In re Nlend
| Docket Number | COA23-516 |
| Decision Date | 16 January 2024 |
| Parties | RODRIGUE ALAIN NDJE NLEND, Plaintiff/Husband, v. VALERIE NDJE NLEND, Defendant/Wife. |
| Court | North Carolina Court of Appeals |
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Heard in the Court of Appeals 17 October 2023.
Appeal by plaintiff from order entered 14 April 2023 by Judge Alyssa Levine in Mecklenburg County, No. 22 CVD 6955 District Court.
Plaintiff-appellant Rodrigue Alain Ndje Nlend, pro se.
Sodoma Law, PC, by Kelsey Queen and Kaylan M. Gaudio, for defendantappellee.
Plaintiff Rodrigue Alain Ndje Nlend appeals from the trial court's order granting Defendant Valerie Ndje Nlend's motion to stay absolute divorce proceedings in North Carolina, denying Defendant's motion for sanctions and attorney's fees and denying Plaintiffs motions for summary judgment. After careful review, we dismiss in part and affirm in part.
Plaintiff and Defendant married in 2006 and separated in 2010. Two children were born of the marriage. On 23 November 2020, an order for protection was entered in King County Superior Court, in the State of Washington, where the parties resided. On 10 May 2021, Defendant filed a petition in King County Superior Court, which included claims for divorce, child custody, child support, property division, and spousal support, and sought the entry of a restraining order. At the time Defendant filed this petition, the parties had been living in Washington for three years. On 10 August 2021, Defendant moved to North Carolina with the minor children. The divorce proceedings continued in Washington, with the trial court there entering orders related to child support, spousal support, visitation, the appointment of a guardian ad litem, and the renewal of the protection order.
On 20 April 2022, Plaintiff filed a complaint for absolute divorce in Mecklenburg County District Court. On 16 May 2022, Defendant filed an answer, in which she alleged that Plaintiff "appears to be forum shopping" and requested that the action be dismissed. On 24 May 2022, Plaintiff filed a motion for summary judgment and notice of hearing, and that same day also filed a reply to Defendant's answer. On 3 June 2022, Defendant filed a second answer.
On 16 June 2022, the trial court entered an order continuing Plaintiffs motion for summary judgment, as the filing could not be found in the court file. Then on 1 July 2022, the trial court entered a judgment for absolute divorce.
On 27 July 2022, Defendant filed a motion for relief from judgment pursuant to Rule 60 of the North Carolina Rules of Civil Procedure. Defendant stated, inter alia, that she inadvertently failed to attach her Washington divorce petition to her filings. She also alleged that "Plaintiff purposefully omitted to notify" the trial court of the Washington proceedings, and that Plaintiff purposefully did not notify her of the rescheduled hearing date for his summary judgment motion. Additionally, Defendant moved for sanctions, attorney's fees, and a stay of the proceedings in North Carolina until the resolution of the Washington divorce. Plaintiff filed his response to Defendant's Rule 60 motion on 2 August 2022.
On 3 October 2022, Defendant's Rule 60 motion came on for hearing. On 7 November 2022, the trial court entered an order ("the Rule 60 Order") granting Defendant's Rule 60 motion for relief from judgment. The trial court noted that Defendant testified that she did not receive the order continuing the hearing on the motion for summary judgment and that no certificate of its service appeared in the record. The trial court also found that there was no notice of hearing in the file showing that Plaintiff rescheduled the matter, and "no evidence showing how the Motion for Summary Judgment and Notice of Hearing eventually made it to the Court's file." Because Defendant did not receive adequate notice of the rescheduled summary judgment hearing, the trial court concluded that "|j]ustice demands setting aside the July 1, 2022 Judgment of Divorce." The trial court held open for later consideration Defendant's claims for sanctions, attorney's fees, and a stay of the proceedings.
On 16 November 2022, Plaintiff filed a Rule 52(b) motion to amend, asking the trial court "to reverse" the Rule 60 Order "and to deny Defendant's Rule 60 Motion[,]" as well as Rule 59 motions to set aside the Rule 60 Order and for a new trial on Defendant's Rule 60 motion. On 17 November 2022, Plaintiff additionally filed a motion to stay the Rule 60 Order. On 12 December 2022, the trial court entered an order dismissing Plaintiffs motions without prejudice for failure to appear and prosecute.
