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holding that this Court has "jurisdiction only to consider the orders from which [an appellant] has provided proper notice of appeal"
Summary of this case from Williams v. Lincoln Cnty. Emergency Med. Serv. Lincoln Cnty.Opinion
No. COA10-696
Filed 17 May 2011
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 for Defendant-Appellant; and Betsy J. Wolfenden, pro se.
Orange County, No. 09-CVD-27.
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, whose address shall be stated. . . . The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose[.]
Our Supreme Court has held that appellate review of a trial court's decision on mandatory sanctions pursuant to Rule 11 is de novo and consists of the following determinations:
[T]he appellate court will determine (1) whether the trial court's conclusions of law support its judgment or determination, (2) whether the trial court's conclusions of law are supported by its findings of fact, and (3) whether the findings of fact are supported by a sufficiency of the evidence. If the appellate court makes these three determinations in the affirmative, it must uphold the trial court's decision to impose or deny the imposition of mandatory sanctions under N.C.G.S. § 1A-1, Rule 11(a).
Turner v. Duke University, 325 N.C. 152, 165, 381 S.E.2d 706, 714 (1989). "In reviewing the appropriateness of a particular sanction under either Rule 11 or the inherent powers of the court, we exercise an abuse of discretion standard." Dunn v. Canoy, 180 N.C. App. 30, 48, 636 S.E.2d 243, 255 (2006).
However, Defendant makes no argument concerning the trial court's orders on his Rule 59 and Rule 60 motions, nor on Plaintiff's motion for Rule 11 sanctions, other than Defendant's attack on the orders' validity due to Judge Scarlett's alleged bias. Defendant does not argue that the trial court abused its discretion in entering either order. Nor does Defendant challenge any of the findings of fact or conclusions of law in the trial court's order concerning Rule 11 sanctions. Because Defendant's sole argument concerns Judge Scarlett's alleged bias, the only issue for our review is whether Judge Scarlett should have recused herself from this case and whether, after her failure to recuse herself, the orders entered by Judge Scarlett must be vacated.
The 15 December 2009 Order
Defendant's argument regarding the orders appealed is that Judge Scarlett "violated [Defendant's] constitutional right to a fair trial in a fair tribunal by not recusing herself at the outset of this case when she failed to reveal her personal bias against [Defendant's] attorney . . . and when Judge Scarlett violated the North Carolina Code of Judicial Conduct." We note at the outset that a significant portion of Defendant's appellate brief is directed towards a complaint submitted by Judge Scarlett anonymously to the North Carolina State Bar regarding Attorney Wolfenden's conduct during Attorney Wolfenden's judicial campaign. However, we note that the last of Attorney Wolfenden's notices of appeal was filed 20 January 2010 and, in her brief, Attorney Wolfenden states that she learned of Judge Scarlett's authorship of the complaint upon "receiv[ing] discovery from the [North Carolina] State Bar" on 22 January 2010. Thus, Attorney Wolfenden did not know of this fact until after this appeal was filed and, therefore, this particular information of alleged bias was not brought to the attention of the trial court in Defendant's motion to recuse or his Rule 59 and Rule 60 motions. "`The role of an appellate court is to review the rulings of the lower court, not to consider new evidence or matters that were not before the trial court.'" State v. Kirby, 187 N.C. App. 367, 376, 653 S.E.2d 174, 180 (2007) (citation omitted).
In Defendant's Rule 59 and Rule 60 motions, Defendant alleged that:
1. This case was originally set to be heard on 24 April 2009 before the Honorable Alonzo B. Coleman, Jr., on the issues of child custody and child support.
2. On the morning of 24 April 2009, the Honorable Beverly Scarlett was brought in to hear this case though Judge Coleman was in the courthouse at the time.
3. In this case, and in at least one other Orange County civil case involving child custody . . . Judge Scarlett did not remain independent, impartial and faithful to the law as required by the North Carolina Code of Judicial Conduct.
