Opinion
No. COA02-674
Filed 4 March 2003 This case not for publication.
Appeal by defendant from order entered 22 March 2002 by Judge Anne B. Salisbury in Wake County District Court. Heard in the Court of Appeals 12 February 2003.
Hatch, Little Bunn, L.L.P., by Helen M. Oliver, for plaintiff appellee. Jose M. Viera, pro se, defendant appellant.
Wake County No. 00 CVD 010183.
Plaintiff Eileen Viera and defendant Jose Viera were married on 17 February 1973 and divorced on 18 August 1981. On 13 November 2001, the parties appeared in Wake County District Court on plaintiff's Motion to Renew a domestic violence protective order against defendant. After determining that a party to the hearing was in contempt of court, the trial court informed the parties that the hearing would be continued to Monday, 26 November 2001. Subsequently, on 20 November 2001, both parties appeared before the trial court to be heard on unrelated matters. At the conclusion of the hearing, the trial court and the parties discussed the hearing date for plaintiff's Motion to Renew. The trial court initially stated that the hearing would take place on 28 November 2001, but later corrected itself and informed the parties that the hearing would take place on 26 November, the originally scheduled date. Before dismissing the parties on 20 November, the trial court again clarified that the hearing for plaintiff's Motion to Renew would take place on Monday, 26 November 2001.
Plaintiff and her attorney were present on 26 November 2001 for the scheduled hearing on the Motion to Renew, but defendant did not appear. While waiting for defendant, the trial court determined that plaintiff, her attorney, and the courtroom clerk understood that the hearing was to occur on 26 November. The trial court also believed defendant was aware that the hearing was set for 26 November. The trial court listened to the tape of the 20 November 2001 hearing, but the tape was turned off at the close of the issues being considered and contained no conversation regarding the 26 November hearing. Finally, at plaintiff's request, the trial court entered an order extending the domestic violence protective order, effective 26 November 2001.
On 28 November, defendant appeared in court and stated that he believed the hearing was to be held that day. The trial court informed him that the hearing occurred two days earlier and that plaintiff's domestic violence protective order had been extended. Thereafter, defendant filed a Motion to Reconsider the extension of plaintiff's domestic violence protective order. In his motion, defendant argued there was confusion regarding the hearing date and that, due to the confusion, he missed the hearing and was unable to complete his questioning of witnesses before the trial court rendered its decision. Defendant requested that the trial court set aside its order and grant him a new trial. By order dated 23 March 2002, the trial court denied defendant's Motion to Reconsider and specifically concluded that "[d]efendant had adequate notice of the November 26, 2001 hearing and Defendant's Motion, therefore, should be denied." Defendant appealed.
On appeal, defendant argues the trial court erred by (I) failing to document the continuation date of the hearing that was in progress on 13 November 2001; (II) failing to continue the hearing already in progress; (III) failing to listen to the recordings of the 13 November 2001 hearing; (IV) creating an atmosphere in which clerical mistakes could occur; (V) entering its 26 November 2001 order because the hearing was continued to 28 November 2001; and (VI) failing to make any attempts to correct the confusion it created. For the reasons set forth herein, we dismiss the appeal as moot.
It appears defendant's Motion to Reconsider was made pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b)(1) (2001), which permits relief from a final judgment, order, or proceeding on the basis of "[m]istake, inadvertence, surprise, or excusable neglect[.]" To prevail on a Rule 60(b)(1) motion, "the movant must show both the existence of one of the stated grounds for relief, and a `meritorious defense.'" In re Hall, 89 N.C. App. 685, 686, 366 S.E.2d 882, 884, disc. review denied, 322 N.C. 835, 371 S.E.2d 277 (1988). "Generally, a motion for setting aside a judgment pursuant to Rule 60(b) is addressed to the sound discretion of the trial court and the standard of appellate review is limited to determining whether the court abused its discretion." Brown v. Windhom, 104 N.C. App. 219, 221, 408 S.E.2d 536, 537 (1991).
Defendant maintains his failure to appear at the 26 November 2001 hearing was due to confusion caused by the discussion of more than one court date. However, we agree with plaintiff that defendant's failure to appear in court on 26 November was not the result of mistake, inadvertence, surprise, or excusable neglect. We need not further address the merits of the case, however, because the domestic violence protective order issued by the trial court expired on 26 November 2002, one year after it was granted. "Upon application of the aggrieved party, a judge may renew the original or any succeeding order for up to one additional year." N.C. Gen. Stat. § 50B-3(b) (2001). Here, plaintiff applied for renewal of a previously granted domestic violence protective order. Upon plaintiff's application, the trial court was fully within its rights to grant the order pursuant to N.C. Gen. Stat. § 50B-3 without any explanation from defendant. As the issues presented by the appeal are now moot, the appeal is
Dismissed.
Judges TYSON and STEELMAN concur.
Report per Rule 30(e).