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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 3 April 2007
ELSIE M. LEE,
No. 04 CVD 6748
SPRING PINES HOMEOWNERS
Appeal by Plaintiff from order entered 24 March 2006 by Judge
Shelley Desvousges in Wake County District Court. Heard in the
Court of Appeals 8 March 2007.
Elsie M. Lee, pro se, Plaintiff-Appellant.
Larcade, Heiskell & Askew, PLLC, by Margaret P. Eagles and
Christopher N. Heiskell, for Defendant-Appellee.
By Complaint filed 17 May 2004, Plaintiff, pro se, sought
damages in an amount greater than $4,000 but not exceeding $10,000
because Defendant had allegedly caused storm-water runoff to flood
her property. After answering Plaintiff's Complaint and proceeding
through various stages of the discovery process, Defendant filed a
Motion for Summary Judgment on 18 April 2005. On 19 April 2005,
Plaintiff filed a Motion in Opposition to Defendant's Motion for
Summary Judgment (the Motion in Opposition). At a hearing onDefendant's Motion for Summary Judgment held 28 November 2005, the
trial court rendered judgment in favor of Defendant on all claims.
(See footnote 1)
On 29 November 2005, and pursuant to Rule 60(b) of the North
Carolina Rules of Civil Procedure, Plaintiff filed a Motion for
Relief from Summary Judgment (the Rule 60(b) Motion). On 12
December 2005, Plaintiff filed a Memorandum of Law in Support of
Motion for Relief from Summary Judgment (the Memorandum of Law).
At a hearing on the Rule 60(b) Motion held 15 February 2006, the
trial court rendered judgment denying Plaintiff relief.
(See footnote 2)
February 2006, Plaintiff filed notice of appeal from the denial of
relief from summary judgment and the oral judgment and order
entered on February 15, 2006[.] We affirm.
By her first assignment of error, Plaintiff argues that the
trial court erred in denying the Rule 60(b) Motion because she
demonstrated Appellee's Motion for Summary Judgment was contrary
to law and based on flawed argument and should not be granted[.]
A trial court's ruling on a Rule 60(b) motion is reviewable
only for an abuse of discretion. Coppley v. Coppley, 128 N.C.
App. 658, 663, 496 S.E.2d 611, 616 (citation omitted)
, disc. review
denied, 348 N.C. 281, 502 S.E.2d 846 (1998). An abuse of
discretion is a decision manifestly unsupported by reason or one soarbitrary that it could not have been the result of a reasoned
decision. Briley v. Farabow, 348 N.C. 537, 547, 501 S.E.2d 649,
656 (1998) (citations omitted). [A]bsent a showing that the trial
court abused its discretion in denying a motion for relief from
judgment, this Court will not disturb the decision of the trial
court . . . . Godfrey v. Res-Care, Inc., 165 N.C. App. 68, 84,
598 S.E.2d 396, 407 (citation omitted), disc. review denied, 359
N.C. 67, 604 S.E.2d 310 (2004).
Pursuant to Rule 60(b), a trial court may grant relief from a
final judgment for any of the following six reasons:
(1) Mistake, inadvertence, surprise, or
(2) Newly discovered evidence which by due
diligence could not have been discovered in
time to move for a new trial under Rule 59(b);
(3) Fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation, or
other misconduct of an adverse party;
(4) The judgment is void;
(5) The judgment has been satisfied, released,
or discharged, or a prior judgment upon which
it is based has been reversed or otherwise
vacated, or it is no longer equitable that the
judgment should have prospective application;
(6) Any other reason justifying relief from
the operation of the judgment.
N.C. Gen. Stat. § 1A-1, Rule 60(b) (2005). The test for whether
a judgment, order or proceeding should be modified or set aside
under Rule 60(b)(6) is two pronged: (1) extraordinary circumstances
must exist, and (2) there must be a showing that justice demandsthat relief be granted. Howell v. Howell, 321 N.C. 87, 91, 361
S.E.2d 585, 588 (1987) (citation omitted).
Plaintiff acknowledged at the hearing on the Rule 60(b) Motion
that she was seeking relief pursuant to Rule 60(b)(6), as evidenced
by the following exchange:
THE COURT: Under what subsection are you
proceeding under Rule 60(b)? There are six
subsections under Rule 60(b) --
MS. LEE: I believe that --
THE COURT: _- upon which to file a Rule 60(b)
motion. And your Rule 60(b) motion has to be
based on one of those grounds under Rule
MS. LEE: Well, among other things, it says for
the Rule 60(b) motion, any other, any other
THE COURT: All right. Are you proceeding
under Rule 60(b)(6)? Is that right?
MS. LEE: For any other reason.
When pressed as to what other reason would justify relief from
the order granting summary judgment, Plaintiff acknowledged that
she sought relief because the trial court entered the wrong
judgment[.] Plaintiff echoes this argument in her brief, stating
that the trial court erred in denying relief from the judgment
based on conclusions of law. Plaintiff's arguments neither
support a conclusion that extraordinary circumstances existed nor
show that justice demanded relief. The transcript, on the other
hand, clearly indicates that the trial court gave Plaintiff every
opportunity to fully explain her positions and thoroughly
considered all of Plaintiff's arguments. The trial court did notabuse its discretion in denying Plaintiff's Motion for Relief under
Although it seems apparent to this Court that Plaintiff sought
relief solely under Rule 60(b)(6), Plaintiff twice hints that
relief would be proper under Rule 60(b)(4) in that the judgment was
void. In her Memorandum of Law, Plaintiff argues that she did not
have proper notice of [Defendant's] motion for summary judgment.
At the hearing, Plaintiff stated that Defendant [d]id not re-serve
[the summary judgment] motion within the proper ten-day or whatever
length of time that he was required to do so. Assuming arguendo
that Plaintiff properly sought relief under Rule 60(b)(4), the
record does not support the contention that the judgment was void
because of improper service. Importantly, Plaintiff filed her
Motion in Opposition the day after Defendant filed the summary
judgment motion. Furthermore, neither the Motion in Opposition nor
the Rule 60(b) Motion allege defective process. Plaintiff's first
assignment of error is overruled.
In each of her remaining assignments of error, Plaintiff
states that relief is sought because, for separate reasons, [t]he
trial court erred in granting defendant's motion for summary
judgment[.] We do not reach Plaintiff's arguments and these
assignments of error are dismissed.
A party has thirty days from entry of judgment to file notice
N.C. R. App. P. 3(c)(1). A proper notice of appeal
shall designate the judgment or order from which appeal istaken[.]
N.C. R. App. P. 3(d). Without proper notice of appeal,
this Court acquires no jurisdiction. Brooks v. Gooden
, 69 N.C.
App. 701, 707, 318 S.E.2d 348, 352 (1984) (citations omitted).
Notice 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
Plaintiff's notice of appeal states that appeal is taken only
from the denial of relief from summary judgment and the oral
judgment and order entered on February 15, 2006[,] in the District
Court of Wake County by the Honorable District Court Judge Shelly
[sic] H. Desvousges, which dismissed plaintiff's action. Because
Plaintiff's notice of appeal does not properly present the
underlying entry of judgment for our review, this Court will not
review the trial court's order which granted summary judgment in
favor of Defendant. Plaintiff's remaining assignments of error are
therefore dismissed, and the order of the trial court is AFFIRMED.
Judges MCGEE and ELMORE concur.
Report per Rule 30(e).
The court reduced this judgment to writing and entered it by
order filed 2 December 2005.
The court's written order as to this judgment was filed on 24
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