Cohen v. Mclawhorn

• Decision Date: 21 December 2010
• Docket Number: No. COA09–1578.,COA09–1578.
• Court: North Carolina Court of Appeals
• Parties: Steven COHEN, Plaintiff,v.Charles L. McLAWHORN, Jr., and McLawhorn & Associates, P.A., Defendants.

704 S.E.2d 519

Steven COHEN, Plaintiff,

v.Charles L. McLAWHORN, Jr., and McLawhorn & Associates, P.A., Defendants.

No. COA09–1578.

Court of Appeals of North Carolina.

Dec. 21, 2010.

OPINION TEXT STARTS HERE

Appeal by plaintiff from order entered 29 June 2009 by Judge William C. Griffin, Jr. in Pitt County Superior Court. Heard in the Court of Appeals 10 June 2010.

Mills & Economos, L.L.P., Greenville, by Larry C. Economos, for plaintiff-appellant.

Herrin & Morano, by Mickey A. Herrin, Greenville, for defendants-appellees.

GEER, Judge.

Plaintiff Steven Cohen appeals from the trial court's order dismissing this action pursuant to Rule 41(b) of the Rules of Civil Procedure after plaintiff failed to appear at trial and failed to take any other steps to prosecute the action. Plaintiff does not dispute that the trial court considered the factors set out in Wilder v. Wilder, 146 N.C.App. 574, 553 S.E.2d 425 (2001), but argues that the court's conclusions of law as to those factors are not supported by the findings of fact.

Based on our review of the record, we hold that the trial court made sufficient findings based on the evidence to support its conclusions regarding plaintiff's unreasonable delay in prosecuting the action, the prejudice suffered by defendants, and the need for dismissal with prejudice. Accordingly, we affirm the trial court's order dismissing the action with prejudice.

Facts

Plaintiff filed a legal malpractice lawsuit against attorney Charles L. McLawhorn, Jr. and his law firm, McLawhorn & Associates, P.A., on 17 February 2005. The complaint was 11 pages long and attached 12 exhibits purportedly supporting the complaint's allegations. According to the complaint, plaintiff was the founder and majority shareholder of Internet East, Inc. Defendants represented Internet East in a business dispute that resulted in litigation brought against another company. The complaint alleges that defendants provided negligent legal representation, violated the Rules of Professional Conduct, and did not act in plaintiff's best interests.

On 9 May 2005, defendants filed an answer that included a counterclaim for legal fees in the amount of $30,000.00. Plaintiff did not file any reply to the counterclaim. Subsequently, on 2 June 2005, the trial court entered an order for a mediated settlement conference. The order set a deadline of 1 September 2005 for completion of the settlement conference. A mediation was never held.

Although plaintiff had filed the lawsuit pro se, Larry C. Economos—who is representing plaintiff on this appeal—apparently represented plaintiff in some capacity in the case because on 28 September 2005, Mr. Economos filed a motion to withdraw on the grounds that plaintiff had failed to pay legal fees owed for services performed. At that time, plaintiff was incarcerated in a federal prison in Petersburg, Virginia. On 7 October 2005, the trial court allowed the motion to withdraw and ordered that further pleadings and papers be served on plaintiff at the federal prison's address and on Linda Leggett, who held plaintiff's power of attorney.

More than a year after the lawsuit was filed, defendants filed a calendar request asking to schedule the case for a two-day jury trial beginning on 17 April 2006. Defendants served the calendar request along with a notice of hearing on 27 March 2006 by mailing the documents to plaintiff at the address in the court's 7 October 2005 order and to Ms. Leggett, as specified in that order. The trial court administrator subsequently sent a copy of the trial calendar to plaintiff—also at the addresses specified in the 7 October 2005 order—setting this case for trial on 17 April 2006. Plaintiff did not take any action with respect to the upcoming trial date—he did not move for a continuance or a stay or otherwise communicate with the court or defendants regarding the trial.

On 17 April 2006, defendants appeared for trial, but plaintiff did not attend or have anyone present representing him. Judge William C. Griffin, Jr. involuntarily dismissed the action pursuant to Rule 41(b) in an order filed 17 April 2006. The order stated:

This case appearing on the April 17, 2006, trial calendar for the Pitt County Superior Court and it appearing to the undersigned that the plaintiff received due notice of the calendaring of this case and it further appearing to the court that the plaintiff is not present in court nor represented at the call of the calendar and it further appearing that the defendant, by and through counsel, has moved for a dismissal of this action, the court is of the opinion and finds as a fact that the defendant is entitled to have this action dismissed.

NOW, THEREFORE, pursuant to Rule 41(b) of the North Carolina Rules of Civil Procedure this action is hereby dismissed.

