Reints v. WB Towing Inc.

• Court: Court of Appeals of North Carolina
• Decided: July 18, 2023
• Docket: 22-1031
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-1031

Filed 18 July 2023

New Hanover County, No. 21CVD4745

JOHN REINTS, Plaintiff,

v.

WB TOWING INC., Defendant.

Appeal by Plaintiff from order entered 7 June 2022, nunc pro tunc 20 May

2022, by Judge Lindsey L. McKee in New Hanover County District Court. Heard in

the Court of Appeals 25 April 2023.

John Reints, Plaintiff-Appellant pro se.

Cranfill Sumner LLP, by Steven A. Bader, Jason R Harris, and Ryan L. Bostic for Defendant-Appellee.

RIGGS, Judge.

John Reints (Plaintiff) appeals an amended order entered 7 June 2022, nunc

pro tunc 20 May 2022, (hereinafter, “Amended Post-Dismissal Order”) in New

Hanover County District Court. The Amended Post-Dismissal Order denied

Plaintiff’s motion to amend the trial court’s earlier order granting WB Towing, Inc.’s

(Defendant) motion to dismiss for failure to join a necessary party (hereinafter,

“Dismissal Order”), entered 28 March 2022. Plaintiff also appeals this Dismissal

Order and three of Plaintiff’s issues presented on appeal arise out of the Dismissal

Order. However, this Court does not have jurisdiction to consider the Dismissal REINTS V. WB TOWING INC.

Opinion of the Court

Order, and we dismiss issues I, II, and IV, which arise out of that order. Further, we

affirm the Amended Post-Dismissal Order.

I. FACTUAL AND PROCEDURAL HISTORY

On 3 August 2020, the 30.5-foot sailboat Neriad, owned by the Amphitrite

Celestial Navigation Society (“the Society”), ran aground in the marsh near

Wrightsville Beach, North Carolina, during Hurricane Isaias. Plaintiff, a member of

the Society, discovered the boat in the marsh on 8 August 2020 and contacted

Defendant to request assistance ungrounding the vessel. Defendant met Plaintiff at

the location where Neriad was grounded to assess the boat’s situation.

With Plaintiff’s assistance, Defendant made multiple attempts with two

towboats to tilt Neriad upright and pull the vessel into deeper water. While

attempting to pull Neriad into deeper water, the force from the towline broke Neriad’s

mast. Ultimately, Defendant was unable to move Neriad from where it was

grounded.

On 23 November 2021, Plaintiff filed a claim in New Hanover County small

claims court alleging Defendant negligently broke the mast of Neriad when it

attempted to unground the vessel. Plaintiff signed the complaint indicating that he

was acting on behalf of the Society. According to Plaintiff, the cost of repairing the

mast exceeded the market value of Neriad; therefore, the damage resulted in a

constructive loss. The claim was heard in small claims court on 14 December 2021

and the magistrate entered an order on 20 December 2021 in favor of Defendant.

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Plaintiff appealed the order to New Hanover County District Court on 28

December 2021 and filed an amended complaint on 18 January 2022. On 25 January

2022, Defendant filed a motion to dismiss pursuant to Rule 12(b)(6) and (7).

Defendant alleged that Plaintiff was not the real party-in-interest because he did not

own the vessel. Plaintiff alleges he is a member of the Society, an unincorporated

association that owns the vessel and, therefore, according to N.C. Gen. Stat. § 59B-

7(e), he can make a claim on behalf of the Society. On 21 March 2022, the trial court

heard arguments on the motion and granted the motion to dismiss without prejudice

under Rule 12(b)(7) for failure to join a necessary party—the owner of the vessel. The

trial court clarified that the ruling would not preclude a claim by the owner of the

vessel if filed within the statute of limitations. The trial court entered the Dismissal

Order in this matter on 28 March 2022.

