Harrington v. Wall

• Decision Date: 17 May 2011
• Docket Number: No. COA10–696.,COA10–696.
• Citation: 710 S.E.2d 364
• Parties: Elizabeth C. HARRINGTON, Plaintiff–Appellee,v.Adrian Shelton WALL, a.k.a. Darius Mason, Defendant–Appellant.
• Court: North Carolina Court of Appeals

710 S.E.2d 364

Elizabeth C. HARRINGTON, Plaintiff–Appellee,

v.Adrian Shelton WALL, a.k.a. Darius Mason, Defendant–Appellant.

No. COA10–696.

Court of Appeals of North Carolina.

May 17, 2011.

OPINION TEXT STARTS HERE

Appeal by Defendant from order entered 30 September 2009 by Judge Charles T. Anderson; and orders entered 13 October 2009, 15 December 2009, and 12 January 2010 by Judge Beverly A. Scarlett, in District Court, Orange County. Appeal by Defendant's attorney, Betsy J. Wolfenden, from order entered 12 January 2010 by Judge Beverly A. Scarlett in District Court, Orange County. Heard in the Court of Appeals 11 January 2011.

No brief for Plaintiff–Appellee.

Betsy J. Wolfenden, Chapel Hill, for Defendant–Appellant; and Betsy J. Wolfenden, pro se.

McGEE, Judge.

Elizabeth Harrington (Plaintiff) commenced this action by filing a complaint on 6 January 2009, seeking child support and custody of a child born to Plaintiff and Adrian Wall (Defendant). Defendant was served on 7 January 2009, but he failed to timely file any responsive pleadings. Plaintiff moved for entry of default on 24 February 2009, and the Clerk of Superior Court entered default the same day. Defendant retained an attorney, Betsy Wolfenden (Attorney Wolfenden), who filed a notice of appearance on 13 April 2009.

Defendant filed a motion to set aside the entry of default and a motion to continue on 13 April 2009. The trial court entered an order on 4 May 2009 nunc pro tunc 24 April 2009, granting, inter alia, a continuance “on the [c]ourt's own motion[.]” The trial court continued the matter to 17 and 18 June 2009. The trial court entered an order dated 22 June 2009 denying Defendant's motion to set aside the entry of default. The trial court also entered an order dated 22 June 2009 nunc pro tunc 17 June 2009, granting Plaintiff custody of the child and child support.

Defendant filed a motion to recuse dated 24 June 2009, requesting that Judge Beverly Scarlett recuse herself from hearing further matters in this case. Defendant also filed a document titled “Verified Rule 59 and 60 Motions” that was dated 6 July 2009. In that document, Defendant argued that Judge Scarlett “conducted her own investigation outside the courtroom[,]” and displayed “partiality and bias[.]” Defendant also filed a motion dated 24 August 2009 to compel Judge Scarlett to make oral deposition regarding Judge Scarlett's alleged bias. Judge Charles T. Anderson entered an order on 30 September 2009 denying Defendant's motion to compel deposition. Defendant appeals from that order.

The trial court entered an order titled “Response to Defendant's Request for Relief” on 13 October 2009. In that order, the trial court determined that “Defendant's request to set aside the order entered on June 17, 2009 and executed on June 22, 2009 is denied.” Defendant also appeals from that order.

The trial court entered an order on Defendant's “Verified Rule 59 and 60 Motions” on 15 December 2009. The trial court denied Defendant's Rule 59 and Rule 60 motions as being “without legal justification” because Defendant “was not able to provide to the court any law requiring the [c]ourt to find an attorney at the call of the case when the case was properly noticed and set for hearing.” Defendant also appeals from that order.

Plaintiff filed a motion for Rule 11 sanctions, arguing that there was no basis in fact or law for Defendant's Rule 59 and Rule 60 motions and requested that Defendant be ordered to pay Plaintiff's attorney's fees incurred in defending against the motions. The trial court granted Plaintiff's motion for sanctions in an order entered 12 January 2010. The trial court made the following finding:

On their face, Defendant's verified Rule 59 and 60 Motions, appear to the [c]ourt to be without legal justification. The Defendant's counsel was unable to provide any legal justification for the same at this hearing. The Defendant failed to exercise his right to appear and be heard at the June 17, 2009 custody and child support hearing, following the advice of his counsel. The Defendant's counsel chose not to obtain leave of court to continue the hearing or hold it open while she filed papers with the Court of Appeals. The Defendant's counsel also chose not to remain in the Courtroom for this case to begin on June 17, 2009, even though she had ample notice to appear on June 17, 2009 and even though she had already completed her filings and returned from the Court of Appeals before the hearing in this case began on June 17, 2009.

