An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-144 NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
FRANK S. ROBERTS, Plaintiff
v. Madison County No. 12 CVD 166 FRANK WARD et al, Defendants.
Appeal by plaintiff from order entered 8 November 2013 by
Judge R. Gregory Horne in Madison County District Court. Heard
in the Court of Appeals 21 May 2014.
Mary March Exum for plaintiff-appellant.
Stephen E. Huff for defendant-appellees.
McCULLOUGH, Judge.
Plaintiff Frank S. Roberts appeals from a denial of a Rule
59 motion to reconsider the dismissal of his claims against
defendants Frank Ward et al. Based on the reasons stated
herein, we affirm the order of the trial court.
I. Background
On 15 March 2012, plaintiff filed a complaint against
defendants in the small claims division of Madison County -2- District Court. Plaintiff attempted to recover a Chevrolet
school bus worth $3,000.00 to $5,000.00.
On 9 May 2012, the small claims division entered a
judgment, finding that plaintiff had failed to prove ownership
of the vehicle. Plaintiff’s action was dismissed with
prejudice.
Plaintiff filed notice of appeal to the district court on
22 May 2012.
On 22 August 2012, defendants filed an “Interrogatories and
Requests for Production of Documents and Things – First Set.”
(“discovery request”). Plaintiff had a deadline of 21 September
2012 to answer defendants’ discovery request.
At an 8 October 2012 hearing pursuant to plaintiff’s
request, the trial court entered an order granting plaintiff an
extension of thirty days or until 22 October 2012 to respond to
defendants’ discovery request.
On 10 January 2013, defendants filed a “Motion for
Sanctions” arguing that plaintiff had “failed and refused to
provide said responses, which said failure has prejudiced the
Defendants’ ability to make a defense in the above-entitled
action.” Pursuant to Rule 37(b) of the North Carolina Rules of -3- Civil Procedure, defendants argued that sanctions should be
imposed for failure to obey the order.
On 10 January 2013, plaintiff was provided with a “Notice
of Hearing” that defendants’ motion for sanctions would be heard
on 23 January 2013.
Following a hearing held on 23 January 2013, the trial
court entered an order on 27 February 2013, making the following
relevant findings of fact:
IT APPEARING to the Court that the Plaintiff did not appear at said calendar call but personally appeared later and claimed illness. The Court requested that the Plaintiff provide medical verification and held the matter open for a reasonable period of time. The Plaintiff failed to provide such verification prior to the hearing of this matter. However, after said hearing was concluded, purported medical documentation was received regarding the Plaintiff which the Court in its discretion reviewed and considered. Said documentation was insufficient to indicate any incapacity on the part of the Plaintiff to proceed with said hearing. The Court observed the Plaintiff when the Plaintiff made said personal appearance, and the Plaintiff appeared capable of proceeding with said hearing. After said initial appearance, the Plaintiff left the courtroom and did not reappear and made no further contact with the Court other than the receipt of said purported medical documentation which the Court has found to be insufficient. Based upon prior cases and dealings with the Plaintiff, the Court is familiar with the Plaintiff’s habit of claiming and/or -4- feigning illness and disability to proceed on the eve of court proceedings and then later producing documentation insufficient to substantiate any disability or incapacity to proceed[.]
The trial court noted that plaintiff had not filed any response
or objection to the discovery request, had not filed any request
for additional time to respond to the discovery request, was
aware of the deadlines, and had wilfully failed to comply with
the discovery request and the trial court’s 8 October 2012
order. Based on the foregoing, the trial court dismissed
plaintiff’s action with prejudice.
On 12 March 2013, plaintiff filed a “N.C.G.S. 59 – Motion
to Reconsider” pursuant to Rule 59 of the North Carolina Rules
of Civil Procedure.
Following a hearing held at the 6 November 2013 session of
Madison County District Court, the trial court denied
plaintiff’s Rule 59 motion by order entered 8 November 2013.
On 6 December 2013, plaintiff filed notice of appeal from
the 8 November 2013 Order.
