Roark v. Yandle

873 S.E.2d 27

Hilary ROARK, Plaintiff,

v.James YANDLE, Defendant,

v.Raymond and Vianna Cottrell, Intervenors.

No. COA21-568

Court of Appeals of North Carolina.

Filed May 3, 2022

Arnold & Smith, PLLC, by Paul A. Tharp, Charlotte, for defendant-appellant.

Dozier Miller Law Group, by David M. McCleary, for intervenors-appellees.

GORE, Judge.

¶ 1 Defendant argues the trial court abused its discretion by denying his motion for relief pursuant to N.C. R. Civ. P. 60(b) concerning the enforceability of an award for attorney's fees. Defendant also seeks direct review of the underlying Order for Attorney's Fees entered 9 December 2019. We vacate and remand.

I. Factual and Procedural Background

¶ 2 On 2 August 2019, the intervenors Raymond and Vianna Cottrell appeared in defendant's existing custody action moving for emergency and permanent custody of defendant's minor child, CR. On 4 August 2019, defendant sustained serious injuries in a car accident in Union County, North Carolina, with medical bills for treatment related to the same exceeding $300,000.00. The day after the crash, on 5 August 2019, the trial court awarded temporary custody of CR to intervenors. After another hearing on 22 August 2019, the trial court issued an order continuing temporary custody of CR with intervenors. Following a status hearing held on 8 October 2019, the trial court entered an order on 4 November 2019 continuing temporary custody with intervenors and restricting visitation by defendant.

¶ 3 After a motion hearing on 18 November 2019, intervenors moved for an award of attorney's fees on 20 November 2019. On 6 December 2019, defendant filed a motion for a new trial. On 9 December 2019, the trial court entered an order awarding attorney's fees to intervenors and directing that such fees be taken from the proceeds of defendant's personal injury settlement if not paid by 31 January 2020.

¶ 4 On 8 January 2020, intervenors moved to have defendant's motion for a new trial dismissed and for sanctions against defendant. On 15 January 2020, the trial court ordered defendant to appear and show cause as to why he should not be held in contempt for failure to comply with a previous order of the court. On 27 January 2020, the trial court dismissed defendant's motion for a new trial. On 1 December 2020, defendant filed a motion pursuant to Rule 60 of the North Carolina Rules of Civil Procedure, seeking an order relieving him of the obligation to pay intervenors’ attorney's fees from the proceeds of his pending personal injury settlement. Defendant's motion came on for hearing on 22 March 2021. On 5 April 2021, the trial court entered an order denying defendant's Rule 60(b) motion.

¶ 5 On 28 April 2021, defendant timely filed notice of appeal from the trial court's denial of his Rule 60(b) motion concerning the enforceability of the 9 December 2019 award for attorney's fees.

II. Order for Attorney's Fees

¶ 6 We first examine whether this Court has jurisdiction to review defendant's appeal from the 9 December 2019 Order for Attorney's Fees.

A. Grounds for Appellate Review

¶ 7 A party is entitled to an appeal of right following the entry of a "final judgment of a district court in a civil action." N.C. Gen. Stat. § 7A-27(b)(2). A party is also entitled to an appeal of right following the entry of "any interlocutory order or judgment of a ... district court in a civil action or proceeding that ... [a]ffects a substantial right." § 7A-27(b)(3). Here, defendant cities to both §§ 7A-27(b)(2) and (b)(3) and argues the order can be construed as either interlocutory or final.

¶ 8 Ordinarily, an order for an award of attorney's fees is interlocutory and not immediately appealable. Benfield v. Benfield , 89 N.C. App. 415, 419, 366 S.E.2d 500, 503 (1988). However, in a case such as this, where the trial court set attorney's fees in a fixed amount, and there are no outstanding substantive claims left for judicial determination, the order is final independent of any subsequent judgment. In re Cranor , 247 N.C. App. 565, 569, 786 S.E.2d 379, 382 (2016).

¶ 9 Additionally, defendant filed a Rule 60(b) Motion on 1 December 2020 requesting relief from the Order for Attorney Fees on grounds that the trial court: (1) lacked jurisdiction to create lien rights in his personal injury proceeds; and (2) made statutorily insufficient findings necessary to support the award. Rule 60(b) provides, "[o]n 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 ...." § 1A-1, Rule 60(b) (2020) (emphasis added). Thus, by filing a Rule 60(b) Motion, defendant judicially admitted that the order was final. Sea Ranch II Owners Ass'n v. Sea Ranch II, Inc. , 180 N.C. App. 226, 229, 636 S.E.2d 332, 334 (2006).

