Appeal by respondents from a judgment entered 28 December 2004
by Judge Robert D. Lewis in Henderson County Superior Court. Heard
in the Court of Appeals 7 December 2005.
Walter C. Carpenter for petitioner-appellee.
Larry W. Pigg and Gloria A. Vandiver, pro se, respondent-
appellants.
BRYANT, Judge.
Larry W. Pigg and Gloria A. Vandiver (respondents) appeal a
judgment entered 28 December 2004 enforcing a mediated settlement
agreement they entered into with Mary Suzanne Etter (petitioner)
and establishing a boundary line between the parties' property.
For the reasons below we reverse and remand this case for further
proceedings.
Facts and Procedural History
Petitioner is the owner of real property located in Henderson
County, North Carolina and adjacent to property owned by
respondents. Both petitioner's and respondents' deeds call for the
center line of a creek as the dividing line between theirproperties. On 1 November 2001, petitioner commenced this action
to establish the boundary line between the parties' property.
Pursuant to Superior Court rules, a mediated settlement conference
was held on 18 June 2003, and a full and final agreement of all
issues was reached. The terms of the settlement agreement were set
down in a Memorandum of Mediated Settlement which was signed by all
parties. Although the Memorandum of Mediated Settlement stated a
consent order was to be entered based upon the terms of the
agreement, no consent order appears in the record before this
Court. In accordance with the settlement agreement and to
determine the boundary between the parties' property, William
Patterson, a Registered Land Surveyor, determined the center line
of the creek, disregarding any changes caused by man, and prepared
a survey.
On 28 January 2004, respondents filed a Motion for Relief from
Judgment or Order pursuant to Rule 60(b) of the North Carolina
Rules of Civil Procedure. Respondents requested the court to set
aside and relieve respondents from the terms of the Memorandum of
Mediated Settlement and to join the owners of a neighboring tract
of land as necessary parties to their action. Respondents alleged
the failure of their counsel to provide Patterson with plats, maps,
drawings, deeds or respondents' contentions, constituted mistake,
inadvertence, or excusable neglect under Rule 60(b)(1); and that it
was no longer equitable that the “judgment” should have prospective
application pursuant to Rule 60(b)(5) due to the failure to join
the alleged necessary parties. Respondents' motion was heard on 28January 2004, by the Honorable C. Phillip Ginn, and by order
entered 18 February 2004, Judge Ginn denied respondents' Motion for
Relief.
Petitioner subsequently filed a Motion for Judgment on 16 June
2004, asking the court to enforce the mediated settlement agreement
and enter a judgment establishing the boundary line in question
pursuant to Patterson's survey. On 28 December 2004, the Honorable
Robert D. Lewis entered a judgment enforcing the mediated
settlement agreement and establishing the property line as set
forth in Patterson's survey. Respondents appeal.
_______________________
The dispositive issue on appeal is whether the trial court
erred in relying on Judge Ginn's order of 18 February 2004 relating
to respondents' Rule 60(b) motion. Rule 60(b) of the North
Carolina Rules of Civil Procedure states: “On motion and upon such
terms as are just, the court may relieve a party or his legal
representative from a final judgment, order, or proceeding for the
following reasons . . . .” N.C. Gen. Stat. § 1A-1, Rule 60(b)
(2003). “Rule 60(b) has no application to
interlocutory judgments,
orders, or proceedings of the trial court. It only applies, by its
express terms, to
final judgments.”
Sink v. Easter, 288 N.C. 183,
196, 217 S.E.2d 532, 540 (1975).
In the instant case, respondents' Rule 60(b) motion was an
attempt to set aside and relieve respondents from the terms of the
Memorandum of Mediated Settlement and to join the owners of a
neighboring tract of land as necessary parties to their action. “It is well-settled in North Carolina that compromises and
settlements of controversies between parties are favored by our
courts.”
State ex rel. Howes v. Ormond Oil & Gas Co., 128 N.C.
