Opinion
No. COA14–1128.
05-05-2015
Pauline GRAHAM, Plaintiff, v. Bradford Duval JENKINS, Defendant.
Watts & Easley PLLC, by Joy P. Easley, for Plaintiff–Appellant. Ennis, Baynard, Morton, & Medlin, PA, by Stephen C. Baynard, for Defendant–Appellee.
Watts & Easley PLLC, by Joy P. Easley, for Plaintiff–Appellant.
Ennis, Baynard, Morton, & Medlin, PA, by Stephen C. Baynard, for Defendant–Appellee.
HUNTER, JR., ROBERT N., Judge.
Pauline Graham (“Plaintiff”) appeals from an order denying her Rule 60(b)(6) motion for relief from an order dismissing her claims. For the following reasons, we affirm the decision of the trial court.
I. Factual & Procedural History
On the afternoon of 19 August 2007, Bradford Jenkins (“Defendant”) and Plaintiff were both operating motor vehicles on NC 179 near Shallotte. Defendant rear-ended Plaintiff. On 18 August 2010, one day before the statute of limitations expired, Attorney Richard W. Cox (“Mr.Cox”) of Cox & Watts, PLLC filed a complaint on behalf of Plaintiff against Defendant seeking recovery for injuries allegedly sustained in the 2007 accident. Defendant responded by filing an answer and serving on Plaintiff a First Set of Interrogatories and a Request for Production of Documents on 22 September 2010. Plaintiff failed to respond to the discovery until ordered to respond by the trial court on 31 May 2011. Plaintiff neither sought discovery, nor sought to depose Defendant.
Pursuant to local rules, the case was automatically calendared for a status and scheduling hearing on the Administrative Calendar of Brunswick County Superior Court on 9 March 2012 before the Honorable James G. Bell. Mr. Cox was listed as the attorney of record for Plaintiff, and the calendar reflected that 561 days had passed since Mr. Cox filed the case. Neither Mr. Cox nor Plaintiff appeared at the scheduled hearing. Defense counsel did appear. Judge Bell entered an order dismissing Plaintiff's case without prejudice, indicating “[t]he plaintiff failed to appear on the scheduled trial date; the defendant did appear on that date and has moved to dismiss this action.”
After this order was entered, Mr. Cox stayed with Cox & Watts until 15 January 2013, at which time he left to establish his own practice. Upon Mr. Cox's departure, the firm was renamed Watts & Easley, PLLC and Attorney Joy Easley (“Ms.Easley”) was assigned to Plaintiff's case.
Ms. Easley then contacted Defendant's attorney, Stephen Baynard on 21 January 2013 and informed him of Mr. Cox's departure. She indicated that she wanted to re-open settlement discussions as Plaintiff's new attorney. This conversation was the first time Plaintiff's counsel had contacted Defense counsel since the order to dismiss was entered, nearly ten months after the order dismissing Plaintiff's case. In an attempt to resolve the case, Mr. Baynard offered to settle for $1,500 on 25 February 2013, but no settlement was ever reached. On 16 December 2013, Mr. Baynard told Ms. Easley that Plaintiff's case had been dismissed because of Mr. Cox's failure to appear in court on the scheduled 9 March 2012 date. Ms. Easley claims that this was the first she, or anyone at Watts & Easley, heard about the 9 March 2012 order of dismissal. The order to dismiss was not in Plaintiff's file left after Mr. Cox's departure, nor was there a certificate of service in the trial court's record. Ms. Easley contacted the Office of the Clerk of Superior Court to inquire about the order and received a copy of the order from an assistant clerk as well as from Mr. Baynard's office.
Following Ms. Easley's discovery of the 9 March 2012 order to dismiss, Plaintiff filed a Motion for Relief from Judgment pursuant to Rule 60(b) of the North Carolina Rules of Civil Procedure. Judge Bell denied the motion on 7 March 2014, finding insufficient evidence of extraordinary circumstances to support the motion. Plaintiff timely filed Notice of Appeal of this order on 3 April 2014.
