Opinion
No. COA08-844.
Filed 19 May 2009.
Appeal from the Wake County No. 07CVS1640.
Appeal by plaintiff from orders entered 16 January 2008 by Judge Henry W. Hight, Jr. in Wake County Superior Court and from an order entered 25 April 2008 by Judge Ripley E. Rand in Wake County Superior Court. Heard in the Court of Appeals 10 February 2009.
Carol Dalenko, pro se plaintiff-appellant. Troutman Sanders LLP, by Patricia P. Kerner and Hannah G. Styron, for defendant-appellee Robert E. Monroe. Howard, Stallings, From Hutson, P.A., by John N. Hutson, Jr., for defendant-appellee John N. Hutson, Jr. individually and d/b/a Howard, Stallings, From Hutson, P.A.
The Estate of Louis Dalenko (the "Dalenko Estate") appeals pro se, by and through its executrix, Carol Dalenko ("Ms. Dalenko"), from three orders entered 16 January 2008 by Judge Henry W. Hight, Jr. ("Judge Hight") in Wake County Superior Court and from an order entered 25 April 2008 by Judge Ripley E. Rand ("Judge Rand") in Wake County Superior Court. Judge Hight's three orders respectively: (1) dismissed the Dalenko Estate's claim for "accepting checks from [defendant Robert E.] Monroe . . . in bad faith" against John N. Hutson, Jr. ("Mr. Hutson"), both individually and d/b/a Howard, Stallings, From Hutson, P.A., pursuant to N.C.R. Civ. P. 12(b)(6); (2) dismissed the Dalenko Estate's claim for "abuse of the Estate as guardian" against Robert E. Monroe ("Mr. Monroe"), both individually and d/b/a Monroe, Wyne Wallace, P.A., pursuant to N.C.R. Civ. P. 12(b)(6); and (3) denied the Dalenko Estate's " Motion To Disqualify Canon 3C(1)(a) NC Code of Judicial Conduct" (hereinafter, "Motion to Disqualify"). Judge Rand's order denied "Plaintiff's Motion for Rule 11 Sanctions" (hereinafter, "Motion for Sanctions") against both Mr. Monroe and Mr. Hutson and permitted the Dalenko Estate "to appeal as an indigent in this matter[.]" After careful review of the arguments brought forth by Ms. Dalenko, we affirm.
Ms. Dalenko is also the sole heir to the Dalenko Estate.
I. Background
The background of this case is unique. As discussed infra, the instant appeal is the most recent in a long series of lawsuits instituted by Ms. Dalenko against various defendants, including numerous judges of this Court, on behalf of herself; her father, Louis Dalenko ("Mr. Dalenko"); or the Dalenko Estate. See, e.g., Dalenko v. Collier, ___ N.C. App. ___, ___, 664 S.E.2d 425, 431 ( percuriam) (affirming, inter alia, imposition of Rule 11 sanctions against Ms. Dalenko), appeal dismissed, 362 N.C. 680, 670 S.E.2d 563 (2008); Dalenko v. Wake Cty. Dep't of Human Servs., 157 N.C. App. 49, 59, 578 S.E.2d 599, 605 (affirming, inter alia, award of prosecution bonds because of, inter alia, Ms. Dalenko's "history of filing frivolous lawsuits"), disc. review denied and cert. denied, 357 N.C. 458, 585 S.E.2d 386 (2003), cert. denied, 540 U.S. 1178, 158 L. Ed. 2d 79 (2004); Bennett v. Harmon, 146 N.C. App. 447, 554 S.E.2d. 420 (unpublished opinion, No. 00-1055, filed 2 October 2001) (affirming, inter alia, award of sanctions against Ms. Dalenko); see also Dalenko v. File, 185 Fed. Appx. 294, 295 (4th Cir. 2006) ( per curiam) (unpublished) (affirming federal district court's orders and judgments dismissing Ms. Dalenko's complaints and sanctioning her).