After extensive motions practice by the parties-including multiple motions for a continuance filed by Plaintiff, which were denied on 9 and 22 February 2023, respectively-Defendant's motion for sanctions, attorney's fees, and a stay of the proceedings and Plaintiffs motions for summary judgment came on for hearing on 27 February 2023.[1] By order entered on 14 April 2023, the trial court granted Defendant's motion to stay, denied Defendant's motion for sanctions and attorney's fees, and denied Plaintiffs motions for summary judgment.
On 21 April 2023, Plaintiff filed notice of appeal from: (1) the 14 April 2023 order; (2) the 16 June 2022 order continuing Plaintiffs motion for summary judgment; (3) the Rule 60 Order; (4) the 12 December 2022 order dismissing Plaintiffs motions following the Rule 60 Order for failure to prosecute; and (5) the 22 February 2023 order denying Plaintiffs motion for continuance.
In his appellate brief, Plaintiff asserts that the trial court's "order staying divorce proceedings in North Carolina and denying Plaintiffs Motion for Summary Judgement Divorce[ ] is a final judgment, and appeal therefore lies to the Court of Appeals" pursuant to N.C. Gen. Stat. §§ 1-75.12(c), l-277(a), and 7A-27(b) (2021).
Section 1-75.12(c) provides for a right of immediate appeal for a nonmoving party upon the grant of a motion for a stay in favor of proceedings in a foreign jurisdiction. N.C. Gen. Stat. § 1-75.12(c). Accordingly, we have appellate jurisdiction over that portion of the trial court's 14 April 2023 order granting Defendant's motion for a stay. However, for the reasons that follow, that portion of the trial court's 14 April 2023 order is the only portion of any of the orders from which Plaintiff purports to appeal that is properly before us.
Section 7A-27(b)(2) provides that appeal lies of right to this Court "[f]rom any final judgment of a district court in a civil action." Id. § 7A-27(b)(2). However, "[t]he denial of a motion for summary judgment is not a final judgment, but rather is interlocutory in nature." Stahl v. Bowden, 274 N.C.App. 26, 28, 850 S.E.2d 588, 590 (2020). "Generally, there is no right of immediate appeal from interlocutory orders and judgments." Goldston v. Am. Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). Moreover, despite Plaintiffs citation to § l-277(a), which provides that an interlocutory appeal "may be taken from every judicial order or determination of a judge of a superior or district court. . . that affects a substantial right claimed in any action or proceeding[]" N.C. Gen. Stat. § l-277(a), Plaintiff makes no claim in the statement of the grounds for appellate review in his appellate brief that any of the interlocutory orders or determinations of the trial court affect such a substantial right.
"To confer appellate jurisdiction based on a substantial right, the appellant must include in its opening brief, in the statement of the grounds for appellate review, sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right." Doe v. City of Charlotte, 273 N.C.App. 10, 21, 848 S.E.2d 1, 9 (2020) (cleaned up); see also N.C. R. App. P. 28(b)(4) (). "[I]f the appellant's opening brief fails to explain why the challenged order affects a substantial right, we must dismiss the appeal for lack of appellate jurisdiction." Denney v. Wardson Constr., Inc., 264 N.C.App. 15, 17, 824 S.E.2d 436, 438 (2019).
Instead, Plaintiff cites our Supreme Court's opinion in Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381, reh'g denied, 232 N.C. 744, 59 S.E.2d 429 (1950), for the proposition that "[i]nterlocutory orders may be appealed after final [judgment] on the case." However, as previously stated, the denial of his motion for summary judgment was not a final judgment, so this citation is inapposite. As Plaintiff makes no claim of any substantial right in his statement of the grounds for appellate review, he has failed to invoke our appellate jurisdiction over the remaining interlocutory orders and determinations of the trial court from which he noticed his appeal.
Recognizing the interlocutory nature of at least a portion of his appeal, Plaintiff has filed with this Court a petition for writ of certiorari to review the Rule 60 Order. As an initial matter, we note that Plaintiffs petition solely addresses the Rule 60 Order; accordingly, we do not consider any of the trial court's other interlocutory orders or determinations.
The writ of certiorari "is intended as an extraordinary remedial writ to correct errors...
To continue reading
Request your trial