1. Civil Procedure--denial of Rule 60 motion--lack of explicit
findings--no indication of improper standard
The trial court's failure to make explicit findings of fact
when denying a Rule 60 motion for relief did not indicate that
the court failed to employ the proper standard of review where
there was nothing to suggest that the court examined the facts de
novo or otherwise used an improper standard of review.
2. Civil Procedure--Rule 60 motion--neglect by attorney--
imputed to client
The trial court did not abuse its discretion in denying a
plaintiff's motion for Rule 60 relief from a dismissal which
resulted from failure to comply with discovery orders where
plaintiff argued that negligence by her counsel should not be
imputed to her. Ignorance, inexcusable neglect, or carelessness
by an attorney will not provide grounds for relief under N.C.G.S.
§ 1A-1, Rule 60(b)(1).
3. Civil Procedure--Rule 60 relief denied--failure to respond
to discovery orders--inexcusable neglect
The trial court did not abuse its discretion by denying
plaintiff's Rule 60(b)(1) motion for relief from a dismissal for
failure to comply with discovery orders where defendant served
his discovery request in August of 1999; plaintiff failed to
timely respond; defense counsel sent a letter to plaintiff
regarding her late responses but received no reply; defendant
filed a motion to compel several weeks after plaintiff's
responses were due; the parties agreed to entry of an order
allowing plaintiff an additional thirty days to comply but
plaintiff did not do so; defense counsel left several messages
with plaintiff's counsel regarding the failure to comply;
defendant filed a second motion to compel; plaintiff's counsel
was absent from the hearing; about six months passed between the
time the orders were due and the dismissal but plaintiff never
requested an extension; and defendant never received complete
discovery responses.
Charles O. Peed and Associates, by Charles O. Peed, forplaintiff-appellant.
Davis & Hamrick, L.L.P., by J. Chad Bomar, for defendant-
appellee.
HUNTER, Judge.
Shelby Jean Parris (“plaintiff”) appeals the denial of her
motion for relief from an order dismissing her negligence action
against Nathaniel L. Light (“defendant”). We affirm the trial
court's order denying plaintiff relief from the order of dismissal.
On 3 October 1996, plaintiff was injured when her vehicle
collided with a vehicle driven by defendant. Plaintiff filed a
complaint alleging defendant's negligence on 26 July 1999. On 25
August 1999, defendant, through counsel, served upon plaintiff a
first set of Interrogatories and Request for Production of
Documents. Plaintiff did not respond within the required thirty-
day time frame and did not request that the court grant her an
enlargement of time to respond to the discovery request. Defendant
notified plaintiff by letter of her failure to timely respond to
the discovery request.
When plaintiff had still not responded to the request by 16
November 1999, defendant filed a Motion to Compel, requesting that
the trial court order plaintiff to respond to defendant's 25 August
1999 discovery request. Following the motion, plaintiff filed
incomplete responses to the discovery request on 3 January 2000.
On 5 January 2000, both parties, through counsel, consented to the
entry of an order allowing plaintiff an additional thirty days from
the date of the order to provide complete and accurate discoveryresponses. The order was signed by plaintiff's counsel.
Plaintiff failed to comply with the court-ordered thirty-day
deadline for responding to defendant's discovery request. On 10
February 2000, after unsuccessful attempts to contact plaintiff's
counsel, defense counsel filed another Motion to Compel. In
addition to requesting that the court compel plaintiff to respond
to defendant's 25 August 1999 request, defendant moved the court to
impose appropriate sanctions pursuant to Rule 37 of the Rules of
Civil Procedure.
Defendant's second Motion to Compel was heard on 1 March 2000.
The trial court noted in its order that plaintiff's counsel had
failed to appear for the 21 February 2000 calendar call of the
case, and when the matter was subsequently called for hearing. The
trial court, noting that defendant had requested appropriate relief
under Rule 37, entered an order dismissing plaintiff's action.
Plaintiff's counsel filed a Motion for Relief from Judgment or
Order on 14 April 2000 on the basis of “inadvertence or excusable
neglect,” stating that he was “unaware” of the failure to comply
with discovery rules. Plaintiff's motion was heard on 1 June 2000
in the Superior Court of Stokes County. The trial court reviewed
the file, heard arguments of counsel for both parties, and entered
an order denying plaintiff's motion to set aside the order
dismissing her action. Plaintiff appeals.