On 26 May 2000, Ms. Dalenko was appointed as Mr. Dalenko's "Interim General Guardian" in Wake County Superior Court. On the same day, she filed a civil negligence action in Wake County Superior Court against Wake County Department of Human Services ("DHS"), a DHS social worker, and her father's court-appointed guardian ad litem. Dalenko, 157 N.C. App. at 51-52, 578 S.E.2d at 601-02. Mr. Monroe became involved in the matter on 11 July 2000, when Gilbert W. File ("Mr. File"), Assistant Clerk of Wake County Superior Court, appointed him as "guardian of the estate for Louis Dalenko" subsequent to Mr. File vacating his 26 May 2000 order in which he had appointed Ms. Dalenko as Mr. Dalenko's interim general guardian. Mr. File vacated this order because he determined, inter alia, that Ms. Dalenko had committed "`an abuse of legal process'" and was "not a fit and proper person to be appointed general guardian for her father[.]"
At this time, Ms. Dalenko was using the name Carol Bennett. For clarity, we refer to her as Ms. Dalenko throughout this opinion.
Ms. Dalenko had originally filed a complaint on 7 December 1998, but voluntarily dismissed the case without prejudice on 26 May 1999. Id. at 52, 578 S.E.2d at 601.
On 31 July 2000, Mr. File denied Ms. Dalenko's requests for the appointment of a guardian ad litem for Mr. Dalenko, concluding that Mr. Monroe, as guardian of the Dalenko Estate, "was the person who should determine the efficacy of proceeding with this lawsuit on behalf of Mr. Dalenko." On 9 October and 12 December 2000, Mr. Monroe paid $2,500.00 and $2,624.20, respectively, to the law firm of Howard, Stallings, From Hutson, P.A. as "Legal Fees" for services rendered by Mr. Hutson regarding the "pending litigation". Throughout 2000 and 2001, while the litigation was pending, Ms. Dalenko proceeded to file numerous motions and pleadings in a pro se capacity. On 21 February 2001, Mr. Dalenko died, and Ms. Dalenko was substituted as plaintiff in her capacity as personal representative of the Dalenko Estate. Id. at 52, 578 S.E.2d at 601.
On 27 June 2001, Judge Narley L. Cashwell ("Judge Cashwell") dismissed the Dalenko Estate's claims pursuant to N.C.R. Civ. P. 12(b)(6) for failure to state a claim. Id. at 53, 578 S.E.2d at 602. Judge Cashwell also entered, inter alia, an "Order Granting Sanctions and Attorney's Fees", (hereinafter, the "Gatekeeper Order"), against Ms. Dalenko. In the Gatekeeper Order, Judge Cashwell found, inter alia:
38. [Ms. Dalenko] has been sanctioned by at least four separate Superior Court Judges and one District Court Judge in five different and distinct legal actions by Orders which have not been overturned, reversed or remanded by any appellate court. [She] has exhibited a pattern of conduct in legal proceedings and a disregard for the rules of law and procedure which, if [she] were licensed as an attorney, would require and demand reporting her to the North Carolina State Bar questioning her fitness to practice. [R. 143 para. 38]
. . . .
47. The history of litigation by [Ms. Dalenko] as a pro se litigant in both this matter and the cases judicially noticed by this Court, demonstrate that [she] is either unable or unwilling to follow the requirements of North Carolina law, including the North Carolina Rules of Civil Procedure. [Ms. Dalenko] has filed baseless claims which have been dismissed under Rule 12(b)(6), as well as for failure to follow Orders of the Court. [She] has continued to file Motions after having Motions filed on the same basis denied, and after being sanctioned therefore. [Her] statements and actions have shown that [she] has filed baseless claims and Motions for the improper purpose of harassing adverse parties, costing them unnecessary time and expense in responding to her filings. In addition, [she] has placed an undue burden on the judicial system, causing expense of time to numerous District and Superior Court Judges and by employees of the Clerk of Superior Court, the Trial Court Administrator, Judicial Assistants, and court reporters. This undue burden includes Orange County personnel, as [she] calendared a matter in this case in Orange County without consent of the parties or of the Court. . . . .
