LIANE M. CLAIBORNE,
Plaintiff,
v
.
Mecklenburg County
No. 00-CVS-020023
DAVID G. KOONS,
Defendant.
Koehler & Cordes, PLLC, by Stephen D. Koehler, for plaintiff
appellee.
David Q. Burgess for defendant appellant.
McCULLOUGH, Judge.
This case arises out of a monetary arrangement between
plaintiff Liane Claiborne and defendant David Koons in relation to
the organization and start up of a business. On 27 December 2000,
plaintiff filed a complaint alleging that defendant owed her over
$33,000.00 for money she loaned to him between September 1999 and
May 2000. On 23 January 2001, defendant filed a pro se answer
denying plaintiff's allegations and asserted what defendant later
attempted to characterize as a counterclaim. The “counterclaim,”
which purported to establish setoff, alleged that on 23 May 2000,
plaintiff entered defendant's place of business and removed office
equipment, banking records, data, customer lists, files, and othermaterials necessary to the operation of defendant's business.
Defendant's answer also contained the following statement:
“Further, Defendant asks the court to dismiss this action as
frivolous. Defendant reserves his right to counter sue plaintiff
pending location of her exact residence, of which defendant
requests plaintiff's attorney forward to him.”
On 16 March 2001, plaintiff served her First Request for
Admissions upon defendant, but he failed to respond. Thereafter,
on 12 June 2001, plaintiff moved for summary judgment and presented
a supporting affidavit. The summary judgment motion was scheduled
for hearing on 10 July 2001 at 10:00 a.m. Defendant was apprised
of the hearing date about one month in advance, but failed to
retain counsel until 9 July 2001 at 4:00 p.m., when he hired
Attorney David Burgess. Neither Mr. Burgess nor defendant filed
any affidavits prior to the summary judgment hearing. At the
hearing, plaintiff's counsel was present, but neither defendant nor
his attorney appeared. After the hearing began, defendant entered
the courtroom. The trial court allowed defendant to respond to
plaintiff's arguments, and defendant stated his belief that summary
judgment was improper because of an alleged counterclaim he had
against plaintiff. After reviewing the pleadings and hearing the
parties' arguments, Judge Timothy Kincaid granted summary judgment
in favor of plaintiff on all claims and ruled in open court that
there was no counterclaim to be ruled upon. At the conclusion of
the hearing, plaintiff's attorney handed Judge Kincaid an Order for
Summary Judgment which had been prepared prior to the hearing. TheOrder did not mention Judge Kincaid's ruling that defendant did not
have a counterclaim.
Ten minutes after Judge Kincaid granted summary judgment for
plaintiff, defendant filed an affidavit on his own behalf. Later
that day, defendant's attorney sent an ex parte letter to Judge
Kincaid apologizing for his absence at the hearing that morning.
Also on 10 July, defendant filed a Motion for Reconsideration of
Summary Judgment and a Notice of Hearing of the Motion for
Reconsideration of Summary Judgment. Thereafter, on 13 July 2001,
defendant filed a document entitled “Motion to Construe Defendant's
Answer as Including a Counterclaim or, in the Alternative, to Allow
Defendant to Amend His Answer to Clarify His Counterclaim and
Motion to Amend Response to Requests for Admission.” On 28 August
2001, Judge Forrest Bridges entered an order which denied
defendant's Motion for Reconsideration. The order also determined
that defendant's answer included a counterclaim and allowed
amendment of the counterclaim. Defendant filed his Amended
Counterclaim on 6 September 2001.
On 25 September 2001, plaintiff filed a Reply to Counterclaim,
as well as Motions to Reconsider and to Correct Judgment pursuant
to N.C. Gen. Stat. § 1A-1, Rules 54 and 60 (2001). Plaintiff's
motions requested the following types of relief:
1. An Order, after Reconsideration, Denying
Defendant's Motion to Construe
Defendant's Answer as Including a
Counterclaim or, in the Alternative, to
Allow Defendant to Amend His Answer to
Clarify His Counterclaim, and
2. An Order correcting the Summary Judgment
to include a ruling that there was no
counterclaim and that, there being no
just reason for delay, the judgment [is]
final, and
3. Any other order that the Court may deem
just and proper.
On 4 October 2001, Judge Kincaid considered plaintiff's motions and
entered an order which made the following conclusions of law:
1. The Summary Judgment of July 10, 2001 was
not a Partial Summary Judgment as
contended by Defendant, but was rather a
Final Judgment which resolved all issues
presented in the pleadings and was the
final determination of the rights of the
parties pursuant to Rule 54(a) of the
Rules of Civil Procedure.
