{ "id": 11240128, "name": "JENNIFER P. RICE, Plaintiff v. DANAS, INCORPORATED, Defendant", "name_abbreviation": "Rice v. Danas, Inc.", "decision_date": "1999-04-06", "docket_number": "No. COA98-726", "first_page": "736", "last_page": "744", "citations": [ { "type": "official", "cite": "132 N.C. App. 736" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "399 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 633", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2499042, 2495332, 2498001, 2496891, 2495677 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0633-01", "/nc/327/0633-04", "/nc/327/0633-03", "/nc/327/0633-02", "/nc/327/0633-05" ] }, { "cite": "394 S.E.2d 683", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "683" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 188", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526524 ], "year": 1990, "pin_cites": [ { "page": "189" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0188-01" ] }, { "cite": "307 U.S. 161", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6137790 ], "weight": 3, "year": 1939, "pin_cites": [ { "page": "170" }, { "page": "1189" } ], "opinion_index": 0, "case_paths": [ "/us/307/0161-01" ] }, { "cite": "59 S.E.2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "opinion_index": 0 }, { "cite": "232 N.C. 744", "category": "reporters:state", "reporter": "N.C.", "year": 1950, "opinion_index": 0 }, { "cite": "57 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "381" } ], "opinion_index": 0 }, { "cite": "231 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629835 ], "year": 1950, "pin_cites": [ { "page": "361" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0357-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 95-25.22", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "year": 1993, "pin_cites": [ { "page": "(d)" }, { "page": "(d)" } ], "opinion_index": 0 }, { "cite": "838 F.2d 600", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1310429 ], "year": 1988, "pin_cites": [ { "page": "604" } ], "opinion_index": 0, "case_paths": [ "/f2d/838/0600-01" ] }, { "cite": "496 U.S. 384", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12123482 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "395" }, { "page": "375" } ], "opinion_index": 0, "case_paths": [ "/us/496/0384-01" ] }, { "cite": "412 S.E.2d 327", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "330 N.C. 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2508834 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/330/0644-01" ] }, { "cite": "487 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "346 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139682, 139683, 139342, 139478, 139550 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/346/0283-04", "/nc/346/0283-01", "/nc/346/0283-03", "/nc/346/0283-02", "/nc/346/0283-05" ] }, { "cite": "481 S.E.2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1997, "pin_cites": [ { "page": "373" }, { "page": "374" }, { "page": "375" }, { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 483", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11868950 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "491" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0483-01" ] } ], "analysis": { "cardinality": 669, "char_count": 18664, "ocr_confidence": 0.771, "pagerank": { "raw": 8.031340664931945e-08, "percentile": 0.46532732217206485 }, "sha256": "d70c87446dca1ee8635a21ad47e69995750da244ca5c20e5c664bc39a3e7c20b", "simhash": "1:71a2c4727e4f29f5", "word_count": 3087 }, "last_updated": "2023-07-14T21:08:15.604309+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and LEWIS concur." ], "parties": [ "JENNIFER P. RICE, Plaintiff v. DANAS, INCORPORATED, Defendant" ], "opinions": [ { "text": "HORTON, Judge.\nThe following issues are raised by the parties on appeal: (I) whether the trial court erred in denying defendant\u2019s motion for sanctions; (II) whether the trial court erred in denying defendant\u2019s motion for attorney fees; (III) whether the plaintiff (A) appealed in apt time from the 5 December 1996 judgment entered on the jury verdict, and (B) from the 19 December 1997 order of the trial court denying her motion for sanctions. We note that despite her notice of appeal, the plaintiff did not assign error to the trial court\u2019s award of costs, including deposition costs, to defendant nor did plaintiff make any argument or advance any authority on the propriety of the award of costs. Therefore, plaintiff has abandoned her appeal as to that aspect of the 23 December 1997 order. N.C.R. App. P. 28(b)(5).