50. The repeated abuse of legal process by [Ms. Dalenko] requires that special limitations be placed upon her access to the Wake County Courts. This Court has the inherent power to impose such special limitations as are reasonably necessary for the proper administration of justice and to provide solutions which enable the process of litigation to proceed smoothly. Aspects of that power include the authority to regulate and discipline those persons who appear before the Court to prevent impropriety and to fashion a remedy to meet the circumstances of each case. The circumstances of this case, and other cases litigated by [Ms. Dalenko] pro se, are extraordinary.
Based on these findings and others, Judge Cashwell concluded, inter alia, that "[t]he repeated abuse of legal process by [Ms. Dalenko] requires that special limitations be placed upon [her] access to the courts of Wake County[.]" Consequently, Judge Cashwell ordered, inter alia:
5. So long as [Ms. Dalenko] does not qualify as an indigent pursuant to N.C.G.S. 1-110, [she] shall not file, or attempt to file, any documents with the Office of the Clerk of Superior Court of Wake County unless such document contains a certification by an attorney licensed under the laws of the State of North Carolina to practice law in North Carolina that in the opinion of that attorney the document complies with Rule 11 of the Rules of Civil Procedure. The certification shall also contain a recitation that the attorney has read and is aware of the requirements of this Order. A failure to comply with the certification requirement as set forth herein shall result in the dismissal or striking of the pleading or pleadings and the denial of the motion or motions.
6. The restrictions contained herein shall be as to all filings in Wake County, not just initial filings.
7. Violation of this Order by [Ms. Dalenko], or anyone on her behalf, shall be punishable by criminal and/or civil [contempt].
Ms. Dalenko appealed, and this Court dismissed the appeal in part and affirmed Judge Cashwell's orders. Id. at 60, 578 S.E.2d at 606. Subsequently, Ms. Dalenko filed actions in federal district court against, inter alia, most of the defendants in the 2000 action, Mr. Monroe, Mr. File, numerous trial judges, and numerous judges from this Court in Dalenko v. File, 185 Fed. Appx. at 294-95. The district court dismissed the complaints and sanctioned Ms. Dalenko. Id.
On 31 January 2007, Ms. Dalenko, acting pro se and in her capacity as executrix of the Dalenko Estate, filed the complaint which initiated the instant case in Wake County Superior Court. This complaint (hereinafter, the "original complaint") did not contain a Rule 11 attorney certification as required by the Gatekeeper Order. The original complaint asserted claims arising out of the two monetary disbursements of $2,500.00 and $2,624.00 that Mr. Monroe had made to the law firm of Howard, Stallings, From, Hutson, P.A. in 2000 to investigate the Dalenko Estate's legal claims. Specifically, the original complaint alleged that Mr. Monroe breached conditions of his guardian's bond against the Dalenko Estate by disbursing "purported `legal fees'" to Mr. Hutson "in bad faith" and contrary to the Estate's best interests. In addition, the complaint asserted that Mr. Hutson accepted these funds from Mr. Monroe in "bad faith" and with knowledge that Mr.Monroe had committed a breach of his fiduciary obligations to the Dalenko Estate.
On 9 February 2007, Mr. Hutson filed a "Motion to Dismiss and for Sanctions" (hereinafter, "motion to dismiss") asserting that the original complaint should be dismissed because, inter alia: (1) it was filed in violation of Judge Cashwell's 27 June 2001 Gatekeeper Order, requiring Ms. Dalenko to obtain a Rule 11 certification from an attorney before proceeding pro se in Wake County Superior Court; (2) it failed to state a claim upon which relief could be granted; and (3) its allegations were barred by the applicable statute of limitations. On 14 February 2007, Ms. Dalenko filed an "Amended Complaint and Demand for Jury" (hereinafter, the "amended complaint"), which included a "Rule 11 Certification" by attorney Kevin P. Hopper ("Mr. Hopper"). On 19 March 2007, Mr. Monroe filed a "Motion to Dismiss", pursuant to Rules 12(b)(6) and 41(b) of the North Carolina Rules of Civil Procedure, asserting that the complaint was filed in violation of Judge Cashwell's Gatekeeper Order and failed to allege a claim upon which relief could be granted because it was filed subsequent to the expiration of the applicable statute of limitations. On 20 April 2007, Mr. Hopper filed a document revoking his "original Rule 11 certification".
