Faulkerson v. Allen
| Decision Date | 05 October 2010 |
| Docket Number | No. 09 CVS 482,NO. COA09-1331,COA09-1331,09 CVS 482 |
| Court | North Carolina Court of Appeals |
| Parties | CLARENCE W. FAULKERSON and AMANDA E. FAULKERSON, Plaintiffs v. LARRY ALLEN, and JOHN DOE, Defendants |
Appeal by plaintiffs from order entered 30 June 2009 by Judge W. Erwin Spainhour in Union County Superior Court. Heard in the Court of Appeals 23 March 2010.
The Law Offices of William K. Goldfarb, by Graham T. Stiles, for plaintiffs.
Franklin S. Hancock for defendants.
Plaintiffs Clarence and Amanda Faulkerson appeal from an order granting summary judgment in favor of Defendant Larry Allen1 on Defendant's counterclaims and dismissing Plaintiffs' complaint. After careful review of Plaintiffs' challenges to the trial court's order in light of the record and the applicable law, we conclude that the trial court's order should be affirmed.
On 6 February 2009, Plaintiffs filed a complaint against Defendant in which they alleged that Plaintiff Clarence Faulkerson suffered serious injuries on 7 February 2009 when he fell through a damaged area of the floor in a trailer that Plaintiffs rented from Defendant, that his injuries were proximately caused by Defendant's negligence, and that they were entitled to recover damages from Defendant for personal injury and loss of consortium. On 16 March 2009, Defendant filed a request for admissions which was accompanied by a certificate of service stating that Plaintiffs had been served by first class mail. On 20 April 2009, Defendant filed an answer denying the material allegations of Plaintiffs' complaint and asserting various defenses, counterclaims seeking the recovery of unpaid rent and cleaning fees, a dismissal motion predicated on the contention that Plaintiffs' complaint did not state a claim for relief, and a motion for summary judgment.
Plaintiffs failed to make any response to Defendant's request for admissions or file a reply to Defendant's counterclaim. On 2 9 May 2009, Defendant filed a motion seeking an entry of default with respect to his counterclaim. On 12 June 2009, the Union County Clerk of Superior Court entered default against Plaintiffs. On 4 June 2009, Defendant filed renewed motions for dismissal and summary judgment predicated on the assertion that Plaintiffs' claims were meritless and that Plaintiffs had admitted the existence of contributory negligence. On 26 June 2009, Plaintiffs filed a response in opposition to Defendant's motions for dismissal and summary judgment which was accompanied by an affidavit executed by Plaintiff Clarence Faulkerson. The response and affidavit addressed Plaintiffs' substantive allegations of negligence without mentioning their failure to respond to Defendant's counterclaim or request for admissions.
On 30 June 2009, Defendant's motions came on for hearing before the trial court. Neither party tendered witnesses or introduced evidence at the 3 0 June 2 009 hearing. Defendant's counsel argued that, given Plaintiffs' failure to respond to his request for admissions, those requests, including assertions to the effect that Defendant was not negligent and that Plaintiffs' claims were barred by contributory negligence, were deemed admitted. Plaintiff Clarence Faulkerson, who appeared pro se, informed the trial court that he had "never received nothing" and "was never served." However, when the trial court informed Mr. Faulkerson that valid service of a request for admissions was effectuated by sending that document to Plaintiffs by first class mail addressed to Plaintiffs' last known address, Plaintiff Clarence Faulkerson did not argue that the request for admissions had been sent to the wrong address or advance any other challenge to the service of Defendant's request for admissions. In addition, Plaintiff Clarence Faulkerson never denied receiving the answer and counterclaims filed by Defendant.
On 30 June 2009, the trial court, having considered matters outside the pleadings, entered an order granting Defendant's motion for summary judgment with respect to his counterclaim, ordering Plaintiffs to pay Defendant $2,400 in damages, and dismissing Plaintiffs' complaint. On 28 July 2009, Plaintiffs noted an appeal to this Court from the trial court's order.