\nI. Defendant\u2019s Motion for Sanctions\nOn 27 June 1997, almost seven months after judgment was entered on the jury verdict, defendant filed a motion for sanctions against plaintiff and her counsel, alleging that counsel for plaintiff commenced this action without investigating to determine whether \u201cit was well grounded in fact and in law\u201d; that early in the course of litigation, information was presented to counsel for plaintiff which demonstrated the fraudulent nature of plaintiff\u2019s conduct, but counsel never investigated the information or talked with available witnesses; that counsel for plaintiff pursued the unfounded claims of plaintiff to a jury verdict, even calling plaintiff as a witness and eliciting testimony which \u201cany reasonable attorney experienced in civil litigation would have known to be patently false\u201d; that counsel for plaintiff filed documents with the trial court in an effort to interfere with defendant\u2019s discovery efforts, and refused to cooperate with the efforts of defendant\u2019s counsel to carry out meaningful discovery. Defendant further alleged that the Rule 11 violations \u201cwere the result of collaboration between plaintiff and her counsel, however her counsel\u2019s conduct was at least equal to plaintiffs . . . .\u201d\nDefendant\u2019s motion for sanctions was presented to the same trial judge who presided at the jury trial of this matter. After hearing the arguments of counsel and considering the record in the case including the testimony offered at the trial of this case, the trial court made findings of fact and concluded that:\n(a) The papers were well grounded in fact with factual disputes having been submitted to the jury.\n(b) The papers filed by plaintiff presented claims warranted by existing law or a good faith argument for the extension of existing law.\n(c) The papers filed by plaintiff were not interposed for an improper purpose.\n(d) The action filed by plaintiff was not frivolous.\n(e) The defendant should recover its deposition and court costs.\nThe trial court then awarded defendant court costs in the amount of $2,078.08, but denied defendant\u2019s claims for attorney fees and for sanctions.\nIn this case, a preliminary question about the timeliness of defendant\u2019s motion for sanctions must be examined first. The North Carolina Rules of Civil Procedure do not set forth explicit requirements about when a motion for Rule 11 sanctions must be filed. Here, the record reflects that the judgment on the jury verdict was entered on 5 December 1996. On 10 December 1996, defendant moved that it recover its costs, including deposition costs. Apparently, there was no further action in the case until 27 June 1997 when defendant moved to amend her motion for costs to include attorney fees under the Wage and Hour Act, and filed a separate motion for Rule 11 sanctions.\nThis Court dealt with the question of the timeliness of a Rule 11 motion in Renner v. Hawk, 125 N.C. App. 483, 481 S.E.2d 370, disc. review denied, 346 N.C. 283, 487 S.E.2d 553 (1997). In Renner, defendant Hawk filed a motion for sanctions and attorney fees one month after plaintiff Renner voluntarily dismissed his complaint. Id. at 488, 481 S.E.2d at 373. Plaintiff argued that the trial court had no jurisdiction to enter sanctions against Mm following the entry of the voluntary dismissal, and noted that in prior North Carolina appellate decisions, the motion for sanctions was pending at the time of the voluntary dismissal. Id. See also, e.g., Bryson v. Sullivan, 330 N.C. 644, 412 S.E.2d 327 (1992). The Renner Court declined to set time limits for filing Rule 11 motions, noting that \u201c[n] either Rule 11 nor Rule 41 of the North Carolina Rules of Civil Procedure contains explicit time limits for filing Rule 11 sanctions motions. We find the reasoning in Cooter [& Gell v. Hartmarx Corp., 496 U.S. 384, 110 L. Ed. 2d 359 (1990)] persuasive and decline to impose any time limits contrary to the plain language of the rules. We agree, though, that \u2018a party should make a Rule 11 motion within a reasonable time\u2019 after he discovers an alleged impropriety.