Plaintiff argues that the trial court abused its discretion in
denying her motion for relief pursuant to Rule 60(b)(1) of the
Rules of Civil Procedure. Plaintiff argues: (1) the trial court's
order must be reversed for failure to apply the appropriatestandard of review; and (2) the trial court's order must be
reversed because the evidence is sufficient to show that
plaintiff's counsel's failure to comply with discovery rules and
the court order was due to “excusable neglect” and that any
negligence of plaintiff's counsel should not be imputed to
plaintiff.
Rule 60(b)(1) of the Rules of Civil Procedure “allows a party,
on motion to the trial court, to seek relief from a final judgment
on the grounds of mistake, inadvertence, surprise or excusable
neglect.” Gibson v. Mena, 144 N.C. App. 125, 128, 548 S.E.2d 745,
747 (2001). “Appellate review of a trial court's ruling pursuant
to Rule 60(b) is limited to determining whether the trial court
abused its discretion.” Moss v. Improved B.P.O.E., 139 N.C. App.
172, 176, 532 S.E.2d 825, 829 (2000) (citing Vaughn v. Vaughn, 99
N.C. App. 574, 575, 393 S.E.2d 567, 568, disc. review denied, 327
N.C. 488, 397 S.E.2d 238 (1990)).
[1]Plaintiff first argues that the trial court's order must
be reversed because the trial court failed to employ the proper
standard of review. We note that this argument in plaintiff's
brief fails to correspond directly to any of the assignments of
error set forth in the record on appeal. The scope of appellate
review “is confined to a consideration of those assignments of
error set out in the record on appeal.” N.C.R. App. P. 10(a). In
any event, plaintiff's argument is unpersuasive.
The trial court's order recited the procedural background of
the case, including all of plaintiff's failures to comply withdiscovery rules and the court order compelling discovery. The
court then concluded that “it is within the Court's discretion to
decide this matter and does therefore deny the Plaintiff's Motion
for Relief from Judgement of [sic] Order.” Plaintiff argues that
the trial court's failure to make findings as to whether relief was
warranted on the basis of “inadvertence or excusable neglect,” as
argued by plaintiff in her Rule 60(b)(1) motion, reveals that the
trial court did not employ the proper standard of review for a Rule
60(b) motion.
We do not agree that the absence of any such findings
indicates that the trial court failed to employ the proper standard
of review for a motion based upon Rule 60(b)(1). “[T]his Court
consistently has held: 'Although it would be the better practice
to do so when ruling on a Rule 60(b) motion, the trial court is not
required to make findings of fact unless requested to do so by a
party.'” Condellone v. Condellone, 137 N.C. App. 547, 550, 528
S.E.2d 639, 642 (citations omitted), disc. review denied, 352 N.C.
672, 545 S.E.2d 420 (2000). “Rendition of findings of fact is not
required of the trial court in ruling upon a Rule 60(b) motion
absent the request of a party, 'although it is the better practice
to do so.'” Gibson, 144 N.C. App. at 128, 548 S.E.2d at 747
(citation omitted) (noting that “[i]n the case sub judice, the
trial court entered no findings of fact upon which to base its
legal conclusion of excusable neglect”). Thus, the trial court was
not required to make any findings regarding counsel's conduct and
whether it constituted excusable neglect. In support of her position, plaintiff cites Anuforo v. Dennie,
119 N.C. App. 359, 458 S.E.2d 523 (1995), in which this Court
determined that the trial court applied an inappropriate standard
of review to a Rule 60(b) motion. In that case, not only did the
trial court fail to mention any of the factors for granting relief
under Rule 60(b), but the trial court's order affirmatively
revealed that it applied the wrong standard of review to the Rule
60(b) motion. Id. at 362, 458 S.E.2d at 525. The trial court's
order clearly stated that the trial court simply reconsidered
whether the movant had violated the Rules of Appellate Procedure,
and having determined that the movant had done so, denied the Rule
60(b) motion on that ground. Id. Essentially, the trial court
considered the issue of dismissal of the suit de novo as opposed to
determining whether the neglect was excusable. Id.
Here, however, nothing in the trial court's order suggests
that the court examined the facts de novo or otherwise used an
improper standard of review in ruling upon the motion. Indeed, the
trial court was correct in its statement that the matter before it
was purely within its discretion to determine. See, e.g., Royal v.
Hartle, 145 N.C. App. 181, 182, 551 S.E.2d 168, 170 (citation
omitted) (“'[t]he granting of [a Rule 60] motion is within the
sound discretion of the trial court'”), disc. review denied, 354
N.C. 365, 555 S.E.2d 922 (2001); Grant v. Cox, 106 N.C. App. 122,
124-25, 415 S.E.2d 378, 380 (1992) (“[a] motion for relief under
Rule 60(b) is addressed to the sound discretion of the trial courtand will not be disturbed absent an abuse of discretion” (citations
omitted)).
