Appeal by plaintiff from judgment entered 20 August 2003 by
Judge Henry W. Hight, Jr. in Wake County Superior Court. Heard in
the Court of Appeals 1 November 2004.
Carol Bennett, Pro se plaintiff-appellant.
Everett, Gaskins, Hancock & Stevens by Hugh Stevens and
C. Amanda Martin for defendant-appelle.
No brief filed for defendant-appellee.
STEELMAN, Judge.
Plaintiff, Carol Bennett, appeals the trial court's order
denying her Motion for Relief from an order entered 27 June 2001 by
Judge Narley L. Cashwell in Wake County Superior Court.
On 29 July 2003, plaintiff filed an application for order
extending time to file a complaint against defendant pursuant to
Rule 3(a)(1) of the Rules of Civil Procedure. That same day, the
Assistant Clerk of Superior Court of Wake County entered an order
granting plaintiff until 18 August 2003 to file a complaint. On 6August 2003, defendant filed a motion to strike plaintiff's
application and a motion for sanctions under Rule 11 of the Rules
of Civil Procedure. These motions were based upon an earlier order
of the Superior Court of Wake County in which Judge Cashwell
prohibited plaintiff from filing documents with the Clerk of
Superior Court of Wake County unless accompanied by a
certification, signed by a licensed attorney, that the document
complied with Rule 11. This order was entered in the case of
Dalenko v. Wake Cty. Dep't of Human Services (2000 CVS 5994).
Plaintiff filed a motion on 8 August 2003, seeking relief from
Judge Cashwell's order. On 20 August 2003, Judge Hight entered an
order finding that plaintiff had failed to file a complaint within
the time limit specified and thus, plaintiff's action had abated.
As a result, plaintiff's action was dismissed and defendant's
motion to strike was deemed to be moot. This same order denied
plaintiff's motion for relief from Judge Cashwell's order.
On 15 September 2003, plaintiff gave notice of appeal from
Judge Hight's order. Subsequently, defendant noticed plaintiff for
a hearing on its Rule 11 motion. On 20 November 2003, Judge Hight
entered a consent order, bearing the signatures of plaintiff and
counsel for defendant. By the terms of this consent order,
plaintiff agreed to file a notice with the clerk of court
“irrevocably withdrawing and dismissing her appeal of this court's
August 20, 2003 order[,] . . .” and upon such filing defendant
agreed that its motion for sanctions “shall be deemed irrevocably
withdrawn and dismissed[.]” On 20 November 2003, plaintiff filed a notice of dismissal,
which dismissed with prejudice her appeal of Judge Hight's order of
20 August 2003. However, plaintiff stated in her dismissal that
she did not dismiss her appeal of Judge Hight's denial of her
motion for relief from Judge Cashwell's order. It is upon this
issue alone, that plaintiff brings forward her appeal.
“'[A]s a general rule[,] this Court will not hear an appeal
when the subject matter of the litigation has been settled between
the parties or has ceased to exist.'”
N.C. State Bar v. Randolph,
325 N.C. 699, 701, 386 S.E.2d 185, 186 (1989) (quoting
Kendrick v.
Cain, 272 N.C. 719, 722, 159 S.E.2d 33, 35 (1968)). “Whenever in
the course of litigation it becomes apparent that there is an
absence of a genuine adversary issue between the parties, the court
should withhold the exercise of jurisdiction and dismiss the
action.”
Bizzell v. Insurance Co., 248 N.C. 294, 296, 103 S.E.2d
348, 350 (1958).
In this matter, plaintiff's action against defendant was one
based in libel. The issues concerning Judge Cashwell's order were
injected into this matter by defendant's motion to strike and its
motion for imposition of Rule 11 sanctions. When plaintiff
dismissed her action against defendant and defendant dismissed its
Rule 11 motion, there was no longer an adversarial issue between
the parties pending before the Wake County Superior Court. Thus,
there is no controversy pending before this Court, and plaintiff's
appeal must be dismissed. Further, plaintiff's motion for relief from injunction
attempts to mount a collateral attack upon Judge Cashwell's order
that was entered in an entirely different lawsuit. Judge
Cashwell's order in
Dalenko was appealed by plaintiff to this Court
and her appeal was dismissed.
See Dalenko v. Wake Cty. Dep't of
Human Servs., 157 N.C. App. 49, 578 S.E.2d 599,
disc. review denied
and cert. denied, 357 N.C. 458, 585 S.E.2d 386 (2003),
cert.
denied, ___ U.S. ___,
158 L. Ed. 2d 79 (2004). It has long been
established that “an erroneous judgment, which is one 'rendered
according to the course and practice of the court, but contrary to
law, or upon a mistaken view of the law, or upon an erroneous
application of legal principles,' may be remedied by appeal, but
may not be collaterally attacked.”
Seely v. Borum & Assoc., Inc.,
127 N.C. App. 193, 196, 488 S.E.2d 282, 284 (1997). As plaintiff
has exhausted all avenues of appeal, including to the United States
Supreme Court, and since the Wake County Superior Court had
jurisdiction over the subject matter in the earlier action, Judge
Cashwell's order is not subject to collateral attack.
For the reasons discussed herein, plaintiff's appeal is
dismissed.
DISMISSED.
Judges McCULLOUGH and ELMORE concur.
Report per Rule 30(e).
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