Opinion
No. COA11-41
Filed 5 July 2011 This case not for publication
Appeal by defendant from orders entered 5 April 2010 and 29 June 2010 by Judge Walter Godwin in Edgecombe County Superior Court. Heard in the Court of Appeals 6 June 2011.
Gaylord, McNally, Strickland Snyder, L.L.P., by Christopher W. Nunnally, for plaintiff-appellee. Mills Bryant, L.L.P., by Teresa DeLoatch Bryant, for defendant-appellant.
Edgecombe County No. 08 CVS 1532
Defendant Sherry Sheron Johnson appeals from the trial court's 5 April 2010 order awarding plaintiff Demetrius Antwan Johnson compensatory damages for defendant's breach of contract, and punitive damages and attorney's fees for defendant's malicious prosecution of plaintiff. Defendant also appeals from the trial court's 29 June 2010 order denying her motion for relief from judgment pursuant to N.C.G.S. § 1A-1, Rule 60(b).
Our recitation of the facts and procedural history is limited to those events deemed relevant to the issues presented on appeal. On 12 June 2008, plaintiff filed a complaint in Edgecombe County District Court's Small Claims Division alleging that plaintiff was entitled to the "title to [a] Lincoln Navigator automobile" based on a verbal contract between the parties. According to plaintiff's complaint, the "[v]erbal contract for sale was fulfilled and defendant decided to attempt to add cost of rims to sale price, and [so] has deprived [plaintiff] of the title to said vehicle." The total amount of damages sought by plaintiff was $5,000.00. On 26 November 2008, the magistrate dismissed the action with prejudice based on his determination that plaintiff had not proved his case by the greater weight of the evidence. Plaintiff appealed to district court.
On 13 March 2009, plaintiff filed an Amended Complaint and Motion for Transfer to Superior Court Division, in which plaintiff alleged six claims for relief, including a "claim for delivery," conversion, malicious prosecution, trespass to chattel, a "contract claim," and a claim for unjust enrichment, and further alleged that the amount in dispute was in excess of $10,000.00. Plaintiff also sought to recover reasonable attorney's fees and costs. On 13 April 2009, the superior court entered an order granting plaintiff's request to transfer the action to superior court. On 26 February 2010, plaintiff filed a motion for summary judgment, but only as to his claim for malicious prosecution.
The case was heard in a bench trial on 8 March 2010, and the trial court rendered its order in open court in favor of plaintiff on the same day. According to its order, the trial court found that the parties had a verbal contract for the sale of a Lincoln Navigator automobile, that plaintiff had paid the sum of $26,000.00 to defendant for the automobile over time, and that defendant was in breach of contract for failing to deliver the automobile to plaintiff. The court concluded that plaintiff is entitled to compensatory contract damages in the amount of $26,000.00 plus interest. The court further found that plaintiff was arrested for the felony larceny of the automobile at issue "due to the actions of the [d]efendant," and concluded that defendant "acted with actual malice and with an improper purpose in instituting the criminal prosecution against the [p]laintiff," and so ordered defendant to pay plaintiff $24,000.00 in punitive damages. The court also ordered defendant to pay $1,910.00 in attorney's fees, as well as interest and costs. The trial court's order was reduced to writing and filed with the Clerk on 5 April 2010, and deposited for service upon defendant's counsel by regular mail on 1 June 2010. On 30 March 2010, defendant filed a motion seeking relief from the trial court's order pursuant to N.C.G.S. § 1A-1, Rule 60(b), which the trial court denied on 29 June 2010. Defendant gave written notice of appeal from the court's 5 April 2010 order on 22 June 2010, and from the court's order denying her Rule 60(b) motion on 20 July 2010.
