his Motions and [such] are subject to dismissal.
Based on these findings of fact, the trial court ordered that "the Motions of the Plaintiff . . . [be] dismissed with prejudice pursuant to [N.C. Gen. Stat. § 1A-1, Rule 41(b), and concluded that such] dismissal [was] an adjudication of all issues raised in the Motions filed by the Plaintiff." As a result of the trial court's failure to address the factors outlined in Wilder and Foy, we conclude that the order dismissing Plaintiff's motions should be reversed and that this case should be remanded to the trial court for further proceedings not inconsistent with this opinion.
We do not, of course, express any opinion about the extent to which the trial court would have the right to dismiss Plaintiff's motions by means of an order containing the required findings of fact and conclusions of law.
2. Order of Civil Contempt
Secondly, Plaintiff contends that the trial court erred by holding him in contempt of court for failure to make payments required by prior court orders. Once again, we conclude that Plaintiff's argument has merit.
In its order holding Plaintiff in contempt, the trial court recited the following findings of fact:
1. That during the January 20, 2010, session the Honorable Gary Dellinger made an award of attorney[']s fees to W. Wallace Respess, Jr., from the Plaintiff John Fletcher Church. The Order was filed on April 28, 2010, and provides that "John Fletcher Church shall pay to W. Wallace Respess, Jr., directly the sum of $7,052.49 within sixty (60) days of the entry of this Order."
2. Pursuant to the terms of the Order the sum of $7,052.49 was due and payable on June 28, 2010.
3. On January 20, 2010, the Honorable Gary Dellinger heard the Defendant[']s Motion for Sanctions pursuant to Rule 11 of the North Carolina Rules of Civil Procedure.
4. Pursuant to that hearing the Court entered an Order sanctioning the Plaintiff in the amount of $2,000.00. The Order provides that the Plaintiff shall pay directly to W. Wallace Respess, Jr., $1,000.00 within sixty (60) days of the entry of the Order. The Order further provided that the remaining $1,000.00 would be due thirty (30) days thereafter. The Order was entered on April 28, 2010. The sum of $1,000.00 was therefore due not later than June 28, 2010.
5. With respect to both the Order of Award of Attorney[']s Fees and the Order of Sanctions, the Plaintiff has failed and refused to pay the sum of $7,052.49 in attorney[']s fees in a timely fashion. The Plaintiff has further failed to pay the Sanctions ordered in the amount of $1,000.00.
Based on these findings of fact, all of which focused on Plaintiff's failure to make payments required by orders entered on 28 April 2010, the trial court found that Plaintiff was in "willful civil contempt" of court and ordered him taken into custody and placed in the Caldwell County Jail "until [such time as] he purge[d] himself of contempt by the payment of $8,052.49."
On appeal, Plaintiff argues that he was not provided with adequate notice and had no opportunity to be heard prior to the entry of the trial court's contempt order. We need not address the merits of Plaintiff's notice argument, however, since we are required to reverse the trial court's contempt order based upon our holding in Church v. Decker, 2011 N.C. App. LEXIS 1219 (2011). In that case, Plaintiff challenged the 28 April 2010 order awarding attorney's fees, as well as the 28 April 2010 order sanctioning Plaintiff pursuant to N.C. Gen. Stat. § 1A-1, Rule 11. Church, 2011 N.C. App. LEXIS 1219, at *25-33. In an opinion filed 21 June 2011, we affirmed the order granting Defendant's motion for sanctions pursuant to N.C. Gen. Stat. § 1A-1, Rule 11 and requiring Plaintiff to pay $2,000.00 to Defendant. Id. at *29-33. However, we reversed the 28 April 2010 attorney's fees order on the grounds that this order lacked sufficient findings of fact and remanded this case to the Caldwell County District Court with instructions that a "new order containing adequate findings of fact be entered." Id. at *28-29. Given our decision to invalidate one of the two orders underlying the 9 July 2010 contempt order, we are compelled to reverse the order finding Plaintiff in contempt for violating that order as well. Holden v. Holden, 245 N.C. 1, 9, 95 S.E.2d 118, 124 (1956) (stating that, based on the Court's determination that orders entered on 1 October 1955 and 1 December 1955 were ineffective, "the order entered 14 April 1956, adjudging the plaintiff in contempt for failure to comply with the terms of the judgment entered 1 December 1955 and taxing him with the costs and counsel fees in such hearing, is likewise ineffectual and the same is reversed and set aside"). As a result, this trial court's contempt order is hereby reversed and this case is remanded to the Caldwell County District Court for further proceedings not inconsistent with this opinion.
III. Conclusion
Thus, for the reasons set forth above, we reverse the trial court's orders dismissing Plaintiff's motions pursuant to N.C. Gen. Stat. § 1A-1, Rule 41(b) and holding Plaintiff in contempt and remand this case to the Caldwell County District Court for further proceedings not inconsistent with this opinion.
REVERSED AND REMANDED.
Judges MCGEE and MCCULLOUGH concur.
Report per Rule 30(e).