On 7 January 2008, a hearing was held on defendants' respective motions to dismiss. At the close of the hearing, Judge Hight announced his ruling in open court that he was allowing defendants' respective motions to dismiss. On 8 January 2008, Ms.Dalenko signed two documents: (1) a Motion to Disqualify Judge Hight, and (2) "A Notice of Objection to Entry Out of Session" (hereinafter, "Notice of Objection"). However, Ms. Dalenko did not file the Motion to Disqualify until 10 January 2008 and did not file the Notice of Objection until Friday, 11 January at 4:50 p.m. Ms. Dalenko filed both documents in a pro se capacity; neither document contained a Rule 11 certification from an attorney.
On 16 January 2008, Judge Hight entered orders allowing defendants' respective motions to dismiss based on N.C.R. Civ. P. 12(b)(6). On the same date, he entered an order denying the Motion to Disqualify. On 15 February 2008, Ms. Dalenko filed a notice of appeal from Judge Hight's 16 January 2008 orders and a "Motion to Appeal as an Indigent", to which she attached two annual accounts of the Dalenko Estate showing that the Estate no longer had assets. Ms. Dalenko filed this motion in a pro se capacity, and said motion did not contain a Rule 11 certification from an attorney. On 20 February 2008, Judge Rand entered an order allowing this motion and permitting "the Plaintiff Estate . . . to appeal as an indigent[.]" Defendants filed a "Motion for Relief" from that order pursuant to N.C.R. Civ. P. 59(e) and N.C.R. Civ. P. 60(b) asserting that Ms. Dalenko had been engaging in litigation on behalf of the Dalenko Estate from the time her father had died and had distributed the Estate's assets to herself without retaining sufficient funds to pay for the prosecution of said claims on behalf of the Estate. Ms. Dalenko responded by filing a" Plaintiff's Motion for Rule 11 Sanctions" against defendants. On 25 April 2008, Judge Rand amended his prior order to specify that:
Plaintiff Estate is permitted to appeal as an indigent in this matter . . . [.] This Order is limited to the appeal of Plaintiff Estate only and in this file number only, and does not affect any of this Court's previous Orders with respect to the indigency status of the executrix Carol Dalenko in any other action. In assessing whether the Plaintiff Estate is indigent as to the Estate's right of appeal, the Court specifically notes for the record that it is not taking into consideration any information with respect to the executrix Carol Dalenko's individual financial status, and this Order is not intended to address that issue in any way.
Judge Rand further concluded that defendants' arguments had merit and declined to impose Rule 11 sanctions. On 6 May 2008, Ms. Dalenko filed notice of appeal from Judge Rand's order. This appeal followed.
II. Analysis A. Judge Hight's Orders i. Orders Granting Motions to Dismiss
On appeal, Ms. Dalenko asserts that her claims against Mr. Monroe and Mr. Hutson should not have been dismissed pursuant to N.C.R. Civ. P. 12(b)(6) because: (1) the "trial court declined to make findings [as] requested by the plaintiff"; (2) "dismissal of the claims was improper by law", because the Gatekeeper Order does not apply here, and even if it does, the amended complaint was timely; (3) the Dalenko Estate was purportedly entitled to an entry of default against Mr. Hutson; and (4) defendants committed an unreasonable delay with regard to calendaring their respectivemotions to dismiss. In addition, Ms. Dalenko asserts that the orders granting defendants' respective motions to dismiss are void because they were entered out of session over her objection. We address these arguments in turn and conclude that they are all without merit.
First, while Ms. Dalenko asserts that Judge Hight committed reversible error by declining to make findings of fact in support of his orders dismissing the Dalenko Estate's complaints against Mr. Monroe and Mr. Hutson, we note that Ms. Dalenko neither makes any real legal argument, nor does she provide any case law in support of this contention in violation of N.C.R. App. P. 28(b)(6). Furthermore, since the sole purpose of a motion to dismiss pursuant to N.C.R. Civ. P. 12(b)(6) "is to test the legal sufficiency of the pleading against which it is directed", it is not proper to make findings of fact in ruling on the motion. White v. White, 296 N.C. 661, 667, 252 S.E.2d 698, 702 (1979). Accordingly, we overrule this assignment of error.
