Appeal by defendant from order entered 5 July 2005 by Judge
Tanya Wallace in Richmond County District Court. Heard in the
Court of Appeals 16 May 2006.
Sharpe & Buckner, PLLC, by Richard G. Buckner, for plaintiff-
Henry T. Drake for defendant-appellant.
This lawsuit arose when plaintiff Jerry Chappell Wallace, II,
instituted eviction proceedings against his father, defendant Jerry
Chappell Wallace. After a magistrate entered judgment in favor of
plaintiff, defendant filed a series of motions in district court
pursuant to Rules 59 and 60 of the North Carolina Rules of Civil
Procedure, all of which were denied. Since the district court's
order denying defendant's final motion under Rules 59 and 60 is the
only order properly before us at this time, and defendant has
failed to demonstrate that the district court abused its discretion
in denying that motion, we affirm.
Facts and Procedural History
This litigation arises out of a dispute between the parties
over a piece of real estate ("the property") located at 213 Wallace
Road in Ellerbe, North Carolina. The property was originally owned
by Robert and Kate Wallace, plaintiff's uncle and aunt, who granted
it by general warranty deed to plaintiff in January 1986.
Plaintiff was five years old at that time.
In 1989, defendant divorced plaintiff's mother, Cynthia
Cooper. Plaintiff contends that, at the time of the divorce, Ms.
Cooper, acting on his behalf, agreed to allow defendant to live in
a mobile home on the property as long as he would pay the taxes on
the land. Plaintiff remained with his sister and mother in the
family home on another tract of land in Ellerbe. According to Ms.
Cooper, the agreement regarding the paying of taxes was "part of
[defendant's] child support for [plaintiff]." Subsequently,
defendant sought permission from Ms. Cooper to plant crops on the
property, to build a garage and a greenhouse, and to add a porch
and deck to the mobile home. Ms. Cooper agreed because defendant
"was getting a cash break on his child support, but he was [also]
creating value for" plaintiff.
In January 1991, defendant came to plaintiff's home with a gun
and threatened Ms. Cooper and the children. Ms. Cooper immediately
moved to another county and was no longer able to keep close watch
over the property, although she did drive by a few times each
month. For the rest of plaintiff's childhood, according to Ms.Cooper, defendant "always kept our deal, paying the taxes and
upkeep as his rent."
When plaintiff turned 18, the same arrangement continued.
Plaintiff stated in his affidavit: "I was already very much aware
of the lease agreement my mother had negotiated with my father on
my behalf and I was very much satisfied with it and we continued
with it. I certainly then had no need for my land, whether to sell
it or rent it and it suited me very well to have my father living
there as tenant, paying the taxes and upkeep as rent."
After plaintiff became a student at UNC-Wilmington, he decided
to sell some of the property to help mitigate his student loans.
He suggested to defendant that the lease arrangement be modified so
that defendant would continue to lease a portion of the land, but
plaintiff could sell the rest. According to plaintiff, "for the
first time my father told me that I could not sell the land because
it was his. At first, he said that I did not own any of it. Then,
he said my deed was null and void . . . . Eventually, his words
were to the effect that I only owned the 'back half,' the swampy
portion where the hogs were."
Plaintiff renewed his offer in writing, and when defendant did
not respond, plaintiff initiated eviction proceedings. On 19
November 2003, he filed a complaint in summary ejectment in the
small claims division of the Richmond County District Court. The
complaint stated, "Defendant is a tenant at will and has refused to
vacate the premises after demand has been given for him to vacate
the premises." On 16 December 2003, the Chief Magistrate conducted a hearing
at which both plaintiff and defendant presented evidence.
Following the hearing, the Chief Magistrate determined that there
was a lease agreement between the parties, that a landlord-tenant
relationship existed between the parties, and that defendant was in
possession of the premises in violation of the lease agreement. An
eviction order was entered 9 January 2004, and the actual eviction
took place on 20 January 2004.
On 3 June 2004, six months after the entry of the eviction
order, defendant filed an "answer to complaint for summary
ejectment," accompanied by a number of exhibits including documents
relating to the alleged incompetence of Robert and Kate Wallace.
On the same date, he also filed a motion to set aside and dismiss
the summary ejectment and for a new trial, citing N.C.R. Civ. P. 59
On 9 July 2004, when the Chief Magistrate was unavailable to
rule on defendant's motion due to illness, defendant filed a notice
of appeal to the district court from the Chief Magistrate's 16
December 2003 order. With the consent of the parties, District
Court Judge Tanya Wallace conducted a hearing on the motion on 14
October 2004. Following the hearing, by written order entered 18
November 2004, Judge Wallace dismissed as untimely (1) defendant's
9 July 2004 notice of appeal from the Chief Magistrate's 16
December 2003 decision and (2) defendant's Rule 59 motion dated 3
June 2004. After separately considering defendant's request for
relief under Rule 60, she concluded that defendant had "failed tocarry his burden of establishing any grounds for relief" under that
Rule. The record contains no indication that defendant ever filed
a notice of appeal from the 18 November 2004 order.