On 1 April 2022, Plaintiff filed with the trial court an “objection to the order

entered on 25 [sic] March 2022.” (“Objection”) In this filing, Plaintiff argued that he

had not been allowed a reasonable time for ratification of the action or joinder of the

real party in interest as allowed by Rule 17 of the North Carolina Rules of Civil

Procedure. N.C. R. Civ. P. 17 (2021). However, Plaintiff did not request a remedy in

his filing. On the same day, Plaintiff also filed a motion to amend the order pursuant

to N.C. R. Civ. P. 52(b), in which Plaintiff requested that the court set aside the order

granting the motion to dismiss to allow Plaintiff additional time to file and serve

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ratification of the claim by the real party in interest. (hereinafter, “Rule 52(b) motion

to amend Dismissal Order”)

The trial court held a hearing on 16 May 2022 to consider the Rule 52(b) motion

to amend Dismissal Order. In that hearing, Plaintiff argued that the trial court did

not allow reasonable time after the hearing on the motion to dismiss for ratification

by the real party in interest. Defendant argued that Plaintiff was put on notice when

Defendant filed its motion to dismiss that Plaintiff needed to join the vessel owner as

a real party in interest; the two months between the motion and the hearing provided

Plaintiff reasonable time to have the Society ratify the claim. Additionally,

Defendant argued that the trial court no longer had jurisdiction to allow substitution

or joinder of a party once the case was dismissed. The trial court noted that because

the litigation dated back to late 2021, there was “ample opportunity” to add or

substitute a party.

On 20 May 2022, the trial court entered an order dismissing the Rule 52(b)

motion to amend Dismissal Order and Objection. (hereinafter, “Post-Dismissal

Order”) Plaintiff made an additional motion for findings of fact and conclusions of law

on 20 May 2022. On 7 June 2022, the trial court entered the Amended Post-Dismissal

Order, nunc pro tunc, with an effective date of 20 May 2022, adding a denial of

Plaintiff’s motion to reconsider the Post-Dismissal Order.

On 9 June 2022, Plaintiff entered a notice of appeal designating the Dismissal

Order, the Post-Dismissal Order, and the Amended Post-Dismissal Order.

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II. ANALYSIS

A. Appellate Jurisdiction

As a threshold issue, we must determine whether Plaintiff’s notice of appeal

was timely and properly conferred jurisdiction on this Court such that we can

consider the merits of the issues presented in his appeal. After careful consideration,

we hold that this Court has jurisdiction as to the Amended Post-Dismissal Order,

which subsumes the Post-Dismissal Order, but does not have jurisdiction as to the

Dismissal Order.

In order to confer jurisdiction on this Court, litigants appealing from trial court

decisions must comply with Rule 3 of the North Carolina Rules of Appellate

Procedure. Bailey v. State, 353 N.C. 142, 156, 540 S.E.2d 313, 322 (2000). “The

provisions of Rule 3 are jurisdictional, and failure to follow the rule’s prerequisites

mandates dismissal of an appeal.” Id. To comply with Rule 3, the notice of appeal

must be timely, which requires that the notice is filed within thirty days of entry of

the judgment. N.C. R. App. P. 3(c) (2023). However, when a party makes a proper

motion for relief pursuant to Rules 50(b), 52(b), or 59 of the Rules of Civil Procedure

within ten days of entry of the order or judgment, the thirty-day period for taking

appeal is tolled until entry of an order disposing of the motion. N.C. R. App. P. 3(c)(2)-

(3).

In Plaintiff’s notice of appeal, he designates three orders entered by the trial

court: (1) the Dismissal Order; (2) the Post-Dismissal Order; and (3) the Amended

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Post-Dismissal Order. Because the Amended Post-Dismissal Order substitutes, as a

legal matter, for the Post-Dismissal Order, we need only to address the jurisdiction

of the Amended Post-Dismissal Order and the Dismissal Order.

1. Jurisdiction for the Dismissal Order.

First, we address whether this Court has jurisdiction over the Dismissal Order

entered 28 March 2022. The notice of appeal was entered on 7 June 2022, more than

thirty days after this Dismissal Order was entered—thus, the notice of appeal was

not timely under N.C. R. App. P. 3(c). Plaintiff argues that he filed a timely motion

under Rule 52(b) of the Rules of Civil Procedure, which tolled the time for filing a

notice of appeal until the trial court entered the Post-Dismissal Order. Plaintiff is

correct that a proper motion for relief under Rule 52(b) of the Rules of Civil Procedure

does toll the thirty-day period for taking an appeal. N.C. R. App. P. 3(c)(3). However,

to determine if the motion is proper such that it actually tolls the time for entering a

timely notice of appeal, we must consider whether the motion requested relief

provided by Rule 52 of the Rules of Civil Procedure.

