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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