(See footnote 1)
On 29 November 2004, defendant filed a new motion with the
district court, entitled "Motion to Amend Judgment, and for a New
Hearing," again citing Rules 59 and 60. This motion contained no
exhibits, but in April 2005 defendant filed another motion
attaching (1) new affidavits from defendant and other members of
the community, (2) documents related to a pending fraud action that
defendant had filed against plaintiff, and (3) the same documents
relating to Robert and Kate Wallace's alleged incompetency that
defendant had previously filed. The April 2005 motion, which was
captioned simply "Motion," cited no statutory or case authority,
and, somewhat enigmatically, requested the district court "to
reconsider it's [sic] Motion to Set Aside a proper Motion."
These motions were heard on 3 June 2005 by Judge Wallace. In
a written order filed 5 July 2005, Judge Wallace denied the motions
based on defendant's failure (1) to cite authority, (2) to present
or forecast "evidence, in addition to the evidence which was
submitted to this Court and argued before this Court and consideredby this Court, at the time of the entry of the Order which was
filed by this cause on November 18, 2004," or (3) to suggest any
grounds upon which relief should be granted. On 15 July 2005,
defendant filed a notice of appeal to this Court from the 5 July
At the outset, we note that "[n]otice of appeal from denial of
a motion to set aside a judgment which does not also specifically
appeal the underlying judgment does not properly present the
underlying judgment for our review." Von Ramm v. Von Ramm
, 99 N.C.
App. 153, 156, 392 S.E.2d 422, 424 (1990) (appeal of denial of Rule
59 motion did not include appeal of underlying child support
order); Chaparral Supply v. Bell
, 76 N.C. App. 119, 120, 331 S.E.2d
735, 736 (1985) (appeal of denial of Rule 60 motion to set aside
entry of summary judgment did not include appeal of underlying
summary judgment order).
Here, the underlying decisions of the Chief Magistrate
(entered 16 December 2003) and the district court (entered 18
November 2004) are not referenced in defendant's notice of appeal.
The notice of appeal states in its entirety: "NOW COMES, Defendant
having received the Court['s] Ruling on July 8, 2005, and gives
Notice of Appeal to the North Carolina Court Of [sic] Appeal[s]."
Since the notice of appeal does not reference either of the
underlying orders, our review is limited to the district court's 5
July 2005 order. We have no jurisdiction to review either the
Chief Magistrate's 16 December 2003 ruling or the district court's18 November 2004 order denying defendant's first motion under Rules
59 and 60.
We review a trial court's decision to deny a motion pursuant
to Rules 59 and 60 for an abuse of discretion. Sink v. Easter
N.C. 183, 198, 217 S.E.2d 532, 541 (1975) (regarding Rule 60); Ollo
, 136 N.C. App. 618, 624, 525 S.E.2d 213, 217 (2000)
(regarding Rule 59). To establish an abuse of discretion, the
appellant must demonstrate that the decision is manifestly
unsupported by reason or is one so arbitrary that it could not have
been the result of a reasoned decision. Briley v. Farabow
N.C. 537, 547, 501 S.E.2d 649, 656 (1998).
In the present case, defendant had ample opportunity to
provide evidence before both the Chief Magistrate and the district
court. Indeed, the record indicates that defendant received two
full hearings during which the merits of his arguments were
considered. Furthermore, the additional affidavits and other
evidence that defendant attached to his April 2005 motion, which he
contends the district court did not adequately consider, pertain
principally to the credibility of plaintiff and his mother and
sister. The materials suggest no new grounds for setting aside the
prior orders. We, therefore, find no abuse of discretion on the
part of the trial court in denying defendant's second motion under
Rules 59 and 60. See Loeb v. Loeb
, 72 N.C. App. 205, 218-19, 324
S.E.2d 33, 42-43 (no abuse of discretion in trial court's denial of
Rule 59 motion when movant did not make use of opportunity to
present evidence attached to Rule 59 motion during trial andotherwise failed to show prejudice resulting from the denial of her
Rule 59 motion), cert. denied
, 313 N.C. 508, 329 S.E.2d 393 (1985),
overruled on other grounds by Armstrong v. Armstrong
, 322 N.C. 396,
368 S.E.2d 595 (1988).
Judges WYNN and STEPHENS concur.
Report per Rule 30(e).