2. The Motions and Amended Counterclaim and
all other pleadings after July 10, 2001
are moot and were barred by the final
judgment of July 10, 2001.
IT IS THEREFORE ORDERED, ADJUDGED, AND
DECREED that the Summary Judgment of July 10,
2001 was a final judgment pursuant to Rule
54(a) and the Amended Counterclaim is void ab
initio.
On 27 September 2001, defendant filed a notice of appeal from
Judge Kincaid's 10 July 2001 order granting summary judgment for
plaintiff. On 2 November 2001, defendant appealed from Judge
Kincaid's 4 October 2001 order stating that the 10 July 2001 order
was a final judgment and determining that all pleadings after that
date were moot. Defendant contends the trial court erred by (I)
failing to construe his answer as including a counterclaim; and
(II) granting summary judgment for plaintiff as to defendant's
counterclaim when plaintiff did not present affidavits or otherevidence to negate defendant's counterclaim. For the reasons set
forth herein, we disagree with defendant's arguments and dismiss
both his appeals.
Defendant first notes that his answer was filed pro se, and as
such it “'is held to less stringent standards than one drafted by
an attorney[.]'” Loren v. Jackson, 57 N.C. App. 216, 225, 291
S.E.2d 310, 315-16 (1982) (quoting Hurney v. Carver, 602 F.2d 993,
995 (1st Cir. 1979)). Defendant argues his answer and the
affirmative allegations contained therein put plaintiff on notice
of the type of claim being brought and was sufficient under North
Carolina's notice pleading theories to properly assert a
counterclaim. See Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161
(1970). Specifically, defendant believes he successfully alleged
a counterclaim for setoff, as well as facts to support claims for
trespass to chattels and conversion.
Additionally, defendant contends the trial court should not
have granted summary judgment as to his counterclaim because
plaintiff did not present affidavits or other evidence to rebut the
counterclaim's allegations. Thus, defendant argues, the burden
never shifted to him to present evidence showing the existence of
a genuine issue of material fact. See Edwards v. Bank, 39 N.C.
App. 261, 269, 250 S.E.2d 651, 657 (1979). Moreover, though
summary judgment may have been appropriate as to plaintiff's claim,
it does not necessarily follow that summary judgment was proper as
to defendant's counterclaim. “[A] counterclaim is in the nature of
an independent proceeding and is not automatically determined by aruling in the principal claim[.]” Brooks, Com'r of Labor v.
Gooden, 69 N.C. App. 701, 707, 318 S.E.2d 348, 352 (1984).
Generally, a litigant asserts a counterclaim when he “seeks
affirmative relief, which has been defined as 'that for which the
defendant might maintain an action entirely independent of
plaintiff's claim, and which he might proceed to establish and
recover even if plaintiff abandoned his cause of action . . . .'”
McCarley v. McCarley, 289 N.C. 109, 113-14, 221 S.E.2d 490, 493-94
(1976) (quoting Rhein v. Rhein, 244 Minn. 260, 262, 69 N.W.2d 657,
659 (1955)). “Neither does defendant's failure to allege
affirmatively facts within his pleading preclude the pleading from
being treated as a counterclaim.” McCarley, 289 N.C. at 114, 221
S.E.2d at 494. Defendant contends that, even though his pleading
was labeled an “answer,” such does not preclude its treatment as a
counterclaim, so long as it sought affirmative relief. See City of
Greensboro v. Pearce, 121 N.C. App. 582, 588, 468 S.E.2d 416, 420,
disc. review allowed, 343 N.C. 510, 471 S.E.2d 633 (1996).
Were we to assume that defendant's answer successfully
presented a counterclaim, the legal principles discussed above
would have merit. The last sentence of defendant's answer,
however, negates his imperfect counterclaim and establishes that
defendant intended to “counter sue” at some future time. At the
time Judge Kincaid ruled upon plaintiff's summary judgment motion,
he stated in open court that defendant's answer contained no
counterclaim. Judge Kincaid's order ended the case by granting
summary judgment for plaintiff and rendered all pleadings(including defendant's appeal from the 4 October 2001 order),
hearings, and orders after 10 July 2001 void.
