Sink v. Easter , 288 N.C. 183 ( 1975 )

217 S.E.2d 532 (1975) 288 N.C. 183

Sherry Pamela SINK
v.
Kenneth Wesley EASTER, Jr.

No. 72.

Supreme Court of North Carolina.

August 27, 1975.

Brooks, Pierce, McLendon, Humphrey & Leonard by Hubert Humphrey and Michael D. Meeker, Greensboro, and Lambeth, McMillan & Weldon by Charles F. Lambeth, Jr., Thomasville, for plaintiff-appellant.

Walser, Brinkley, Walser & McGirt by Charles H. McGirt and G. Thompson Miller, Lexington, for defendant-appellee.

COPELAND, Justice.

This case is complicated essentially because so many errors were made before it reached this Court. In unraveling this chain of procedural events, we begin with defendant's motion to dismiss filed on 7 February 1974. This motion is reproduced in full below:

"NOW COMES the defendant, who moves the Court to dismiss this action for lack of jurisdiction and respectfully shows unto the Court:

1. This action was instituted on September 4, 1971, by the issuance of summons and granting of an order extending time to file complaint until September 24, 1971. The summons and Court's order were delivered to the Sheriff of Guilford County and returned unserved September 10, 1971.

2. The plaintiff attempted to serve the defendant by publication, but the defendant was not subject to such service and the same was void and further, the attempted service for publication was fatally defective, all as set forth in the opinion of the Supreme Court of North Carolina filed January 25, 1974, in the companion case of JAMES A. SINK v. KENNETH WESLEY EASTER, JR., which had identical facts.

3. The question decided in the case of JAMES A. SINK v. KENNETH WESLEY EASTER, JR., was raised at the same time in this case, arguments were held in the Superior Court at the same time, and identical orders were entered in each case denying the defendant's motion dated December 27, 1971. The order heretofore entered in this cause is irregular and void by reason of the opinion of the Supreme Court of North Carolina, and the Court lacks jurisdiction except to enter a formal order of dismissal.

4. This motion is made pursuant to the provisions of Rule 60(b)(6) Rules of Civil Procedure." (Emphasis supplied.)

The first issue for decision involves the legal effect of the above-quoted motion. Although inartfully drawn and mislabeled as having been made pursuant to Rule 60(b)(6), it is apparent on its face that the motion was intended as a defensive pleading of our decision in the father's case as collateral estoppel. For application of the doctrine of collateral estoppel in this type of situation see, e. g., Crosland-Cullen Company v. Crosland, 249 N.C. 167, 105 S.E.2d 655 (1958) (defensive assertion). Cf., King v. Grindstaff, 284 N.C. 348, 200 S.E.2d 799 (1973) (offensive assertion). For a general discussion of the doctrine see, e. g., Note, Collateral Estoppel of Nonparties, 87 Harv. L.Rev. 1485 (1974); Note, Civil Procedure-Offensive Assertion of a Prior Judgment as Collateral Estoppel—A Sword in the Hands of the Plaintiff? 52 N.C.L.Rev. 836 (1974).

Rule 60(b) of the North Carolina Rules of Civil Procedure, which is nearly identical to Federal Rule 60(b), has no application to interlocutory judgments, orders, or proceedings of the trial court. It only applies, by its express terms, to final judgments. See Wiggins v. Bunch, 280 N.C. 106, 110, 184 S.E.2d 879, 889 (1971); G.S. § 1A-1, Rule 60(b). See generally 7 Moore's Federal Practice §§ 60.14(4) and 60.20 (1974) (hereinafter cited as Moore); Wright & Miller, Federal Practice and Procedure: Civil § 2852 (1973) (hereinafter cited as Wright & Miller); Annot., 15 A.L.R. Fed. 193 (1973). In this context, the prior denial of defendant's Rule 12(b) motion on 27 December 1971 constituted nothing more than an interlocutory order [see, e. g., Cox v. Cox, 246 N.C. 528, 98 S.E.2d 879 (1957) (refusal of motion to dismiss not "final" determination); 2 Mcintosh, N.C. Practice and Procedure, §§ 1782(1) and (7) (2d ed. 1956), and 1970 pocket part; W. Shuford, N.C. Civil Practice and Procedure, § 54-3 (1975). As to the distinction between final and interlocutory judgments and orders see G.S. § 1A-1, Rule 54(a), which is almost identical to former G.S. § 1-208, and Russ v. Woodard, 232 N.C. 36, 59 S.E.2d 351 (1950)]. Hence, it follows that defendant's motion could not, as a matter of law, have been a proper motion under Rule 60(b). Parenthetically, we also point out that Judge Wood's prior denial of defendant's Rule 12(b) motion was not a "void" judgment, as defendant asserted, since the court always has jurisdiction to determine whether or not it has jurisdiction. See, e. g., C. Wright, Federal Courts, 50-53 (2d ed. 1970), and numerous authorities there cited. Therefore, we elect to treat defendant's motion filed on 7 February 1974 as a motion for summary judgment based on the doctrine of collateral estoppel. Likewise, we elect to treat Judge Wood's order (originally filed on 21 March 1974 and corrected on 28 March 1974) as a granting of a motion filed pursuant to Rule 56.