\u201d Renner, 125 N.C. App. at 491, 481 S.E.2d at 374 (quoting Muthig v. Brant Point Nantucket, Inc., 838 F.2d 600, 604 (1st Cir. 1988)).\nIn Renner, defendant argued that \u201cthe alleged impropriety became apparent not when the complaint was filed, but only during the course of discovery.\u201d Id. at 491, 481 S.E.2d at 375. We held, based on that line of argument, that \u201cdefendant [Hawk] filed her Rule 11 sanctions motion within a reasonable time of detecting her alleged impropriety. \u201d Id. (emphasis added).\nApplying the reasomng of Renner to the present case, we conclude as a matter of law that defendant\u2019s motion for Rule 11 sanctions was not filed within a \u201creasonable time of detecting [the] alleged improprieties].\u201d In its motion for sanctions, defendant alleged that \u201c[e]vidence abounded at the time of filing plaintiff\u2019s complaint to suggest to a reasonable attorney, experienced in civil litigation, that the claims of plaintiff were baseless.\u201d Further, defendant alleged that prior to filing its answer, information was given to plaintiff\u2019s counsel which cast doubt on the validity of plaintiff\u2019s claim against defendant. Defendant further alleged that \u201c[b]y the time this matter was tried to a Lee County jury, numerous instances of plaintiff\u2019s untruthfulness under oath and falsification in the preparation of documentary evidence had been disclosed through discovery and by other witnesses. Nevertheless, counsel pursued the unfounded claims of plaintiff to a jury verdict . . . .\u201d Defendant obviously formed an opinion of the alleged impropriety of plaintiff\u2019s pleadings long before the filing of its motion for sanctions. Indeed, the suspect pleadings were signed months before trial by plaintiff and/or her counsel. Yet, no motion for sanctions was filed until well after the verdict of the jury was rendered.\nThe fact that the jury found against plaintiff is not proof, as a matter of law, that her pleadings were unfounded, baseless, improper, or interposed for an improper purpose. We must be cautious not to allow an adverse jury verdict to dictate the decision on a sanctions motion, as that would amount to taxing the costs of litigation to the losing party, an approach that our legislature has not seen fit to embrace. Therefore, this assignment of error is overruled.\nII. Defendant\u2019s Motion for Attorney Fees\nPlaintiff brought her action for unpaid wages under the provisions of N.C. Gen. Stat. \u00a7 95-25.22 (1993), a portion of the Wage and Hour Act. N.C. Gen. Stat. \u00a7 95-25.22(d) provides in pertinent part that \u201c[t]he court may order costs and fees of the action and reasonable attorneys\u2019 fees to be paid by the plaintiff if the court determines that the action was frivolous.\u201d This language shows that the decision whether to award the fees is discretionary with the trial court if it finds the action to be frivolous.\nIn this case, the same able trial judge presided over a week-long jury trial as well as these post-judgment matters. Thus, in ruling on defendant\u2019s motion for attorney fees, the trial court had the advantage of being able to consider the evidence presented at the trial. In its order denying defendant\u2019s motion, the trial court found that defendant\u2019s motion for summary judgment was denied prior to trial; that it denied defendant\u2019s motions for directed verdict both at the close of plaintiff\u2019s evidence and at the close of all the evidence; and that all claims, including plaintiff\u2019s claim for unpaid wages, were submitted to the jury. The trial court then concluded that the plaintiff\u2019s action was not frivolous, and ordered that it should be denied. Because the trial court concluded that plaintiff\u2019s action was not frivolous, it was well within its discretionary powers in denying defendant\u2019s motion for attorney fees under N.C. Gen. Stat. \u00a7 95-25.22(d). This assignment of error is overruled.\nIII. Plaintiff\u2019s Appeals\nAs stated above, plaintiff filed a notice of appeal on 2 February 1998, purporting to give notice of her appeal from (A) the 5 December 1996 judgment based on the jury verdict and (B) the 19 November 1997 order denying her motion for sanctions.