Sea Ranch II Owners Association, Inc. v. Sea Ranch II, Inc.

636 S.E.2d 332, 180 N.C. App. 226, 2006 N.C. App. LEXIS 2247
CourtCourt of Appeals of North Carolina
DecidedNovember 7, 2006
DocketNo. COA05-1528.
StatusPublished
Cited by9 cases

This text of 636 S.E.2d 332 (Sea Ranch II Owners Association, Inc. v. Sea Ranch II, Inc.) 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
Sea Ranch II Owners Association, Inc. v. Sea Ranch II, Inc., 636 S.E.2d 332, 180 N.C. App. 226, 2006 N.C. App. LEXIS 2247 (N.C. Ct. App. 2006).

Opinion

HUDSON, Judge.

On 20 September 2000, plaintiff Sea Ranch Owner's Association, Inc., ("the owner's association") filed a complaint seeking past-due maintenance and special assessments from 1990 forward from defendant Sea Ranch II, Inc. ("the developer"). In November 2002, the court granted defendant's motion for partial summary judgment as to past-due assessments from 1990 to 1999. The matter came on for jury trial in November 2003. At the close of all evidence, the parties announced that they had reached a settlement agreement, the terms of which were stated in open court on 19 November 2003. Defendant drafted a proposed consent judgment, but plaintiff refused to sign it and defendant moved for entry of judgment. At the motion hearing on 28 January 2004, plaintiff repudiated the terms of the settlement in open court. On 15 March 2004, the court entered an order determining settlement terms between the parties and attaching a draft of the consent judgment prepared by defendant and containing red-line changes by plaintiff. On 19 November 2004, plaintiff moved for relief from the judgment pursuant to Rule 60(b), which motion the court denied. On 15 June 2005, plaintiff filed its notice of appeal from orders entered 15 March 2004 and 23 May 2005. On 29 November 2005, defendant moved to dismiss this appeal, which motion we dismissed as untimely; on 17 January 2006, defendant filed a supplemental motion to dismiss and for sanctions and attorney's fees. On 20 January 2006, defendant filed a second supplemental motion to dismiss and for sanctions and attorney's fees. As discussed below, we affirm in part and dismiss in part.

Sea Ranch II is an interval ownership condominium development organized pursuant to Chapter 47A of the North Carolina General Statutes and governed by its declaration of unit ownership. The declaration requires unit owners and the developer to pay various assessments. Plaintiff owner's association manages the development and collects assessments. Defendant is the developer and owns several of the units. The owner's association instituted this action to collect past due assessments from the developer.

We first consider the developer's motion to dismiss this appeal as not timely filed.

*334The owner's association appealed from a judgment entered 15 March 2004, but did not file this appeal until 15 June 2005, well outside the thirty-day window for appealing. The owner's association counters that the 15 March 2004 judgment was not a final order, and that the matter remained pending until entry of denial of its motion for relief pursuant to Rule 60(b) on 23 May 2005. We are not persuaded by this argument.

The owner's association bases this assertion on the following language in the decretal portion of the order:

5. That this Order may be enforced or modified by either party upon petition, motion or request to the undersigned Judge who retains jurisdiction herein....

Regardless of the court's intent in including this language, it does not change the fact that the order disposed of all matters at issue between the parties. "A mere designation of an order as temporary by a trial court is not sufficient to make that order interlocutory and not appealable." Cox v. Cox, 133 N.C.App. 221, 233, 515 S.E.2d 61, 69 (1999). In Cox, the trial court specifically designated its order as temporary and open to being revisited in the future; however, because all issues were resolved in the order, this Court held that the "temporary" order was, in fact, final and appealable. Id. at 232-33, 515 S.E.2d at 69.

Further, the owner's association contends that it was not a final order until the entry of the order in response to its Rule 60(b) motion. Rule 60(b) provides that "[o]n motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding...." N.C. Gen.Stat. § 1A-1, Rule 60(b) (2004). Thus, relief under Rule 60(b) is from final orders. By filing its Rule 60(b) motion, the owner's association has judicially admitted that the 15 March 2004 order was final. At the hearing on the Rule 60(b) motion, the court stated, "It was my understanding that plaintiff's position that this was a final order and became final, within the expiration of any appeal period from March 4th." The record reflects that the owner's association did not correct the court's understanding. Because it was not timely filed, we dismiss the owner's association's appeal of the 15 March 2004 order.

The owner's association also argues that the court erred in denying its motion in the cause pursuant to Rule 60(b). We do not agree.

The standard of review of a trial court's denial of a Rule 60(b) motion is abuse of discretion. Davis v. Davis, 360 N.C. 518, 523, 631 S.E.2d 114, 118 (2006). "A ruling committed to a trial court's discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision." Id. (internal quotation marks and citations omitted).

The owner's association's motion argued that relief should be granted pursuant to Rule 60(b)(4) ("judgment is void") or (6) ("any other reason justifying relief"). A motion made pursuant to Rule 60(b)(4), to set aside a void judgment, may be made at any time. Van Engen v. Que Scientific, Inc., 151 N.C.App. 683, 689, 567 S.E.2d 179, 184 (2002). Motions pursuant to subsection (6) "shall be made within a reasonable time." N.C. Gen.Stat. § 1A-1, Rule 60(b) (2004). "What constitutes a "reasonable time" depends upon the circumstances of the individual case." Nickels v. Nickels, 51 N.C.App. 690, 692, 277 S.E.2d 577, 578, disc. review denied, 303 N.C. 545, 281 S.E.2d 392 (1981).

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636 S.E.2d 332, 180 N.C. App. 226, 2006 N.C. App. LEXIS 2247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sea-ranch-ii-owners-association-inc-v-sea-ranch-ii-inc-ncctapp-2006.