             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA18-665

                              Filed: 5 February 2019

Mecklenburg County, No. 12 CVS 1017

IVAN MCLAUGHLIN AND TIMOTHY STANLEY, Plaintiffs,

            v.

DANIEL BAILEY, in his Official Capacity as Sheriff of Mecklenburg County, and
OHIO CASUALTY INSURANCE COMPANY, Defendant.


      Appeal by plaintiff Timothy Stanley from order entered 16 February 2018 by

Judge Lisa C. Bell in Superior Court, Mecklenburg County. Heard in the Court of

Appeals 16 January 2019.


      Kennedy, Kennedy, Kennedy and Kennedy, LLP, by Harvey L. Kennedy and
      Harold L. Kennedy, III, for plaintiff-appellant.

      Womble Bond Dickinson (US) LLP, by Sean F. Perrin, for defendants-appellees.

      STROUD, Judge.


      The background of this case can be found in this Court’s prior opinion of

McLaughlin v. Bailey, 240 N.C. App. 159, 771 S.E.2d 570 (2015), aff’d, 368 N.C. 618,

781 S.E.2d 23 (2016). The prior appeal was filed in this same case and addressed the

same claims and issues. See id. In 2008, plaintiff was a deputy sheriff working in

the Mecklenburg County Sheriff’s Department.       Id. at 160, 771 S.E.2d at 573.

Defendant Daniel Bailey was elected as sheriff, and defendant then terminated

plaintiff’s employment. See id. at 160-61, 771 S.E.2d at 573. Plaintiff Timothy

Stanley filed this lawsuit alleging he had been terminated for unlawful reasons. See
                               MCLAUGHLIN V. BAILEY

                                   Opinion of the Court



id. at 161, 771 S.E.2d at 573. Defendant filed a motion for summary judgment, and

the trial court granted summary judgment for defendants, dismissing plaintiff

Stanley’s claims. Id. at 161-62, 771 S.E.2d 573. Plaintiff Stanley appealed, and this

Court affirmed the trial court’s judgment. See id., 240 N.C. App. 159, 771 S.E.2d 570.

Plaintiffs then   petitioned the North Carolina Supreme Court for discretionary

review, and the Supreme Court affirmed this Court’s opinion in January of 2016. See

McLaughlin v. Bailey, 368 N.C. 618, 781 S.E.2d 23.

      In November of 2017, plaintiff Stanley filed a motion with the trial court under

Rule 60(b)(6) for relief from judgment, arguing he was entitled to resurrect his claim

based upon the United State Supreme Court’s opinion in Heffernan v. City of

Patterson, N.J., 136 S. Ct. 1412, 194 L. Ed 2d 508 (2016), which was decided after the

North Carolina Supreme Court had affirmed the dismissal of his claim. Plaintiff

alleged the Heffernan case “is now controlling.” On 16 February 2018, the trial court

entered an order denying plaintiff’s motion. Plaintiff appeals.

       Plaintiff Stanley contends that the summary judgment for defendants

dismissing his claim should be overturned based on Heffernan. Defendants contend

Heffernan is not applicable to plaintiff Stanley’s claims and his motion was untimely

filed. But we need not address the trial court’s substantive rationale for denial of the

Rule 60(b)(6) motion or the timing of the motion because the trial court did not have

the discretion to allow the Rule 60(b)(6) motion.         See generally D & W, Inc. v.



                                          -2-
                                MCLAUGHLIN V. BAILEY

                                    Opinion of the Court



Charlotte, 268 N.C. 720, 722-23, 152 S.E.2d 199, 202 (1966) (“In our judicial system

the Superior Court is a court subordinate to the Supreme Court. Upon appeal our

mandate is binding upon it and must be strictly followed without variation or

departure. No judgment other than that directed or permitted by the appellate court

may be entered.”).

      This Court normally reviews a trial court’s order denying a motion under Rule

60(b)(6) for abuse of discretion:

                    General Statute 1A-1, Rule 60(b)(6) is equitable in
             nature and authorizes the trial judge to exercise his
             discretion in granting or withholding the relief sought. Our
             Supreme Court has indicated that this Court cannot
             substitute what it considers to be its own better judgment
             for a discretionary ruling of a trial court, and that this
             Court should not disturb a discretionary ruling unless it
             probably amounted to a substantial miscarriage of justice.
             Further, a judge is subject to reversal for abuse of
             discretion only upon a showing by a litigant that the
             challenged actions are manifestly unsupported by reason.