The analysis used to determine whether the Rule 52(b) motion is properly

made and thus tolls the time for appeal essentially tracks the analysis required to

address the merits of one of Plaintiff’s issues on appeal: whether the trial court

abused its discretion in denying the Rule 52(b) motion to amend Dismissal Order.

Our conclusion that the Rule 52(b) motion to amend Dismissal Order did not toll the

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time for entering a notice of appeal will likewise lead us to the conclusion, below, that

the trial court did not abuse its discretion when it denied the motion.

To understand why Plaintiff’s Rule 52(b) motion was not proper under Rule 52

and did not toll the time for entering appeal, we must first look to the purpose of Rule

52. The primary purpose of this rule is to ensure that the trial court documents

factual findings and conclusions of law so that the appellate court has a correct

understanding of the factual issues determined by the trial court. Parrish v. Cole, 38

N.C. App. 691, 694, 248 S.E.2d 878, 879 (1978). However, a trial court is only required

to make findings of fact and conclusions of law on a motion “when required by

statute . . . or requested by a party.” Sherwood v. Sherwood, 29 N.C. App. 112, 113,

223 S.E.2d 509, 510 (1976); N.C. R. Civ. P. 52(a)(2) (2021). If a party wants the trial

court to amend the findings prior to appeal, Rule 52(b) allows a party to make a

motion, not later than ten days after entry of judgment for the court, to request that

the trial court amend its findings or make additional findings. N.C. R. Civ. P. 52(b)

(2021) (emphasis added). If the court makes or amends its findings, the court may

amend the judgment accordingly. Id. (emphasis added).

When a trial court grants a dismissal for failure to join a necessary party, that

dismissal is not an adjudication on the merits, and thus findings of fact are not

necessary or even warranted. N.C. R. Civ. P. 41(b) (2021). In dismissing for failure

to join a necessary party, the trial court is not acting as a fact finder and resolving

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factual disputes; the trial court is only saying that all the parties necessary for the

litigation have not properly been brought into the litigation yet.

There are two problems with Plaintiff’s motion. First, Plaintiff’s motion for

amended order pursuant to N.C. R. Civ. P. 52(b) did not request that the court make

additional findings or amend the order based upon additional or amended findings.

The Rules of Civil Procedure did not require the trial court here to make findings of

fact to resolve the motion to dismiss for failure to join a necessary party. At the time

the trial court was considering that motion to dismiss, neither Plaintiff nor Defendant

requested that the trial court make factual findings.

Second, Plaintiff’s motion requested that the trial court set aside the Dismissal

Order to allow him additional time to file ratification by the necessary party in

interest. A ratification at this stage would have only functioned as an amended

complaint after the trial court dismissed the case and lost jurisdiction. This Court

has held that amendment of the complaint after dismissal under Rule 12(b)(6) is not

permitted as a matter of right. Johnson v. Bollinger, 86 N.C. App. 1, 7, 356 S.E.2d

378, 382 (1987). We discern no difference that would allow amendment of the

complaint as a matter of right after dismissal under Rule 12(b)(7). Rule 52(b) was

not designed to provide a backdoor to late amendment of a complaint. We thus hold

that Plaintiff’s Rule 52(b) motion was not authorized under the Rule and therefore,

did not toll the time for making a notice of appeal.

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For this reason, we must dismiss as untimely Plaintiff’s issues on appeal I, II

and IV, which arise out of the Dismissal Order.

2. Jurisdiction over the Amended Post-Dismissal Order.

Second, we address the Amended Post-Dismissal Order. In entering the

Amended Post-Dismissal Order, the trial court added a denial of Plaintiff’s motion to

reconsider to the denial of Plaintiff’s motion to amend the Dismissal Order and

Objection, presumably to ensure that all motions in this matter were resolved. The

court entered the order “nunc pro tunc 20 May 2022”,1 meaning that the Amended

Post-Dismissal Order had the same effective date as the Post-Dismissal Order and

took the place of the Post-Dismissal order.

