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.
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.
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
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.
, 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
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.
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
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.
, 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.
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
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
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
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
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.
Judges MCCULLOUGH and STROUD concur.
Report per Rule 30(e).