An unpublished opinion of the North Carolina Court of Appeals does not constitute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.



                                  NO. COA14-144
                         NORTH CAROLINA COURT OF APPEALS

                              Filed:       5 August 2014

FRANK S. ROBERTS,
     Plaintiff

      v.                                          Madison County
                                                  No. 12 CVD 166
FRANK WARD et al,
     Defendants.


       Appeal by plaintiff from order entered 8 November 2013 by

Judge R. Gregory Horne in Madison County District Court.                             Heard

in the Court of Appeals 21 May 2014.


       Mary March Exum for plaintiff-appellant.

       Stephen E. Huff for defendant-appellees.


       McCULLOUGH, Judge.


       Plaintiff Frank S. Roberts appeals from a denial of a Rule

59 motion to reconsider the dismissal of his claims against

defendants       Frank    Ward   et      al.      Based   on       the   reasons   stated

herein, we affirm the order of the trial court.

                                    I.     Background

       On   15   March      2012,     plaintiff     filed      a    complaint      against

defendants       in   the    small       claims    division        of    Madison    County
                                         -2-
District   Court.        Plaintiff      attempted      to     recover      a    Chevrolet

school bus worth $3,000.00 to $5,000.00.

     On    9    May    2012,     the    small   claims        division         entered     a

judgment, finding that plaintiff had failed to prove ownership

of   the   vehicle.            Plaintiff’s      action      was      dismissed       with

prejudice.

     Plaintiff filed notice of appeal to the district court on

22 May 2012.

     On 22 August 2012, defendants filed an “Interrogatories and

Requests for Production of Documents and Things – First Set.”

(“discovery request”).           Plaintiff had a deadline of 21 September

2012 to answer defendants’ discovery request.

     At    an    8    October    2012    hearing    pursuant         to     plaintiff’s

request, the trial court entered an order granting plaintiff an

extension of thirty days or until 22 October 2012 to respond to

defendants’ discovery request.

     On    10     January      2013,    defendants       filed       a    “Motion        for

Sanctions” arguing that plaintiff had “failed and refused to

provide said responses, which said failure has prejudiced the

Defendants’      ability    to   make    a   defense     in    the       above-entitled

action.”       Pursuant to Rule 37(b) of the North Carolina Rules of
                                  -3-
Civil   Procedure,   defendants   argued   that   sanctions   should   be

imposed for failure to obey the order.

    On 10 January 2013, plaintiff was provided with a “Notice

of Hearing” that defendants’ motion for sanctions would be heard

on 23 January 2013.

    Following a hearing held on 23 January 2013,              the trial

court entered an order on 27 February 2013, making the following

relevant findings of fact:

           IT APPEARING to the Court that the Plaintiff
           did not appear at said calendar call but
           personally    appeared   later     and   claimed
           illness.     The Court requested that the
           Plaintiff provide medical verification and
           held the matter open for a reasonable period
           of time.    The Plaintiff failed to provide
           such verification prior to the hearing of
           this matter.     However, after said hearing
           was      concluded,      purported       medical
           documentation was received regarding the
           Plaintiff which the Court in its discretion
           reviewed and considered. Said documentation
           was insufficient to indicate any incapacity
           on the part of the Plaintiff to proceed with
           said hearing.       The Court observed the
           Plaintiff when the Plaintiff made said
           personal   appearance,    and    the   Plaintiff
           appeared capable of proceeding with said
           hearing. After said initial appearance, the
           Plaintiff left the courtroom and did not
           reappear and made no further contact with
           the Court other than the receipt of said
           purported medical documentation which the
           Court has found to be insufficient.        Based
           upon prior cases and dealings with the
           Plaintiff, the Court is familiar with the
           Plaintiff’s    habit   of     claiming    and/or
                                     -4-
           feigning illness and disability to proceed
           on the eve of court proceedings and then
           later producing documentation insufficient
           to substantiate any disability or incapacity
           to proceed[.]

The trial court noted that plaintiff had not filed any response

or objection to the discovery request, had not filed any request

for additional time to respond to the discovery request, was

aware of the deadlines, and had wilfully failed to comply with

the   discovery   request     and   the   trial    court’s   8   October   2012

order.    Based    on   the    foregoing,    the    trial    court   dismissed

plaintiff’s action with prejudice.

      On 12 March 2013, plaintiff filed a “N.C.G.S. 59 – Motion

to Reconsider” pursuant to Rule 59 of the North Carolina Rules

of Civil Procedure.

      Following a hearing held at the 6 November 2013 session of

Madison   County    District        Court,   the     trial       court   denied

plaintiff’s Rule 59 motion by order entered 8 November 2013.

      On 6 December 2013, plaintiff filed notice of appeal from

the 8 November 2013 Order.

                              II.   Discussion

      On appeal, plaintiff argues that the trial court erred by

entering the 27 February 2013 order and the 8 November 2013

order.
                                           -5-
       First, we examine whether our Court has jurisdiction to

review    the    trial    court’s     27    February    2013    order,    dismissing

plaintiff’s action and appeal with prejudice.

       Rule 3 of the North Carolina Rules of Appellate Procedure

provides that notice of appeal “shall designate the judgment or

order from which appeal is taken[.]”                    N.C. R. App. P. 3(d)

(2014).         The    requirements    of    Rule   3   are    “jurisdictional   in

nature.”        Von Ramm v. Von Ramm, 99 N.C. App. 153, 158, 392

S.E.2d 422, 425 (1990).               Furthermore, it is well established

that “[a]ppellate review of a denial of a Rule 59 motion . . .

is distinct from review of the underlying judgment or order upon

which such a motion may be based.”                  Davis v. Davis, 360 N.C.

