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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
GLORIA SELLERS, Plaintiff, v. CAMMIE SMITH OCHS, Defendant
NO. COA 06-235
Filed: 21 November 2006
1. Appeal and Error--preservation of issues--proper notice of appeal
Although plaintiff contends the trial court erred in a property dispute case by granting
summary judgment in favor of defendant based on the doctrine of unclean hands, this assignment
of error is overruled because: (1) proper notice of appeal is a jurisdictional requirement that may
not be waived, and in the absence of proper notice of appeal, the Court of Appeals is without
jurisdiction to review the order of summary judgment; and (2) plaintiff filed a notice of appeal on
13 October 2005 from the order denying plaintiff's motion to amend the judgment entered in this
action and signed on 19 September 2005 without any reference in the notice of appeal to the 27
July 2005 order granting summary judgment in favor of defendant.
2. Civil Procedure--Rule 59_reargument--arguments that could have been made
The trial court did not err in a property dispute case by denying plaintiff's N.C.G.S. § 1A-
1, Rule 59 motion to amend the judgment, because: (1) a Rule 59 motion cannot be used as a
means to reargue matters already argued or to put forth arguments which were not made but
could have been made at the trial court level; (2) the three additional cases plaintiff's counsel
sought to argue contained arguments which were not made but could have been made at the trial
level; (3) plaintiff was barred by her unclean hands based on her efforts to avoid judgment
creditors which led directly to the decision to put the real property in defendant's name; and (4)
where both parties have united in a transaction to defraud another, or others, or the public, or due
administration of the law, or which is against public policy, or contra bonos mores, the courts
will not enforce it in favor of either party.
Appeal by Plaintiff from order entered 19 September 2005 by
Judge C. Philip Ginn in Superior Court, Haywood County. Heard in
the Court of Appeals 17 October 2006.
Patrick U. Smathers and Gina L. Norwood, for plaintiff-
Law Office of Frank Jackson, by James L. Palmer, for
A Rule 59 motion cannot be used as a means to reargue matters
already argued or to put forth arguments which were not made butcould have been made at the trial court level.
(See footnote 1)
Gloria Sellers filed a Rule 59 motion to present additional case
law to the trial court in an effort to have an order of summary
judgment set aside. Because Ms. Sellers only appeals from the
denial of that motion, for which she failed to show any grounds for
relief from judgment, we dismiss.
Both parties agree that in 1994, Defendant Cammie Smith Ochs
became the record owner of a piece of property located in Haywood
County. Shortly thereafter, Plaintiff Gloria Sellers moved a
trailer onto the property and began living there, although she did
not pay any rent to Ms. Ochs. In 2003, Ms. Ochs made a written
demand that Ms. Sellers vacate the property. In response, Ms.
Sellers filed a complaint alleging that Ms. Ochs was holding the
property for Ms. Sellers in a resulting or constructive trust and
asking either for a reconveyance of the property or money damages
in the amount of the property's value.
Ms. Sellers alleges that the property was originally purchased
in 1994 with the profits from a joint venture she operated with Ms.
Ochs' father, John Smith, and that the property was placed in Ms.
Ochs' name because Ms. Sellers and Mr. Smith had reason to believe
that judgment creditors at that time might attach to the property.
She further contends that Ms. Ochs agreed to hold the property in
trust and convey it to either Ms. Sellers or Mr. Smith upon their
request . By contrast, Ms. Ochs contends that the deed to theproperty was a gift from her father, or should be presumed as an
advancement from him.
Following the filing of Ms. Sellers' complaint, Ms. Ochs filed
a motion for summary judgment on the grounds that (1) Ms. Sellers
had failed to join a necessary party to the lawsuit, namely, Mr.
Smith; (2) there were no genuine issues of material fact as to the
claims of resulting or constructive trust; (3) Ms. Sellers had
failed to produce evidence to support the evidence of the existence
of either a resulting or constructive trust; and, (4) regardless of
any issues of material fact, Ms. Sellers was barred from recovery
by the doctrine of unclean hands because she had entered into the
transaction seeking to avoid judgment creditors. Finding that
there were no genuine issues of material fact and that the
Defendant is entitled to judgment as a matter of law, as the
equitable defense of 'unclean hands' bars any recovery by the
Plaintiff in this matter, the trial court granted the motion for
summary judgment on 27 July 2005.
Ms. Sellers then filed a Rule 59 motion for amendment of
judgment, alleging that the law presented by Defendant is
inappropriate and not precedent for the facts and circumstances of
the case, and submitting additional case law for consideration by
the court. On 19 September 2005, the trial court denied the motion
to amend the judgment, treating it as a motion to set aside or
motion for relief from the summary judgment and finding that Ms.
Sellers had not shown the grounds for relief.
Ms. Sellers appeals from that ruling, arguing that (I) thetrial court made an error of law by granting summary judgment based
on the equitable defense of unclean hands, and (II) the trial court
made an error of law by denying the motion for amendment of
 We note at the outset that the 27 July 2005 order granting
summary judgment to Ms. Ochs is not properly before this Court. In
all cases before this Court, the notice of appeal shall designate
the judgment or order from which appeal is taken. N.C. R. App. P.
3(d) (2005). Moreover, [p]roper notice of appeal is a
jurisdictional requirement that may not be waived. Chee v. Estes,
117 N.C. App. 450, 452, 451 S.E.2d 349, 350 (1994). As such, the
appellate court obtains jurisdiction only over the rulings
specifically designated in the notice of appeal as the ones from
which the appeal is being taken. Id.; see also Craven Reg'l Med.