II. Discussion
On appeal, plaintiff argues that the trial court erred by
entering the 27 February 2013 order and the 8 November 2013
order. -5- First, we examine whether our Court has jurisdiction to
review the trial court’s 27 February 2013 order, dismissing
plaintiff’s action and appeal with prejudice.
Rule 3 of the North Carolina Rules of Appellate Procedure
provides that notice of appeal “shall designate the judgment or
order from which appeal is taken[.]” N.C. R. App. P. 3(d)
(2014). The requirements of Rule 3 are “jurisdictional in
nature.” Von Ramm v. Von Ramm, 99 N.C. App. 153, 158, 392
S.E.2d 422, 425 (1990). Furthermore, it is well established
that “[a]ppellate review of a denial of a Rule 59 motion . . .
is distinct from review of the underlying judgment or order upon
which such a motion may be based.” Davis v. Davis, 360 N.C.
518, 526, 631 S.E.2d 114, 120 (2006) (citation omitted).
“Notice of appeal from denial of a [Rule 59] motion . . . which
does not also specifically appeal the underlying judgment does
not properly present the underlying judgment for our review.”
Von Ramm, 99 N.C. App. at 156, 392 S.E.2d at 424 (citation
omitted).
Here, plaintiff’s notice of appeal states that “plaintiff
in this action, hereby gives notice of appeal to the Honorable
Court of Appeals of North Carolina of the Order entered and
filed in this case on November 8, 2013 by the Honorable Greg -6- Horne[.]” Because plaintiff’s notice of appeal fails to
specifically appeal from the underlying judgment entered 27
February 2013, we lack the jurisdiction to review said order.
Therefore, our review is limited to the 8 November 2013 order,
denying plaintiff’s Rule 59 motion.
Plaintiff argues on appeal that the trial court abused its
discretion by denying his motion to reconsider made pursuant to
Rule 59(a)(1) and 59(a)(9) of the North Carolina Rules of Civil
Procedure where there was sufficient documentation that he was
“incapable of attending the hearing on defendant[s’] motion for
sanctions.” We disagree.
Rule 59(a)(1) and 59(a)(9) provides as follows:
[a] new trial may be granted to all or any of the parties and on all or part of the issues for any of the following causes or grounds: (1) Any irregularity by which any party was prevented from having a fair trial; . . . (9) Any other reason heretofore recognized as grounds for new trial.
N.C. Gen. Stat. § 1A-1, Rule 59(a)(1) and (9) (2013). It is
well established that
[a] trial court’s ruling on a [Rule 59] motion . . .
Free access — add to your briefcase to read the full text and ask questions with AI
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-144 NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
FRANK S. ROBERTS, Plaintiff
v. Madison County No. 12 CVD 166 FRANK WARD et al, Defendants.
Appeal by plaintiff from order entered 8 November 2013 by
Judge R. Gregory Horne in Madison County District Court. Heard
in the Court of Appeals 21 May 2014.
Mary March Exum for plaintiff-appellant.
Stephen E. Huff for defendant-appellees.
McCULLOUGH, Judge.
Plaintiff Frank S. Roberts appeals from a denial of a Rule
59 motion to reconsider the dismissal of his claims against
defendants Frank Ward et al. Based on the reasons stated
herein, we affirm the order of the trial court.
I. Background
On 15 March 2012, plaintiff filed a complaint against
defendants in the small claims division of Madison County -2- District Court. Plaintiff attempted to recover a Chevrolet
school bus worth $3,000.00 to $5,000.00.
On 9 May 2012, the small claims division entered a
judgment, finding that plaintiff had failed to prove ownership
of the vehicle. Plaintiff’s action was dismissed with
prejudice.
Plaintiff filed notice of appeal to the district court on
22 May 2012.
On 22 August 2012, defendants filed an “Interrogatories and
Requests for Production of Documents and Things – First Set.”
(“discovery request”). Plaintiff had a deadline of 21 September
2012 to answer defendants’ discovery request.
At an 8 October 2012 hearing pursuant to plaintiff’s
request, the trial court entered an order granting plaintiff an
extension of thirty days or until 22 October 2012 to respond to
defendants’ discovery request.