We next analyze the actions taken on 28 March 1974. In chronological order, they were as follows: (1) Plaintiff filed a motion pursuant to Rules 60(b)(1) and (2), seeking relief from the judgment of dismissal filed on 21 March 1974; (2) Judge Wood filed a correction to the judgment originally filed on 21 March 1974 in which he stated that he had not considered any of the affidavits filed by plaintiff on 18 March 1974 before ruling on defendant's motion; (3) Plaintiff objected to the corrected judgment and gave notice of appeal to the Court of Appeals; (4) Judge Wood filed an order denying plaintiff's Rule 60(b) motion; and (5) Plaintiff objected to the denial of a Rule 60(b) motion and gave notice of appeal to the Court of Appeals.

No question arises as to Judge Wood's jurisdiction to enter the orders of 28 March 1974. In Wiggins v. Bunch, supra, this Court, in an opinion by Justice Branch, stated the rule applicable to this type of situation as follows:

"For many years it has been recognized that as a general rule an appeal takes the case out of the jurisdiction of the trial court. In American Floor Machine Co. v. Dixon, 260 N.C. 732, 133 S.E.2d 659, it was stated:

``As a general rule, an appeal takes a case out of the jurisdiction of the trial court. Thereafter, pending the appeal, the judge is functus officio." . . . (A) motion in the cause can only be entertained by the court where the cause is." Exceptions to the general rule are: (1) notwithstanding notice of appeal a cause remains in fieri during the term in which the judgment was rendered, (2) the trial judge, after notice and on proper showing, may adjudge the appeal has been abandoned, (3) the settlement of the case on appeal.'" 280 N.C. at 108, 184 S.E.2d at 880.

Wiggins also held that the "general rule" above quoted "[was] not changed by Rules 59 and 60 of the New Rules of Civil Procedure." Id. at 109, 184 S.E.2d at 882. We take judicial notice that from 25 March 1974 to 29 March 1974 Judge Wood held a regular one-week civil session in Iredell County Superior Court. Therefore, under Exception No. 1 to the "general rule," above cited, Judge Wood had jurisdiction to enter the orders above referred to on 28 March 1974.

Judge Wood's actions on 1 April 1974, however, raise serious jurisdictional questions. First, it is clear that Judge Wood committed error on 28 March 1974 when he denied plaintiff's Rule 60(b) motion on the ground that he had no discretion to consider it. As is recognized in many cases, a motion for relief under Rule 60(b) is addressed to the sound discretion of the trial court and appellate review is limited to determining whether the court abused its discretion. See, e. g., Wright & Miller, supra, at § 2857 and numerous cases cited. Second, it is also clear that Judge Wood, cognizant of the aforementioned error, acted on 1 April 1974 to set aside his order of 28 March 1974 denying plaintiff's 60(b) motion and to conduct a hearing, over defendant's objection, on the motion. Thus, the question for decision is whether plaintiff's appeal from the prior denial of her 60(b) motion was properly abandoned as of 1 April 1974.

We take judicial notice that on 1 April 1974 Judge Wood began presiding over a regular two-week civil session of Davidson County Superior Court. Thus, he lost jurisdiction over the cause under the "Term Rule." As heretofore noted, the general rule in this State is that an appeal takes the cause of action out of the jurisdiction of the trial court. See Wiggins v. Bunch, supra. It is important to remember that plaintiff had two appeals pending (but not yet docketed with the Court of Appeals) on 1 April 1974. The first appeal concerned plaintiff's exception to Judge Wood's order granting defendant's motion to dismiss. The second appeal concerned plaintiff's exception to Judge Wood's denial of her 60(b) motion.