Although it is clearly the better practice for trial courts to
make explicit findings of fact with respect to the elements of Rule
60(b)(1), we hold that the trial court's failure to do so here does
not require reversal. Unlike the trial court order under review in
Anuforo, the order on appeal here does not affirmatively reveal any
error of law.
[2]Plaintiff next argues that the trial court abused its
discretion in denying her motion because there was sufficient
evidence upon which it could conclude that any neglect was
excusable, and thus worthy of relief under Rule 60(b)(1).
Plaintiff argues that she herself was diligent in the prosecution
of her case, that she could not have foreseen the negligence of her
attorney, and that the trial court was required to find that any
negligence on the part of plaintiff's counsel cannot be imputed to
her. We disagree.
In support of her argument, plaintiff argues that the trial
court's denial of her motion is evidence that plaintiff's counsel's
negligence was “imputed to [plaintiff]-a ruling that is in direct
conflict with this Court's holding in Briley v. Farabow[, 127 N.C.
App. 281, 488 S.E.2d 621 (1997)].” However, this Court's opinion
in Briley has been overruled by our Supreme Court which expressly
held that an attorney's inexcusable neglect may be imputed to the
party:
Clearly, an attorney's negligence in
handling a case constitutes inexcusableneglect and should not be grounds for relief
under the “excusable neglect” provision of
Rule 60(b)(1). In enacting Rule 60(b)(1), the
General Assembly did not intend to sanction an
attorney's negligence by making it beneficial
for the client and to thus provide an avenue
for potential abuse. Allowing an attorney's
negligence to be a basis for providing relief
from orders would encourage such negligence
and present a temptation for litigants to use
the negligence as an excuse to avoid court-
imposed rules and deadlines. Plaintiffs have
argued that this Court should provide relief
from an order if only the attorney, rather
than the client, was negligent. Looking only
to the attorney to assume responsibility for
the client's case, however, leads to
undesirable results. As one federal judge
noted:
“Holding the client responsible for the
lawyer's deeds ensures that both clients and
lawyers take care to comply. If the lawyer's
neglect protected the client from ill
consequences, neglect would become all too
common. It would be a free good -- the
neglect would protect the client, and because
the client could not suffer the lawyer would
not suffer either.”
Briley v. Farabow, 348 N.C. 537, 546-47, 501 S.E.2d 649, 655 (1998)
(citations omitted).
The Supreme Court concluded: “Thus, we hold that an
attorney's negligent conduct is not 'excusable neglect' under Rule
60(b)(1) and that in determining such, the court must look at the
behavior of the attorney.” Id. at 547, 501 S.E.2d at 655. This
Court has recently reaffirmed the principle that a trial court must
consider an attorney's conduct in determining whether there is
inexcusable neglect under Rule 60(b). See Henderson v. Wachovia
Bank of N.C., 145 N.C. App. 621, 551 S.E.2d 464, disc. review
denied, 354 N.C. 572, 558 S.E.2d 869 (2001); Fox v. Health Force,Inc., 143 N.C. App. 501, 506, 547 S.E.2d 83, 86-87 (2001). As
we
recently noted, “[i]gnorance, inexcusable negligence, or
carelessness on the part of an attorney will not provide grounds
for relief under Rule 60(b)(1).” Clark v. Penland, 146 N.C. App.
288, 292, 552 S.E.2d 243, 245 (2001) (citation omitted).
Plaintiff's argument that her attorney's negligence cannot be
imputed to her is without merit.
[3]Moreover, we hold that the trial court did not abuse its
discretion in denying plaintiff's motion for relief. In order to
set aside a judgment on the grounds of excusable neglect under Rule
60(b)(1), the moving party must show both that the judgment
rendered against him was due to excusable neglect and that he has
a meritorious defense. Higgins v. Michael Powell Builders, 132
N.C. App. 720, 726, 515 S.E.2d 17, 21 (1999) (citation omitted).
Moreover, when a trial court fails to make findings of fact with
respect to the elements of Rule 60(b), the order will be reversed
“unless there is evidence in the record sustaining findings which
the trial court could have made to support such order.” Gibson,
144 N.C. App. at 128-29, 548 S.E.2d at 747.
An attorney's neglect in failing to abide by the rules of
discovery has been held to be inexcusable in the context of Rule
60(b)(1). In Briley, the Supreme Court addressed whether Rule
60(b)(1) “may be used to provide relief from sanctions imposed upon
plaintiffs under Rule 26(f1) of the North Carolina Rules of Civil
Procedure for their attorney's failure to designate experts by a
court-ordered deadline.” Briley, 348 N.C. at 538-39, 501 S.E.2d at650. The plaintiffs' attorney had failed to designate any e
xpert
witnesses within the court-ordered thirty-day time frame for doing
so. Id. at 539, 501 S.E.2d at 651. When the plaintiffs finally
designated their experts approximately four months after the
thirty-day deadline, the defendants filed a motion to strike the
experts, and moved for summary judgment on the grounds that,
without any expert testimony from the plaintiffs, there remained no
genuine issues of material fact. Id. at 540, 501 S.E.2d at 651.