Next, Ms. Dalenko argues that the Gatekeeper Order does not apply here because: (1) Judge Cashwell did not intend for the Gatekeeper Order to apply outside of the case in which it was entered; (2) another superior court judge already decided that the Gatekeeper Order did not apply outside of the case in which it was entered; and (3) application of the Gatekeeper Order outside of the matter in which it was entered violates N.C. Gen. Stat. § 1A-1, Rule 65(d) (2007). We disagree. Once again, we note that, in violation of N.C.R. App. P. 28(b)(6), Ms. Dalenko provides no real legal argument in her brief to support her contention that she is not bound by the Gatekeeper Order. In addition, Ms. Dalenko's contentions are without merit.
"In reviewing a Rule 12(b)(6) motion, a court must determine `whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory, whether properly labeled or not.'" Cline v. McCullen, 148 N.C. App. 147, 149, 557 S.E.2d 588, 590 (2001) (quoting Miller v. Nationwide Mutual Ins. Co., 112 N.C. App. 295, 300, 435 S.E.2d 537, 541 (1993), disc. review denied, 335 N.C. 770, 442 S.E.2d 519 (1994)). "The trial court may grant this motion if `there is a want of law to support a claim of the sort made, an absence of facts sufficient to make a good claim, or the disclosure of some fact which will necessarily defeat the claim.'" Id. (quoting Garvin v. City of Fayetteville, 102 N.C. App. 121, 123, 401 S.E.2d 133, 135 (1991)).
Here, the language of the Gatekeeper Order, including that cited supra, clearly bars Ms. Dalenko from filing, in a pro se capacity, any document with the Office of the Clerk of Wake County Superior Court without first obtaining a Rule 11 certification from an attorney in all matters due to her repeated and substantial abuse of the Wake County Court system. In addition, this Court has explained that said Order is no longer subject to review:
Judge Cashwell's order . . . was appealed by plaintiff to this Court and her appeal was dismissed. It has long been established that "an erroneous judgment, which is one `rendered according to the course and practice of the court, but contrary to law, or upon a mistaken view of the law, or upon an erroneous application of legal principles,' may be remedied by appeal, but may not be collaterally attacked." As plaintiff has exhausted all avenues of appeal, including to the United States Supreme Court, and since the Wake County Superior Court had jurisdiction over the subject matter in the earlier action, Judge Cashwell's order is not subject to collateral attack.
Bennett v. News Observer Publ'g. Co., 167 N.C. App. 370, 605 S.E.2d 267 (2004) (unpublished opinion, No. 04-105, filed 7 December 2004) (quoting Seely v. Borum Assoc., Inc., 127 N.C. App. 193, 196, 488 S.E.2d 282, 284 (1997)), appeal dismissed, 359 N.C. 320, 611 S.E.2d 170 (2005).
In support of her contention that another superior court judge had already determined that the Gatekeeper Order does not apply outside of the 2001 matter in which it was entered, Ms. Dalenko relies entirely upon a portion of a transcript from a hearing before Judge Donald W. Stephens regarding a completely unrelated matter in which she was a defendant, and in which Judge Stephens stated that he would be deciding the issue presented on a ground other than the Gatekeeper Order. Ms. Dalenko only includes a single page from the transcript as part of the record. She provides no details as to the matter decided by Judge Stephens or whether he ever incorporated his statement into a written order. In other words, the record is basically devoid of any evidence to support Ms. Dalenko's contention. Accordingly, this contention is not properly before us. Furthermore, even if we could conclude that it was and that Judge Stephens did rule as Ms. Dalenkocontends, such a ruling would have been in contravention of well established case law, which provides that: "`The power of one judge of the [North Carolina Superior Court] is equal to and coordinate with that of another.'" State v. Woolridge, 357 N.C. 544, 549, 592 S.E.2d 191, 194 (2003) (quoting Bank v. Hanner, 268 N.C. 668, 670, 151 S.E.2d 579, 580 (1966)).
