A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).

NO. COA01-99

NORTH CAROLINA COURT OF APPEALS

Filed: 19 March 2002

MAN VAN LE,
    Plaintiff

v .                         Gaston County
                            No. 98 CVD 2674
JOHN EDWARD HARRIS,
    Defendant

    Appeal by plaintiff from order entered 24 October 2000 by Judge Ralph C. Gingles, Jr. in Gaston County District Court. Heard in the Court of Appeals 7 January 2002.

    Morris York Williams Surles & Barringer, L.L.P., by Christa C. Pratt, for plaintiff-appellant.

    Arthurs & Foltz, by Nancy E. Foltz and Ann Brittian McClellan, for defendant-appellee.

    CAMPBELL, Judge.

    Plaintiff appeals the trial court's denial of his Rule 60(b) motion for relief from judgment. We affirm.
    Plaintiff Man Van Le (“Plaintiff”) and Defendant John Edward Harris (“Defendant”) were involved in an automobile accident on 17 February 1997. On 30 June 1998, Plaintiff filed the complaint in the instant action alleging that the accident was caused by Defendant's negligence. Plaintiff was represented on his complaint by Jeffrey M. Guller (“Guller”). Defendant filed an answer asserting the defense of contributory negligence, as well as a counterclaim alleging that Plaintiff's negligence caused the accident.    Plaintiff's liability insurance carrier, Allstate, retained Morris York Williams Surles & Brearley, L.L.P., (“Morris York”), to represent Plaintiff on Defendant's counterclaim. By letter dated 9 October 1998, Paul Osowski (“Osowski”), attorney for Morris York, informed Defendant's counsel of Morris York's involvement in representing Plaintiff on Defendant's counterclaim. On 15 October 1998, Osowski filed Plaintiff's reply to Defendant's counterclaim, and by letter dated 21 October 1998, Plaintiff was informed that Morris York would be representing him on Defendant's counterclaim.     The case was initially scheduled for arbitration on 7 January 1999, but the arbitration hearing was continued due to Guller's involvement in another matter. On 27 January 1999, an arbitration hearing was held, with Plaintiff being represented by Richard Schultz (“Schultz”), who had assumed the handling of Plaintiff's case from Guller. Plaintiff prevailed at arbitration, but Defendant appealed the arbitration decision and requested a trial de novo. Morris York did not receive notice of the arbitration hearing date, a copy of the arbitration award, or a copy of Defendant's request for a trial de novo, until contacting Defendant's counsel nearly sixteen months later.
    On 10 May 2000, Christa Pratt (“Pratt”), who had assumed the representation of Plaintiff on Defendant's counterclaim for Morris York, sent a letter to Defendant's counsel requesting an update on the status of the case. By letter dated 15 May 2000, Pratt was informed by Defendant's counsel that Schultz had assumed representation of Plaintiff and that an arbitration hearing hadbeen held. Pratt was also informed that the case was scheduled for trial on 12 June 2000, and would be the first case for trial that day because Plaintiff and his witness required the use of interpreters. However, Defendant's counsel did not enclose with the letter a copy of the trial calendar for the week of 12 June 2000.     
    On 17 May 2000, Pratt wrote to the Gaston County Trial Court Administrator, Art Bernadino (“Bernadino”), to request a copy of the trial calendar for the week of 12 June 2000, and to inform him that Morris York had not been properly notified of the previous proceedings in the case. Schultz and Defendant's counsel both received copies of this letter, but, according to Pratt's affidavit, which was filed in connection with Plaintiff's motion for relief from judgment, Pratt never received a response from either Bernadino, Schultz, or Defendant's counsel. On 18 May 2000, Pratt unsuccessfully attempted to contact Schultz, but was informed by Schultz' secretary that Schultz may withdraw from Plaintiff's case. This left Pratt with the impression that the case was not likely to proceed to trial on 12 June 2000. Pratt informed Schultz' secretary that Morris York represented Plaintiff on Defendant's counterclaim only, and would not represent Plaintiff on his negligence claim against Defendant. Pratt had no further contact with Schultz' office until after the trial had taken place.
    The case was called for trial on 12 June 2000. Schultz and Defendant's counsel were present, but neither Pratt, nor any other attorney from Morris York, was present to represent Plaintiff onDefendant's counterclaim. The case was tried and the jury returned a verdict in favor of Defendant on his counterclaim. The jury awarded Defendant $3,400.00 in damages. On 14 June 2000, Defendant's counsel faxed Pratt a copy of the proposed judgment being presented to Judge Gingles. In response, Pratt wrote a letter to Judge Gingles requesting that judgment not be entered since Morris York had not been properly notified of the trial date, and had failed to appear to represent Plaintiff on Defendant's counterclaim.
    Pratt subsequently contacted both Schultz and Defendant's counsel, with each claiming that the other had informed them that Pratt had been notified to be present for trial. According to Pratt's affidavit, neither Schultz nor Defendant's counsel informed the trial court that Morris York was counsel of record on Plaintiff's reply to Defendant's counterclaim.
    On 16 June 2000, the trial court entered judgment against Plaintiff in the amount of $3,400.00. Plaintiff subsequently filed a motion for relief from judgment pursuant to Rule 60(b)(1) and (b)(6). On 27 October 2000, the trial court entered an order denying Plaintiff's motion for relief from judgment. Plaintiff appeals.
    “Generally, a motion for setting aside a judgment pursuant to Rule 60(b) is addressed to the sound discretion of the trial court, and the standard of appellate review is limited to determining whether the court abused its discretion.” McLean v. Mechanic, 116 N.C. App. 271, 276, 447 S.E.2d 459, 462 (1994). “An abuse ofdiscretion is a decision manifestly unsupported by reason or one so arbitrary that it could not have been the result of a reasoned decision.” Briley v. Farabow, 348 N.C. 537, 547, 501 S.E.2d 649, 656 (1998).

