Converted WP file 061446-1

Appeal by plaintiffs from orders entered 18 July, 17 August and 31 August 2006 by Judge William C. Griffin, Jr. in Beaufort County Superior Court. Heard in the Court of Appeals 10 May 2007.

Sidney M. Alekman plaintiff-appellant pro se.

Harris, Creech, Ward and Blackerby, P.A., by W. Gregory Merritt and Jay C. Salsman, for defendant-appellee.

    BRYANT, Judge.

    Sidney M. and Estelle B. Alekman (plaintiffs) appeal pro se from orders entered 18 July, 17 August and 31 August 2006 dismissing plaintiffs' complaint alleging damages as a result of landscaping work performed by Ashley's Lawn Care, Inc. and Thomas A. Elks (defendants).
    While plaintiffs' action was pending in District Court, defendants filed a Motion to Compel Discovery and to Inspect and Permit Entry upon Plaintiffs' Premises. Plaintiffs, by correspondence to the Beaufort County Clerk of Court on 19 April 2006, indicated that they were unavailable during the month of Mayand would not be able to attend the hearing. Plaintiffs did not file a motion to continue and did not appear at the 19 April hearing. District Court Judge Regina Parker continued the hearing until 22 May 2006. Again by letter addressed to Judge Parker on 8 May 2006, plaintiffs indicated they were unavailable to attend the 22 May 2006 hearing and Judge Parker continued the hearing until 19 June 2006. On 10 May 2006, after receiving plaintiffs' “Third Amended Statement of Monetary Relief Sought” which indicated plaintiffs were seeking $12,031.32 in damages, defendants filed a Motion to Transfer to Superior Court.   (See footnote 1)
    On 18 May 2006, plaintiffs wrote a letter directly to Judge Griffin requesting that the hearing date on defendants' Motion to Transfer be changed. Plaintiffs did not file a motion to continue the hearing and did not receive permission to not attend the hearing. Defendants' Motion to Transfer was called for hearing by Judge Griffin on 8 June 2006; plaintiffs were not present. By an order signed 9 June 2006, Judge Griffin granted defendants' Motion to Transfer and ordered plaintiffs to pay sanctions totaling $662.30 within 20 days of the filing of the order. The order, filed 14 June 2006, expressly provided that “failure to comply with this Order may result in [plaintiffs'] action being dismissed with prejudice.” During the hearing of defendants' Motion to Transfer,Judge Griffin considered plaintiffs' request to continue the hearing, but denied the request. Judge Griffin determined that plaintiffs misrepresented their unavailability during the month of May, as evidenced by their active participation in the case during May, including numerous letters, pleadings, and discovery.
    On 3 July 2006, defendants filed a Motion for Sanctions for plaintiffs' failure to comply with the trial court's 9 June 2006 sanctions order, and noticed the motion for hearing on 17 July 2006. This motion was preceded by plaintiffs' “Motion for Extension of Time to Comply with Order,” filed 27 June 2006. Plaintiffs did not notice this motion for hearing until 5 July 2006, requesting that it be heard at the 17 July 2006 session of court. Plaintiffs did not receive an extension of time to comply with Judge Griffin's 9 June 2006 sanctions order. When plaintiffs had not yet complied with Judge Griffin's order to pay the sanctions by the 17 July 2006 hearing date on defendants' Motion for Sanctions, Judge Griffin determined plaintiffs' failure to comply with his order was intentional, knowingly done, and “without excuse, justification, or good cause shown.” Accordingly, Judge Griffin, “after considering less severe sanctions,” in his discretion, determined plaintiffs' Complaint should be dismissed with prejudice. Plaintiffs appeal.