Accordingly, it is well established in our jurisprudence "that no appeal lies from one Superior Court judge to another; that one Superior Court judge may not correct another's errors of law; and that ordinarily one judge may not modify, overrule, or change the judgment of another Superior Court judge[.]"
Id. (quoting Calloway v. Motor Co., 281 N.C. 496, 501, 189 S.E.2d 484, 488 (1972)).
Finally, in support of her assertion that she did not need to comply with the Gatekeeper Order in the instant case, Ms. Dalenko cites to N.C.R. Civ. P. 65(d) without offering any case law or substantive legal argument in support of her contentions. Accordingly, this issue truly is not properly before us. N.C.R. App. P. 28(b)(6). In addition, we fail to discern how the Gatekeeper Order violates N.C.R. Civ. P. 65(d) which provides:
Every order granting an injunction . . . shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts enjoined or restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice in any manner of the order by personal service or otherwise.
Ms. Dalenko, in her capacity as personal representative of the Dalenko Estate, was a party to the action in which the Gatekeeper Order was entered, and even though Mr. Monroe and Mr. Hutson were not, we fail to see how this excuses Ms. Dalenko's obligation to comply with said Order. Accordingly, we conclude that Ms. Dalenko was required to follow the Gatekeeper Order, and consequently, she had to obtain a Rule 11 certification from an attorney before filing her pro se complaint in Wake County Superior Court.
Ms. Dalenko notes that, pursuant to N.C. Gen. Stat. § 1-50(a) (2007), the applicable statute of limitations for an action on a guardian's bond is six years and concedes that the time for filing her action against Mr. Monroe began to accrue on 31 January 2001, i.e., the date on which Mr. Monroe filed his final accounting as guardian of the Dalenko Estate. She further concedes that she did not file a complaint containing a Rule 11 attorney certification until 14 February 2007, which was subsequent to the passing of the applicable statute of limitations. However, she contends that, pursuant to N.C. Gen. Stat. § 1A-1, Rule 15(a) (2007), the 14 February 2007 amended complaint, which contained a Rule 11 certification from Mr. Hopper, related back to the 31 January 2007 original complaint and was timely filed. As discussed infra, given the facts of this case, we disagree.
First, we note that Ms. Dalenko does not cite any case law or make any real legal argument in support of her contentions in violation of N.C.R. App. P. 28(b)(6). However, N.C. Gen. Stat. § 1A-1, Rule 15(c), which is not cited by Ms. Dalenko, provides that: A claim asserted in an amended pleading is deemed to have been interposed at the time the claim in the original pleading was interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading.
While the plain language of Rule 15(c) appears to lend some support to Ms. Dalenko's argument, we need not resolve the issue of whether it permits the amended complaint to relate back to the date of the original complaint. Even were we to assume, arguendo, that it does, because Mr. Hopper subsequently revoked his Rule 11 certification, said certification is a nullity. As such, the amended complaint failed to comply with the Gatekeeper Order prior to the running of the statute of limitations.
Next, Ms. Dalenko asserts that defendants unreasonably delayed calendaring their respective motions to dismiss for hearing, and, as a result, she is entitled to an entry of default against them. We disagree. Ms. Dalenko fails to support this assertion with any real legal argument or citation to legal authority in violation of N.C.R. App. P. 28(b)(6). In addition, she did not ask the trial court for entry of default based on this ground, nor did she request for the hearing to be set for an earlier date.
Next, in her reply brief, Ms. Dalenko asserts, as she did below, that the applicable statute of limitations for her "accepting checks in bad faith" claim against Mr. Hutson is six years because said claim stems from her claim against Mr. Monroe, which is based upon a guardian's bond. Even assuming, arguendo, that this is true, as discussed supra, Ms. Dalenko did not properly and timely file the complaint in accordance with the Gatekeeper Order and the six year statute of limitations applicable to actions based upon a guardian's bond. However, Ms. Dalenko asserts that the Gatekeeper Order does not apply to the claim against Mr. Hutson for an additional reason. Specifically, she asserts that Judge Hight should not have considered the Gatekeeper Order because the Dalenko Estate was entitled to a default judgment against him. We disagree.
