DORIS BRAKEFIELD CLENDENING
Plaintiff,
v
.
Gaston County
No. 98 CVS 5102
SEARS, ROEBUCK AND CO.,
Defendant.
Malcolm B. McSpadden for plaintiff-appellant.
Womble Carlyle Sandridge & Rice, PLLC, by W. Clark Goodman for
defendant-appellee.
WYNN, Judge.
This appeal arises out of Plaintiff Doris Brakefield
Clendening's failure to appear at a court-ordered arbitration
hearing which resulted in the dismissal of her personal injury
action against Defendant Sears, Roebuck and Co. From the trial
court's denial of her motion seeking relief from that judgment, Ms.
Clendening appeals to this Court. We affirm.
In brief, the facts show that on 23 March 1999, the trial
court entered an order for civil arbitration requiring arbitration
to be conducted within sixty days. The hearing was initiallyscheduled for 6 May 1999 but it was rescheduled for 20 May 1999.
However, on that date Ms. Clendening's attorney was in a domestic
case hearing so the matter was rescheduled for 6 July 1999. When
neither Ms. Clendening nor her attorney appeared at the scheduled
arbitration hearing on 6 July 1999, the arbitrator entered an award
against her dismissing the action. On 10 August 1999, the trial
court adopted the arbitrator's award as the judgment of the court.
On 30 June 2000, Ms. Clendening filed a motion in the cause under
Rule 60(b) of the North Carolina Rules of Civil Procedure seeking
relief from judgment. After conducting a hearing on Ms.
Clendening's motion, the trial court denied the motion. She now
appeals to this Court.
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On appeal, Ms. Clendening contends that the trial court
erroneously found that her Rule 60(b) motion was not made within a
reasonable time. We disagree.
“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), disc. review
denied, 339 N.C. 738, 454 S.E.2d 653 (1985); Coppley v. Coppley,
128 N.C. App. 658, 663, 496 S.E.2d 611, 616, disc. review denied,
348 N.C. 281, 502 S.E.2d 846 (1998). “An abuse of discretion 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).
“Whether a motion is made within a reasonable time depends upon the
circumstances of the individual case.” Nickels v. Nickels, 51
N.C. App. 690, 277 S.E.2d 577, cert. denied, 303 N .C. 545, 281
S.E.2d 392 (1981).
In her appeal, Ms. Clendening relies solely on her assertion
that Rule 60(b) creates a presumption that a filing of a motion
within one year is a timely filing. However, in Jenkins v.
Richmond County, 118 N.C. App. 166, 454 S.E.2d 290, review denied,
340 N.C. 166, 460 S.E.2d 318 (1995), this Court held that complying
with the one year limitation is not necessarily sufficient to make
a motion under Rule 60(b) timely. In that case, the plaintiffs
filed a Rule 60(b) motion exactly one year from the date of the
judgment. The trial court found the motion to be timely and
granted the plaintiff relief from the earlier judgment. However,
on appeal, our Court concluded that the plaintiffs' motion was not
made within a reasonable time and reversed the order of the trial
court granting the plaintiffs relief. In so doing, the Court
reasoned,
That which constitutes a reasonable time under
Rule 60(b) is determined by examining the
circumstances of the individual case. Brown
v. Windhom, 104 N.C. App. 219, 408 S.E.2d 536
(1991). In Brown, the defendant's only
explanation for a year-long delay in filing
his motion for relief was uncertainty as to
his legal rights. This Court held such an
explanation to be insufficient justification
to award relief after a year's delay
Id. at 169-170, 460 S.E.2d at 292. Likewise, in this case, plaintiff has offered no explanation
for the nearly eleven-month delay in filing her motion for relief.
Analogous to the rationale Jenkins, under the circumstances of this
case, we can find no abuse of discretion by the trial court in
finding that the motion was not made within a reasonable time. See
Clark v. Clark, 301 N.C. 123, 271 S.E.2d 58 (1980). Accordingly,
we reject this assignment of error.
Next, Ms. Clendening contends that the trial court erred by
entering a judgment without making findings of facts and
conclusions of law. We disagree.
“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). 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 v. Cox, 106 N.C. 122, 125, 415 S.E.2d 378, 380 (1992)
(quoting Financial Corp. v. Mann, 36 N.C. App. 346, 349, 243 S.E.2d
904, 907 (1978)).
In the case sub judice, the record on appeal does not reveal
that Ms. Clendening requested the trial court to make findings of
fact to support its ruling on her motion in the cause.
Accordingly, in light of our Court's holding in Nations, we reject
Ms. Clendening's argument that the trial court was required to makefindings of fact in support of its Rule 60(b) ruling.