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Plaintiffs raise the following issues on appeal: whether the trial court erred by (I) ruling on defendants' motion to transfer without granting plaintiffs' request for continuance; (II & III)transferring the case from district to superior court; (IV) considering defendants' motion to transfer when plaintiffs were not present; (V) denying plaintiffs' motion for an extension of time to comply with court ordered sanctions; (VI) concluding plaintiffs knowingly and intentionally failed to comply with the order, without excuse or good cause; (VII) dismissing plaintiffs' case without considering lesser sanctions; (VIII) not hearing plaintiffs' Rule 60 motion; and (IX) not hearing plaintiffs' Rule 59 motion.

    Plaintiffs contend the trial court erred by ruling on defendants' motion to transfer without granting plaintiffs' request for continuance. Rule 40 of the North Carolina Rules of Civil Procedure provides, “[a] continuance may be granted only for good cause shown and upon such terms and conditions as justice may require.” N.C. Gen. Stat. § 1A-1, Rule 40(b) (2005).
        The standard of review for denial of a motion to continue is generally whether the trial court abused its discretion. The chief consideration to be weighed in passing upon the application is whether the grant or denial of a continuance will be in furtherance of substantial justice. The moving party has the burden of proof of showing sufficient grounds to justify a continuance.

Morin v. Sharp, 144 N.C. App. 369, 373, 549 S.E.2d 871, 873, disc. review denied, 354 N.C. 219, 557 S.E.2d 531 (2001) (citations and quotations omitted); Shankle v. Shankle, 289 N.C. 473, 482, 223 S.E.2d 380, 386 (1976). This Court has previously found that a party's failure to “make a formal motion” for continuance andfailure to appear at the motion hearing supports a trial court's denial of a motion to continue. See Jennings Glass Co. v. Brummer, 88 N.C. App. 44, 49, 362 S.E.2d 578, 582 (1987) (“Although defendant claimed serious illness, the trial court noted in response to defendant's absence at the hearing that defendant had only a little more than a week earlier appeared before the court which served to undermine the credibility of his claim. Moreover, defendant's failure to make a formal motion lent support to the trial court's ruling.”).
    Here, plaintiffs did not file a motion for a continuance and were therefore not granted a request for a continuance prior to the hearing on defendants' motion to transfer. Rule 40(b) of the North Carolina Rules of Civil Procedure requires that a party make an “application to the court” for a continuance. N.C. Gen. Stat. § 1A-1, Rule 40(b) (2005). Here, instead of filing a motion to continue, plaintiffs merely wrote letters to court administrators and to Judge Griffin requesting that defendants' motion to transfer be continued. Moreover, plaintiffs voluntarily did not appear in court. The trial court therefore determined plaintiffs had willfully failed to appear. Further, the trial court found plaintiffs made a misrepresentation to the court by indicating “neither my wife nor I will be available during the month of May 2006.” However, given the numerous pleadings and discovery drafted by plaintiffs during the month of May, the trial court determined plaintiffs were, in fact, available. Accordingly, the trial court did not abuse its discretion by denying plaintiffs' request for acontinuance of defendants' motion to transfer hearing. This assignment of error is overruled.

II & III

    Plaintiffs argue the trial court erred by transferring this case from district to superior court. We disagree. North Carolina General Statutes, Section 7A-260 states:
        Orders transferring or refusing to transfer are not immediately appealable, even for abuse of discretion. Such orders are reviewable only by the appellate division on appeal from a final judgment. If on review, such an order is found erroneous, reversal or remand is not granted unless prejudice is shown.