¶ 10 Considering the 9 December 2019 Order for Attorney's Fees is a final judgment of the district court; we note that defendant failed to timely file notice of appeal from that Order. A notice of appeal in a civil action must be filed "within thirty days after entry of judgment ...." N.C.R. App. P. 3(c)(1). If the appellant fails to file notice of appeal within the time allowed, this Court lacks jurisdiction to hear the appeal. Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co. , 362 N.C. 191, 197, 657 S.E.2d 361, 365 (2008). Furthermore, the party taking appeal must "designate the judgment or order from which appeal is taken ...." N.C.R. App. P. 3(d).

¶ 11 Here, the trial court entered the Order for Attorney's Fees on 9 December 2019. Nearly one year later, defendant filed a Rule 60(b) Motion on 1 December 2020. The trial court concluded that defendant's Rule 60(b) Motion was timely filed but denied it by written Order entered 7 April 2021. On 28 April 2021, defendant timely filed notice of appeal from the trial court's denial of his Rule 60(b) Motion.

¶ 12 Defendant failed to designate the 9 December 2019 Order for Attorney's Fees in his notice of appeal and now seeks direct review of a final order more than one year and four months after it was entered. Defendant's appeal of the underlying 9 December 2019 Order for Attorney's Fees is untimely, and this Court lacks jurisdiction to consider it. Therefore, we dismiss the portion of defendant's appeal that seeks direct review of the underlying Order.

B. Petition for Writ of Certiorari

¶ 13 Defendant acknowledges his statutory right to appeal was potentially waived for failure to enter notice of appeal in compliance with N.C.R. App. P. 3. He also petitions this Court pursuant to N.C.R. App. P. 21 to issue our writ of certiorari and permit appellate review of the 9 December 2019 Order. Under Rule 21, the writ may issue "in appropriate circumstances ... to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action ...." N.C.R. App. P. 21(a)(1). A petition for writ of certiorari "has specific content requirements designed to ensure that the requesting party provides the Court with the facts and argument necessary to assess, in the Court's discretion, whether issuing the writ is appropriate." Doe v. City of Charlotte , 273 N.C. App. 10, 23, 848 S.E.2d 1, 11 (2020) ; see also N.C.R. App. P. 21(c) (specifying content requirements).

¶ 14 In his petition, defendant offers one argument that this case presents appropriate circumstances to permit review; he did not voluntarily or intentionally waive his right to appeal. To substantiate his contention, defendant cites to three cases for the general premise that waiver of appeal is only effective as a voluntary, intelligent, and intentional "relinquishment of a known right." Luther v. Luther , 234 N.C. 429, 433, 67 S.E.2d 345, 348 (1951). Those cases are Luther , 234 N.C. at 433, 67 S.E.2d at 348 (holding that a party in a contempt proceeding did not waive her right to appeal by paying the "fine under protest at the precise moment she noted her appeal from the order imposing it."); Johnson v. Zerbst , 304 U.S. 458, 458, 58 S.Ct. 1019, 1020, 82 L. Ed. 1461, 1463 (1938) (addressing whether the defendant in a criminal case knowingly and intentionally waived his constitutional right to counsel); and United States v. Wessells , 936 F.2d 165, 168 (4th Cir. 1991) (concluding that a criminal defendant did not voluntarily and intelligently waive his right to appeal by accepting a plea agreement where there was no indication that he "knowingly agree[d] to an absolute waiver of all rights to appeal his sentencing.").

¶ 15 Defendant does not analogize, distinguish, or otherwise apply the reasoning from those decisions to the facts before us. Defendant implies that that his failure to timely file notice of appeal from the 9 December 2019 Order for Attorney's Fees was unintentional because: (1) he did not know that he could appeal from that order; and (2) he never knowingly and voluntarily relinquished a right to appeal that order as demonstrated by his initial challenge by Rule 60(b) Motion.

¶ 16 It is not obvious from the context of defendant's argument how "waiver of appeal" is at issue in this case. As previously discussed, relief under Rule 60(b) is from final orders. The act of filing a motion for relief under Rule 60(b) at the trial level implicitly acknowledges the finality of the underlying Order. This Court has routinely held that "[a] motion pursuant to Rule 60 cannot be used as a substitute for an appeal of the underlying order to correct errors of law." Morehead v. Wall , 224 N.C. App. 588, 592, 736 S.E.2d 798, 801 (2012) (citation omitted).

¶ 17 The fact remains, defendant did not appeal from a final order within thirty days after it was entered, and he did not designate the Order for Attorney's Fees in his notice of appeal. Motions pursuant to Rule 60(b) neither operate as a substitute for an appeal to this Court, nor do they toll the time for filing a notice of appeal. Wallis v. Cambron , 194 N.C. App. 190, 193, 670 S.E.2d 239, 241 (2008) ; ...