THOMAS ALLEN PIPKIN, JR.,
Plaintiff,
v
.
Wake County
No. 98 CVD 7822
JOY ARTHUR PIPKIN,
(now COOPER),
Defendant.
Manning, Fulton & Skinner, P.A., by Cary Elizabeth Close, for
plaintiff-appellee.
Doss & Willis, L.L.P., by Aida Doss Havel, for defendant-
appellant.
JACKSON, Judge.
On 2 July 1998, Thomas Allen Pipkin, Jr. (“plaintiff”) filed
a complaint seeking, among other things, equitable distribution of
the marital estate he shared with Joy Arthur Pipkin (“defendant”).
On 10 July 1998, defendant filed a counterclaim also seeking
equitable distribution. The parties entered into an equitable
distribution scheduling and discovery order on 15 January 1999.
Following the entry of the scheduling order, defendant filed two
motions to amend the scheduling and discovery order, and an amended
order was entered setting three new dates for pretrial conferences,and an anticipated trial date of January 2000. The record on
appeal includes notices of hearings for initial pre-trial
conferences set 9 July 1999 and 6 April 2001, however there is no
indication as to what, if anything, occurred on those dates.
Defendant then set dates for hearings on her equitable distribution
claim to be held on 4 September 2001 and 29 October 2001.
There is nothing in the record to suggest, and neither party
contends, that any hearing on defendant's equitable distribution
claim occurred on either of the dates set for the hearing. In
addition, both parties agree that neither of them took any action
from late 2001 until December 2003 to move forward on the equitable
distribution claims. On 16 December 2003, plaintiff filed a motion
to dismiss defendant's equitable distribution claim for failure to
prosecute, per Rule 41(b) of the North Carolina Rules of Civil
Procedure. Plaintiff also took a voluntary dismissal of his claim
for equitable distribution.
On 20 February 2004, a hearing was held on plaintiff's motion
to dismiss defendant's claim. Although defendant had been
represented by three separate attorneys throughout the pendency of
her equitable distribution claim, she appeared at the hearing on
plaintiff's motion pro se. Following arguments by both parties,
and in an order entered 8 April 2004, the trial court granted
plaintiff's motion and dismissed defendant's equitable distribution
claim with prejudice. The trial court found that defendant had
delayed unreasonably in prosecuting her claim for equitable
distribution, and that plaintiff had been prejudiced by defendant'sdelay. The trial court also found that any sanction short of
dismissal of defendant's claim would not suffice.
On 21 April 2004, defendant filed a motion for a new trial and
for relief from the 8 April 2004 order, pursuant to Rules 59 and 60
of the North Carolina Rules of Civil Procedure. Following a
hearing on defendant's motions, the trial court denied defendant's
motions in an order entered 16 November 2004. Defendant appeals
from the denial of her motions pursuant to Rules 59 and 60.
In her first assignment of error, defendant contends that the
trial court committed reversible error by dismissing her equitable
distribution claim for failure to prosecute per Rule 41(b) of the
North Carolina Rules of Civil Procedure. At the outset, we note
that defendant gave notice of appeal only from the 16 November 2004
order denying her motions pursuant to Rule 59 and Rule 60. The
defendant's notice of appeal does not appeal the underlying order
entered on 8 April 2004 dismissing her equitable distribution
claim. Our appellate rules require that the notice of appeal
“designate the judgment or order from which appeal is taken[.]”
N.C. R. App. P. 3(d) (2005). “'Without proper notice of appeal,
this Court acquires no jurisdiction.'” Von Ramm v. Von Ramm, 99
N.C. App. 153, 156, 392 S.E.2d 422, 424 (1990) (quoting Brooks,
Com'r of Labor v. Gooden, 69 N.C. App. 701, 707, 318 S.E.2d 348,
352 (1984)). Further, the jurisdictional requirements of Rule 3 of
our appellate rules may not be waived, “'even for “good cause
shown” under Rule 2, if it finds that they have not been met.'”
Id. (citation omitted). The notice of appeal from a denial of amotion pursuant to Rule 59 and Rule 60 which “does not also
specifically appeal the underlying judgment does not properly
present the underlying judgment for our review.” Id.
This Court may “liberally construe a notice of appeal in one
of two ways to determine whether it provides jurisdiction over an
apparently unspecified portion of a judgment.” Id. at 156, 392
S.E.2d at 424.
First, “a mistake in designating the judgment,
or in designating the part appealed from if
only a part is designated, should not result
in loss of the appeal as long as the intent to
appeal from a specific judgment can be fairly
inferred from the notice and the appellee is
not misled by the mistake.” Second, if a
party technically fails to comply with
procedural requirements in filing papers with
the court, the court may determine that the
party complied with the rule if the party
accomplishes the “functional equivalent” of
the requirement.
