Cannon v. Exum
| Citation | 799 F.2d 751,1986 WL 17225 |
| Decision Date | 13 August 1986 |
| Docket Number | No. 86-1019,86-1019 |
| Parties | Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Haywood Allan CANNON, Appellant, v. J. Patrick EXUM and Tillie Parsons Beaman, Executrix of the Estate of John William Beaman, Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
Haywood Allan Cannon, appellant pro se.
Reginald L. Watkins, Attorney General's Office, for appellee Exum.
Jeffrey L. Miller; Norman B. Kellum, Jr., Beaman, Kellum & Stallings, for appellee Beaman.
E.D.N.C.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
Before RUSSELL, PHILLIPS and ERVIN, Circuit Judges.
Haywood Cannon filed this civil rights complaint against state court judge J. Patrick Exum and against Tillie Beaman, executrix of the estate of John Beaman. Judge Exum presided at a September 28, 1981, hearing in the matter of Rachel Beaman Cannon versus Haywood Cannon, involving issues of visitation and child support arising out of the Cannons' divorce. Judge Exum ruled that Haywood was not to be allowed visitation, that he was to pay certain amounts in child support, and that he was to pay certain of Rachel's attorney's fees. Cannon claimed in his federal complaint that the evidence presented at the hearing did not justify the results obtained in the order, and that the order was, in fact, the product of a conspiracy between Judge Exum and Rachel's father, John Beaman. Cannon's conspiracy theory is predicated on his claim that he saw Beaman follow Judge Exum into the judge's chambers at the close of the hearing. Cannon surmises that, while in chambers, Beaman made inadmissible or false statements to Judge Exum which formed the basis of the adverse order. Cannon asserts that this "conspiracy" between Judge Exum and John Beaman violated his constitutional rights.
Judge Exum and Tillie Beaman, as executrix of her husband's estate, filed motions to dismiss and for summary judgment, raising several defenses. In an affidavit submitted with his motion for summary judgment, Judge Exum stated categorically that "Mr. Beaman never discussed the case of Cannon v. Cannon, nor did ---he mention to me anything concerning any matter connected with the case." In addition to these defensive motions, Tillie Beaman filed a motion for attorney's fees pursuant to 42 U.S.C. 5 1988 and a counterclaim charging abuse of process, malicious prosecution, and frivolous litigation.
Cannon failed to file a timely answer to Beaman's counterclaim, as a result of which Beaman obtained an entry of default pursuant to Fed. R. Civ. P. 55(a). Cannon subsequently moved to set aside the entry of default.
Upon consideration of these various motions, the district court granted the defendants' motions for summary judgment, awarded Beaman attorney's fees under 42 U.S.C. Sec. 1988 in the amount of $660, and denied Cannon's motion to set aside the entry of default. The issue of the damages to which Beaman was entitled on her counterclaim was set for trial before a jury. The jury awarded Beaman $2800 in damages, and Cannon noted this appeal.
We consider first the propriety of the entry of summary judgment in favor of the defendants. In entering summary judgment, the district court noted that the defendants had advanced several arguments, all of which had merit, but that the court did not need to address them all as it was clear that Cannon's suit was barred by the applicable three-year statute of limitations. See N.C. Gen. Stat. Sec. 1-52; Wilson v. Garcia, --- U.S. ----, 53 U.S.L.W. 4481 (Apr. J7, 1985); Cole v. Cole, 633 F.2d 1083, 1092 (4th Cir. 1980). On appeal, cannon argues that his federal complaint was timely filed by virtue of the tolling provision contained in Rule 41(a) of the North Carolina Rules of Civil Procedure.
Rule 41(a)(1) provides that a plaintiff may voluntarily dismiss an action without prejudice by filing a notice of dismissal at any time before he rests his case. The rule further provides in relevant part: "[i]f an action commenced within the time prescribed therefor ... is dismissed without prejudice under this subsection, a new action based on the same claim may be commenced within one year after such dismissal." Cannon filed a suit essentially identical to this one in state court on September 27, 1984, the last day of the limitations period. On April 15, 1985, he took a voluntary dismissal of that suit pursuant to Rule 41(a)(1). His federal suit was filed on April 4, 1985.