N.C. Gen. Stat. § 7A-260 (2005). The superior court division is the proper division for the trial of all civil actions in which the amount in controversy exceeds ten thousand dollars ($10,000). N.C. Gen. Stat. § 7A-243 (2005). Any party may move to transfer a civil action to the proper division when the division in which the case is pending is improper, and such motion must be filed within thirty days after the moving party is served with a copy of the pleading which justifies transfer. N.C. Gen. Stat. § 7A-258 (2005).
    Here, defendants were served with a pleading justifying transfer to the superior court upon receipt of plaintiffs' “Third Amended Statement of Monetary Relief Sought” on 3 May 2006. The third statement of monetary relief alleged $12,031.32 in total damages. Accordingly, this pleading established an amount in controversy in excess of $10,000, allowing defendants to transfer the action to the superior court within thirty days of receipt of the pleading. N.C.G.S. § 7A-258 (2005). Defendants filed theirmotion to transfer on 11 May 2006. Throughout the course of this litigation, plaintiffs filed a total of four statements of monetary relief sought: the first alleged $9,256.32 in damages; the second alleged $9,806.32; the third alleged $12,031.32; and the fourth alleged losses totaling $9,921.32. At the time plaintiffs served defendants with their “Third Amended Statement of Monetary Relief Sought,” defendants made a motion to transfer the case to superior court. Plaintiffs then reduced their demand for damages upon receiving defendants' Motion to Transfer. Accordingly, the trial court did not err in granting the motion to transfer the action to superior court. Furthermore, plaintiffs have made no showing they were prejudiced by such transfer. N.C.G.S. § 7A-260 (2005).
    As to plaintiffs contention that the granting of defendants' motion was a sanction, they cite an amended order in which their complaint and their motion to vacate were denied. In this amended order (which does not pertain to the grant of defendants' motion to transfer) the trial court made the following finding of fact:
        The Court, after considering lesser measures and based in part on Plaintiffs' material misrepresentations to the Court, found that Defendants' Motion to Transfer should be allowed and that Defendants' request for attorneys fees and costs should be allowed as more fully set forth in the Court's Order of June 9, 2006.

This finding of fact makes clear that the “lesser measures” refer to the grant of attorneys' fees and costs, not defendants' Motion to Transfer. As stated previously, the transfer was properly allowed based on the amount of plaintiffs' alleged damages whichjustified the transfer of the case from the district court to the superior court. These assignments of error are overruled.

Plaintiffs argue the trial court erred by considering defendants' motion to transfer when plaintiffs were not present. Plaintiffs allege they were denied due process because the trial court heard and considered the arguments of defendants' counsel in the absence of plaintiffs. As we have determined above, plaintiffs were not excused from attending the hearing. They voluntarily failed to appear. Accordingly, plaintiffs argument is without merit. This assignment of error is overruled.

V & VI

    Plaintiffs argue the trial court erred by denying plaintiffs' motion for an extension of time to comply with court-ordered sanctions and finding that such non-compliance was done knowingly and intentionally, without excuse or good cause. We disagree.
        When by . . . order of court an act is required . . . to be done at or within a specified time, the court for cause shown may at any time in its discretion . . . order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order.
N.C. Gen. Stat. § 1A-1, Rule 6(b) (2005). We note plaintiffs have cited no cases and we are not aware of any which stand for the proposition that merely filing a motion for extension of time tolls the period within which to comply with an order. See N.C.R. App. P. 28(b)(5) (assignments of error “in support of which no . . . authority [is] cited, will be taken as abandoned”).    On 9 June 2006, the trial court granted defendants' Motion to Transfer and imposed sanctions totaling $662.30, to be paid by plaintiffs within twenty days of the filing of the order. The order, filed 14 June 2006, further provided that failure to comply may result in dismissal of the action with prejudice. On 27 June 2006, plaintiffs filed a motion for extension of time to comply with the order and on 5 July 2006, defendants filed a Motion for Sanctions seeking dismissal of plaintiffs' action for failure to comply with the trial court's order granting sanctions. The sequence of events establishes that the time mandated by the trial court to pay the ordered sanctions expired without compliance by plaintiffs. Although plaintiffs filed a motion for extension of time to comply with the order, no such extension was granted. Plaintiffs were required to comply with the trial court's 9 June 2006 order and failed to do so. Therefore, the trial court found plaintiffs “had wholly failed to comply with the Court's Order without excuse, justification, or good cause shown.” These assignments of error are overruled.