Id. at 156-57, 392 S.E.2d at 424 (internal citations omitted). As
defendant's notice of appeal specifically stated that she was
appealing from “the entry of the 'Order Denying Rule 59 and Rule 60
Motion' entered on November 16, 2004,” we hold that a reader of
this notice could not “fairly infer” from the language of
defendant's notice of appeal that she also intended to appeal the
8 April 2004 order which underlies her Rules 59 and 60 motions.
See id. at 157, 392 S.E.2d at 425. Accordingly, defendant's
assignment of error relating to the dismissal of her equitable
distribution claim is not properly before us. N.C. R. App. P. 3
(2005). Therefore, our review is limited to arguments related tothe order entered on 16 November 2004 denying defendant's motions
pursuant to Rules 59 and 60.
Defendant contends the trial court committed an abuse of
discretion in denying her motions made pursuant to Rules 59 and 60
of our Rules of Civil Procedure.
Defendant's original motion made pursuant to Rules 59 and 60
stated that the motion was made pursuant to Rule 59(a)(6), (a)(7),
and (a)(8), and Rule 60. On appeal, defendant presents arguments
only as to the denial of the motion based on Rule 59(a)(7) and
(a)(8), and Rule 60(b)(1) and (b)(6). As defendant has failed to
present argument as to the trial court's denial of her motion
pursuant to Rule 59(a)(6) and the numerous additional sections of
Rule 60, defendant's assignment of error based on these portions of
the Rules is deemed abandoned. N.C. R. App. P. 10 (2005).
Rule 59 of our Rules of Civil Procedure provides parties with
an avenue to “obtain a new trial either for errors of law committed
during the trial or for a verdict not sufficiently supported by the
evidence.” Investors Title Ins. Co. v. Herzig, 330 N.C. 681, 695,
413 S.E.2d 268, 276 (1992); see also, Britt v. Allen, 291 N.C. 630,
231 S.E.2d 607 (1977). Specifically, Rule 59(a)(7) provides as
grounds for a new trial “[i]nsufficiency of the evidence to justify
the verdict or that the verdict is contrary to law[,]” and Rule
59(a)(8) provides as grounds for a new trial “[e]rror in law
occurring at the trial and objected to by the party making the
motion.” N.C. Gen. Stat. § 1A-1, Rule 59 (2004). “[A] [Rule 59]
motion for new trial is addressed to the sound discretion of thetrial court, and its ruling will not be disturbed absent a manifest
abuse of that discretion.” Kinsey v. Spann, 139 N.C. App 370, 372,
533 S.E.2d 487, 490 (2000). “However, where the motion involves a
question of law or legal inference, our standard of review is de
novo.” Id. Therefore, our standard of review for a motion made
pursuant to Rule 59(a)(7) or (a)(8) is de novo. See, Young v.
Lica, 156 N.C. App. 301, 304, 576 S.E.2d 421, 423 (2003) (standard
of review under Rule 59(a)(7) is de novo); Kinsey, 139 N.C. App. at
373, 533 S.E.2d at 490 (standard of review under Rule 59(a)(8) is
de novo because it involves alleged errors of law).
Defendant specifically contends the trial court's ruling with
respect to Rule 59(a)(7) and (a)(8) was contrary to law and
constituted an error in law in that the trial court failed to
properly apply the precedent in Wilder v. Wilder, 146 N.C. App.
574, 553 S.E.2d 425 (2001). In Wilder, this Court held that before
a court may dismiss a claim for failure to prosecute pursuant to
Rule 41(b), the trial court must consider “ (1) whether the
plaintiff acted in a manner which deliberately or unreasonably
delayed the matter; (2) the amount of prejudice, if any, to the
defendant; and (3) the reason, if one exists, that sanctions short
of dismissal would not suffice.” 146 N.C. App. at 578, 553 S.E.2d
at 428. Defendant contends the trial court failed to consider the
factors set forth in Wilder in dismissing her equitable
distribution claim.
In the present case, the order denying defendant's motions
pursuant to Rules 59 and 60 did not make any findings of fact. Ourcourts have held that “[i]n ruling on a motion for a new trial
under Rule 59(a), absent a specific request made pursuant to Rule
52(a)(2), a trial court is not required to either state the reasons
for its decision or make findings of fact showing those reasons.”
Strickland v. Jacobs, 88 N.C. App. 397, 399, 363 S.E.2d 229, 230
(1988) (citing Edge v. Metropolitan Life Ins. Co., 78 N.C. App.
624, 337 S.E.2d 672 (1985)). As defendant failed to make a timely
request for specific findings of fact, the trial court was
therefore not required to make them or to include the reasons for
its decision in the order.