4. Upon information and belief . . . Judge Scarlett conducted her own investigation outside the courtroom.
5. . . . Judge Scarlett failed to remain neutral and unbiased. Examples of Judge Scarlett's partiality and bias in the instant case are as follows[.]
Defendant then recited the following sequence of events which occurred on the day of the hearing:
a. Judge Scarlett refused to enter a court order denying Defendant's Motion to Set Aside Entry of Default from which he could appeal prior to the hearing on permanent child custody and child support, leaving . . . Defendant with no other remedy than to petition the North Carolina Court of Appeals ("Court of Appeals") for relief the day the hearing on permanent child custody was set to commence.
. . . .
d. Undersigned counsel did not instruct her client to be present in court [at the hearing]. . . .
e. After filing Defendant's petitions and motion for a temporary stay with the Court of Appeals, undersigned counsel arrived at the Orange County Courthouse . . . at approximately 10:30 a.m. to serve the petitions and motion for temporary stay on Judge Scarlett.
f. When undersigned counsel entered the courtroom, Judge Scarlett was on the bench presiding over another case.
. . . .
h. When undersigned counsel began leaving the courtroom, the bailiff told her that Judge Scarlett said she could not leave the courtroom and that the hearing on permanent child custody and support in the instant case was going to begin next.
i. Undersigned counsel sat down in the courtroom and waited for Judge Scarlett to commence the permanent child custody and child support hearing in the instan[t] action.
j. Judge Scarlett recessed court and left the courtroom. Upon information and belief, Judge Scarlett took Defendant's petitions with her when she left the courtroom.
k. After undersigned counsel waited for Judge Scarlett approximately 40 minutes, she gave her cellular telephone number to the bailiff and asked to be called when Judge Scarlett returned to the courtroom as she wanted to get something to eat prior to the hearing.
l. Undersigned counsel got something to eat and then drove back to her office in Chapel Hill to retrieve Defendant's file and to see if the Court of Appeals had issued a ruling on Defendant's motion for temporary stay.
Defendant contended that the trial court did not call Defendant's attorney on her cell phone before starting the hearing and thus conducted the hearing without the presence of Defendant or his attorney. Defendant argued in his motion that the trial court violated his due process rights: "(1) [by] not remaining impartial in this matter; (2) by entering court orders after denying the Defendant notice, a right to be heard and a method of appeal; and (3) by entering court orders based solely upon Plaintiff's perjured testimony." Defendant then requested that the orders be set aside and that Defendant be granted a new trial.
In Defendant's motion to recuse, Defendant asserted the same essential facts and also included the following allegations:
2. In 2008 [Attorney Wolfenden] ran for district court judge in Judicial District 15B against the Honorable Alonzo B. Coleman, Jr.
3. During [her] campaign [she] spoke at various public events.
. . . .
6. Since the campaign, Judge Scarlett appears to have developed a strong personal animosity towards [Attorney Wolfenden].
Defendant contended that the personal animosity that Judge Scarlett harbored against Attorney Wolfenden was indicative of bias which could be cured only by Judge Scarlett's recusal from Defendant's case.
The trial court's order denying Defendant's motion to recuse and Rule 59 and Rule 60 motions contained the following findings:
10. There was opportunity for both counsel for the Defendant and the Defendant to be present on June 17, 2009 at the child support and custody hearing prior to the close of the case.
11. Neither counsel for the Defendant nor the Defendant himself appeared on June 17, 2009 or provided either before or during this hearing legal justification for their failure to appear at the child support and custody hearing on June 17, 2009 before the close of the case. On June 17, 2009, a full hearing was had on the merits, without any allegations alleged in the Complaint or by the Plaintiff as being accepted as being true because of Defendant's failure to deny the same.
12. At this hearing, the Defendant presented no evidence of grounds for a new trial or to alter or amend the Order of this [c]ourt entered as a result of the June 17, 2009 child support and custody hearing.