The trial court concluded that Defendant's Rule 59 and 60 motions were “not well grounded in fact or law, and were filed for an improper purpose.” The trial court ordered that Defendant and Attorney Wolfenden “pay Plaintiff's counsel fees and expenses incurred in having to defend against ... Defendant's ... Rule 59 and Rule 60 Motions in the amount of $8,175.33.” Defendant and Attorney Wolfenden both appeal from that order.

The Issues Before Us

We first note that Defendant filed notice of appeal from Judge Anderson's 30 September 2009 order. However, Defendant's arguments are focused on Judge Scarlett's conduct and Defendant's “right to a fair trial in a fair tribunal.” Therefore, Defendant has abandoned his appeal of Judge Anderson's order. N.C.R.App. P. 28(b)(6).

We also note that, in Defendant's notice of appeal from the 15 December 2009 order denying his motion to recuse and his Rule 59 and Rule 60 motions, he does not appeal the underlying child custody and support order, nor the order denying his motion to set aside entry of default. Because Defendant has not appealed from the order denying his motion to set aside entry of default nor from the order for child custody and support, we do not address the propriety of those orders. Rather, we have jurisdiction only to consider the orders from which Defendant has provided proper notice of appeal. See Von Ramm v. Von Ramm, 99 N.C.App. 153, 157, 392 S.E.2d 422, 425 (1990) (“We determine that this court has jurisdiction to review only appellant's appeal of the trial court's January 1989 order, which denies defendant's Rule 59 motion. On its face, defendant's notice of appeal fails to specify any other judgment or order. Furthermore, a reader cannot ‘fairly infer’ from the language of the notice of appeal that appellant intended also to appeal the June 1988 order which underlies defendant's Rule 59 motion.”). Thus, the orders remaining for our review are: (1) the trial court's order entered 15 December 2009 “denying Defendant's motion to stay proceeding, motion to recuse and verified rule 59 and 60 motions asking that he be relieved from orders entered ... 17 and 22 June 2009[;]” and (2) the trial court's order regarding sanctions entered 12 January 2010.

Standards of Review

Defendant argues that the trial court violated his constitutional due process rights in that Judge Scarlett's alleged personal bias against Attorney Wolfenden and Judge Scarlett's failure to reveal this bias to Defendant prevented Defendant from receiving a fair trial. Defendant contends de novo review is ordinarily appropriate in cases where constitutional rights are implicated. However, Defendant raised his arguments before the trial court in the form of a Rule 59 motion for a new trial, a Rule 60 motion to set aside judgment, and a motion to recuse.

“The burden is on the party moving for recusal to ‘ “demonstrate objectively that grounds for disqualification actually exist.” ’ ” State v. Kennedy, 110 N.C.App. 302, 305, 429 S.E.2d 449, 451 (1993) (citation omitted).

The moving party may carry this burden with a showing “ ‘of substantial evidence that there exists such a personal bias, prejudice or interest on the part of the judge that he would be unable to rule impartially,’ ” or a showing that the circumstances are such that a reasonable person would question whether the judge could rule impartially.

Id. (internal citation omitted). We thus review the trial court's order to determine whether Defendant presented substantial evidence of such personal bias on the part of Judge Scarlett that Judge Scarlett would have been unable to rule impartially, or that circumstances were such that a reasonable person would question whether Judge Scarlett could rule impartially.

N.C. Gen.Stat. § 1A–1, Rule 59(a)(1) (2009) provides: “A new trial may be granted to all or any of the parties and on all or part of the issues for any of the following causes or grounds: ... [a] ny irregularity by which any party was prevented from having a fair trial[.]” N.C. Gen.Stat. § 1A–1, Rule 60(b)(6) (2009) provides that: “On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for ... [a] ny ... reason justifying relief from the operation of the judgment.” In general, a trial court's ruling on a Rule 59 motion for a new trial is reviewed for an abuse of discretion. Batlle v. Sabates, 198 N.C.App. 407, 423, 681 S.E.2d 788, 799 (2009). “ ‘However, where the [Rule 59] motion involves a question of law or legal inference, our standard of review is de novo.’ ” Id. (citation omitted). “ ‘As with Rule 59 motions, the standard of review of a trial court's denial of a Rule 60(b) motion is abuse of discretion.’ ” Id. (citation omitted). “ ‘A ruling committed to a trial court's discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision.’ ” Davis v. Davis, 360 N.C. 518, 523, 631 S.E.2d 114, 118 (2006) (citation omitted). Because Defendant's Rule 59 and Rule 60 motions were not based upon an alleged error of law, we review the trial court's rulings on these motions for an abuse of discretion.

N.C. Gen.Stat. § 1A–1, Rule 11(a) (2009) provides:

Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name,...