At the hearing on defendant's motions pursuant to Rules 59 and
60, the trial court heard extensive arguments from both parties and
carefully reviewed the record of the parties' case. Defendant, who
by then was represented by counsel, thoroughly argued how she
believed the trial court had misapplied Wilder, and she proceeded
to present evidence attempting to show that plaintiff had not been
prejudiced by defendant's delay in proceeding with her equitable
distribution claim. Counsel for both parties presented arguments
in support of and against each part of defendant's motions. The
trial court was presented with evidence detailing defendant's
timeline with regards to her prosecution of the equitable
distribution claim, her multitude of attorneys, and the length of
time in which nothing was done by either party with respect to the
claims for equitable distribution. The trial court also heard
evidence which was not presented at the hearing on the dismissal of
defendant's equitable distribution claim. Defendant presentedletters from defendant to her former counsel and to plaintiff's
counsel, and evidence that plaintiff had been able to conduct
business transfers and transactions during the pendency of her
claim, thereby evidencing, as argued by defendant, that plaintiff
was not prejudiced by the delay.
In reviewing the trial court's original order dismissing
defendant's claim for equitable distribution, we hold the trial
court properly applied the factors set forth in Wilder, and made
sufficient findings of fact. The trial court found as fact that
defendant did not present evidence which would justify her delay in
prosecuting her claim, and that her delay in prosecuting the claim
prejudiced plaintiff's ability to conduct his business affairs. At
the hearing on plaintiff's motion to dismiss defendant's claim,
defendant suggested that the court, in lieu of dismissal, not
require the parties to do a second business valuation. The trial
court rejected defendant's suggestion, and found that “any sanction
short of dismissal of the claim would not suffice.” In rejecting
defendant's suggestion, the court clearly considered sanctions
short of dismissing her claim. Thus, the trial court complied with
the requirements of Wilder, and in turn, we hold the trial court
acted properly in denying defendant's motion for a new trial
pursuant to Rule 59, as there was not an error of law committed in
the dismissal of defendant's equitable distribution claim.
Rule 60 of our Rules of Civil Procedure provides parties with
a means for seeking relief from a final judgment or order. N.C.
Gen. Stat. § 1A-1, Rule 60 (2004). Pursuant to Rule 60(b), the court may relieve a party . . . from a
final judgment, order, or proceeding for the
following reasons:
(1) Mistake, inadvertence, surprise, or
excusable neglect;
. . . .
(6) Any other reason justifying relief from
the operation of the judgment.
N.C. Gen. Stat. § 1A-1, Rule 60(b) (2004). On appeal, our standard
of review for motion pursuant to Rule 60 is abuse of discretion.
Sink v. Easter, 288 N.C. 183, 198, 217 S.E.2d 532, 541 (1975);
Coppley v. Coppley, 128 N.C. App. 658, 663, 496 S.E.2d 611, 616
(1998). In order to find an abuse of discretion, a defendant must
show that the trial court's decision was manifestly unsupported by
reason or is one so arbitrary that it could not have resulted from
a reasoned decision. Briley v. Farabow, 348 N.C. 537, 547, 501
S.E.2d 649, 656 (1998) (citing White v. White, 312 N.C. 770, 777,
324 S.E.2d 829, 833 (1985)).
Similar to a case involving a Rule 59 motion, a trial court is
not required to make specific findings of fact when ruling on a
Rule 60 motion unless requested by a party, although our courts
have stated that it is a better practice to do so. Grant v. Cox,
106 N.C. App. 122, 125, 415 S.E.2d 378, 380 (1992) (citing
Financial Corp. v. Mann, 36 N.C. App. 346, 243 S.E.2d 904 (1978)).
“Where the trial court does not make findings of fact in its order
denying the motion to set aside the judgment, the question on
appeal is 'whether, on the evidence before it, the court could have
made findings of fact sufficient to support its legalconclusion[.]'” Id. (quoting Financial Corp., 36 N.C. App. at 349,
243 S.E.2d at 907)). Thus, the issue before us is whether, given
the facts which were before the trial court at the time, the court
could have made findings of fact sufficient to support its
conclusion that the motion to set aside the dismissal of
defendant's equitable distribution claim should have been denied.
See, id.
As we have held that the trial court's denial of defendant's
Rule 59 motion was proper in that the dismissal of her equitable
distribution claim did not constitute an error in law, and was
reached after argument by both parties, we hold there was
sufficient evidence before the trial court such that it could have
made findings of fact had it been requested to by either party. In
addition, as the trial court's decision to dismiss defendant's
claim was proper in light of Wilder, we further hold the trial
court's denial of defendant's Rule 60 motion was the result of a
reasoned decision and did not constitute an abuse of discretion.
Affirmed.
Judges HUDSON and LEVINSON concur.
Report per Rule 30 (e).
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