In accordance with Rule 3 of the Rules of Civil Procedure, Plaintiff filed his

notice of appeal on 9 June 2022, within thirty days of the effective date of the

amended order. Therefore, we hold that this Court has jurisdiction over the Amended

Post-Dismissal Order.

B. Denial of Rule 52(b) motion to amend the Dismissal Order.

Based upon our jurisdiction over the Amended Post-Dismissal Order, we turn

our consideration to the only issue on appeal arising out of this order, which is

whether the trial court abused its discretion when it denied this Rule 52(b) motion to

amend the Dismissal Order. Relying upon our prior analysis on the propriety of this

1 A nunc pro tunc order is an entered order with retroactive effect.

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Rule 52(b) motion supra, we hold that the trial court did not abuse its discretion when

it denied Plaintiff’s request to amend the Dismissal Order.

Because Rule 52(b) uses permissive language such that the trial court may

amend its findings or may amend the judgment accordingly, the rule allows the trial

court to exercise its discretion. N.C. R. Civ. P. 52(b) (emphasis added). Therefore, we

consider an appeal of a Rule 52 motion for an abuse of discretion. Where matters are

left to the discretion of the trial court, appellate review is limited to a determination

of whether there was a clear abuse of discretion. White v. White, 312 N.C. 770, 777,

324 S.E.2d 829, 833 (1985).

When the trial court is not required to find facts and make conclusions of law

and does not do so, it is presumed that the court relied upon proper evidence to

support its judgment. Watkins v. Hellings, 321 N.C. 78, 82, 361 S.E.2d 568, 571

(1987) (citations and quotations omitted). As previously discussed, the trial court

here was not required to make findings of fact for an order granting a motion to

dismiss, and the parties did not request findings at the time of the hearing.

Plaintiff does not provide, and we do not find, case law wherein a Rule 52(b)

motion for an amended order is appropriate, without any initial findings of fact or

conclusions of law, to set aside a trial court’s dismissal for failure to join a necessary

party. As discussed above, Plaintiff’s motion for amended order essentially requested

reconsideration and, effectively, sought permission for him to amend his complaint to

add a necessary party. As a general rule, once a judgment is entered, amendment of

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the complaint is not allowed unless the judgment is set aside or vacated under Rule

592 or 60. Chrisalis Props., Inc. v. Separate Quarters, Inc., 101 N.C. App. 81, 89, 398

S.E.2d 628, 634 (1990).

Thus, in denying a motion not authorized under Rule 52(b) and one that sought

relief that is generally precluded in this posture of litigation, we hold the trial court

did not abuse its discretion when it denied Plaintiff’s Rule 52(b) motion to amend the

Dismissal Order. Accordingly, we affirm the ruling of the trial court.

III. CONCLUSION

After review of the issues, this Court does not have jurisdiction over the

Dismissal Order. We, therefore, dismiss all issues on appeal associated with that

order. Additionally, we affirm the trial court’s order denying Plaintiff’s motion to

amend the Dismissal Order.

DISMISSED IN PART, AFFIRMED IN PART.

Judges TYSON and COLLINS concur.

2 Alternatively, Plaintiff, in his briefing, not in his motion before the trial court, invokes Rule 59 as a basis for his motion for amended judgment. See Harrell v. Whisenant, 53 N.C. App. 615, 617, 281 S.E.2d 453, 454 (1981) (“A motion is properly treated according to its substance rather than its label.”). Plaintiff argues that the order granting the motion to dismiss was based upon an error in law, which is grounds for relief identified in Rule 59 of the North Carolina Rules of Civil Procedure. N.C. R. Civ. P. 59 (a)(8) (2021). However, this Court has held that Rule 59 does not apply to pre-trial rulings. Doe v. City of Charlotte, 273 N.C. App. 10, 18, 848 S.E.2d 1, 8 (2020).

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