Campbell v. Campbell

• Citation: 764 S.E.2d 630,237 N.C.App. 1
• Decision Date: 21 October 2014
• Docket Number: No. COA14–329.,COA14–329.
• Court: Court of Appeal of North Carolina (US)
• Parties: Suzanne Davis CAMPBELL, Plaintiff, v. William Taylor CAMPBELL, III, Defendant.

237 N.C.App. 1

764 S.E.2d 630

Suzanne Davis CAMPBELL, Plaintiff,

v.William Taylor CAMPBELL, III, Defendant.

No. COA14–329.

Court of Appeals of North Carolina.

Oct. 21, 2014.

Allman Spry Davis Leggett & Crumpler, P.A., by Joslin Davis, Loretta C. Biggs and Anna E. Warburton, Winston–Salem, for plaintiff-appellant.

Wilson, Helms & Cartledge, LLP, Winston–Salem, by Gray Wilson and Lorin J. Lapidus, and Morrow, Porter, Vermitsky & Fowler, PLLC, by John F. Morrow, Sr. and John C. Vermitsky, for defendant-appellee.

DIETZ, Judge.

Plaintiff Suzanne Davis brings this interlocutory appeal from the trial court's order vacating her judgment of absolute divorce under Rule 60(b) of the Rules of Civil Procedure. The trial court, exercising its discretion under Rule 60(b), set aside Ms. Davis' divorce judgment so that her ex-husband William Campbell could assert a belated claim for equitable distribution.

This Court has held that an appeal from a trial court order setting aside an absolute divorce judgment "is interlocutory and subject to dismissal." See Baker v. Baker, 115 N.C.App. 337, 339, 444 S.E.2d 478, 480 (1994). Applying this precedent, our Court recently granted a motion to dismiss for lack of appellate jurisdiction in an appeal with facts nearly identical to those presented here. See Steele v. Steele, No. COA 14–231, –––N.C.App. ––––, –––S.E.2d –––– (2014). Mr. Campbell did not file a motion to dismiss this appeal, but we are obliged to review our own jurisdiction in every case. We hold that, although there may be factual circumstances in which the grant of a Rule 60(b) motion setting aside a divorce judgment affects a substantial right, Ms. Davis did not make a sufficient showing in this case. Accordingly, we dismiss this appeal for lack of jurisdiction.

Factual Background

After a decade of marriage, Plaintiff Suzanne Davis and Defendant William Campbell separated on 11 May 2012. On 16 November 2012, Ms. Davis filed a complaint for equitable distribution, among other claims. Mr. Campbell filed an answer and counterclaim in that action, but mistakenly failed to assert his own claim for equitable distribution. Both parties engaged in several months of vigorous discovery and motions practice on the issue of equitable distribution.

On 13 May 2013, Ms. Davis filed a separate complaint for absolute divorce and to resume use of her maiden name. On 1 July 2013, the trial court granted Ms. Davis' unopposed motion for summary judgment on that absolute divorce claim.

At some point during this process, Ms. Davis determined that it was no longer in her interests to pursue equitable distribution, although neither party's brief explains precisely why this was so. Just over a month after obtaining her absolute divorce judgment, Ms. Davis voluntarily dismissed her equitable distribution claim. Under North Carolina law, the entry of an absolute divorce judgment bars any new claims for equitable distribution. See N.C. Gen.Stat. § 50–11(e) (2013). As a result, although Mr. Campbell still desired to complete the equitable distribution process, Ms. Davis' voluntary dismissal of her own claim (the only pending equitable distribution claim) permanently ended all equitable distribution litigation.

Mr. Campbell promptly filed a motion to set aside the divorce judgment under Rule 60(b) of the Rules of Civil Procedure. He contended that his failure to timely assert his own claim for equitable distribution before entry of the absolute divorce judgment was the result of excusable neglect. Specifically, he asserted that, at the time he filed his initial counterclaim in the equitable distribution action, his counsel had recently given birth to a premature baby who weighed less than two pounds. The child was hospitalized with life-threatening conditions through much of this litigation. Mr. Campbell argued that he instructed his counsel to file a claim for equitable distribution and that his counsel, distracted by her newborn's medical needs, mistakenly thought she had done so.

On 21 October 2013, the trial court granted Mr. Campbell's Rule 60(b) motion in an order containing detailed findings of fact and conclusions of law. The court set aside the absolute divorce judgment and ordered Mr. Campbell to file an answer and counterclaim for equitable distribution within 30 days. Ms. Davis appealed the trial court's order that same day. This Court allowed Ms. Davis' petition for a writ of supersedeas and stayed the trial court's Rule 60(b) order pending disposition of this appeal.