On 10 January 2013, defendants filed a “Motion for
Sanctions” arguing that plaintiff had “failed and refused to
provide said responses, which said failure has prejudiced the
Defendants’ ability to make a defense in the above-entitled
action.” Pursuant to Rule 37(b) of the North Carolina Rules of -3- Civil Procedure, defendants argued that sanctions should be
imposed for failure to obey the order.
On 10 January 2013, plaintiff was provided with a “Notice
of Hearing” that defendants’ motion for sanctions would be heard
on 23 January 2013.
Following a hearing held on 23 January 2013, the trial
court entered an order on 27 February 2013, making the following
relevant findings of fact:
IT APPEARING to the Court that the Plaintiff did not appear at said calendar call but personally appeared later and claimed illness. The Court requested that the Plaintiff provide medical verification and held the matter open for a reasonable period of time. The Plaintiff failed to provide such verification prior to the hearing of this matter. However, after said hearing was concluded, purported medical documentation was received regarding the Plaintiff which the Court in its discretion reviewed and considered. Said documentation was insufficient to indicate any incapacity on the part of the Plaintiff to proceed with said hearing. The Court observed the Plaintiff when the Plaintiff made said personal appearance, and the Plaintiff appeared capable of proceeding with said hearing. After said initial appearance, the Plaintiff left the courtroom and did not reappear and made no further contact with the Court other than the receipt of said purported medical documentation which the Court has found to be insufficient. Based upon prior cases and dealings with the Plaintiff, the Court is familiar with the Plaintiff’s habit of claiming and/or -4- feigning illness and disability to proceed on the eve of court proceedings and then later producing documentation insufficient to substantiate any disability or incapacity to proceed[.]
The trial court noted that plaintiff had not filed any response
or objection to the discovery request, had not filed any request
for additional time to respond to the discovery request, was
aware of the deadlines, and had wilfully failed to comply with
the discovery request and the trial court’s 8 October 2012
order. Based on the foregoing, the trial court dismissed
plaintiff’s action with prejudice.
On 12 March 2013, plaintiff filed a “N.C.G.S. 59 – Motion
to Reconsider” pursuant to Rule 59 of the North Carolina Rules
of Civil Procedure.
Following a hearing held at the 6 November 2013 session of
Madison County District Court, the trial court denied
plaintiff’s Rule 59 motion by order entered 8 November 2013.
On 6 December 2013, plaintiff filed notice of appeal from
the 8 November 2013 Order.
II. Discussion
On appeal, plaintiff argues that the trial court erred by
entering the 27 February 2013 order and the 8 November 2013
order. -5- First, we examine whether our Court has jurisdiction to
review the trial court’s 27 February 2013 order, dismissing
plaintiff’s action and appeal with prejudice.
Rule 3 of the North Carolina Rules of Appellate Procedure
provides that notice of appeal “shall designate the judgment or
order from which appeal is taken[.]” N.C. R. App. P. 3(d)
(2014). The requirements of Rule 3 are “jurisdictional in
nature.” Von Ramm v. Von Ramm, 99 N.C. App. 153, 158, 392
S.E.2d 422, 425 (1990). Furthermore, it is well established
that “[a]ppellate review of a denial of a Rule 59 motion . . .
is distinct from review of the underlying judgment or order upon
which such a motion may be based.” Davis v. Davis, 360 N.C.
518, 526, 631 S.E.2d 114, 120 (2006) (citation omitted).
“Notice of appeal from denial of a [Rule 59] motion . . . which
does not also specifically appeal the underlying judgment does
not properly present the underlying judgment for our review.”
Von Ramm, 99 N.C. App. at 156, 392 S.E.2d at 424 (citation
omitted).
Here, plaintiff’s notice of appeal states that “plaintiff
in this action, hereby gives notice of appeal to the Honorable
Court of Appeals of North Carolina of the Order entered and
filed in this case on November 8, 2013 by the Honorable Greg -6- Horne[.]” Because plaintiff’s notice of appeal fails to
specifically appeal from the underlying judgment entered 27
February 2013, we lack the jurisdiction to review said order.