App. 130, 136, 493 S.E.2d 793, 796 (1997) (citing
PCI Energy
Servs., Inc. v. Wachs Technical Servs., Inc., 122 N.C. App. 436,
440, 470 S.E.2d 565, 567 (1996)). However, “[t]he Mediation Rules
do not require a party to abide by the terms of a settlement
agreement entered into at a mediated settlement conference that is
not entered as a consent judgment of the court.”
Estate of Barber
v. Guilford County Sheriff's Dep't, 161 N.C. App. 658, 665, 589
S.E.2d 433, 438 (2003).
Instead, mediated settlement agreements are governed by
general principles of contract law.
Chappell v. Roth, 353 N.C.
690, 692, 548 S.E.2d 499, 500 (2001) (citing
McNair v. Goodwin, 262
N.C. 1, 7, 136 S.E.2d 218, 223 (1964)). A party to a settlement
agreement has “two options in deciding how to specifically enforce
the terms of the settlement agreement. . . . (1) take a voluntary
dismissal of his original action and then institute a new action on
the contract, or (2) seek to enforce the settlement agreement by
petition or motion in the
original action.”
Estate of Barber, 161
N.C. App. at 662, 589 S.E.2d at 436 (citing
Ormond Oil & Gas 128
N.C. App. at 136, 493 S.E.2d at 796-97)). Here, the settlement
agreement was never reduced to a consent order and petitioner did
not attempt to enforce the terms of the settlement agreement until
she filed her Motion for Judgment on 16 June 2004, five months
after Judge Ginn's order denying respondents' Rule 60(b) motion.
Respondents did not file their Rule 60(b) motion in response
to a final judgment or order, but rather in response to Patterson's
survey establishing the center line of the creek, and thereby the
boundary between the parties' property. As there was no final
judgment or order, respondents' Motion for Relief from Judgment or
Order could not, as a matter of law, have been proper under Rule
60(b), and the trial court should not have considered the motion.
See Hooper v. Pizzagalli Constr. Co., 112 N.C. App. 400, 408, 436
S.E.2d 145, 150-51 (1993) (Rule 60 motion was appropriately denied
where it sought relief from an order dismissing less than all of
the claims in an action). Therefore, Judge Ginn's order of 18
February 2004 relating to respondents' Rule 60(b) motion is void.
See Pratt v. Staton, 147 N.C. App. 771, 775, 556 S.E.2d 621, 624
(2001) (vacating trial court's order pursuant to Rule 60(b) when
original order was not a final judgment).
In the judgment from which respondents appeal, the trial court
relied entirely upon Judge Ginn's order denying respondents' Motion
for Relief. At the hearing on petitioner's Motion for Judgment,
the trial court stated:
We have a bright line rule in North Carolina
required because one superior court judge
doesn't have the authority to overrule another
superior court judge. So I'm without authority
to undo anything that Judge Ginn did.
. . .
[Judge Ginn's order] determined the issue
before me, so . . . you'll just have to
prepare your order, your judgment affirming
what Judge Ginn should have done when he
decided that there was no way to set it aside.That doesn't leave me any room to do anything,
but enter a judgment.
. . .
I'm not going to sign any order. Judge Ginn is
the one that found that there was no basis for
him to set aside the mediated settlement
conference agreement. And so Judge Ginn is the
one to determine whether or not the case shall
be - by judgment, consent judgment, voluntary
dismissal, or whatever, I'm not going to sign
that because I didn't hear that.
. . .
The order from yesterday was that somebody
else had already decided that the mediated
settlement conference, memorandum of
settlement disposed of the case, and that
there's no viable way to challenge or set
aside that order. And I am therefore
confirming, or affirming that as the judgment,
as the memorandum of settlement.
In the judgment entered 28 December 2004, the trial court
concluded: “Relief from the mediated settlement agreement having
been denied by Judge Ginn at an earlier term of [c]ourt, that
agreement should now be enforced and a Judgment entered in
accordance with its terms.” As Judge Ginn should not have
considered the respondents' motion under Rule 60(b), the trial
court erred in relying upon Judge Ginn's order denying respondents'
Motion for Relief when he held the mediated settlement agreement
should be enforced. Accordingly, we reverse the Judgment of 28
December 2004 and remand for further proceedings.
Reversed and remanded.
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).
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