Analysis

Ordinarily, this Court hears appeals only after entry of a final judgment that leaves nothing further to be done in the trial court. See Steele v. Hauling Co., 260 N.C. 486, 491, 133 S.E.2d 197, 201 (1963). An interlocutory order entered before final judgment is immediately appealable "in only two circumstances: (1) if the trial court has certified the case for appeal under Rule 54(b) of the Rules of Civil Procedure ; and (2) when the challenged order affects a substantial right of the appellant that would be lost without immediate review." Robinson v. Gardner, 167 N.C.App. 763, 767, 606 S.E.2d 449, 452 (2005) (quotation marks omitted).

The trial court's Rule 60(b) order in this case is a textbook example of a non-final, interlocutory order; it took an otherwise final judgment and re-opened it, requiring "further action by the trial court in order to settle and determine the entire controversy." Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950) ; see also Metcalf v. Palmer, 46 N.C.App. 622, 624, 265 S.E.2d 484, 484 (1980) (holding that orders granting a Rule 60(b) motion are, by their nature, interlocutory). Thus, the trial court's order in this case is appealable only if it is properly certified under Rule 54(b) or if it affects a substantial right.

Ms. Davis first asserts that the trial court's order is appealable because "[t]he trial court entered a Certification of Order for Immediate Appeal" under Rule 54(b) in this case. And, indeed, the trial court entered an order in this case entitled "Certification of Order for Immediate Appellate Review." That order purports to authorize an immediate appeal under Rule 54(b) of the Rules of Civil Procedure.

But Rule 54(b) does not apply here. Under Rule 54(b), a trial court may certify a case for immediate appeal when it enters "a final judgment as to one or more but fewer than all of the claims or parties" in the case. See N.C. Gen.Stat. § 1A–1, Rule 54(b). The Rule 60(b) order from which Ms. Davis appeals did not enter a final judgment on some but not all claims; rather, it set aside an earlier final judgment under Rule 60(b), re-opening the case in its entirety. Thus, the trial court's order could not properly be certified under Rule 54(b).

It is well-settled that the trial court's mistaken certification of a non-final order under Rule 54(b) is ineffective and does not confer appellate jurisdiction on this Court. See, e.g.,

First Atl. Mgmt. Corp. v. Dunlea Realty Co., 131 N.C.App. 242, 248, 507 S.E.2d 56, 61 (1998). Accordingly, we reject Ms. Davis' argument that her appeal is properly before us based on the trial court's improper Rule 54(b) certification.

Next, Ms. Davis asserts that the trial court's Rule 60(b) order affects a substantial right. This Court, and our Supreme Court, repeatedly have held that Rule 60(b) motions setting aside the entry of summary judgment (as happened here) do not affect a substantial right. See, e.g., Waters v. Qualified Pers., Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 344 (1978) ; Braun v. Grundman, 63 N.C.App. 387, 388, 304 S.E.2d 636, 637 (1983) ; Robinson v. Gardner, 167 N.C.App. 763, 768, 606 S.E.2d 449, 452 (2005). In Baker, this Court acknowledged that an appeal from a "trial court's order setting aside the judgment of absolute divorce and permitting defendant to file her answer and counterclaim for equitable distribution" was "interlocutory and subject to dismissal." 115 N.C.App. at 339, 444 S.E.2d at 480. Relying on this precedent, this Court recently dismissed an appeal from a Rule 60(b) order in an absolute divorce case involving facts nearly identical to both Baker and the present case. See Steele v. Steele, No. COA 14–231 (N.C.App. 2014).

Ms. Davis argues that this precedent is not controlling because the trial court's Rule 60(b) order is "analogous" to the denial of a motion based on collateral estoppel, which affects a substantial right. See Hillsboro Partners LLC v. City of Fayetteville, ––– N.C.App. ––––, ––––, 738 S.E.2d 819, 823 (2013). This is so, according to Ms. Davis, because of the effect of Section 50–11(e) of the General Statutes. Section 50–11(e) states that "[a]n absolute divorce obtained within this State shall destroy the right of a spouse to equitable distribution ... unless the right is asserted prior to judgment of absolute divorce." N.C. Gen.Stat. § 50–11(e) (2013). Ms. Davis argues that the trial court's Rule 60(b) order is immediately appealable because, as a consequence of § 50–11(e) and the entry of her absolute divorce judgment, Mr. Campbell was "effectively collaterally estopped as a matter of law from asserting a new equitable distribution claim."

We cannot accept this argument because it ignores why our appellate courts hold that denial of a motion based on collateral estoppel affects a substantial right. Collateral estoppel is intended to "prevent repetitious lawsuits." Turner v. Hammocks Beach Corp., 363 N.C. 555, 558, 681 S.E.2d 770, 773 (2009). It ensures that parties (or those in privity) are not forced to re-litigate issues that were fully litigated and actually determined in previous legal actions. Id. Our appellate courts have concluded that an order denying a motion based on collateral estoppel is immediately appealable because "parties have a substantial right to avoid litigating issues that have already been determined by a final judgment." Id.

That is not the situation here. The trial court's order will not force Ms....