The Supreme Court's decision in Board of Regents v. Tomanio, 446 U.S. 478 (1980), established that federal courts "were obligated not only to apply the analogous [state] statute of limitations to federal constitutional claims, but also to apply [the state's] rule for tolling that statute of limitations," when application was not inconsistent with federal policy under lying the cause of action. Id. at 483; Scoggins v. Douglas, 760 F.2d 535, 537 (4th Cir. 1985). Perceiving no inconsistency be tween federal policy and the tolling provision of Rule 41(a)(1), see Scoggins, supra, at 538, we conclude that Cannon is entitled, should he fit within that rule, to take advantage of its provisions. See also Shuford v. K.K. Kawamura Cycle Co., 649 F.2d 261 (4th Cir. 1981); Haislip v. Riggs, 534 F. Supp. 95 (W.D.N.C. 1981).
The rule permits the filing of a new suit within one year after the taking of a voluntary dismissal. The one-year period begins to run upon the giving of notice of dismissal in open court, even if a written notice of dismissal is not filed until later. See Danielson v. Cummings, 300 N.C. 175, 265 S.E.2d 161 (1980). See also Shuford, supra. We have found no authority, however, for commencing the running of the one-year period prior to the giving of oral or written notice of dismissal. Such an interpretation of the tolling provision would conflict not only with the language of the rule, but also with the general understanding of the application of such provisions.
In view of the expressed purpose of the statutes, which is to permit a plaintiff whose suit has been terminated without a decision on the merits to bring a new suit within a prescribed time though the period of limitation had expired after the first suit was brought, it is held that a nonsuit suffered after the commencement of the new suit is not such a nonsuit as is contemplated by the statutes, and therefore does not bring the case within the period of limitation as extended,
Annot., 86 A.L.R. 1048, 1051 (1933). See also 51 Am. Jur. 2d, Limitation of Actions 5 312; 54 c.i.s., Limitations of Actions 5 287. We therefore conclude that the tolling provision of North Carolina Rule 41(a) is of no avail to Cannon, his federal suit having been filed.prior to dismissal of his state action, and that the district court properly found the complaint time-barred.
Moreover, although the district court found it unnecessary to reach the merits of the complaint in granting the defendants summary judgment, the court did determine that the complaint was frivolous prior to awarding attorney's fees against Cannon. The district court noted that Cannon's allegations of conspiracy were conclusory and conjectural, there being not a shred of evidence to support his assertion that a conspiracy took place between Beaman and Judge Exum. The court further took note of the number of other proceedings filed by Cannon in relation to the divorce action and found the circumstances strongly suggested that the lawsuit was instituted for the purpose of harassing the defendants.
A prevailing defendant may obtain attorney's fees under 42 U.S.C. 5 1988 if the plaintiff's claim "was frivolous, unreasonable or groundless." Lotz Realty Co. v. United States Department of Housing and Urban Development, 717 F.2d 929, 931 (4th Cir. 1983) (quoting Christiansburg Garment Co. v. EEOC, 434 U,S. 412, 422 (1978) ). Although a plaintiff's subjective bad faith is not a necessary prerequisite to a fee award against him, if a plaintiff is found to have brought the claim in bad faith, there is an even stronger basis for charging him with the attorney's fees incurred in defense of the claim. Christiansburg Garment, supra, at 421-22.
In finding Cannon's claims frivolous, the district court established the necessary basis for an imposition of fees under 5 1988. The record fully supports the district court's finding, and we therefore conclude that an award of fees was proper. As our review of the district court's calculation of the amount to be awarded reveals no error, we affirm the imposition of $660 in attorney's fees.
Remaining is Cannon's appeal from the default judgment entered against him on Beaman's counterclaim. Cannon contends that he should have received notice prior to the entry of default and that extenuating circumstances justified setting aside the default. The notice provision upon which Cannon relies relates, however, to the entry of judgment by default under Rule 55(b) rather than to the entry of default under Rule 55(a), and Cannon clearly had notice prior to entry of judgment. Nor do we find Cannon's explanation for...
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