I.

    Plaintiff first contends that the trial court's order was in error because it contained no findings of fact. However, this Court 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.” Nations v. Nations, 111 N.C. App. 211, 214, 431 S.E.2d 852, 855 (1993); see also N.C. Gen. Stat. § 1A-1, Rule 52(a)(2)(1999); Condellone v. Condellone, 137 N.C. App. 547, 550, 528 S.E.2d 639, 642, disc. review denied, 352 N.C. 672, 545 S.E.2d 420 (2000); McLean, 116 N.C. App. at 276, 447 S.E.2d at 462; Grant v. Cox, 106 N.C. App. 122, 125, 415 S.E.2d 378, 380 (1992). But see Briley v. Farabow, 348 N.C. 537, 547, 501 S.E.2d 649, 655 (1998) (stating in dicta that the trial judge has the duty to make findings of fact in determining whether to grant relief under Rule 60(b)(1), without discussing whether this duty is contingent on a request by a party pursuant to Rule 52(a)(2)). Where the trial court does not make findings of fact in its order denying a motion for relief from judgment, the question on appeal is “'whether, on the evidence before it, the court could have made findings of fact sufficient to support its legal conclusion[.]'” Grant, 106 N.C. at 125, 415S.E.2d at 380 (quoting Financial Corp. v. Mann, 36 N.C. App. 346, 349, 243 S.E.2d 904, 907 (1978)).
    Here, the record on appeal does not reveal that Plaintiff requested the trial court make findings of fact to support its ruling on Plaintiff's motion for relief from judgment. Thus, Plaintiff's initial contention has no merit.
II.

