NORTH CAROLINA COURT OF APPEALS
Filed: 19 December 2006
JAMES W. HARRINGTON and
wife, BARBARA E. HARRINGTON,
No. 00 CVS 101
EARL B. OLIVER and wife,
ANGELA D. OLIVER,
Appeal by defendants from orders entered 12 January 2004 and
22 July 2005 by Judge B. Jerry Braswell in Jones County Superior
Court. Heard in the Court of Appeals 13 September 2006.
Lee, Hancock and Lasitter, P.A., by Moses D. Lasitter, for
Earl B. Oliver, pro se, for defendant-appellants.
Earl B. Oliver and his wife, Angela D. Oliver, (defendants)
appeal from an order entered 12 January 2004, granting summary
judgment on defendants' counterclaims, and an order entered 22 July
2005, denying defendants' motion for a new trial. For the reasons
below we reverse the trial court's order denying defendants' motion
for a new trial and remand for further proceedings consistent with
Facts and Procedural History
On 12 June 2000, James W. Harrington and his wife, Barbara E.
Harrington, (plaintiffs) filed a Complaint against defendants inJones County Superior Court, alleging claims for: (1) specific
performance and breach of contract to transfer real property; (2)
unfair and deceptive trade practices; (3) fraud; and (4)
injunction. Defendants filed their Answer and Counterclaims on 28
March 2001, alleging claims for (1) slander; (2) slander of title;
(3) abuse of process; (4) unfair and deceptive trade practices; and
(5) fraud. On 9 December 2003, plaintiffs filed a Motion for
Summary Judgment as to defendants' counterclaims only.
Plaintiffs Motion for Summary Judgment was heard on 15
December 2003, by the Honorable Jerry Braswell. The trial court
also considered defendants' Motion for Summary Judgment (as to
plaintiffs' claims), Motion to Dismiss, and Motion to Compel.
Defendants appeared pro se
at the 15 December 2003 hearing and Mr.
Oliver was questioned in-depth by the trial court concerning his
alleged defenses and counterclaims. On 12 January 2004, the trial
court entered an order that: (1) granted plaintiffs' motion for
summary judgment as to all of defendants' counterclaims; (2) denied
defendants' motions to compel and to dismiss; (3) granted
defendants' motion for summary judgment as to plaintiffs' claims
for unfair trade practices and fraud; and (4) having found the
amount in controversy on plaintiffs' remaining breach of contract
claim was below the $10,000 jurisdictional amount for Superior
Court, remanded the case to the District Court division.
Defendants filed a Motion for New Trial on 20 January 2004. After
a hearing on 11 July 2005, the trial court denied defendants'
motion by an order filed 22 July 2005. Defendants appeal both theorder entered 12 January 2004, granting summary judgment on
defendants' counterclaims, and the order entered 22 July 2005,
denying defendants' motion for a new trial.
The dispositive issue in this appeal is whether the trial
court erred in denying defendants' motion for a new trial filed
pursuant to Rule 59 of the North Carolina Rules of Civil Procedure.
N.C. Gen. Stat. § 1A-1, Rule 59 (2005). Plaintiffs argue
defendants' motion for a new trial is merely an attempt to have the
trial court reconsider its summary judgment order and the motion is
invalid and was properly denied. See
N.C. Gen. Stat. § 1A-1, Rule
7(b)(1) (2005) (motion must state with particularity the grounds
for relief); Smith v. Johnson
, 125 N.C. App. 603, 606, 481 S.E.2d
415, 417 (1997) (The mere recitation of the rule number relied
upon by the movant is not a statement of the grounds within the
meaning of Rule 7(b)(1). The motion, to satisfy the requirements of
Rule 7(b)(1), must supply information revealing the basis of the
motion.) In their motion for a new trial, defendants argued that
the trial court refused to allow them to present evidence and thus
the evidence was insufficient to justify a verdict, and that the
trial court erred in ruling on their motions because the trial
court did not have jurisdiction to hear the motions. These
arguments sufficiently state both a specific factual and legal
issue which form the basis of a valid motion for a new trial
pursuant to Rule 59(a). N.C. Gen. Stat. § 1A-1, Rule 59(a)(7),(8)(2005). Therefore defendants' motion for a new trial was properly
before the trial court.
It is well established that '[a] trial judge's discretionary
order made pursuant to Rule 59 for or against a new trial may be
reversed only when an abuse of discretion is clearly shown.' City
of Charlotte v. Ertel
, 170 N.C. App. 346, 353, 612 S.E.2d 438, 444
(2005) (quoting Hanna v. Brady
, 73 N.C. App. 521, 525, 327 S.E.2d
22, 24 (1985)). Abuse of discretion results where the court's
ruling is manifestly unsupported by reason or is so arbitrary that
it could not have been the result of a reasoned decision. State
, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988).
At the hearing on defendants' motion for a new trial the
defendants attempted to raise arguments pertaining to the trial
court's grant of summary judgment for plaintiff as to defendants'
counterclaims. The following colloquy ensued:
MR. OLIVER: You ordered it without hearing
the thing. You ordered my counterclaims be
dismissed. My counterclaims [were] never
THE COURT: Okay.
MR. OLIVER: You heard -- I understand it
can't be heard in Superior Court, but your
order calls for the dismissing [of] my
counterclaims when did I not have a chance to
oppose the summary judgment motion.
THE COURT: My order doesn't refer to your
counterclaim. My order refers to your motion
to dismiss, which you filed, which was denied,
your motion to compel which was denied. Your
motion for summary judgment on the plaintiff's
claim was granted. Those were the three
motions that I had a ruling on, and then I
consolidated your case. So I didn't rule on
any counterclaim that you contend that youhave. I've got the file here, sir. I've got
the order here and I'm reading from the order.
MR. OLIVER: Okay.
THE COURT: I'm not going to rely on what you
say, because what you say is not the official
record. What the official record is in the
order that I signed. I believe you've got a
copy of it, so you might want to read it
MR. OLIVER: I have. If I do read it again, do
you mind if I send it back to you?
THE COURT: No. I do mind, because I can tell
you now before you send it back, I'm not going
to do anything with it. Your case doesn't
belong in my courtroom. It doesn't belong in
Contrary to the statements made by the trial court, the trial
court's order of 12 January 2004 did refer to defendants'
counterclaims. The trial court specifically ordered that [t]he
Motion for Summary Judgment by the plaintiffs as to the defendants'
claims for slander, slander of title, abuse of process, unfair and
deceptive trade practices, and fraud, is hereby allowed. It is
apparent from the record before this Court that the trial court
abused its discretion in asserting the 12 January 2004 order did
not address defendants' counterclaims and refusing to consider
defendants' motion for a new trial on the merits. We reverse the
order of the trial court denying defendants' motion for a new trial
and remand this matter for consideration of defendants' motion for
a new trial.
Reversed and remanded.
Judges McGEE and ELMORE concur.
Report per Rule 30(e).
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