Coffey v Savers Life Insurance Co., (01-741-2) 04/15/2003

This matter was originally heard in the Court of Appeals on 20 May 2002. An opinion was filed by this Court on 6 August 2002, dismissing plaintiff's appeal. Plaintiff filed a Petition for Rehearing, which was allowed by order entered on 19 September 2002. This opinion of our Court replaces the prior 6 August 2002 opinion.

Herman L. Stephens for plaintiff-appellant.

Adams Kleemeier Hagan Hannah & Fouts, by Margaret Shea Burnham, for defendant-appellee.

    McGEE, Judge.

    Eric J. Coffey (plaintiff) filed an application and order extending time to file a complaint against Savers Life Insurance Company (defendant) on 27 July 1998. Plaintiff filed an amended complaint and defendant filed an answer and counterclaim. Plaintiff filed a motion for partial summary judgment and dismissal of defendant's counterclaim on 1 November 1999. Defendant also filed a motion to dismiss and a motion for summary judgment on 1 November 1999. Judge Peter M. McHugh granted defendant summary judgment on all of plaintiff's claims, except those in paragraphs15(b) and 15(c), and entered summary judgment for plaintiff on defendant's counterclaim in an order filed 24 November 1999. Judge McHugh certified his order as a final judgment with no just reason for delay of an appeal, pursuant to N.C. Gen. Stat. 1A-1, Rule 54(b).
    Plaintiff filed his first notice of appeal on 29 November 1999 and defendant filed its first notice of cross appeal on 7 December 1999. Plaintiff did not perfect his first appeal, nor did defendant perfect its first cross appeal. The remaining issues in the case were calendared for hearing on 4 December 2000.
    Defendant filed a motion on 16 November 2000 for sanctions against plaintiff for failure to attend a deposition. Judge L. Todd Burke granted the motion for sanctions on 1 December 2000 and entered an order dismissing one of plaintiff's two remaining claims, found in paragraph 15(b) of plaintiff's amended complaint. Defendant filed two motions in limine to exclude evidence on 13 November 2000 and 1 December 2000, respectively. Judge Russell G. Walker, Jr. entered an order dismissing plaintiff's remaining claim on 13 December 2000.
    Plaintiff filed a notice of appeal on 16 January 2001 appealing the orders of 24 November 1999, 1 December 2000, and 13 December 2000. Defendant filed a "renewed" notice of cross appeal on 29 January 2001.
                        I.
    Plaintiff argues the trial court erred when Judge McHugh granted partial summary judgment for defendant and dismissed all ofplaintiff's claims except those in paragraphs 15(b) and 15(c) of the complaint. Plaintiff initially appealed these issues in his first notice of appeal on 29 November 1999. However, plaintiff failed to timely perfect that appeal and defendant failed to timely perfect its cross appeal.
    Defendant responds that both plaintiff and defendant abandoned their appeals by failing to perfect them within the appropriate time period. "Abandonment of an appeal exists only where there is express notice, showing, and judgment of abandonment of appeal." Kirby Building Systems v. McNiel, 327 N.C. 234, 240, 393 S.E.2d 827, 831 (1990), reh'g denied, 328 N.C. 275, 400 S.E.2d 453 (1991); see Bowen v. Motor Co., 292 N.C. 633, 234 S.E.2d 748 (1977). The record fails to indicate that there was express notice of abandonment given by the parties and the trial court did not enter judgment of abandonment of appeal. Applying our Supreme Court's standard, plaintiff and defendant did not abandon their appeals.
    An appeal, however, is not properly before this Court if the parties fail to perfect the appeal pursuant to the N.C. Rules of Appellate Procedure. McGinnis v. McGinnis, 44 N.C. App. 381, 261 S.E.2d 491 (1980). The parties on appeal must either settle the record by agreement or the record must be settled by judicial order within the time period established by the rules, unless an extension of time is granted. N.C.R. App. P. 11, 12; Higgins v. Town of China Grove, 102 N.C. App. 570, 571, 402 S.E.2d 885, 886 (1991) (dismissing appeal for failure to follow requirements of Rule 11 and Rule 12). "If an appellant fails to file and serve hisbrief within the time allowed, the appeal may be dismissed on motion of an appellee or on the court's own initiative." N.C.R. App. P. 13(c).
    The defendant in McGinnis filed a notice of appeal but did not tender a proposed record on appeal, seek an extension of time, or otherwise attempt to pursue his appeal. McGinnis, 44 N.C. App. at 386, 261 S.E.2d at 494-95. The defendant filed a second notice of appeal 88 days later and attempted to raise the issues from his first notice of appeal, along with new issues. Id. Our Court held the defendant's appeal was not properly before this Court after defendant failed to "take any further timely step required by the Rules of Appellate Procedure to perfect his appeal." Id. at 387, 261 S.E.2d at 495.