Next, Ms. Clendening contends that the trial court committed
reversible error by failing to grant her motion to set aside the
judgment on the grounds that the arbitration award was void. We
disagree.
We note that to the extent that Ms. Clendening submits that
the judgment by the trial court was invalid or reversible for
errors of law, those contentions are not properly before this
Court. See generally Howell v. Tunstall, 64 N.C. App. 703, 308
S.E.2d 454 (1983).
[A] Rule 60(b)(4) motion is only proper where
a judgment is 'void' as that term is defined
by the law. A judgment will not be deemed
void merely for an error in law, fact, or
procedure. A judgment is void only when the
issuing court has no jurisdiction over the
parties or subject matter in question or has
no authority to render the judgment entered.”
Ottway Burton, P.A. v. Blanton, 107 N.C. App. 615, 616, 421 S.E.2d
381, 382 (1992). An erroneous judgment, by contrast, is one
entered according to proper court procedures and practices but is
contrary to the law or involves a misapplication of the law.
Daniels v. Montgomery Mut. Ins. Co., 320 N.C. 669, 360 S.E.2d 772
(1987). “As our appellate courts have consistently held, erroneous
judgments may be corrected only by appeal and Rule 60(b) motions
cannot be used as a substitute for appeal.” Ottway Burton, P.A. v.
Blanton, 107 N.C. App. at 616-617, 421 S.E.2d at 383; see also
Jenkins v. Richmond County, 118 N.C. App. 166, 454 S.E.2d 290,
review denied, 340 N.C. 568, 460 S.E.2d 318 (1995); Chandak v.Elec. Interconnect Corp., 144 N.C. App. 258, 262, 550 S.E.2d 25, 28
(2001). Thus, in order to have obtained relief from any alleged
errors of law, Ms. Clendening should have appealed directly from
the trial court's judgment; she did not do so. Even if errors of
law could be found in the judgment, the judgment is not void
because the trial court had jurisdiction and the authority to enter
it. Windham Distrib. Co., Inc., v. Davis, 72 N.C. App. 179, 182,
323 S.E.2d 506, 508-509 (1984), review denied, 313 N.C. 613, 330
S.E.2d 617 (1985).
Nonetheless, Ms. Clendening argues that no finding of an
amount in controversy less than $15,000 was made in the arbitration
award; therefore, the requirement of mandatory arbitration was
entered without statutory or other authority. Additionally, she
contends that she was denied the right to engage in arbitration in
violation of the equal protection of the law as provided in Article
I Section 19 of the Constitution of North Carolina, and the
Fourteenth Amendment to the United States Constitution.
In 1989, the North Carolina General Assembly authorized
statewide, court-ordered arbitration and further authorized the
North Carolina Supreme Court to adopt certain rules governing this
procedure; subsequently, our Supreme Court implemented the Rules
for Court-Ordered Arbitration. Rule 1(a) states that mandatory
court-ordered arbitration applies in all civil actions in which the
claims for monetary relief do not exceed $15,000.00, exclusive of
interest, costs and attorney's fees. R. Ct. Ordered Arbitration in
N.C., Rule 1(a)(2002). Further, the commentary to Rule 1 explainsthat the purpose of this program is to “create an efficient,
economical alternative to traditional litigation for prompt
resolution of disputes involving money damage claims up to
$15,000.00.” Id.
Rule 1 (d) of the Rules of Court-Ordered Arbitration provides
that “[t]he court may exempt or withdraw any action from
arbitration on its own motion, or on motion of a party made not
less than 10 days before the arbitration hearing and a showing
that: (I) the amount of the claim(s) exceed(s) $15,000; (ii) the
action is excepted from arbitration under Arb. Rule 1(a); or (iii)
there is a strong and compelling reason to do so.” R. Ct. Ordered
Arbitration in N.C., Rule 1(d)(2002). Moreover, Rule 5 provides
that “[a]ny party not in default for a reason subjecting that party
to judgment by default who is dissatisfied with an arbitrator's
award may have a trial de novo as of right upon filing a written
demand for a trial de novo with the court, and service of the
demand on all parties, on an approved form within 30 days after the
arbitrator's award has been filed, or within 10 days after an
adverse determination of an Arb. Rule 3(j) motion to rehear.” R.
Ct. Ordered Arbitration in N.C., Rule 5 (2002).
If the case is not terminated by agreement of
the parties, and no party files a demand for a
trial de novo within 30 days after the award
is filed, the clerk or the court shall enter
judgment on the award, which shall have the
same effect as consent judgment in the action.
A copy of the judgment shall be mailed to all
parties or their counsel.
Id.