On 9 July 2009, Plaintiffs filed (1) a motion for judgment notwithstanding the verdict pursuant to N.C. Gen. Stat. § 1A-1, Rule 50; (2) a motion for a new trial pursuant to N.C. Gen. Stat. § 1A-1, Rules 52 and 59; (3) a motion to set aside the court's orders pursuant to N.C. Gen. Stat. § 1A-1, Rules 54, 56, and 58; (4) a motion for relief from judgment pursuant to N.C. Gen. Stat. § 1A-1, Rule 60; and (5) a motion to stay proceedings relating to the enforcement of the trial court's judgment pursuant to N.C. Gen. Stat. § 1A-1, Rule 62. Plaintiffs' motions were accompanied by affidavits executed by both Plaintiffs. In Plaintiff Clarence Faulkerson's affidavit, he stated that he had believed that Robert C. Biales, an Ohio attorney, was representing him in this case; that Mr. Biales had informed Plaintiffs that they need not respond to Defendant's request for admissions; and that Mr. Biales directed Plaintiff Clarence Faulkerson to deny having received the request for admissions, despite the fact that he had, in fact, received it, and to refrain from disclosing Mr. Biales' involvement in the case.
Plaintiff Amanda Faulkerson also stated that she believed Mr. Biales represented Plaintiffs in connection with their claims against Defendant. The record does not reflect that the trial court ever ruled on Plaintiffs' 9 July 2009 motions.
According to N.C. Gen. Stat. § 1A-1, Rule 56 (2009), summary judgment is appropriate:
"The purpose of [N.C. Gen. Stat. § 1A-1, Rule 56] is to avoid a formal trial where only questions of law remain and where an unmistakable weakness in a party's claim or defense exists." Liberty Mut. Ins. Co. v. Pennington, 356 N.C. 571, 579, 573 S.E.2d 118, 123 (2002) (citing Dalton v. Camp, 353 N.C. 647, 650, 548 S.E.2d 704, 707 (2001)). Craig v. New Hanover County Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009) . We conclude that this case "was appropriate for entry of a summary judgment order, because it presents issues of law rather than fact." Musi v. Town of Shallotte, _ N.C. App. _, _, 684 S.E.2d 892, 894 (2009) ().
N.C. Gen. Stat. § 1A-1, Rule 7(a) "categorizes a counterclaim as a responsive pleading, where it states *[t]here shall be... a reply to a counterclaim denominated as such.'" Phillips v. Phillips, 185 N.C. App. 238, 243-44, 647 S.E.2d 481, 485 (2007) (quoting N.C. Gen. Stat. § 1A-1, Rule 7(a) (2005)), aff'd per curium, 362 N.C. 171, 655 S.E.2d 350 (2008). According to N.C. Gen. Stat. § 1A-1, Rule 8(d) (2009), "[a]verments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading." Chappell v. Redding, 67 N.C. App. 397, 404, 313 S.E.2d 239, 243 (1984) (citation omitted), disc, review denied, 311 N.C. 399, 319 S.E.2d 268 (1984). On appeal, Plaintiffs have notchallenged the validity of the manner in which Defendant's counterclaim was served or denied that they failed to respond to Defendant's counterclaim. In addition, Plaintiffs have not challenged the amount of damages imposed by the trial court. As a result, we conclude that the trial court did not err by entering summary judgment in favor of Defendant with respect to his counterclaim.
In granting summary judgment in favor of Defendant with respect to the issues raised by Plaintiffs' complaint, the trial court stated, in pertinent part, that:
As Plaintiffs acknowledge, "the trial court's ruling was based entirely on Plaintiff's failure to timely respond to Defendant's Request for Admissions as well as his failure to respond to Defendant's Counterclaim." For that reason, we begin our review of Plaintiffs' challenge to the trial court's decision to grant summary judgment in Defendant's favor with respect to the claimsasserted in Plaintiffs'...
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