_________________________ I.
Defendant first contends the trial court lacked jurisdiction to consider plaintiff's complaint because the summons was issued in violation of N.C.G.S. § 1A-1, Rule 4, which requires that, "[u]pon the filing of the complaint, [a] summons shall be issued forthwith, and in any event within five days." N.C. Gen. Stat. § 1A-1, Rule 4(a) (2009). Because the "five-day period was inserted to mark the outer limits of tolerance in respect to delay in issuing the summons[, o]ur Court has held that[,] where a summons does not issue within five days of the filing of a complaint, the action abates and is deemed never to have commenced." Conner Bros. Mach. Co v. Rogers, 177 N.C. App. 560, 561, 629 S.E.2d 344, 345 (2006) (citation and internal quotation marks omitted). Thus, "[w]here an action is deemed never to have commenced, a trial court necessarily lacks subject matter jurisdiction." Id. at 561-62, 629 S.E.2d at 345 (internal quotation marks omitted). However, a close review of the record in the present case reveals no such violation of N.C.G.S. § 1A-1, Rule 4. While defendant asserts that the summons was issued on 3 July 2008 and that the complaint was not filed until nine days later on 12 July 2008, the record shows that plaintiff's complaint was filed in the Clerk's office on 12 June 2008 — the same date the summons issued. Therefore, we conclude that defendant's argument is wholly without merit.
II.
Defendant next contends the trial court erred by considering plaintiff's motion for summary judgment because defendant asserts that plaintiff failed to give timely notice of his motion for summary judgment and failed to give any notice of a hearing on said motion before the motion was considered by the court at the proceeding on 8 March 2010. However, defendant does not challenge the court's findings that she received proper notice of the 8 March hearing for which the matter was calendared for all purposes, that this proceeding had been on the court's calendar for five months, and that she elected not to be present at the proceeding. While we recognize that, at the conclusion of the 8 March 2010 proceeding, the judge stated in open court that he was granting plaintiff's motion for summary judgment, our review of the transcript of this proceeding shows that, after the case was called, the trial court granted plaintiff's motion to proceed to a bench trial, considered testimony and evidence presented with respect to plaintiff's claims of breach of contract and malicious prosecution, and, based on the evidence presented, made findings of fact in an order reduced to writing and entered by the court on 5 April 2010. Thus, contrary to the judge's statement in open court, we conclude that the trial court did not rule on plaintiff's motion for summary judgment, but instead conducted a bench trial on the case during a proceeding that defendant elected not to attend, which had been calendared for at least five months, and for which defendant received proper notice. Therefore, we overrule this issue on appeal.
III.
Defendant next contends the trial court erred by awarding attorney's fees to plaintiff in the amount of $1,910.00 in its 5 April 2010 order. Defendant does not dispute that, in an action for malicious prosecution, a plaintiff may recover reasonable attorney's fees incurred by him as a result of said malicious prosecution. See Stanford v. A. F. Messick Grocery Co., 143 N.C. 419, 427, 55 S.E. 815, 817-18 (1906). Instead, defendant argues that plaintiff failed to present evidence as to the specific costs he incurred as a result of his defense to the criminal charges initiated by defendant which were the basis of plaintiff's malicious prosecution claim. Thus, defendant asserts that this Court cannot discern the basis for the trial court's award of attorney's fees. We agree.
The record shows that, although plaintiff testified that he hired an attorney to assist him with his defense to the criminal charges initiated by defendant, when asked what fees plaintiff incurred as a result of this representation, he answered: "I don't know the exact amount of that, as of right now." When asked, "Did you pay something?" plaintiff answered, "I did." Then, at the conclusion of the proceeding, the court stated, "I'm going to order an attorney fee and the cost," and directed plaintiff's counsel to prepare the order. However, there is no further evidence included in the record to indicate how the trial court determined that plaintiff accrued $1,910.00 in attorney's fees as a result of his defense to the criminal charges initiated by defendant. Accordingly, in the absence of any evidence or findings in the record to support the court's award of attorney's fees, we must vacate the portion of the court's 5 April 2010 order that requires defendant to pay attorney's fees in the amount of $1,910.00.
Because defendant fails to identify any relevant legal authority or argument in support of her remaining issues on appeal, we deem these issues abandoned. See N.C.R. App. P. 28(b)(6) ("Issues not presented in a party's brief, or in support of which no reason or argument is stated, will be taken as abandoned.").
Affirmed in part; Vacated in part.
Judges STEPHENS and THIGPEN concur.
Report per Rule 30(e).