Plaintiff did not appeal this order.

On 16 April 2007, a year after the dismissal, plaintiff, represented by Mr. Economos, filed a new action with an identical complaint to the one dismissed by Judge Griffin. Defendants were never served in this second action, although four alias and pluries summonses were issued between May 2007 and February 2008.

On 5 June 2007, plaintiff, through Mr. Economos, filed a Rule 60(b)(6) motion in this action that was heard on the same day with defendants' consent. In his motion, plaintiff primarily argued that Judge Griffin failed to comply with Wilder. Plaintiff also argued that because of plaintiff's incarceration and the lack of any prejudice to defendants in waiting for plaintiff's March 2007 release, “sanctions, if any, imposed upon the Plaintiff for failure to appear at calendar call should have been far short of dismissal of his action operating under Rule 41(b) as a dismissal with prejudice.” Plaintiff did not attach any supporting affidavits to his Rule 60(b)(6) motion.

Judge Clifton W. Everett, Jr. entered an order on 13 June 2007 directing that the matter be returned to Judge Griffin. In the order, Judge Everett explained:

[T]his Court cannot determine from the face of the Order entered by Judge Griffin on April 17, 2006, whether Judge Griffin addressed those three factors set forth in [ Wilder ] before dismissing the Plaintiff's case for failure to prosecute under Rule 41(b) of the North Carolina Rules of Civil Procedure, it further appear[s] to the Court, with the agreement of all parties, as expressed in open Court, that the ends of justice would best be served by returning the Honorable William C. Griffin, Jr.'s Order dated April 17, 2006, to Judge Griffin for such further entries or modifications, if any, that he may deem appropriate to more fully and accurately reflect his ruling at the time that said Order was entered.

Plaintiff did not, however, take any steps to return the matter to Judge Griffin.

On 29 May 2009, just shy of the two-year anniversary of Judge Everett's order, defendants' counsel wrote to Judge Griffin advising him of plaintiff's Rule 60(b)(6) motion and Judge Everett's order that the matter be returned to Judge Griffin. Defendants' counsel included with his letter to Judge Griffin a copy of Judge Everett's order, a copy of plaintiff's Rule 60(b)(6) motion, “material that was in the Court file” as of 17 April 2006 (the date the original order of dismissal was entered), and a proposed amended order of dismissal for Judge Griffin's consideration. All of the materials sent to Judge Griffin were delivered to Mr. Economos on the same day.

Subsequently, on 5 June 2009, Mr. Economos wrote a letter to Judge Griffin, “objecting to the signing of the Amended Order of Involuntary Dismissal” that defendants' counsel had sent to Judge Griffin and setting forth his argument as to why Judge Griffin should not have entered the original order dismissing the case under Rule 41(b). Mr. Economos requested that, as an alternative to Judge Griffin's setting aside the Rule 41(b) dismissal, Judge Griffin schedule a hearing on the matter.

On 29 June 2009, Judge Griffin entered an amended order of involuntary dismissal with detailed findings of fact explaining the basis for the dismissal and conclusions of law following Wilder. Plaintiff appealed from this amended order.

I

Although the parties have not addressed the issue, we must first consider whether this Court has jurisdiction over this appeal. Since defendants asserted a counterclaim against plaintiff, and the record contains no indication that the counterclaim was ever resolved—even though plaintiff was in apparent default—this appeal may be interlocutory. The trial court, however, in its order, did not simply dismiss plaintiff's claims, but rather dismissed “the action.” This language suggests that the order was intended to dispose of the entire case.

In any event, we hold that a substantial right would be affected in the absence of an immediate appeal. See, e.g., Crouse v. Mineo, 189 N.C.App. 232, 236, 658 S.E.2d 33, 36 (2008) (holding that appeal from dismissal of plaintiffs' claims while counterclaims remained pending was permissible because plaintiffs' claims and counterclaims involved identical issues, creating potential for inconsistent verdicts resulting from separate trials of claims); Essex Group, Inc. v. Express Wire Servs., Inc., 157 N.C.App. 360, 362, 578 S.E.2d 705, 707 (2003) (holding that sanctions order striking answer and entering default judgment against defendants affected substantial right). ¹

Defendants, however, argue that plaintiff is precluded from appealing because he did not appeal the original Rule 41(b) order. Defendants have cited no authority for their argument. Defendants do not contend that the trial court lacked jurisdiction to amend its order; nor have defendants cross-appealed from the amended order. Indeed, it appears from the record that defendants consented to Judge Everett's returning the matter to Judge Griffin for findings of fact and conclusions of law in accordance with Wilder.

Since no party has appealed from Judge Everett's order or suggested that he lacked...