    Plaintiff argues that he is entitled to relief from the judgment under Rule 60(b)(1) because Morris York's failure to appear to represent Plaintiff on Defendant's counterclaim was due to “excusable neglect.” Under Rule 60(b)(1), relief from a prior order or judgment may be granted if the party establishes that the order or judgment was entered due to the party's “[m]istake, inadvertence, surprise, or excusable neglect.” N.C. Gen. Stat. § 1A-1, Rule 60(b)(1) (1999). Whether excusable neglect has been shown is a question of law, and “what constitutes excusable neglect depends upon what, under all the surrounding circumstances, may be reasonably expected of a party in paying proper attention to his case.” Thomas M. McInnis & Assoc., Inc. v. Hall, 318 N.C. 421, 425, 349 S.E.2d 552, 554-55 (1986). A party moving to set aside a judgment under Rule 60(b)(1) must also show the existence of a meritorious defense. Baker v. Baker, 115 N.C. App. 337, 340, 444 S.E.2d 478, 480 (1994).
    Plaintiff asserts that Morris York's failure to appear to represent him on Defendant's counterclaim was caused by the trial court's failure to provide Morris York with notice of the trialdate pursuant to Rule 2(b) of the General Rules of Practice for the Superior and District Courts, which requires that civil trial calendars shall be published and distributed to attorneys of record “no later than four weeks prior to the first day of court.” Accordingly, Plaintiff contends that Morris York's failure to appear was reasonable under the circumstances, and constitutes excusable neglect.
    In support of his contention, Plaintiff relies on this Court's decision in Callaway v. Freeman, 71 N.C. App. 451, 322 S.E.2d 432 (1984). In Callaway, the defendant did not appear at trial and the trial court entered judgment for the plaintiff in the amount alleged to be due. The record revealed that the defendant had “clearly demonstrated that she never received a trial calendar notice and did not know the case against her had been calendared for trial.” Id. at 452, 322 S.E.2d at 433. Under these circumstances, the Court held that the “defendant was unfairly and unlawfully denied the opportunity to appear and defend the action against her.” Id. at 452, 322 S.E.2d at 433-34.
    However, in the instant case, the record shows that Plaintiff in fact appeared at trial and was represented by counsel. Accordingly, Callaway does not control the instant case. Furthermore, under the circumstances of this case, we conclude that Morris York's failure to appear at Plaintiff's trial was the direct result of the inattentiveness of Morris York and its attorneys.     The record shows that Pratt and Morris York were advised by Defendant's counsel, by letter dated 15 May 2000, that the case wasscheduled for trial on 12 June 2000 and would be the first trial that day because Plaintiff's case required the use of interpreters. On 17 May 2000, Pratt wrote to the Trial Court Administrator requesting a trial calendar for the week of 12 June 2000 and acknowledging that she understood that the case had been set for trial on 12 June 2000. Pratt never received a response from the Trial Court Administrator, nor did Morris York receive a final trial calendar following calendar call for the week of 12 June 2000. On 18 May 2000, Pratt attempted to contact Plaintiff's counsel, Richard Schultz, but was only able to discuss the case with Schultz' secretary. From this conversation with Schultz' secretary, Pratt was left with the impression that the case was not likely to proceed to trial on 12 June 2000. However, despite this impression, Pratt failed to contact Schultz, Defendant's counsel, or the Trial Court Administrator, between 18 May 2000 and 12 June 2000, to confirm whether the case was still calendared for trial on 12 June 2000. Instead, Pratt relied on her assumption that the case would not be tried on 12 June 2000; an assumption based solely on her conversation with Schultz' secretary.
    We conclude that Pratt was negligent in her handling of this case by failing for nearly a month to attempt to ascertain whether the case was still calendared for trial on 12 June 2000. Our Supreme Court has held that “an attorney's negligence in handling a case constitutes inexcusable neglect and should not be grounds for relief under the “excusable neglect” provision of Rule 60(b)(1).” Briley, 348 N.C. at 546, 501 S.E.2d at 655. Accordingly, Plaintiff is not entitled to relief under Rule 60(b)(1).
III.

    Plaintiff also asserts that he is entitled to relief from the trial court's judgment under Rule 60(b)(6). Rule 60(b)(6) allows relief from judgments for “[a]ny other reason justifying relief from the operation of the judgment.” N.C. Gen. Stat. § 1A-1, Rule 60(b)(6) (1999). “Rule 60(b)(6) is not a catch-all rule although it has been described as a 'grand reservoir of equitable power to do justice in a particular case.'” Goodwin v. Cashwell, 102 N.C. App. 275, 278, 401 S.E.2d 840, 842 (1991) (quoting Vaglio v. Town & Campus Int., Inc., 71 N.C. App. 250, 255, 322 S.E.2d 3, 7 (1984)). In order to be entitled to relief under Rule 60(b)(6), the movant must show that (1) extraordinary circumstances exist and (2) justice demands it. Dollar v. Tapp, 103 N.C. App. 162, 164, 404 S.E.2d 482, 483 (1991). The factors to be considered in deciding whether relief is warranted under Rule 60(b)(6) are:
        (1) the general desirability that a final judgment not be lightly disturbed, (2) where relief is sought from a judgment of dismissal or default, the relative interest of deciding cases on the merits and the interest in orderly procedure, (3) the opportunity the movant had to present his claim or defense, and (4) any intervening equities.

