Pleadings--Rule 11 sanctions--frivolous motion
The trial court did not err in assessing $400 in sanctions under N.C.G.S. § 1A-1, Rule
11(a) against defendants' counsel, based on defendants' filing of a frivolous N.C.G.S. § 1A-1,
Rule 13(h) motion to join plaintiff's counsel as a party, because defense counsel was essentially
attempting to refile the same counterclaims against plaintiff's counsel when those claims had
already been dismissed.
Sellers, Hinshaw, Ayers, Dortch, Honeycutt & Lyons, P.A., by
John F. Ayers, III and Timothy G. Sellers for plaintiff-
appellee.
Dean & Gibson, L.L.P., by Rodney Dean, for plaintiff-
appellee's counsel.
Hewson Lapinel Owens, PA, by H.L. Owens, for defendant-
appellants.
LEWIS, Judge.
The sole issue in this appeal is whether the trial court erred
in assessing $400 in sanctions against defendants' counsel for
violations of N.C.R. Civ. P. 11(a). We summarily conclude the
trial court properly awarded sanctions and thus affirm its order.
This action commenced when plaintiff filed a complaint against
defendants, seeking unpaid homeowners' assessments. Defendants
eventually filed counterclaims against plaintiff and, although
never officially made a party, plaintiff's counsel as well. In an
order entered 16 October 1998, the trial court dismissed all ofdefendants' counterclaims (including those asserted against
plaintiff's counsel) pursuant to N.C.R. Civ. P. 12(b)(6).
Notwithstanding this order, defendants thereafter tried again to
assert the same claims against plaintiff's counsel by filing a Rule
13(h) motion to join them as a party. The trial court denied that
motion and then imposed sanctions against defense counsel based
upon the fact that the counterclaims had already been dismissed and
were thus barred by res judicata.
Rule 11(a) allows sanctions against attorneys who file
pleadings or motions that are, among other things, asserted for an
improper purpose or not warranted by existing law. Both grounds
apply here. Rule 13(h) permits the joinder of any non-party whose
presence is "required for the granting of complete relief in the
determination of a counterclaim." Through its Rule 13(h) motion,
defense counsel attempted to join plaintiff's counsel as a party.
Under the plain wording of the rule, however, a counterclaim must
first exist, thereby making joinder necessary. Here there was no
such counterclaim, as all counterclaims were dismissed in the
court's 16 October 1998 order.
Moreover, although couched in terms of Rule 13(h), defense
counsel's motion was essentially an attempt to refile the same
counterclaims against plaintiff's counsel that had just been
dismissed. Because the trial court did not specify otherwise, its
dismissal of those counterclaims pursuant to Rule 12(b)(6) operatedas an adjudication on the merits and thus barred defense counsel
from reasserting the same counterclaims later. Dawson v. AllstateInsurance Co., 106 N.C. App. 691, 692, 417 S.E.2d 841, 842 (1992).
Accordingly, defense counsel's Rule 13(h) motion was completely
frivolous and not warranted by existing law, or a valid effort to
change it.
The record in this case and the two companion cases filed
today involving defense counsel include myriad motions and filings,
many of which are unnecessary and/or frivolous. Through these
motions and filings, defense counsel has wasted much of our courts'
time and resources, all for appeals involving relatively small sums
of money. We therefore not only affirm the trial court's
imposition of sanctions; we wholeheartedly applaud it.
Affirmed.
Judges JOHN and EDMUNDS concur.
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