VII

    Plaintiffs argue the trial court erred by dismissing plaintiffs' case without considering lesser sanctions. The imposition of sanctions pursuant to Rule 41 of the North Carolina Rules of Civil Procedure, lies within the sound discretion of the trial court. Goss v. Battle, 111 N.C. App. 173, 177, 432 S.E.2d 156, 159 (1993). Dismissal is an appropriate sanction under Rule41 if the trial court first considers lesser sanctions prior to ordering dismissal. Id. at 176, 432 S.E.2d at 159.
    Here, the trial court's amended order granting defendants' motion for sanctions and dismissing plaintiffs' Complaint expressly provides that:
        The Court further considered less severe sanctions and, in its discretion, found that [defendants'] Motion for Sanctions, including dismissal of [plaintiffs'] Complaint with prejudice was proper in all respects and should, therefore, be granted.

Additionally, a review of the trial court's thirty-eight findings of fact and nine conclusions of law demonstrate that it carefully considered the conduct of plaintiffs, and, in its discretion, determined that dismissal was the appropriate remedy. Badillo v. Cunningham, 177 N.C. App. 732, 734, 629 S.E.2d 909, 911 (2006) (“[W]here the record on appeal permits the inference that the trial court considered less severe sanctions, [the Court of Appeals] may not overturn the decision of the trial court unless it appears so arbitrary that it could not be the result of a reasoned decision.”). This assignment of error is overruled.

VIII

    Plaintiffs argue the trial court erred by not hearing their 17 August 2006 Rule 60(b) motion to vacate or modify the 9 June 2006 order. Plaintiffs cite Hall v. Cohen, 177 N.C. App. 456, 458, 628 S.E.2d 469, 471 (2006)(citing Bell v. Martin, 43 N.C. App. 134, 258 S.E.2d 403 (1979), rev'd on other grounds, 299 N.C. 715, 264 S.E.2d 101 (1980)), for the proposition that the trial court retainslimited jurisdiction, upon remand from the appellate court, to indicate how it is inclined to rule on a Rule 60(b) motion.
    However, “[t]he trial court does not have jurisdiction, [] to rule on motions pursuant to Rule 60(b) where such motion is made after the notice of appeal has been given.” York v. Taylor, 79 N.C. App. 653, 655, 339 S.E.2d 830, 831 (1986). This Court is the proper place to file a Rule 60(b) motion while the case is pending appeal. Id. During the pendency of an appeal, when a Rule 60(b) motion is made at the trial court, the movant should notify the appellate court so that it can remand the matter to the trial court for a determination as to how the trial court is inclined to rule on the motion. Bell, 43 N.C. App. at 142, 258 S.E.2d at 409.
    Here, plaintiffs filed a notice of appeal on 16 August 2006, yet plaintiffs failed to notify this Court of their Rule 60(b) motion (filed 17 August 2006) as required by Hall and Bell, supra. Thus, the trial court had no jurisdiction to hear a Rule 60(b) motion after notice of appeal has been filed. York, 79 N.C. App. at 655, 339 S.E.2d at 831. Plaintiffs failed to properly notice their Rule 60 motion for hearing. This assignment of error is overruled.

    Plaintiffs contend the trial court erred by failing to consider their Rule 59 motion, which was purportedly made in a 14 June 2006 letter to the Judge Griffin. Plaintiffs' contend their letter was a motion made pursuant to N.C. Gen. Stat. § 1A-1, Rule 59. However, contrary to plaintiffs' assertions, plaintiffs failedto file a Rule 59 motion with the trial court, and even if the letter were treated as a motion, plaintiffs did not calendar it for hearing. Accordingly, the trial court did not err in refusing to consider any purported request by plaintiffs. This assignment of error is overruled.
    Affirmed.
    Judges MCCULLOUGH and STROUD concur.
    Report per Rule 30(e).

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