Associate Behavioral Services, Inc. v. Smith

826 S.E.2d 214, 264 N.C. App. 277
CourtCourt of Appeals of North Carolina
DecidedMarch 19, 2019
DocketNo. COA18-463
StatusPublished

This text of 826 S.E.2d 214 (Associate Behavioral Services, Inc. v. Smith) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Associate Behavioral Services, Inc. v. Smith, 826 S.E.2d 214, 264 N.C. App. 277 (N.C. Ct. App. 2019).

Opinion

DAVIS, Judge.

*277In this case, we consider whether the trial court erred by denying a defendant's motion for reconsideration of the court's prior order declining to award her attorneys' fees. Because the motion for reconsideration did not assert any of the grounds upon which relief may be granted under Rule 60(b) of the North Carolina Rules of Civil Procedure and instead requested reconsideration based on an entirely new legal theory, we affirm.

*278Factual and Procedural Background

In 2003, defendant Shirley Smith and Gregory Moore founded Associate Behavioral Services, Inc. ("ABS"), a company that provided home care services to mentally ill and developmentally disabled persons in North Carolina. Moore and Smith each owned fifty percent of ABS's shares. The relationship between Moore and Smith ultimately soured after frequent disagreements as to the management of ABS.

The decline of this relationship culminated on 22 October 2009, when Moore and ABS filed a complaint in Robeson County Superior Court against Smith, her sister Jeanette Smith, and Life Changing Behavioral Services, LLC ("LCBS"), a business the two sisters had formed together. The complaint contained a number of claims for relief, including conversion, diversion of corporate opportunities, unfair and deceptive trade practices, fraud, tortious interference with contract, and civil conspiracy. On 7 December 2009, Smith filed a motion to dismiss and an answer containing counterclaims for fraud, conversion, diversion of corporate opportunities, unfair and deceptive trade practices, breach of fiduciary duty, unjust enrichment, and gross mismanagement. Smith's answer also included a request for dissolution of ABS, receivership, and an accounting.

A hearing on Smith's motion for the appointment of a receiver was held before the Honorable Robert F. Floyd on 8 December 2009. On 2 February 2010, the trial court entered an order granting the motion and appointing a receiver. The case was subsequently designated a mandatory complex business case on 23 February 2010 and transferred to the North Carolina Business Court two days later.

On 8 July 2011, the trial court entered an order dismissing all claims against Jeanette Smith and LCBS. Based on its determination *216that neither Moore nor Smith had standing to assert claims or counterclaims on behalf of ABS, the trial court entered an order dismissing these claims on 11 August 2011. The order further provided that "[t]he [c]laims against Smith and the [c]ounterclaims against Moore asserted in this matter shall remain in place, but may be prosecuted only by and on behalf of ABS, acting through the Receiver."

On 16 January 2013, Moore filed a motion to remove the receiver and dissolve the receivership. In addition, he made a separate motion to (1) allow him to pursue derivative claims on behalf of ABS; (2) permit him to pursue his individual claims against Smith; and (3) reinstate the claims against Jeanette Smith and LCBS. Smith filed a response to Moore's motions on 5 February 2013 in which she requested an award of *279attorneys' fees pursuant to Rule 11 of the North Carolina Rules of Civil Procedure and N.C. Gen. Stat. § 6-21.5.

On 18 July 2016, the trial court issued an order (the "Dismissal Order") that (1) dismissed all of the parties' remaining claims and counterclaims; (2) directed that the receiver liquidate and dissolve ABS; and (3) ordered that once the liquidation and dissolution had occurred the receiver would be discharged and the receivership dissolved.

On that same date, the court also entered a separate order (the "Attorneys' Fees Order") denying Smith's motion for attorneys' fees. The court ruled that although Moore had engaged in misconduct that materially delayed the action and caused harm to ABS, the conduct was "not related to any pleading, motion, or other court paper" and thus Rule 11 was "not the vehicle for imposing sanctions."

On 23 August 2016, Smith filed a motion for reconsideration as to the Attorneys' Fees Order, which stated, in relevant part, as follows:

3. The Court in denying Smith's motion for attorney's fees stated that "[g]iven the nature of the complained of conduct, however, it appears Rule 11 is not the vehicle for imposing sanctions based on that misconduct." ...
4. Based on the above, Smith now respectfully moves the Court, pursuant to N.C.G.S. § 55-7-46(2), to permit the payment of reasonable attorneys' fees to Smith due to the harm caused by Moore's unreasonable conduct in delaying and obstructing the prosecution of this action which he initiated, individually and on behalf of ABS.

The trial court entered an order (the "Reconsideration Order") on 4 December 2017 denying Smith's motion. On 3 January 2018, Smith filed a notice of appeal with this Court.

Analysis

In her notice of appeal, Smith stated her intent to appeal both the Attorneys' Fees Order and the Reconsideration Order. We address each in turn.

I. Attorneys' Fees Order

Rule 3 of the North Carolina Rules of Appellate Procedure requires that parties to a civil action file and serve a notice of appeal within thirty days after entry of a final judgment. Rosenstadt v. Queens Towers Homeowners' Ass'n , 177 N.C. App. 273, 276-77, 628 S.E.2d 431, 433 (2006). "A final judgment is one which disposes of the cause as to all the *280parties, leaving nothing to be judicially determined between them in the trial court." Veazey v. City of Durham , 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950) (citation omitted).

Here, as Smith concedes, the two 18 July 2016 orders collectively constituted a final judgment because they disposed of all of the parties' claims and counterclaims, ordered dissolution of ABS, and denied Smith's motion for attorneys' fees. Nevertheless, she did not file her notice of appeal of the Attorneys' Fees Order until well after thirty days had elapsed from the date of the order.

It is well established that "[m]otions entered pursuant to Rule 60 do not toll the time for filing a notice of appeal." Wallis v. Cambron , 194 N.C. App. 190, 193,

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Bluebook (online)
826 S.E.2d 214, 264 N.C. App. 277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/associate-behavioral-services-inc-v-smith-ncctapp-2019.