EILEEN VIERA,
Plaintiff,
v
.
Wake County
No. 00 CVD 010183
JOSE VIERA,
Defendant.
Hatch, Little & Bunn, L.L.P., by Helen M. Oliver, for
plaintiff appellee.
Jose M. Viera, pro se, defendant appellant.
McCULLOUGH, Judge.
Plaintiff Eileen Viera and defendant Jose Viera were married
on 17 February 1973 and divorced on 18 August 1981. On 13 November
2001, the parties appeared in Wake County District Court on
plaintiff's Motion to Renew a domestic violence protective order
against defendant. After determining that a party to the hearing
was in contempt of court, the trial court informed the parties that
the hearing would be continued to Monday, 26 November 2001.
Subsequently, on 20 November 2001, both parties appeared before the
trial court to be heard on unrelated matters. At the conclusion of
the hearing, the trial court and the parties discussed the hearing
date for plaintiff's Motion to Renew. The trial court initiallystated that the hearing would take place on 28 November 2001, but
later corrected itself and informed the parties that the hearing
would take place on 26 November, the originally scheduled date.
Before dismissing the parties on 20 November, the trial court again
clarified that the hearing for plaintiff's Motion to Renew would
take place on Monday, 26 November 2001.
Plaintiff and her attorney were present on 26 November 2001
for the scheduled hearing on the Motion to Renew, but defendant did
not appear. While waiting for defendant, the trial court determined
that plaintiff, her attorney, and the courtroom clerk understood
that the hearing was to occur on 26 November. The trial court also
believed defendant was aware that the hearing was set for 26
November. The trial court listened to the tape of the 20 November
2001 hearing, but the tape was turned off at the close of the
issues being considered and contained no conversation regarding the
26 November hearing. Finally, at plaintiff's request, the trial
court entered an order extending the domestic violence protective
order, effective 26 November 2001.
On 28 November, defendant appeared in court and stated that he
believed the hearing was to be held that day. The trial court
informed him that the hearing occurred two days earlier and that
plaintiff's domestic violence protective order had been extended.
Thereafter, defendant filed a Motion to Reconsider the extension of
plaintiff's domestic violence protective order. In his motion,
defendant argued there was confusion regarding the hearing date and
that, due to the confusion, he missed the hearing and was unable tocomplete his questioning of witnesses before the trial court
rendered its decision. Defendant requested that the trial court
set aside its order and grant him a new trial. By order dated 23
March 2002, the trial court denied defendant's Motion to Reconsider
and specifically concluded that “[d]efendant had adequate notice of
the November 26, 2001 hearing and Defendant's Motion, therefore,
should be denied.” Defendant appealed.
On appeal, defendant argues the trial court erred by (I)
failing to document the continuation date of the hearing that was
in progress on 13 November 2001; (II) failing to continue the
hearing already in progress; (III) failing to listen to the
recordings of the 13 November 2001 hearing; (IV) creating an
atmosphere in which clerical mistakes could occur; (V) entering its
26 November 2001 order because the hearing was continued to 28
November 2001; and (VI) failing to make any attempts to correct the
confusion it created. For the reasons set forth herein, we dismiss
the appeal as moot.
It appears defendant's Motion to Reconsider was made pursuant
to N.C. Gen. Stat. § 1A-1, Rule 60(b)(1) (2001), which permits
relief from a final judgment, order, or proceeding on the basis of
“[m]istake, inadvertence, surprise, or excusable neglect[.]” To
prevail on a Rule 60(b)(1) motion, “the movant must show both the
existence of one of the stated grounds for relief, and a
'meritorious defense.'” In re Hall, 89 N.C. App. 685, 686, 366
S.E.2d 882, 884, disc. review denied, 322 N.C. 835, 371 S.E.2d 277
(1988). “Generally, a motion for setting aside a judgment pursuantto 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.” Brown v.
Windhom, 104 N.C. App. 219, 221, 408 S.E.2d 536, 537 (1991).
Defendant maintains his failure to appear at the 26 November
2001 hearing was due to confusion caused by the discussion of more
than one court date. However, we agree with plaintiff that
defendant's failure to appear in court on 26 November was not the
result of mistake, inadvertence, surprise, or excusable neglect.
We need not further address the merits of the case, however,
because the domestic violence protective order issued by the trial
court expired on 26 November 2002, one year after it was granted.
“Upon application of the aggrieved party, a judge may renew the
original or any succeeding order for up to one additional year.”
N.C. Gen. Stat. § 50B-3(b) (2001). Here, plaintiff applied for
renewal of a previously granted domestic violence protective order.
Upon plaintiff's application, the trial court was fully within its
rights to grant the order pursuant to N.C. Gen. Stat. § 50B-3
without any explanation from defendant. As the issues presented by
the appeal are now moot, the appeal is
Dismissed.
Judges TYSON and STEELMAN concur.
Report per Rule 30(e).
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