However, the general rule that an appeal divests the trial court of jurisdiction becomes inoperative when the trial judge, after due notice and on a proper showing, adjudges that the appeal has been abandoned. We construe the proceedings appearing in the record on 1 April 1974 to constitute an adjudication by the court that plaintiff's prior appeal from the denial of her Rule 60(b) motion had been abandoned and that plaintiff, by appearing at said hearing, gave proper notice of her intention to abandon the same. This is essentially the same conclusion reached by Judge Baley in his dissenting opinion. See 23 N.C.App. at 300, 208 S.E.2d at 897. It follows therefore that the Superior Court had jurisdiction on 1 April 1974 to reconsider its prior denial of plaintiff's Rule 60(b) motion.

A secondary question for decision involves the effect of a pending or completed appeal from a final judgment on the power of the trial court to grant relief under Rule 60(b). Although Rule 60(a) specifically permits the trial court to correct clerical mistakes before the appeal is docketed in the appellate court, and thereafter while the appeal is pending with leave of the appellate court, Rule 60(b) is silent on the question. [Parenthetically, we note that Rule 60(a) does not authorize the trial court to set aside a previous ruling where the basis is a legal error. See, e. g., Moore, supra, at § 60.06(4); Wright & Miller, supra, at § 2854; Annot., 13 A.L.R.Fed. 794 (1972).] However, with reference to the trial court's consideration of a Rule 60(b) motion during the pendency of an appeal from a final judgment, Wright & Miller, supra, at § 2873, states:

"The earlier cases on Rule 60(b) took the view that the district court has no power to consider a motion under the rule after notice of appeal has been filed. This always seemed anomalous since the time for making the motion continues to run while the case is pending on appeal. These cases required a party seeking relief from a judgment during the pendency of an appeal first to present his ground to the appellate court. If it thought that the motion should be heard it would remand the case to the district court for that purpose. One alternative to actual remand was for the appellate court to give permission to the district court to rule on the motion.

"Other cases have developed a different and more satisfactory procedure. They hold that during the pendency of an appeal the district court may consider a Rule 60(b) motion and if it indicates that it is inclined to grant it, application can then be made to the appellate court for remand. This procedure is sound in theory and preferable in practice. The logical consequence is that the district court may deny the motion although it cannot, until there has been a remand, grant it, and this seems to be the interpretation followed by many courts . . .."

Therefore, were we to follow the procedure suggested by Wright & Miller, we could treat Judge Wood's order filed on 17 May 1974 as a "clear indication" that plaintiff's Rule 60(b) motion would be granted if the cause was remanded for a de novo hearing. Plaintiff has filed a Rule 60(b) motion directly with this Court. Under these circumstances, we could treat plaintiff's motion as one to remand and enter the appropriate order. However, for the following stated reasons, it is not necessary to remand the case for such a hearing.

On 9 May 1974 plaintiff filed the following motion with the trial court:

"NOW COMES the plaintiff and hereby withdraws and abandons the appeal previously taken by her from the judgment dismissing this action for lack of jurisdiction, and withdraws and abandons the notice of appeal from said judgment, dated March 28, 1974."

On 15 May 1974 Judge Wood signed the following order applicable to the motion above-quoted:

"It appearing to the Court that the plaintiff gave notice of appeal from the judgment of this court dismissing the action (signed March 18, 1974 and corrected March 27, 1974), but plaintiff has not perfected said appeal and desires to and has withdrawn her appeal; and notice having been duly given, and it having been shown that plaintiff desires to and has abandoned said appeal, it is hereby ordered that said appeal is hereby withdrawn and abandoned."

Both the motion of withdrawal and abandonment and the order allowing same were filed together on 17 May 1974.

The filing and granting of the aforesaid motion served to reinvest Judge Wood with jurisdiction over the entire cause. Hence, it follows that Judge Wood had sufficient jurisdictional power on 17 May 1974 to file his order granting plaintiff relief pursuant to Rule 60(b)(1) and (2). The order was therefore legally valid. We have carefully reviewed the findings of fact and conclusions of law recited by Judge Wood in this order, as well as plaintiff's affidavits relied on therein, and find no abuse of discretion.

Accordingly, for the reasons stated herein, the judgment of the North Carolina Court of Appeals is reversed and the cause is remanded to that court for the entry of the appropriate judgment and order reinstating the order filed by Judge Wood on 17 May 1974 and for further remand of the cause to the Davidson County Superior Court so that the lawsuit might thereafter proceed without further delay.

Reversed and remanded.