Defendant contends any errors by Judge Bridges (in finding a
counterclaim and in ruling that Judge Kincaid had not ruled upon
that counterclaim) were mistakes of law, which are not the kind of
“mistakes” that provide a basis for setting aside an order under
N.C. Gen. Stat. § 1A-1, Rule 60(b) (2001). Defendant therefore
believes the trial court erred in setting aside Judge Bridges' 27
August 2001 order pursuant to Rule 60(b) because doing so
constituted an impermissible substitute for appellate review. “It
is settled law that erroneous judgments may be corrected only by
appeal, and that a motion under G.S. 1A-1, Rule 60(b) of the Rules
of Civil Procedure cannot be used as a substitute for appellate
review.” Town of Sylva v. Gibson, 51 N.C. App. 545, 548, 277
S.E.2d 115, 117, appeal dismissed, disc. review denied, 303 N.C.
319, 281 S.E.2d 659 (1981) (citations omitted).
In the present case, however, there was no mistake of law
rendering use of Rule 60(b) improper. Judge Kincaid had previously
decided that there was no counterclaim, and Judge Bridges had no
authority to overrule him, as “[one] superior court judge may not
overrule the order of another superior court judge.” Charns v.
Brown, 129 N.C. App. 635, 638, 502 S.E.2d 7, 9, disc. review
denied, 349 N.C. 228, 515 S.E.2d 701 (1998). Judge Kincaid's 4
October 2001 order was proper under Rule 60(b) because it was not
based on a mistake of law, but rather was a clarification of the
nature, force and effect of the 10 July 2001 order. “A 60(b) orderdoes not overrule a prior order but, consistent with statutory
authority, relieves parties from the effect of an order.” Charns,
129 N.C. App. at 639, 502 S.E.2d at 10. We also note that, because
the 4 October 2001 order merely clarified the 10 July 2001 order,
defendant's appeal of the 4 October 2001 order is dismissed as
moot, as he cannot appeal from the same order twice.
Plaintiff correctly argues defendant's appeal from the 10 July
2001 order should be dismissed because it was untimely under N.C.R.
App. P. 3(c) (2002), which requires an appeal from a judgment or
order in a civil action to be taken within thirty days of its
entry. Plaintiff concedes there are exceptions to the thirty-day
rule, where a party makes a motion pursuant to N.C. Gen. Stat. §
1A-1, Rule 50(b) (judgment notwithstanding the verdict), Rule 52(b)
(motion to amend or make additional findings of fact), or Rule 59
(motion to alter or amend a judgment or motion for new trial).
Notwithstanding these exceptions, plaintiff argues that defendant
failed to include in the record any motion that tolls the time for
appealing the 10 July 2001 order. We agree. While some documents
in the record reference defendant's Motion for Reconsideration
(which requested relief under Rules 59(a)(1), 59(e), 50(b) and
60(b)), this motion was denied by Judge Bridges' 28 August 2001
order.
Where a party files a motion which it is not entitled to file,
the period for appeal is not tolled. See Middleton v. Middleton,
98 N.C. App. 217, 390 S.E.2d 453, disc. review denied, 327 N.C.
637, 399 S.E.2d 123 (1990). Here, defendant was not entitled torelief under Rule 50(b), Rule 59(a)(1), or Rule 59(e); these rules
apply to motions made at trial or post-trial, and this case
concluded at the summary judgment stage. Furthermore, under N.C.R.
App. P. 3, a Rule 60(b) motion does not toll the time for filing a
notice of appeal. There was no tolling of the time defendant had
to file his notice of appeal. Defendant had until 10 August 2001
to appeal the order entered 10 July 2001. Having failed to do so,
his appeal is untimely and subject to dismissal, as this Court does
not acquire jurisdiction. “Where the appeal is taken more than ten
days [now thirty days] after the 'entry' of judgment and the time
within which the appeal can be taken is not otherwise tolled as
provided in Rule 3 of the N.C. Rules of Appellate Procedure and in
G.S. 1-279, the appellate court obtains no jurisdiction in the
matter and the appeal must be dismissed.” Cochrane v. Sea Gate
Inc., 42 N.C. App. 375, 377, 256 S.E.2d 504, 505 (1979). “[U]nder
Rule 3, notice of appeal is timely if filed after judgment is
rendered in court, and before the expiration of the 30-day period
after judgment is entered.” Darcy v. Osborne, 101 N.C. App. 546,
548, 400 S.E.2d 95, 96 (1991).
A fter careful review of the proceedings below and the
arguments presented by the parties, we conclude the trial court's
10 July 2001 order settled all issues between the parties and
rendered any filings beyond that point void ab initio. Accordingly,
defendant's appeal from the 4 October 2001 order is dismissed as
moot, and his appeal from the 10 July 2001 order is dismissed as
untimely. Appeals dismissed.
Judges TYSON and BRYANT concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***