Purcell v. Old Mill Stream Nursery & Landscaping, Inc.

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-1067
Filed: 1 September 2015
Hoke County, No. 12 CVS 863
DAVID PURCELL, Plaintiff,
v.
OLD MILL STREAM NURSERY & LANDSCAPING, INC. and CARDINAL
LANDSCAPING, INC., Defendants.
Appeal by plaintiff from order entered 9 June 2014 by Judge Thomas H. Lock
in Hoke County Superior Court. Heard in the Court of Appeals 18 February 2015.
Law Office of Matthew C. Phillips, PLLC, by Matthew C. Phillips, for plaintiff-
appellant.
Brown, Crump, Vanore & Tierney, L.L.P., by Andrew A. Vanore, III, for
defendant-appellee Old Mill Stream Nursery & Landscaping, Inc.
Dean & Gibson, PLLC, by Clay A. Campbell, for defendant-appellee Cardinal
Landscaping, Inc.
GEER, Judge.
Plaintiff David Purcell failed to appear when his case against defendants Old
Mill Stream Nursery & Landscaping, Inc. and Cardinal Landscaping, Inc. was called
for trial on 21 January 2014. The trial court entered an order granting Old Mill’s
motion to dismiss for failure to prosecute pursuant to Rule 41(b) of the Rules of Civil
PURCELL V. OLD MILL STREAM NURSERY & LANDSCAPING, INC., ET AL
Opinion of the Court
Procedure, and dismissing the case with prejudice. Plaintiff appeals from an order
denying his Rule 60(b) motion to set aside the order dismissing his case.
On appeal, defendant argues that he did not have notice that Old Mill’s motion
to dismiss would be heard on 21 January 2014 because the Notice of Hearing stated
that the motion would be heard on 27 January 2014. Regardless of when Old Mill’s
motion was scheduled to be heard, plaintiff does not dispute that the case was
calendared for trial on 21 January 2014 and that the court administrator mailed
plaintiff a notice of the 21 January 2014 trial date. Although plaintiff did not actually
open his mail until the 21 January 2014 court date had passed, this Court has held
that a party to a lawsuit must give it the attention a prudent man gives to matters of
importance, and that a party has notice of the date and time of trial when the case is
listed on the court calendar. Because plaintiff had adequate notice of the 21 January
2014 trial date, but failed to appear, we hold that the trial court did not abuse its
discretion by denying his motion to set aside the order of dismissal.
Facts
On 21 December 2012, plaintiff filed a complaint against Old Mill Stream
Nursery & Landscaping, Inc. seeking damages incurred as a result of his slip and fall
on a patch of black ice in the parking lot of an RBC Bank in Fayetteville, North
Carolina on 27 December 2010. The complaint alleged that the RBC Bank had
contracted with Old Mill Stream to keep all parking lots, walkways, and entrances
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free of ice and snow, but the company failed to do so. Plaintiff asserted claims for
negligence and breach of contract.
On 28 May 2013, plaintiff filed an amended complaint, adding Cardinal
Landscaping, Inc. as a defendant. The amended complaint alleged that Old Mill
subcontracted with Cardinal Landscaping to remove the snow and ice from the RBC
parking lot on 26 and 27 December 2010 and that due to defendants’ poor
workmanship there were dangerous patches of ice left in the parking lot and on
sidewalks leading to the bank’s entrance. Plaintiff, a letter carrier working for the
U.S. Postal Service, entered the parking lot to deliver mail. As plaintiff stepped from
his truck and started walking towards the bank, he slipped on black ice and landed
hard on the steel step of his truck and the ground, injuring his neck, back and
shoulder. Old Mill filed an answer to the amended complaint on 12 August 2013, and
Cardinal Landscaping filed its answer on 23 September 2013.
On 10 January 2014, Old Mill filed a motion pursuant to Rule 41(b) of the Rules
of Civil Procedure to dismiss plaintiff’s complaint, with prejudice, for failure to
prosecute. On the same day, Old Mill filed a Notice of Hearing indicating that the
motion would be heard on 27 January 2014. Old Mill served plaintiff with a copy of
the Motion and Notice of Hearing by depositing a copy of the papers in the United
States Mail postage prepaid and addressed to plaintiff and his counsel of record.
However, on or about 13 or 15 January 2014, plaintiff’s counsel withdrew.
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On 21 January 2014, plaintiff’s case came on for trial, and plaintiff did not
appear. Counsel for Old Mill appeared, and Judge Ola M. Lewis heard Old Mill’s
Motion to Dismiss for Failure to Prosecute. On 14 February 2014, the trial court
entered an order granting Old Mill’s motion and dismissing the action with prejudice.
On 27 January 2014, plaintiff appeared in court, and a court clerk advised him that
his case had been dismissed on 21 January 2014. On 6 February 2014, plaintiff filed
a “Motion to Reopen Case” on the grounds that he did not have actual or constructive
notice of the 21 January 2014 hearing.
A hearing was held on plaintiff’s motion on 19 May 2014 before Judge Thomas
H. Lock. The trial court, without objection, treated Plaintiff’s motion as seeking relief
pursuant to Rule 60(b)(6) of the Rules of Civil Procedure. On 9 June 2013, the trial
court entered an order denying plaintiff’s motion. Plaintiff timely appealed the order
to this Court.