Therefore, our review is limited to the 8 November 2013 order,
denying plaintiff’s Rule 59 motion.
Plaintiff argues on appeal that the trial court abused its
discretion by denying his motion to reconsider made pursuant to
Rule 59(a)(1) and 59(a)(9) of the North Carolina Rules of Civil
Procedure where there was sufficient documentation that he was
“incapable of attending the hearing on defendant[s’] motion for
sanctions.” We disagree.
Rule 59(a)(1) and 59(a)(9) provides as follows:
[a] new trial may be granted to all or any of the parties and on all or part of the issues for any of the following causes or grounds: (1) Any irregularity by which any party was prevented from having a fair trial; . . . (9) Any other reason heretofore recognized as grounds for new trial.
N.C. Gen. Stat. § 1A-1, Rule 59(a)(1) and (9) (2013). It is
well established that
[a] trial court’s ruling on a [Rule 59] motion . . . is usually subject to an abuse of discretion standard. A trial court may be reversed for abuse of discretion only upon a showing that its actions are manifestly unsupported by reason. A ruling committed to a trial court’s discretion is to be accorded great deference and will be -7- upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision.
Davis, 360 N.C. at 523, 631 S.E.2d at 118 (citations and
quotation marks omitted).
In the present case, plaintiff’s factual allegations
supporting his Rule 59 motion were that he was “extremely sick”
on 23 January 2013 and therefore, incapable of attending the
hearing. Plaintiff acknowledged that he was physically present
before Judge R. Gregory Horne on 23 January 2013 and that he
communicated that he “was unable to speak.” Plaintiff alleged
Judge R. Gregory Horne “said that if I delivered a note to that
effect in the next fifteen minutes that he would consider it.”
At 2:00 p.m. on 23 January 2013, a fax was submitted to the
Clerk of Court’s office in Madison County District Court to the
attention of Judge R. Gregory Horne. The fax included a
handwritten memo from plaintiff’s physician stating that she was
“treating [plaintiff] for at least a severe respiratory
infection.” Plaintiff further alleged that he obtained a verbal
diagnosis of “walking pneumonia” and that on 29 January 2013,
his physician sent a second correspondence to Judge R. Gregory
Horne explaining that plaintiff was “quite ill.” Plaintiff
argued that the aforementioned documentation was “more than -8- adequate to justify my excusable absence.” Plaintiff now
contends in his brief that the documentation provided by his
physician on 23 January 2013 and 29 January 2013 was “verified
proof” that he was incapable of attending the 23 January 2013
hearing.
After careful review, we find that plaintiff’s Rule 59
Motion addressed the same issues that were before the court at
the 23 January 2013 hearing on defendants’ motion for sanctions.
The trial court noted that plaintiff personally appeared on 23
January 2013 but failed to provide medical verification of his
inability to attend prior to the hearing. The trial court
thereafter reviewed both faxes sent by plaintiff’s physician,
and in its 27 February 2013 order dismissing plaintiff’s claims,
found that the purported medical documentation “was insufficient
to indicate any incapacity on the part of the Plaintiff to
proceed with said hearing.” A review of the record supports the
trial court’s findings that the proffered medical documentation
was insufficient as it merely stated that plaintiff was “quite
ill” due to an upper respiratory infection on 23 January 2013
and that he “should be able to return to work/school on within
[sic] 7 days.” Significantly, neither of the documents signed
by plaintiff’s physician revealed that plaintiff was unable to -9- attend any court proceedings. Furthermore, the trial court also
found in its 27 February 2013 order that it was “familiar with
the Plaintiff’s habit of claiming and/or feigning illness and
disability to proceed on the eve of court proceedings and then
later producing documentation insufficient to substantiate any
disability or incapacity to proceed[.]”
On this evidence, we find no irregularity or other grounds
that would serve as a basis for a new trial pursuant to Rule 59.
Accordingly, we hold that the trial court did not abuse its
discretion in denying plaintiff’s Rule 59 motion.
Affirmed.
Judges STEPHENS and STROUD concur.
Report per Rule 30(e).