Huggins v. Hallmark Enterprises, Inc., 84 N.C. App. 15, 25, 351 S.E.2d 779, 785

(1987) (citations, quotation marks, and brackets omitted).

      But in this instance, the trial court had no discretion to allow plaintiff’s motion,

see generally D & W, Inc., 268 N.C. at 722-23, 152 S.E.2d at 202, even if it had

determined plaintiff’s argument that Heffernan somehow changed the law in a way

which would affect plaintiff’s claim, though ultimately that is not what the trial court

determined. The exact same legal issue, with no factual distinctions, argued by



                                           -3-
                                    MCLAUGHLIN V. BAILEY

                                       Opinion of the Court



plaintiff in the Rule 60(b)(6) motion was argued in the first appeal and the North

Carolina Supreme Court ruled on it; that ruling is the law of the case:

                The questions raised in the present appeal must be viewed
                in the light of the rule that a decision of this Court on
                former appeal constitutes the law of the case in respect to
                questions therein presented and decided, both in
                subsequent proceedings in the trial court and on
                subsequent appeal when the same matters are involved.

Collins v. Simms, 257 N.C. 1, 3, 125 S.E.2d 298, 300 (1962). While plaintiff Stanley

claims that the United States Supreme Court ruling in Heffernan changed the law

applicable to his claim, that contention is misplaced because his claim was already

over.1 Again,

                      [i]n our judicial system the Superior Court is a court
                subordinate to the Supreme Court. Upon appeal our
                mandate is binding upon it and must be strictly followed
                without variation or departure. No judgment other than
                that directed or permitted by the appellate court may be
                entered. Otherwise, litigation would never be ended, and
                the supreme tribunal of the state would be shorn of
                authority over inferior tribunals.

D & W, Inc., 268 N.C. at 722-23, 152 S.E.2d at 202.

       Since the trial court had no authority to rule upon plaintiff Stanley’s Rule 60

motion, we must determine whether the trial court’s order is simply erroneous, void,

or irregular:


1Plaintiff has not presented any argument as to whether Heffernan would have retroactive effect upon
his case, and we have not considered this issue. The trial court’s order appears to assume that
Heffernan could have retroactive effect but determined that Heffernan did not change the law
applicable to plaintiff’s claim.

                                               -4-
                             MCLAUGHLIN V. BAILEY

                                Opinion of the Court



            The contention has some procedural significance, and leads
            to the inquiry as to whether the judgment is erroneous,
            irregular or void. The question is not without difficulty.
            The decisions in this and other jurisdictions establish no
            strict lines of demarcation, in this category of judgments,
            for determining whether particular judgments are
            erroneous, irregular or void. We have held judgments of
            Superior court which were inconsistent and at variance
            with, contrary to, and modified, corrected, altered or
            reversed prior mandates of the Supreme Court in the
            respective causes, especially where they amounted to
            insubordination, to be unauthorized and void. But we have
            held judgments, which indicated the judge misunderstood
            and misinterpreted the opinion of this Court on former
            appeal and gave it broader significance or narrower scope
            than we intended, to be erroneous. Judgments of the lower
            court have been held to be erroneous in a number of cases
            where its rulings were inconsistent with prior appellate
            decisions. The Supreme Court has, in at least two cases,
            held judgments by the lower court to be irregular where
            they undertook to modify prior opinions of Supreme Court.
                    Upon the plainest principle, the courts, whose
            judgments and decrees are reviewed by an appellate court
            of errors, must be bound by and observe the judgments,
            decrees and orders of the latter court, within its
            jurisdiction. Otherwise the courts of error would be
            nugatory and a sheer mockery. There would be no judicial
            subordination, no correction of errors of inferior judicial
            tribunals, and every court would be a law unto itself. But
            there is no rule of thumb for classifying non-conforming
            judgments as to whether they are erroneous, irregular or
            void. Of course general principles apply. But decisions
            have undoubtedly taken into consideration the
            circumstances of the particular case, and the necessity for
            doing justice.