Equipment Co. v. Albertson, 35 N.C. App. 144, 147, 240 S.E.2d 499, 501-02 (1978).
    As previously noted, Plaintiff contends that Morris York's absence from the trial was caused by the trial court's failure to adhere to the requirements of Rule 2(b) of the General Rules ofPractice, and resulted in Plaintiff being deprived of the assistance of counsel who was retained to represent him on Defendant's counterclaim. Plaintiff further contends that Defendant's counsel and co-counsel Schultz violated the Rules of Professional Conduct by proceeding with the case for nearly sixteen months without notifying Morris York, failing to inform Morris York after calendar call on 7 June 2000 that the case was still calendared for trial on 12 June 2000, and failing to inform the court on 12 June 2000 that Morris York was attorney of record on Plaintiff's reply to Defendant's counterclaim. Plaintiff asserts that the conduct of co-counsel and opposing counsel not only lacked courtesy and decency, but acted to deprive Plaintiff of representation on Defendant's counterclaim. In sum, Plaintiff contends that the facts of this case rise to the level of extraordinary circumstances warranting relief from judgment under Rule 60(b)(6). While we agree with Plaintiff that the conduct of co-counsel and opposing counsel was less than exemplary, and we disapprove of the manner in which co-counsel and opposing counsel proceeded in this case, we are not convinced that the circumstances presented here are so extraordinary that justice demands relief from the trial court's judgment. See Chris v. Hill, 45 N.C. App. 287, 262 S.E.2d 716 (1980).
    First, unlike those seeking relief from judgment in Dollar and Lee v. Jenkins, 57 N.C. App. 522, 291 S.E.2d 797 (1982), two cases relied on by Plaintiff in his brief, Plaintiff here was present for trial and was represented by counsel, Richard Schultz. Second, aswe previously concluded, the failure of Morris York to appear to represent Plaintiff on Defendant's counterclaim was the direct result of its own negligent failure to attempt to ascertain for nearly a month whether the case was in fact calendared for trial on 12 June 2000.
    Finally, we disagree with Plaintiff's contention that he was not properly represented on Defendant's counterclaim because the interests implicated in Plaintiff's negligence claim against Defendant were different from those in Defendant's counterclaim. The record shows that Plaintiff's complaint alleged that Defendant's negligence caused the automobile accident. Defendant's answer alleged as a defense the contributory negligence of Plaintiff. Plaintiff did not respond by alleging last clear chance. Defendant's counterclaim alleged that Plaintiff's negligence caused the accident. In his reply to Defendant's counterclaim, Plaintiff denied that he was negligent. Thus, in order to prevail on his complaint, Plaintiff had to prove that his negligence was not a cause of the accident, i.e., there was no contributory negligence by Plaintiff. Likewise, in order to successfully defend against Defendant's counterclaim, Plaintiff had to prove that his negligence was not a cause of the accident. Accordingly, the same ultimate questions were at issue in both Plaintiff's complaint and Defendant's counterclaim. Therefore, we conclude that Plaintiff was adequately represented on Defendant's counterclaim.     As for Plaintiff's contention that Allstate's interest in minimizing the damages recovered on Defendant's counterclaim was not represented, we do not find that sufficient to warrant relief under Rule 60(b)(6).
    For the foregoing reasons, we conclude that the trial court did not abuse its discretion in denying Plaintiff's motion for relief from judgment.
    Affirmed.
    Chief Judge EAGLES and Judge McCULLOUGH concur.
    Report per Rule 30(e).

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