The plaintiffs argued that they were entitled to relief under
Rule 60(b)(1) from the trial court's order striking their expert
witness designation and granting defendants summary judgment. Id.
at 540, 501 S.E.2d at 652. The plaintiffs maintained that their
attorney's failure to comply with discovery deadlines was due to a
“mistaken assumption” that the parties had informally agreed to
delay discovery. Id. at 541, 501 S.E.2d at 652. The trial court
determined that the attorney's neglect was “unexcused” and that the
neglect was imputed to plaintiffs. Id.
In upholding the trial court's denial of the Rule 60(b)(1)
motion, the Supreme Court held that the evidence was sufficient to
support the trial court's findings that the plaintiffs were
required to file their expert witness designation on or before 30
November 1995; that they failed to do so; that no extension of time
was sought; and that they did not offer any plausible excuse for
the late designation. Id. at 547, 501 S.E.2d at 655.
A variety of similar rules violations have been held to
constitute inexcusable neglect. See, e.g., East Carolina OilTransport v. Petroleum Fuel & Terminal Co., 82 N.C. A
pp. 746, 748,
348 S.E.2d 165, 167 (1986) (plaintiff's failure to reply or
otherwise file any pleading within thirty days of being served with
counterclaim not excusable neglect within meaning of Rule
60(b)(1)), disc. review denied, 318 N.C. 693, 351 S.E.2d 745
(1987); Overnite Transportation v. Styer, 57 N.C. App. 146, 150,
291 S.E.2d 179, 181 (1982) (defendant's failure to appear for
motion for summary judgment despite having received calendar
properly informing him of time, date, and place for hearing not
excusable neglect within meaning of Rule 60(b)(1)).
In this case, the evidence would have supported findings of
fact that plaintiff's counsel's neglect was inexcusable. Defendant
served his discovery request in August 1999. Plaintiff failed to
timely respond. Defense counsel stated that he sent a letter to
plaintiff regarding her late discovery responses, but received no
reply or acknowledgment. Defendant filed a Motion to Compel
discovery responses on 16 November 1999, several weeks after
plaintiff's responses were due under Rules 33 and 34 of the Rules
of Civil Procedure.
Both parties then agreed to the entry of an order allowing
plaintiff an additional thirty days to respond completely to the
request. Plaintiff's counsel signed the order. Nevertheless,
plaintiff failed to comply with the court order. Defense counsel
stated that he left several messages with plaintiff's counsel
regarding the failure to comply with the court order, but that the
messages had no effect. On 10 February 2000, defendant filed asecond Motion to Compel plaintiff's responses. When the matter
came to hearing, plaintiff's counsel was absent. By the time the
trial court entered an order of dismissal in March 2000,
approximately one half year had passed since the date that
plaintiff's responses were due under Rules 33 and 34. Plaintiff
never requested an extension of time to respond during these
several months. Defendant stated that he never received complete
discovery responses from plaintiff.
Although plaintiff presented the trial court with affidavits
blaming the extended failure to comply with discovery rules on
counsel's office staff and on counsel's vision problems, the
decision to accept such evidence as excusable neglect was within
the sound discretion of the trial court. We discern no abuse of
discretion in light of all of the evidence, particularly the fact
that plaintiff's counsel -- not office staff -- signed the 5
January 2000 consent order entered upon defendant's first Motion to
Compel. Moreover, plaintiff has failed to present any evidence
which would support a finding that the failure to comply with
discovery rules and the court order was the result of mistake,
inadvertence, or surprise.
We hold that the evidence of plaintiff's consistent failure to
comply with both the Rules of Civil Procedure and a court order is
sufficient to support a conclusion that plaintiff's counsel's
neglect was not excusable; that such neglect is imputed to
plaintiff; and that the trial court did not abuse its discretion in
determining that counsel's neglect did not warrant relief under
Rule 60(b)(1) or 60(b)(6) (relief permitted for “[a]ny otherreason” within the court's discretion).
Affirmed.
Judges WYNN and TYSON concur.
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