Johns v. Johns

672 S.E.2d 34, 195 N.C. App. 201, 2009 N.C. App. LEXIS 110
Court of Appeals of North Carolina·Decided February 3, 2009·No. COA07-1259·Published·Cited by 12 cases

Opinions

GEER, Judge.

Rice Law, PLLC appeals from the trial court’s order imposing sanctions on the law firm under Rule 11 of the Rules of Civil Procedure. Although Rice Law contends that the trial court erred in entering a Rule 11 order without conducting an evidentiary hearing, the record reveals that the trial court considered documentary evidence. Whether to allow oral testimony or the presentation of further documentary evidence was a question that lay within the discretion of the trial court. Since Rice Law has failed to demonstrate that the trial court abused its discretion in this case and has failed to demonstrate that the trial court erred in concluding that Rice Law violated Rule 11, we affirm the trial court’s order.

Facts

Rice Law represented Douglas Dale Johns in connection with proceedings arising out of his divorce from Janice Marie Johns. Mr. Johns and Ms. Johns were married on 12 June 1999, separated on 5 November 2005, and ultimately divorced in February 2007. They have one child, but Ms. Johns also has another daughter, Jessica Johns, from a prior marriage. During their separation, Ms. Johns filed a complaint and a motion for a domestic violence protective order (“DVPO”) against Mr. Johns on 8 February 2006. Two days later, on 10 February 2006, Mr. Johns filed an action seeking custody of their child. On 17 March 2006, Mr. and Ms. Johns filed a stipulated dismissal of the DVPO action with prejudice and a consent order providing for temporary custody of their child and restraining Mr. Johns from approaching Ms. Johns or Jessica Johns.

On 30 March 2006, Ms. Johns filed an answer to Mr. Johns’ complaint for custody and asserted counterclaims seeking permanent custody of their child, child support, post-separation support, alimony, equitable distribution, and attorney’s fees. Mr. Johns filed a reply on 6 June 2006.

[204] On 6 October 2006, Jessica Johns filed a complaint and motion for a DVPO against Mr. Johns, alleging that he had violated the agreed-upon restraining order. Because Jessica Johns was 17 at the time, her mother, Ms. Johns, was appointed as her guardian ad litem (“GAL”) by the clerk of court. On 12 October 2006, Mr. Johns filed a motion to dismiss Jessica Johns’ action pursuant to Rule 12(b)(6) of the Rules of Civil Procedure, an answer, a document entitled “Objection to Appointment of Guardian Ad Litem Janice Marie Johns and Motion to Dismiss Plaintiff’s Complaint and Motion for Domestic Violence Protective Order” (hereafter “Objection to GAL”), and a motion for Rule 11 sanctions.

The trial court conducted a hearing on 13 October 2006 on Mr. Johns’ motion to dismiss. The court orally allowed Jessica Johns’ oral motion to amend her complaint and denied Mr. Johns’ motion. The written order reflecting those rulings was entered on 19 October 2006. On 16 October 2006, before entry of the order and prior to Jessica Johns’ filing her amended complaint, Mr. Johns filed a motion to strike any amended or supplemental complaint as being “untimely” filed. The next day, 17 October 2006, Jessica Johns filed her amended complaint, as well as a motion for Rule 11 sanctions against Mr. Johns and Rice Law.

On 2 November 2006, Mr. Johns filed an “Amended Objection to Appointment of Guardian Ad Litem Janice Marie Johns and Motion to Dismiss Plaintiff’s Complaint and Motion for Domestic Violence Protective Order” (hereafter “Amended Objection to GAL”). Accompanying the Amended Objection to GAL was a “Memorandum of Law in Support of Defendant’s Objection to Appointment of Guardian Ad Litem Janice Marie Johns” (hereafter “Memorandum of Law”).

On 8 November 2006, Mr. Johns moved to amend the trial court’s 19 October 2006 order, again arguing that the amended complaint was untimely filed. On 18 December 2006, Mr. Johns also filed an answer to the amended complaint. The trial court entered an amended order consolidating Mr. Johns’ and Jessica Johns’ actions on 8 February 2007.

On 16 March 2007, Mr. Johns filed a “Motion to Consider Potential Conflicts of Interest Arising from Dual Representation of Plaintiff and GAL and If Found, to Remove Counsel of Record,” requesting that the trial court remove Linda B. Sayed as counsel for both Ms. Johns and Jessica Johns. In this motion, Mr. Johns repeated various allegations contained in the Objection to GAL and Amended Objection to GAL, [205] added new allegations, and contended that if the GAL appointment was found improper, Linda B. Sayed, who had been both Ms. Johns’ counsel and counsel in Jessica Johns’ action, should be removed as counsel for both Jessica Johns and Ms. Johns “in all pending matters before the New Hanover County District Court.” On 23 March 2007, Jessica Johns filed a motion to strike, dismiss, or deny the motion to remove Ms. Sayed and a motion for Rule 11 sanctions on the ground that Mr. Johns’ motion was filed for an improper purpose.

On 26 March 2007, during a pre-trial conference, the parties agreed to convert the terms of the temporary custody order into, a permanent custody order in exchange for Jessica Johns’ dismissing her action for a DVPO against Mr. Johns. Rice Law contends that it was directed by the trial court to release the witnesses that were subpoenaed to testify at the hearing on Jessica Johns’ action for a DVPO.

Despite the agreement to dismiss the DVPO action, Jessica Johns, through Ms. Johns as her GAL, refused to withdraw her motion for sanctions against Mr. Johns, and Mr. Johns refused to withdraw his pending motions and objections to Ms. Johns’ serving as Jessica Johns’ GAL. The trial court held a hearing the next day to rule on all outstanding issues, including: (1) Mr. Johns-’ motion to modify child and spousal support, (2) his motion to strike Jessica Johns’ DVPO amended complaint, (3) his motion to amend the 19 October 2006 order, (4) his Amended Objection to GAL, (5) his motion to consider potential conflicts of interest, (6) his motion for Rule 11 sanctions, and (7) Jessica Johns’ motion for Rule 11 sanctions.

The trial court first heard the motion to modify child and spousal support and related motions to hold Mr. Johns in contempt. During that hearing, both Mr. Johns and Ms. Johns called witnesses to testify in support of their positions. The trial court granted Mr. Johns’ motion to reduce child support, found that Mr. Johns was in willful contempt for failure to pay post-separation support and attorneys’ fees, and denied Mr. Johns’ motion to reduce post-separation support.

After the trial court ruled on the motions related to support, the court indicated that it would consider the remaining motions. Counsel from Rice Law stated that he objected to the trial court’s hearing any of those motions that day since Mr. Johns’ witnesses had been released, and the motions required the presentation of evidence. The trial court overruled the objection and subsequently dismissed or denied all of Mr. Johns’ motions and objections. With respect to Jessica Johns’ motion for Rule 11 sanctions, the trial court heard oral [206] argument, orally granted that motion, and imposed Rule 11 sanctions against Rice Law.

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Johns v. Johns, 672 S.E.2d 34, 195 N.C. App. 201, 2009 N.C. App. LEXIS 110 (N.C. Ct. App. 2009).

672 S.E.2d 34 (Johns v. Johns) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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