A motion for entry of default "is addressed to the discretion of the court." N.C.N.B. v. McKee, 63 N.C. App. 58, 61, 303 S.E.2d 842, 844 (1983). "In exercising its discretion the trial court should be guided by the consideration that default judgments are disfavored by the law." Id.
Here, Mr. Hutson timely filed a Rule 12(b)(6) motion to dismiss in response to the original complaint, and the amended complaint merely added Mr. Hopper's Rule 11 certification. In addition, Ms. Dalenko waited until all parties were in court before making an oral motion for entry of default against Mr. Hutson. While Ms. Dalenko claims that she was wrongfully deterred from filing a motion at an earlier point because Mr. Hutson "drove [Mr. Hopper] off" of her case by informing Mr. Hopper that he would bring a motion for sanctions against him, we disagree. In fact, Mr. Hopper's certification clearly states that it "does not and is not intended to constitute an entry of appearance in this or any other case on any of the parties' behalf." Hence, after careful review, we conclude that Judge Hight did not abuse his discretion by declining to enter a default judgment against Mr. Hutson.
Finally, plaintiff argues that Judge Hight's orders dismissing her claims are void because they were entered out of session and over her objection in violation of N.C. Gen. Stat. § 1A-1, Rule 58 (2007). We disagree.
At the outset, we note that Ms. Dalenko did not include a Rule 11 certification from an attorney with the Notice of Objection that was filed with the Wake County Clerk of Court in clear violation of the Gatekeeper Order. As such, technically, it should have been dismissed. Nevertheless, we have carefully considered Ms. Dalenko's argument and find it to be without merit.
As noted supra, during the hearing on defendants' respective motions to dismiss, Judge Hight announced that he was going to allow said motions in open court. As the Supreme Court of North Carolina has stated, where "the trial court . . . ma[kes] a ruling on [a] motion in open court during the term [and session] at which the motion was heard[,] . . . the fact that the written order was filed after the term [and session] concluded [does] not invalidate it." State v. Trent, 359 N.C. 583, 586, 614 S.E.2d 498, 500 (2005); State v. Palmer, 334 N.C. 104, 108-09, 431 S.E.2d 172, 174 (1993).
Here, subsequent to Judge Hight issuing his ruling in open court, Ms. Dalenko specifically asked him to "hold the order[s] in abeyance, and [to] give [her] an opportunity . . . to respond[.]" Judge Hight told Ms. Dalenko that she would receive a copy of the orders, and that he would hold them "a little while before" signing them. In other words, the record indicates that Judge Hight held his orders pursuant to Ms. Dalenko's request, and she did not object to this procedure in open court.
On 8 January 2008, which was the day after the hearing, Ms. Dalenko prepared and signed the Notice of Objection, but did not file it until three days later, shortly before 5:00 p.m. on Friday, 11 January 2008. Ms. Dalenko has engaged in similar tactics in the past. For example, in Dalenko, at the end of the hearing, the trial court informed Ms. Dalenko and the other parties "that it would render decisions at a later date." 157 N.C. App. at 58, 578 S.E.2d at 605. Ms. Dalenko did not object at the hearing, and the trial court did not enter its orders until approximately two months later, which was out of session. Id. In response to Ms. Dalenko's argument that its order granting prosecution bonds was void, this Court stated:
In our prior opinion in this matter, we rejected an identical argument by plaintiff that the trial court lacked subject matter jurisdiction to enter its order awarding sanctions because the trial court took the issue under advisement and later rendered a decision out of session. We noted that under G.S. § 1A-1, Rule 58, which applies to both judgments and orders in civil cases, a party will be deemed to have consented to the entry of an order out of session where that party does not expressly object. Here, the record fails to reflect that plaintiff objected when the trial court informed the parties that it would render a decision in the matter at a later date and out of session. In accordance with our prior opinion, this assignment of error is therefore overruled.