518,     526,    631     S.E.2d   114,      120   (2006)      (citation   omitted).

“Notice of appeal from denial of a [Rule 59] motion . . . which

does not also specifically appeal the underlying judgment does

not properly present the underlying judgment for our review.”

Von Ramm, 99 N.C. App. at 156, 392 S.E.2d at 424 (citation

omitted).

       Here, plaintiff’s notice of appeal states that “plaintiff

in this action, hereby gives notice of appeal to the Honorable

Court of Appeals of North Carolina of the Order entered and

filed in this case on November 8, 2013 by the Honorable Greg
                                      -6-
Horne[.]”      Because   plaintiff’s        notice   of   appeal    fails    to

specifically   appeal    from   the    underlying    judgment      entered   27

February 2013, we lack the jurisdiction to review said order.

Therefore, our review is limited to the 8 November 2013 order,

denying plaintiff’s Rule 59 motion.

    Plaintiff argues on appeal that the trial court abused its

discretion by denying his motion to reconsider made pursuant to

Rule 59(a)(1) and 59(a)(9) of the North Carolina Rules of Civil

Procedure where there was sufficient documentation that he was

“incapable of attending the hearing on defendant[s’] motion for

sanctions.”    We disagree.

    Rule 59(a)(1) and 59(a)(9) provides as follows:

            [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:   (1) Any irregularity by which any
            party was prevented from having a fair
            trial; . . . (9) Any other reason heretofore
            recognized as grounds for new trial.

N.C. Gen. Stat. § 1A-1, Rule 59(a)(1) and (9) (2013).                   It is

well established that

            [a] trial court’s ruling on a [Rule 59]
            motion . . . is usually subject to an abuse
            of discretion standard.   A trial court may
            be reversed for abuse of discretion only
            upon   a  showing   that  its  actions  are
            manifestly unsupported by reason.  A ruling
            committed to a trial court’s discretion is
            to be accorded great deference and will be
                                             -7-
            upset only upon a showing that it was so
            arbitrary that it could not have been the
            result of a reasoned decision.

Davis,    360     N.C.     at     523,     631    S.E.2d    at   118     (citations     and

quotation marks omitted).

    In      the       present        case,    plaintiff’s        factual       allegations

supporting his Rule 59 motion were that he was “extremely sick”

on 23 January 2013 and therefore, incapable of attending the

hearing.     Plaintiff acknowledged that he was physically present

before Judge R. Gregory Horne on 23 January 2013 and that he

communicated that he “was unable to speak.”                            Plaintiff alleged

Judge R. Gregory Horne “said that if I delivered a note to that

effect in the next fifteen minutes that he would consider it.”

At 2:00 p.m. on 23 January 2013, a fax was submitted to the

Clerk of Court’s office in Madison County District Court to the

attention       of    Judge     R.    Gregory      Horne.        The    fax    included   a

handwritten memo from plaintiff’s physician stating that she was

“treating       [plaintiff]          for     at    least     a    severe       respiratory

infection.”          Plaintiff further alleged that he obtained a verbal

diagnosis of “walking pneumonia” and that on 29 January 2013,

his physician sent a second correspondence to Judge R. Gregory

Horne    explaining        that      plaintiff     was     “quite      ill.”     Plaintiff

argued    that       the   aforementioned          documentation        was    “more   than
                                            -8-
adequate    to     justify     my   excusable        absence.”          Plaintiff    now

contends in his brief that the documentation provided by his

physician on 23 January 2013 and 29 January 2013 was “verified

proof” that he was incapable of attending the 23 January 2013

hearing.

      After     careful      review,   we     find    that   plaintiff’s      Rule   59

Motion addressed the same issues that were before the court at

the 23 January 2013 hearing on defendants’ motion for sanctions.

The trial court noted that plaintiff personally appeared on 23

January 2013 but failed to provide medical verification of his

inability     to    attend    prior    to    the     hearing.     The     trial   court

thereafter reviewed both faxes sent by plaintiff’s physician,

and in its 27 February 2013 order dismissing plaintiff’s claims,

found that the purported medical documentation “was insufficient

to   indicate      any   incapacity     on    the     part   of   the    Plaintiff   to

proceed with said hearing.”            A review of the record supports the

trial court’s findings that the proffered medical documentation

was insufficient as it merely stated that plaintiff was “quite

ill” due to an upper respiratory infection on 23 January 2013

and that he “should be able to return to work/school on within

[sic] 7 days.”           Significantly, neither of the documents signed

by plaintiff’s physician revealed that plaintiff was unable to
                                -9-
attend any court proceedings.   Furthermore, the trial court also

found in its 27 February 2013 order that it was “familiar with

the Plaintiff’s habit of claiming and/or feigning illness and

disability to proceed on the eve of court proceedings and then

later producing documentation insufficient to substantiate any

disability or incapacity to proceed[.]”

    On this evidence, we find no irregularity or other grounds

that would serve as a basis for a new trial pursuant to Rule 59.

Accordingly, we hold that the trial court did not abuse its

discretion in denying plaintiff’s Rule 59 motion.

    Affirmed.

    Judges STEPHENS and STROUD concur.

    Report per Rule 30(e).