Auth. v. N.C. Dep't of Health & Human Servs., 176 N.C. App. 46, 59,
625 S.E.2d 837, 845 (2006).
Here, Ms. Sellers filed a notice of appeal on 13 October 2005,
from the Order Denying Plaintiff's Motion entered in this action
and signed by the Honorable C. Philip Ginn on September 19, 2005.
No reference was made in the notice of appeal to the 27 July 2005
order granting summary judgment to Ms. Ochs. Thus, in the absence
of proper notice of appeal, this Court is without jurisdiction to
review the order of summary judgment. This assignment of error is
 We turn now to Ms. Sellers' appeal from the denial of her
Rule 59 motion to amend the judgment, treated by the trial court as
a motion to set aside or motion for relief from the summary
Although Ms. Sellers preserved this issue in her second
assignment of error before this Court, the sole argument presented
in her brief on this question can be summarized as, The order
granting summary judgment was erroneous; therefore, the denial of
the motion to amend the judgment was likewise erroneous.
Nevertheless, the trial court's order denying the motion to amend
stated that the grounds for relief from the order of summary
judgment have not been shown by the Plaintiff.
Rule 59 of the North Carolina Rules of Civil Procedure allows
for a new trial if the verdict is contrary to law or for [a]ny
other reason heretofore recognized as grounds for new trial. N.C.
Gen. Stat. § 1A-1, Rule 59(a)(7) and (9) (2005). However, a Rule
59 motion cannot be used as a means to reargue matters already
argued or to put forth arguments which were not made but could have
been made at the trial court level. Smith v. Johnson
, 125 N.C.
App. 603, 606, 481 S.E.2d 415, 417, disc. review denied
, 346 N.C.
283, 487 S.E.2d 554 (1997).
In the instant case, at the hearing on the motion to amend the
judgment, counsel for Ms. Sellers admitted his failure at [the
summary judgment hearing] to not have [sic] the cases [he had] for
the court today.
He then discussed three additional cases that he
argued should control the trial court's ruling as to the
applicability to the instant case of the equitable defense ofunclean hands.
From the record before us, it seems clear that
these cases contained arguments which were not made but could have
been made at the trial court level. Accordingly, we agree with
the trial court's finding that Ms. Sellers failed to show the
grounds for relief from the order of summary judgment. This
assignment of error is therefore without merit.
Moreover, after examining the cases cited by defense counsel
in the motion to amend, we conclude that the trial court made no
errors of law in its original order granting summary judgment to
Ms. Ochs. Defense counsel cited to High v. Parks
, 42 N.C. App.
707, 257 S.E.2d 661, cert. denied
, 298 N.C. 806, 262 S.E.2d 1
(1979), Collins v. Davis
, 68 N.C. App. 588, 315 S.E.2d 759, aff'd
, 312 N.C. 324, 321 S.E.2d 892 (1984), and a third case
not named in the record. High v. Parks
, however, involved a
judgment on the pleadings, not a summary judgment, and this Court
found that the trial court had therefore made selective findings
of fact and conclusions of law inappropriate for a Rule 12(c)
motion. 42 N.C. App. at 710-11, 257 S.E.2d at 663. That holding
is thus inapplicable to this case. The facts of Collins v. Davis
can likewise be distinguished from those here; in Collins
Court found the real property claim at issue to be unrelated to
plaintiff's adulterous relationship with defendant and reversed the
directed verdict for the defendant that had been granted on the
grounds of plaintiff's unclean hands.
(See footnote 2)
68 N.C. App. at 592-93, 315S.E.2d at 762. Here, however, Ms. Sellers was barred by her
unclean hands because her efforts to avoid judgment creditors led
directly to the decision to put the real property in Ms. Ochs'
Our Supreme Court has long held that, [w]here both parties
have united in a transaction to defraud another, or others, or the
public, or the due administration of the law, or which is against
public policy, or contra bonos mores
, the courts will not enforce
it in favor of either party. Penland v. Wells
, 201 N.C. 173, 175-
76, 159 S.E. 423, 424 (1931) (citation and quotation omitted); see
also Hood v. Hood
, 46 N.C. App. 298, 300, 264 S.E.2d 814, 816
(1980) (barring a plaintiff husband from enforcing a resulting
trust against his defendant wife, where his purpose was to shield
the property from potential seizure by the State).
In this case, it is obvious to us that Ms. Sellers was
attempting to get [her] fodder out of the field before the storm
, 201 N.C. at 176, 159 S.E. at 424, and the trial
court therefore correctly barred her from recovery against Ms.
Dismissed in part, affirmed in part.
Judges McGEE and McCULLOUGH concur.
Smith v. Johnson
, 125 N.C. App. 603, 606, 481 S.E.2d 415,
417, disc. review denied
, 346 N.C. 283, 487 S.E.2d 554 (1997).
It should be noted that Judge Phillips wrote the opinion
, with which Judge Wells concurred only in the result.
The third judge, Judge Braswell, dissented. Thus, the majorityopinion of the Court of Appeals was a result only opinion which
our Supreme Court summarily affirmed per curiam
the reasoning provided by Judge Phillips.
68 N.C. App. 588, 315
S.E.2d 759, aff'd per curiam
, 312 N.C. 324, 321 S.E.2d 892
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