    Our Court reached a similar conclusion in Woods v. Shelton, 93 N.C. App. 649, 379 S.E.2d 45 (1989), where the defendant gave oral notice of appeal but failed to tender a proposed record on appeal until 139 days later. Id. at 652, 379 S.E.2d at 47. The defendant did not obtain an extension of time or otherwise act to perfect her appeal. Our Court stated that failure to comply with N.C.R. App. P. 12(a) results in the loss of the right of appeal. Woods, 93 N.C. App. at 652-53, 379 S.E.2d at 47 (quoting Craver v. Craver, 298 N.C. 231, 236, 258 S.E.2d 357, 361 (1979)). Accordingly, we held that the defendant's appeal was improperly before our Court because the defendant failed to perfect the appeal. Id. at 653, 379 S.E.2d at 47.
    In the case before us, plaintiff filed a notice of appeal fromthe order granting partial summary judgment and dismissing all of plaintiff's claims, except those set forth in paragraphs 15(b) and 15(c) of the amended complaint. Plaintiff failed to tender a proposed record on appeal, did not seek an extension of time to file the record on appeal, and took no other steps to timely perfect or pursue his initial appeal. Likewise, defendant failed to timely perfect its cross appeal. We find McGinnis and Woods to be controlling and hold that the issues arising from Judge McHugh's order, designated by plaintiff's assignments of error 8-16 and defendant's cross assignments of error 2-4, are not properly before this Court. Therefore, the only issues presently before us are those related to the 1 December 2000 order of Judge Burke and the 13 December 2000 order of Judge Walker, from which plaintiff properly appealed.
                        II.
    Plaintiff argues the trial court erred in granting summary judgment for defendant on paragraph 15(c) of plaintiff's complaint in its 13 December 2000 order, in that no written or oral motion for summary judgment was made by defendant. Plaintiff also contends he was not given ten days notice of the summary judgment hearing.
    Pursuant to N.C. Gen. Stat. § 1A-1, Rule 56(a)(2001), a party may move for summary judgment any time after thirty days following commencement of an action. The motion "shall be served at least 10 days before the time fixed for the hearing" to provide notice to the opposing party. N.C. Gen. Stat. § 1A-1, Rule 56(c)(2001). Failure to comply with this mandatory ten-day notice requirement deprives the trial court of authority to grant summary judgment unless the opposing party waives notice. Calhoun v. Wayne Dennis Heating & Air Cond., 129 N.C. App. 794, 800, 501 S.E.2d 346, 350 (1998), review dismissed, 350 N.C. 92, 532 S.E.2d 524 (1999); see also Barnett v. King, 134 N.C. App. 348, 517 S.E.2d 397 (1999); Trust Co. v. Rush, 17 N.C. App. 564, 195 S.E.2d 96 (1973). In the case before us, there is no evidence in the record that plaintiff waived notice.
    Neither the transcripts of the hearings nor the record show that an oral motion for summary judgment was made to the trial court by defendant. There was also no pending motion for summary judgment from a previous hearing. Accordingly, there was no motion for summary judgment properly before the trial court for consideration.
    Even if defendant had made an oral motion for summary judgment in the hearing before Judge Walker, plaintiff did not receive the ten-day notice that is required by Rule 56(c), in that plaintiff was not served with the motion at least ten days before the motion was heard by the trial court. Accordingly, defendant was not entitled to summary judgment on paragraph 15(c) of plaintiff's complaint. We reverse summary judgment on this issue and remand to the trial court.
                        III.
    Plaintiff next argues the trial court erred in dismissing the claim alleged in paragraph 15(b) of his complaint as a sanction forfailing to attend his deposition. Plaintiff contends the trial court failed to consider lesser sanctions before dismissing the claim.
    Dismissal of a claim is an appropriate sanction for failure to comply with discovery rules. N.C.R. Civ. P. 37(d), 41(b); N.C. Gen. Stat. § 1-109 (2001); Goss v. Battle, 111 N.C. App. 173, 432 S.E.2d 156 (1993). While "[t]he language of these provisions does not expressly require a trial court to consider lesser sanctions before dismissing[,] . . . our courts have interpreted these provisions to require a trial court to consider lesser sanctions before ordering a dismissal pursuant to the provisions." Id. at 176, 432 S.E.2d at 159; see also Thompson v. Hanks of Carolina, Inc., 109 N.C. App. 89, 426 S.E.2d 278 (1993).
        Sanctions under Rule 37 are within the sound discretion of the trial court and will not be overturned on appeal absent a showing of abuse of that discretion. A trial court may be reversed for abuse of discretion only upon a showing that its ruling was so arbitrary that it could not have been the result of a reasoned decision.