In the case sub judice, on 1 March 1999, the parties wereserved with a Notice to Select Among Alternative Dispute Resolution
Programs. The notice stated that if the parties did not respond
with a preference by 5:00 p.m. on 22 March 1999, they would be
“considered to affirmatively agree, and the Court to have approved,
the case being ordered into the Civil Arbitration Program
regardless of the amount of monetary relief sought pursuant with
Rule 1(b) of the Supreme Court's 'Rules for Court Ordered
Arbitration in North Carolina.'” Neither party expressed a
preference for a particular form of alternative dispute by that
date. Therefore, both parties were deemed to have consented and
the trial court to have approved the referral of the case to civil
arbitration. Additionally, the record fails to show that Ms.
Clendening offered objection to participating in the civil
arbitration program, or availed herself to the numerous
opportunities to move that this matter be withdrawn from civil
arbitration.
Moreover, Ms. Clendening does not contend that the trial court
was without jurisdiction or authority to enter the arbitration
judgment. Since, we can not find that Ms. Clendening specifically
objected to the court ordered arbitration as required by
Arbitration Rule 1(a)(5), we find that the trial court had
jurisdiction to enter the arbitration award.
Ms. Clendening further argues that the judgment should be
declared void as being a consent judgment entered without her
express consent. Arbitration Rule 6(b) merely confers upon an
arbitration award the “effect” of consent judgment. See R. Ct.Ordered Arbitration in N.C., Rule 6(b)(2002). It does not state
that an arbitration award becomes a consent judgment or has the
same requirements for validity as a consent judgment. Id.
Moreover, the Rules of Arbitration do not require that the parties
expressly consent to the entry of judgment. See id.
Rule 6(b) provides that if “no party files a demand for trial
de novo within thirty days after the award is filed, the clerk or
the Court shall enter judgment on the award, which shall have the
same effect as a consent judgment in the action.” Id. On 10
August 1999, Ms. Clendening filed a request for a trial de novo,
which is the mechanism to prevent the trial court's adoption of an
arbitration award. Since Ms. Clendening exceeded the 30 day limit
of Rule 6, and thus failed to timely demand a trial de novo, this
argument is without merit.
Next, Ms. Clendening argues that the judgment should be
declared void as a violation to Ms. Clendening's right to a trial
by a jury pursuant to Rules 38 and 39 of the Rules of Civil
Procedure, Article I Section 25 of the Constitution of North
Carolina, and the Seventh Amendment to the United States
Constitution.
The Rules of Arbitration, which were implemented by our
Supreme Court, provide in the Comment to Rule 6 that
demand for jury trial pursuant to N.C.R. Civ.
P. 38(b) does not preserve the right to a
trial de novo. There must be a separate,
specific, timely demand for trial de novo
after the award has been filed.
See R. Ct. Ordered Arbitration in N.C., Comment to Rule 6. In acourt-ordered arbitration, the party's right to a jury trial is
protected by the provisions of Arbitration Rule 5(a) which allows
any party to have a trial de novo upon filing a written demand
within thirty days after the arbitrator's award has been filed.
Furthermore, it is well-established that a party does not preserve
her right to trial by jury merely by demanding trial by jury in her
pleading; a party may lose her right to a jury trial by failing to
prosecute her claim in compliance with applicable rules or
requirements. See e.g., N.C. Gen. Stat. § 1A-1, Rules 37 (b)37
(b)(2)(c) and 41(b) (2002).
In the case sub judice, as we stated previously, Ms.
Clendening failed to file for a trial de novo within the required
time of Rule 6(b); and thus, failed to timely avail herself of the
opportunity to have a trial de novo of her claims before a jury.
Accordingly, Ms. Clendening effectively consented to have this
matter referred to civil arbitration and was thereby governed by
the rules applicable to such proceedings.
Next, Ms. Clendening contends that the trial court erred by
denying her motion under N.C. Gen. Stat. § 1A-1, Rules 60(b)(1),
and (6). We disagree.
In her brief, Ms. Clendening fails to identify how her claim
falls under Rule 60(b)(1) and (6) and offers no arguments or
evidence to support her contentions. Rule 28(a) of the North
Carolina Rules of Appellate Procedure provides that “[a]ssignments
of error not set out in the appellant's brief, or in support of
which no reason or argument is stated or authority cited, will betaken as abandoned.” N.C.R. App. P. 28(b)(5) (2002); see also
State v. Bonney, 329 N.C. 61, 405 S.E.2d 145 (1991); State v.
Thompson, 110 N.C. App. 217, 429 S.E.2d 590 (1993) (holding that
where appellant fails to cite authority in support of an argument,
the assignment of error upon which that argument is based is deemed
abandoned). Thus, we deem this assignment of error is abandoned.
Affirmed.
Judges HUDSON and CAMPBELL concur.
Report per Rule 30(e).
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