Collins, 257 N.C. at 7–8, 125 S.E.2d at 303–04 (citations and quotation marks

omitted).



                                       -5-
                               MCLAUGHLIN V. BAILEY

                                  Opinion of the Court




      Here, the trial court’s order conformed to the Supreme Court’s prior holding,

since the motion was denied, albeit for the wrong reason. But the trial court had no

authority to do otherwise and should have simply denied plaintiff’s motion based on

the law of the case since the issue raised by the Rule 60(b) motion was specifically

addressed previously and affirmed by the Supreme Court. See McLaughlin, 368 N.C.

618, 781 S.E.2d 23. However, the trial court had jurisdiction to hear plaintiff’s Rule

60(b) motion so the order is not void. See generally Collins, 257 N.C. at 7–8, 125

S.E.2d at 303–04. In theory a proper Rule 60 motion could raise some issue not

addressed by the prior appeal and the trial court might have the discretion to grant

the motion, although that did not happen here. Furthermore, both in the trial court

and on appeal, defendants responded to the substance of plaintiff Stanley’s motion

without arguing it was barred by the law of the case from the prior appeal, so “[t]he

trial court was doubtless misled in the matter by the way in which it was presented.”

Cannon v. Cannon, 226 N.C. 634, 637, 39 S.E.2d 821, 823 (1946). Thus, taking “into

consideration the circumstances of the particular case, and the necessity for doing

justice[,]” we will characterize the trial court’s order analysis simply as erroneous

since the trial court “misunderstood and misinterpreted the opinion[s] of [this Court

and the Supreme Court] on former appeal and gave [them] … narrower scope than

we intended[.]” Collins, 257 N.C. at 8, 125 S.E.2d at 303–04. The trial court’s



                                         -6-
                                      MCLAUGHLIN V. BAILEY

                                          Opinion of the Court



rationale was in error only because it had no authority to consider the issue presented

— nor does this Court, so we will not address the substance of the motion. See

generally D & W, Inc., 268 N.C. at 722-23, 152 S.E.2d at 202.

        We conclude the order is erroneous to the extent                     that it addresses the

substance of plaintiff’s motion. See generally Lea Co. v. N.C. Board of Transportation,

323 N.C. 697, 374 S.E.2d 866 (1989) (affirming the trial court’s denial of a Rule 60(b)

motion “to reopen a prior judgment for the purpose of making additional findings and

conclusions as to whether plaintiff should be awarded compound interest as an

element of just compensation for defendant’s taking of an interest in plaintiff’s

property by inverse condemnation” because “[t]he mandate of this Court in the second

appeal of this case affirmed a judgment of the trial court granting plaintiff simple

interest on its award at the rate of 11% per annum for the time between defendant’s

taking of plaintiff's property and entry of the judgment awarding compensation. As

the trial court noted, our mandate did not include a remand for consideration of an

award of compound interest; rather, it affirmed a judgment awarding simple interest,

which was all the plaintiff had sought.” The trial court “had no authority to modify

or change in any material respect the decree affirmed.” (citations and quotation

marks omitted)).2 But because the trial court denied plaintiff’s motion, which is the


2This case can be contrasted with McNeil v. Hicks, where the defendant Allstate Insurance Company
“moved for relief from the order of partial summary judgment pursuant to N.C. Gen. Stat. § 1A-1 Rule
60(b)(6) (1990), and for an order dismissing all claims against Allstate without prejudice. . . . in light



                                                  -7-
                                    MCLAUGHLIN V. BAILEY

                                       Opinion of the Court



correct result, we affirm the order. See generally Hughey v. Cloninger, 297 N.C. 86,

95-96, 253 S.E.2d 898, 903-04 (1979) (affirming where a lower court, this Court,

“reached the right result but for the wrong reason”).

       AFFIRMED.

       Judges DIETZ and BERGER concur.




of the North Carolina Supreme Court’s recent holding in Andersen v. Baccus” because in that case the
motion was filed while the action was still pending before the Courts. See McNeil v. Hicks, 119 N.C.
App. 579, 459 S.E.2d 47 (1995).

                                               -8-