Hursey v. Homes by Design, Inc., 121 N.C. App. 175, 177, 464 S.E.2d 504, 505 (1995) (citations omitted). In Hursey, this Court upheld the dismissal of the defendants' counterclaims and award of expenses for failure to comply with discovery rules. The plaintiffs in Hursey moved to strike the defendants' answer and counterclaims, or to alternatively strike the defendants' counterclaims and award expenses. In response to the defendants' argument that the trial court failed to consider less severe sanctions, this Court inferred from the trial transcript and recordthat the trial court considered other available sanctions. Id. at 179, 464 S.E.2d at 507. Our Court noted the trial court imposed the less severe alternative requested by the plaintiffs and we held there was no abuse of discretion. Id. at 179, 464 S.E.2d at 506- 07.
    In the case before us, defendant moved the trial court to strike the two remaining claims in plaintiff's complaint and award attorney's fees as sanctions for plaintiff failing to attend his deposition. Judge Burke allowed plaintiff to choose which of the two remaining claims would be dismissed as a sanction and dismissed the claim alleged in paragraph 15(b) of the complaint. Judge Burke also denied the request for attorney's fees. Applying the reasoning in Hursey, we can infer from the transcripts and record that Judge Burke considered other sanctions when determining the motion for sanctions. See Hursey, 121 N.C. App. at 179, 464 S.E.2d at 507. Judge Burke had the option to dismiss both of plaintiff's claims and award attorney's fees, but chose to dismiss only one claim and allowed plaintiff to select that claim. The trial court considered other sanctions and we hold the trial court did not abuse its discretion. This assignment of error is without merit.
                        IV.
    Plaintiff also argues the trial court erred in denying plaintiff's motion to amend his complaint under N.C. Gen. Stat. § 1A-1, Rule 15(a). Plaintiff contends the trial court abused its discretion because it denied the motion without stating its reason. A motion to amend is subject to the discretion of the trial courtand will only be reversed upon a showing of abuse of that discretion. Walker v. Sloan, 137 N.C. App. 387, 402, 529 S.E.2d 236, 247 (2000). "'An abuse of discretion occurs when the trial court's ruling "is so arbitrary that it could not have been the result of a reasoned decision."'" Warren v. Gen. Motors Corp., 142 N.C. App. 316, 319, 542 S.E.2d 317, 319 (2001) (quoting Haas v. Kelso, 76 N.C. App. 77, 80, 331 S.E.2d 759, 761 (1985)). "Reasons warranting a denial of leave to amend include '(a) undue delay, (b) bad faith, (c) undue prejudice, (d) futility of amendment, and (e) repeated failure to cure defects by previous amendments.'" Harrold v. Dowd, 149 N.C. 777, 785-86, 561 S.E.2d 914, 920 (2002) (quoting Martin v. Hare, 78 N.C. App. 358, 361, 337 S.E.2d 632, 634 (1985)).
    In the case before us, the trial court denied plaintiff's motion and articulated sufficient reasons to justify its decision. See Coffey v. Coffey, 94 N.C. App. 717, 381 S.E.2d 467 (1989), disc. review improvidently allowed, 326 N.C. 586, 391 S.E.2d 40 (1990). The trial court found that plaintiff's motion to amend was solely in response to defendant's motions in limine to exclude evidence. It reasoned that the arguments compelling the trial court to grant defendant's motions in limine supported a denial of plaintiff's motion to amend. The trial court found the motion to amend to be untimely because it was filed on the beginning day of trial and after plaintiff had completed his deposition. The trial court also determined that the proposed amendment was futile and inconsistent in light of previous rulings and plaintiff's deposition.     The record and transcript demonstrate that the motion to amend the complaint would have prejudiced defendant by unfairly compelling it to litigate under a new theory of damages. The amendment was also untimely because plaintiff could have sought leave to amend the complaint earlier in the proceedings. Additionally, plaintiff remained unable to prove that he was entitled to damages as evidenced through his deposition. Since defendant would still have been entitled to summary judgment on plaintiff's claim, the trial court's refusal to give plaintiff leave to amend was not an abuse of discretion. See Olive v. Williams, 42 N.C. App. 380, 257 S.E.2d 90 (1979). This assignment of error is without merit.
                        V.
    Plaintiff finally argues that the trial court's ruling on defendant's motions in limine should be vacated and remanded for consideration by the trial court. A trial court's ruling on a motion in limine is interlocutory and subject to change when the evidence is offered at trial, depending on the evidence. Barrett v. Hyldburg, 127 N.C. App. 95, 98, 487 S.E.2d 803, 805 (1997); see also Evans v. Family Inns of Am., Inc., 141 N.C. App. 520, 523, 540 S.E.2d 46, 48 (2000). An interlocutory order is generally not appealable unless it affects a substantial right that will be lost absent an immediate appeal. Barrett, 127 N.C. App. at 98-99, 487 S.E.2d at 805. An objection to an order granting a motion in limine is insufficient to preserve the issue for appeal unless it is shown to affect a substantial right. Evans, 141 N.C. App. at523, 540 S.E.2d at 48. Plaintiff does not argue that the trial court's ruling impaired a substantial right and we decline to offer an opinion on the issue. Accordingly, this issue is not appropriately before us on appeal. This argument is overruled.
    We have reviewed the remaining assignments of error and arguments of both plaintiff and defendant and find them to be without merit.
    We reverse the trial court's grant of summary judgment for defendant on paragraph 15(c) of plaintiff's complaint. We affirm the remaining orders of the trial court.
    Reversed in part; affirmed in part.
    Judges McCULLOUGH and SMITH concur.
    Report per Rule 30(e).

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