Id. (citations omitted). Given that, here, the transcript indicates that Judge Hight delayed signing and filing the orders pursuant to Ms. Dalenko's request and that she delayed filing her Notice of Objection until the last minute on Friday afternoon, we conclude that Ms. Dalenko's last-minute objection did not render them void.
In sum, after carefully considering all of Ms. Dalenko's arguments as to Judge Hight's orders dismissing her claims, we conclude that Judge Hight did not err in allowing defendants' respective motions to dismiss pursuant to N.C.R. Civ. P. 12(b)(6).
ii. Order Denying Motion to Disqualify
Next, plaintiff argues that Judge Hight committed an abuse of discretion by denying her Motion to Disqualify, which was made subsequent to the hearing on defendants' respective motions to dismiss. We disagree.
Canon 3C(1)(a) of the Code of Judicial Conduct provides in pertinent part:
(1) On motion of any party, a judge should disqualify himself/herself in a proceeding in which the judge's impartiality may reasonably be questioned, including but not limited to instances where:
(a) The judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceedings[.]
A trial judge's decision to deny a motion for recusal is reviewed for abuse of discretion. See Roper v. Thomas, 60 N.C. App. 64, 76, 298 S.E.2d 424, 431 (1982), disc. review denied, 308 N.C. 191, 302 S.E.2d 244 (1983). First, we note that, once again, Ms. Dalenko failed to include a Rule 11 certification from an attorney in support of the Motion to Disqualify in violation of the Gatekeeper Order. In addition, she failed to submit any evidence in support of said motion. As this Court has stated:
The burden is on the party moving for recusal "to demonstrate objectively that grounds for disqualification actually exist." The moving party, supported by affidavits, may meet his burden by presenting "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."
County of Johnston v City of Wilson, 136 N.C. App. 775, 778, 525 S.E.2d 826, 828 (2000) (quoting In re: Nakell, 104 N.C. App. 638, 647, 411 S.E.2d 159, 164 (1991), appeal dismissed and disc. review denied, 330 N.C. 851, 413 S.E.2d 556 (1992)). Here, Ms. Dalenko did not submit an affidavit or other evidence to support the motion. Furthermore, she did not object to Judge Hight presiding over the proceedings in open court. In addition, "the fact that a trial judge has repeatedly ruled against a party is not grounds for disqualification of that judge absent substantial evidence to support allegations of interest or prejudice." Love v. Pressley, 34 N.C. App. 503, 506, 239 S.E.2d 574, 577 (1977), disc. review denied, 294 N.C. 441, 241 S.E.2d 843 (1978). Finally, the record here reveals no evidence of personal bias, prejudice or interest on the part of Judge Hight.
Accordingly, we overrule this assignment of error.
B. Judge Rand's Order
Lastly, Ms. Dalenko argues that Judge Rand erred by not imposing Rule 11 sanctions against defendants for their Motion for Relief because said motion was filed for an improper purpose. We disagree.
Whether a paper was filed for an improper purpose is reviewed under an objective standard, with the moving party bearing the burden of proving an improper purpose. Mack v. Moore, 107 N.C. App. 87, 93, 418 S.E.2d 685, 689 (1992). A movant's subjective belief that a paper has been filed for an improper purpose is immaterial. Id. "There must be a strong inference of improper purposes to support imposition of sanctions." Bass v. Sides, 120 N.C. App. 485, 488, 462 S.E.2d 838, 840 (1995), cert. denied, 342 N.C. 651, 467 S.E.2d 703 (1996).
After careful review, we conclude that Ms. Dalenko has failed to meet her burden of proving an improper purpose. In reaching this conclusion, we find it particularly important that Judge Rand specifically found that defendants' Motion for Relief had merit and allowed said motion in part. Accordingly, we hold that Judge Rand did not err in declining to impose Rule 11 sanctions against defendants.
III. Conclusion
In sum, after careful review of Ms. Dalenko's arguments, we affirm Judge Hight's 16 January 2008 orders and Judge Rand's 25 April 2008 order.
Affirmed.
Judges WYNN and ERVIN concur.
Report per Rule 30(e).