13. At this hearing, the Defendant presented no evidence warranting relief from the Order of this [c]ourt entered as a result of the June 17, 2009 child support and custody hearing.
14. At this hearing, the Defendant presented no evidence of a meritorious defense warranting relief from the Order of this [c]ourt entered as a result of the June 17, 2009 child support and custody hearing.
15. It appears to this [c]ourt that the Defendant's Verified Rule 59 and Rule 60 Motions are without legal justification.
The trial court then concluded as follows:
2. The Defendant presented no legal or factual basis for his Motion to Recuse and the same should be denied.
. . . .
5. The Defendant's Verified Rule 59 and Rule 60 Motions are without legal justification and should be denied.
As stated above, "[t]he burden is on the party moving for recusal to `"demonstrate objectively that grounds for disqualification actually exist."'" Kennedy, 110 N.C. App. at 305, 429 S.E.2d at 451 (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. (citation omitted).
Reviewing the allegations in Defendant's motion to recuse, we note that Defendant argued that Judge Scarlett "appear[ed] to have developed a strong personal animosity towards" Attorney Wolfenden because of Attorney Wolfenden's conduct during her campaign against Judge Coleman for District Court Judge. Defendant also alleged that Judge Scarlett entered "numerous tendentious and contradictory court orders, knowing that some of the orders have included false findings of fact and erroneous conclusions of law." Defendant also contended that Judge Scarlett allowed opposing attorneys courtesies that she did not extend to Attorney Wolfenden.
Defendant has not filed a transcript of the 17 June 2009 hearing, but reviewing the trial court's orders, Defendant's motions, and Defendant's characterization of the hearing in his brief, we are not persuaded that the trial court demonstrated any personal bias in conducting the hearing. Other than the allegations set forth in Defendant's verified motion to recuse, Defendant presented no actual evidence supporting his contention that Judge Scarlett harbored a personal animosity towards Attorney Wolfenden. At worst, the evidence before Judge Scarlett suggested that Judge Scarlett had disapproved of Attorney Wolfenden's conduct in campaigning against Judge Coleman, and that Judge Scarlett failed to call Attorney Wolfenden to a hearing that was properly scheduled and noticed for 17 June 2009. We also note that Judge Coleman, Attorney Wolfenden's former opponent, had originally been scheduled to hear Defendant's case, but on the day of the hearing was replaced by Judge Scarlett.
On these facts, we find that Defendant did not show "`"substantial evidence that there exists such a personal bias, prejudice or interest on the part of [Judge Scarlett] that [s]he would be unable to rule impartially[.]"'" Kennedy, 110 N.C. App. at 305, 429 S.E.2d at 451 (citation omitted). We also find that Defendant did not show "that the circumstances [were] such that a reasonable person would question whether [Judge Scarlett] could rule impartially." Id. Rather, Defendant has shown that Attorney Wolfenden and Judge Scarlett had a professional relationship which was, at worst, strained by the actions and demands Attorney Wolfenden made during her previous campaign, as well as during the proceedings, and which did not warrant recusal. We hold that the trial court did not err in denying Defendant's motion to recuse. Compare In re Murchison, 349 U.S. 133, 137, 99 L. Ed. 942, 946 (1955) (holding that it was a violation of a defendant's due process rights under the constitution for a judge to "act as a grand jury and then try the very persons accused as a result of his investigations."); Dunn v. Canoy, 180 N.C. App. 30, 38-39, 636 S.E.2d 243, 249 (2006) (holding that a judge was not required to recuse himself from a case despite having become frustrated by the parties' failure to reach a settlement, noting that, "[b]eyond [the judge's] reaction regarding [the attorney's] actions in connection with the settlement agreement, the record reveals nothing that could be construed as demonstrating any personal bias, prejudice, or interest by [the judge]."). We affirm the remaining order entered by the trial court.
Affirmed.
Judge BRYANT concurs.
Judge BEASLEY concurs in part and dissents in part by separate opinion.