II. Jurisdiction
Jurisdiction lies in this Court pursuant to N.C. Gen.Stat. § 7A–27 (2014), which provides for an appeal of right to the Court of Appeals from any final judgment of a superior court.
III. Standard of Review
“[A] motion for relief under Rule 60(b) is addressed to the sound discretion of the trial court and appellate review is limited to determining whether the court abused its discretion.” Sink v. Easter, 288 N.C. 183, 198, 217 S.E.2d 532, 541 (1975).
IV. Analysis
On appeal, Plaintiff argues that the trial court abused its discretion in denying the motion for relief from judgment from the 9 March 2012 order dismissing her case without prejudice. Plaintiff argues the trial court's denial of her motion was in error because the motion was brought under extraordinary circumstances and within a reasonable time. Plaintiff relies on Rule 60(b)(6) of the North Carolina Rules of Civil Procedure, which governs motions to set aside a final judgment or order. This rule provides:
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
...
(6) Any other reason justifying relief from the operation of the judgment.
The motion shall be made within a reasonable time[.]
N.C. Gen.Stat. § 1A–1, Rule 60(b) (2014).
Rule 60(b)(6) has been described as “a grand reservoir of equitable power to do justice in a particular case[,]” Sides v. Reid, 35 N.C.App. 235, 237, 241 S.E.2d 110, 112 (1978) (quoting 7 Moore's Federal Practice § 60.27(2) (2d ed.1970)), but this Court has recognized that it should not be used as a “catch-all” rule. See Norton v. Sawyer, 30 N.C.App. 420, 426, 227 S.E.2d 148, 153 (1976). The power to vacate judgments pursuant to Rule 60(b) should only be exercised in extraordinary circumstances after a showing that justice demands such relief. See Standard Equip. Co ., Inc. v. Albertson, 35 N.C.App. 144, 147, 240 S.E.2d 499, 501 (1978).
In arguing that there are extraordinary circumstances sufficient to warrant granting of a 60(b)(6) motion, Plaintiff first alleges that Mr. Cox's actions constituted gross negligence. This Court has held that procedural errors made by a party's counsel may be a basis for setting aside a judgment under Rule 60(b)(6) if the errors amount to gross negligence. See Royal v. Hartle, 145 N.C.App. 181, 185, 551 S.E.2d 168, 172 (2001). Gross negligence is defined as “wanton conduct done with conscious or reckless disregard for the rights and safety of others.” Parish v. Hill, 350 N.C. 231, 239, 513 S.E.2d 547, 551 (1999). This Court has found gross negligence on the part of a party's counsel when the attorney failed to perfect an appeal four times, failed to file the record in two cases, failed to appear at scheduled hearings, and made false representations to his clients about their case. See Poston v. Morgan, 83 N.C.App. 295, 300, 350 S.E.2d 108, 111 (1986). In Poston,based on the finding of gross negligence, this Court held that a Rule 60(b)(6) motion was appropriate. See id.
Although Mr. Cox may have acted poorly in failing to keep track of Plaintiff's case, his actions do not rise to the standard of gross negligence necessary to support Plaintiff's motion. There is a difference between failing to appear at one scheduled hearing and committing multiple misrepresentations and filing mistakes as in Poston.
Plaintiff next alleges that the conversations between Defense counsel and her counsel in early 2013 led Plaintiff to believe there was still a chance of settling the case. Plaintiff suggests that Defense counsel's offer to settle and failure to explicitly tell Plaintiff of the 9 March 2012 dismissal demonstrate extraordinary circumstances warranting her motion for relief. However, it is not Defense counsel's duty to advise Plaintiff of the record status of the case of which she should reasonably be aware. Plaintiff's counsel even conceded this point stating, “I understand it is not [Defense counsel's] job to tell me that the case was dismissed, and he is representing a client who would have his head if [he] found out.”