Discussion
The sole issue on appeal is whether the trial court erred in denying plaintiff’s
Rule 60(b) motion to set aside the 14 February 2014 order dismissing plaintiff’s action
with prejudice. “[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.” Sink v. Easter, 288 N.C. 183, 198, 217 S.E.2d 532,
541 (1975). “A trial court is not required to make written findings of fact when ruling
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on a Rule 60(b) motion, unless requested to do so by a party.” Creasman v. Creasman,
152 N.C. App. 119, 124, 566 S.E.2d 725, 729 (2002). “ ‘Where the trial court does not
make findings of fact in its order denying the motion to set aside the judgment, the
question on appeal is whether, on the evidence before it, the court could have made
findings of fact sufficient to support its legal conclusion[.]’ ” Id. (quoting Grant v. Cox,
106 N.C. App. 122, 125, 415 S.E.2d 378, 380 (1992)).
Plaintiff argues that the trial court erred in denying his motion to set aside the
14 February 2014 order because plaintiff did not have notice that Old Mill’s Rule
41(b) Motion to Dismiss for Failure to Prosecute would be heard on 21 January 2014.
Defendants do not dispute that the Notice of Hearing stated that the motion would
be heard on 27 January 2014, but they point out that the case was set for trial on 21
January 2014 and duly calendared.
Consistent with defendants’ argument, the 14 February 2014 order stated that
the matter was “coming on for Trial and for hearing at the January 21, 2014, Hoke
County Civil Superior Court session[.]” (Emphasis added.) At the hearing on
plaintiff’s Rule 60 motion, counsel for Old Mill stated that on 15 January 2014, the
trial court administrator had mailed plaintiff a copy of the trial calendar with a notice
that the trial was set for 21 January 2014 addressed to his post office box, and it was
not returned to her. Plaintiff admitted at the hearing that he had in fact received a
letter notifying him of trial on 21 January 2014, but he did not open the letter until
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after the trial date had passed. He also admitted that he does not check his post office
box every day.
This Court has held that “the court may give relief from a judgment pursuant
to Rule 60(b)(6) if the party making the motion has not had notice that the case was
duly calendared.” Windley v. Dockery, 95 N.C. App. 771, 773, 383 S.E.2d 682, 683
(1989). However, “ ‘[a] party to a legal action, having been duly served with process,
is bound to keep himself advised as to the time and date his cause is calendared for
trial for hearing; and when a case is listed on the court calendar, he has notice of the
time and date of the hearing.’ ” Dalgewicz v. Dalgewicz, 167 N.C. App. 412, 420, 606
S.E.2d 164, 169 (2004) (quoting Thompson v. Thompson, 21 N.C. App. 215, 217, 203
S.E.2d 663, 665 (1974)). As this Court explained:
“This Court has held that [w]hen a man has business in
court, the best thing he can do is to attend it[,] and this has
been often quoted and reaffirmed. It has also been held
that [a] litigant must pay the same attention to a case in
court that any one would give to business of importance.
Even when he has employed counsel, he cannot abandon
all attention to the case, and in this case the defendant well
knew he had no counsel.”
Id., 606 S.E.2d at 169-70 (quoting Cahoon v. Brinkley, 176 N.C. 5, 7-8, 96 S.E. 650,
651 (1918)). Further, “ ‘[i]t has long been the practice in this State that when a party
to an action does not have counsel, a copy of each calendar on which his action appears
calendared for trial is mailed to him at the last address available to the Clerk.’ ” Id.,
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606 S.E.2d at 169 (quoting Laroque v. Laroque, 46 N.C. App. 578, 581, 265 S.E.2d
444, 446 (1980)).
Here, the record indicates that the 21 January 2014 trial date was duly
calendared. Defendants assert, and plaintiff does not dispute, that the trial court
administrator mailed plaintiff notice of the trial date on 15 January 2014. Plaintiff
acknowledges that he received the notice -- his failure to appear in court was due to
his failure to timely open the notice and thus his own failure to pay attention to his
case. See id. at 421, 606 S.E.2d at 170 (holding defendant received adequate notice
of all equitable distribution hearings where “plaintiff’s counsel took every reasonable
step to serve defendant properly, including sending correspondence via certified mail
to an address provided by defendant’s counsel, kept on record at the Clerk’s office,
and used by defendant to receive other forms of correspondence” and where “[a]n
employee of the 28th Judicial District served defendant notice of the trial court
calendar via those methods approved by the Buncombe County Trial Court
Administrator’s office”).
Consequently, we hold that the trial court did not abuse its discretion in
denying plaintiff’s Rule 60(b) motion to set aside the order dismissing his case for
failure to prosecute. See Chris v. Hill, 45 N.C. App. 287, 290-91, 262 S.E.2d 716, 719
(1980) (holding trial court did not abuse its discretion in denying Rule 60(b)(1) motion
to set aside judgment where defendant received adequate notice of trial date and
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evidence supported trial court’s finding that defendant’s failure to appear was not
excusable).
AFFIRMED.
Judges ELMORE and INMAN concur.
Report per Rule 30(e).
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