Finally, Plaintiff asserts that in order to preserve equity her motion should be granted because she has never had a hearing on the merits of her case. While it is true that Plaintiff's case has not been heard, it is because neither she nor her attorney appeared at her scheduled hearing, and did not inquire about the case with the court until twenty-one months after her case was dismissed. This Court has held that “[t]he interest of deciding cases on the merits cannot outweigh all other considerations and entitle plaintiff to extraordinary relief under Rule 60(b)(6) [,]” and that when the movant prevented himself from presenting his claim through his own inattention, relief under Rule 60(b)(6) will not be granted. Standard Equip. Co., 35 N.C.App. at 147, 240 S.E.2d at 502. Thus, Plaintiff's argument fails because her case was not heard due to her own inattention.
We turn now to Plaintiff's contention that her motion for relief from the 9 March 2012 order to dismiss was brought within a reasonable time. Rule 60(b)(6) does not have a specified limitation on when a motion for relief may be brought, instead it requires only that the motion be made “within a reasonable time[.]” N.C. Gen.Stat. § 1A–1, Rule 60(b)(6). What constitutes a reasonable time depends on the circumstances of the case. McGinnis v. Robinson, 43 N.C.App. 1, 8, 258 S.E.2d 84, 88 (1979).
In this case, the alleged tort occurred in August 2007, and the initial complaint was not filed until one day before the statute of limitations expired, three years later, in August 2010. Defendant served Plaintiff with discovery requests in September 2010, which were not answered until after an order to compel was entered in May 2011. Plaintiff did not fully answer Defendant's discovery requests until August 2011. At the 9 March 2012 calendar call, Plaintiff did not appear, and Judge Bell dismissed the case without prejudice. Plaintiff took no action in her case until ten months after the March 2012 dismissal, when Ms. Easley contacted Mr. Baynard on 21 January 2013. After discussions between the two parties and an offer to settle by Defendant on 21 February 2013, no settlement was reached. Ms. Easley and Mr. Baynard did not have contact again until nearly ten months later, on 16 December 2013, at which time she had a phone conversation with Mr. Baynard and asserts this conversation as the first time she or anyone at her firm became aware of the 9 March 2012 dismissal. Plaintiff subsequently filed the motion for relief from the 9 March 2012 dismissal on 23 December 2013.
Plaintiff argues that the time within which her 60(b) motion for relief was filed was reasonable, given that she was unaware of the dismissal until 16 December 2013, and she filed her motion for relief within just seven days of learning that information on 23 December 2013. Plaintiff states that Defendant failed to serve the order dismissing her case on her, so the date on which Plaintiff received actual notice of the judgment is the appropriate date to consider in determining timeliness. Plaintiff relies on Rule 58 of the North Carolina Rules of Civil Procedure, which reads in pertinent part, “the party who prepares the judgment shall serve a copy of the judgment upon all other parties within three days after the judgment is entered.” N.C. Gen.Stat. § 1A–1, Rule 58 (2014). However, Defendant did not have a responsibility to serve Plaintiff with the order, as Judge Bell dismissed the matter on his own motion and it was common practice in that district to place attorneys' filings in their mailbox at the courthouse.
Upon examination of the timeline in this case, it was not reasonable for Plaintiff to have been unaware of the 9 March 2012 dismissal until 16 December 2013. Plaintiff should have inquired into the status of her case during the twenty-one month time period. It is true that Plaintiff's attorney contacted Defense counsel during this time, but even that contact did not occur until 21 January 2013, ten months after the dismissal. Plaintiff suggests that the settlement offer by Defendant and his failure to disclose the 9 March 2012 dismissal until December 2013 led her to believe there was still a chance for settlement. However, as discussed above, it is not Defense counsel's duty to advise Plaintiff of deadlines of which she should reasonably be aware.
Plaintiff has failed to demonstrate both extraordinary circumstances justifying a motion for relief and timeliness of her motion. It was Plaintiff's own inattention and constant delays that deprived her of the opportunity to be heard on the merits. As such, equity does not require granting Plaintiff's motion for relief from the 9 March 2012 dismissal order.
V. Conclusion
For the foregoing reasons, we affirm the order of the trial court.
AFFIRMED.
Judges STEPHENS and TYSON concur.
Report per Rule 30(e).
Opinion
Appeal by Plaintiff from an order entered on 7 March 2014 by Judge James G. Bell in Brunswick County Superior Court. Heard in the Court of Appeals on 4 March 2015.