\nA. Appeal from 5 December 1996 Judgment on Jury Verdict\nRule 3 of the North Carolina Rules of Appellate Procedure provides that an \u201c[a]ppeal from a judgment or order in a civil action or special proceeding must be taken within 30 days after its entry.\u201d N.C.R. App. P. 3(c). The time for filing a notice of appeal is tolled as to all of the parties if one party files one of the following motions: (1) a Rule 50(b) motion for judgment notwithstanding the verdict; (2) a motion under Rule 52(b) to amend or make additional findings of fact; (3) a Rule 59 motion to alter or amend a judgment; (4) a motion under Rule 59 for a new trial. Id. The rule further provides that, if a party files a timely notice of appeal, \u201cany other party may file and serve a notice of appeal within 10 days after the first notice of appeal was served on such party.\u201d Id.\nPlaintiff does not deny that her notice of appeal from the judgment based on the jury verdict was entered more than one year after the entry of that judgment on 5 December 1996. Plaintiff contends, however, that she did not have to appeal from the judgment on the verdict until all claims arising from the action, including post-trial motions, were determined. According to plaintiff, she was within the time limits of Rule 3 because she gave notice within ten days of the notice of appeal filed by defendant on 21 January 1998. We disagree.\nAlthough this Court discourages interlocutory appeals, see Veasey v. Durham, 231 N.C. 357, 361, 57 S.E.2d 377, 381, reh\u2019g denied, 232 N.C. 744, 59 S.E.2d 429 (1950), the situation in the present case is not of an interlocutory nature as plaintiff attempts to argue. Indeed, the United States Supreme Court has stated that \u201cmotions for costs or attorney\u2019s fees are \u2018independent proceeding^] supplemental to the original proceeding and not a request for a modification of the original decree.\u2019 \u201d Cooter, 496 U.S. at 395, 110 L. Ed. 2d at 375 (quoting Sprague v. Ticonic National Bank, 307 U.S. 161, 170, 83 L. Ed. 1184, 1189 (1939)). Therefore, an award of attorney fees can be considered several years after the entry of a judgment. Id. As a result, defendant\u2019s motion for attorney fees, which was filed several days after the judgment on the verdict, was a separate proceeding which did not toll the time in which plaintiff had to give notice of appeal. Accordingly, the trial court did not err in dismissing plaintiff\u2019s appeal from the judgment on the jury verdict.\nB. Appeal from 19 November 1997 Order Denying Sanctions\nPlaintiff also appeals from the 19 November 1997 order which denied her motion for Rule 11 sanctions. Plaintiff did not give notice of appeal from the denial of this motion, however, until 2 February 1998, clearly more than thirty days after the denial of her motion for sanctions on 19 November 1997. Although plaintiff did file a notice of appeal within 10 days of defendant\u2019s notice of appeal of denial of defendant\u2019s motion for sanctions, plaintiff\u2019s motion for sanctions was an independent motion from that of defendant\u2019s motion for sanctions and therefore the 10-day extension provided by Rule 3 of the Rules of Appellate Procedure does not apply. Rule 3 allows a party an additional 10 days to give notice when that party is appealing from the same action as the first appealing party. Unlike a situation which involves a claim and counterclaim, this case concerned two separate sanctions motions and the judgments rendered in each were distinct and separate judgments. As a result, plaintiff did not meet the requirements of Rule 3 and this portion of her appeal must be dismissed. See Currin-Dillehay Bldg. Supply v. Frazier, 100 N.C. App. 188, 189, 394 S.E.2d 683, 683, disc. review denied, 327 N.C. 633, 399 S.E.2d 326 (1990).\nAffirmed.\nJudges GREENE and LEWIS concur.", "type": "majority", "author": "HORTON, Judge." } ], "attorneys": [ "G. Hugh Moore for plaintiff appellant/appellee.", "Wilson & Waller, P.A., by Betty S. Waller, for defendant appellant/appellee." ], "corrections": "", "head_matter": "JENNIFER P. RICE, Plaintiff v. DANAS, INCORPORATED, Defendant\nNo. COA98-726\n(Filed 6 April 1999)\n1. Pleadings\u2014 Rule 11 sanctions \u2014 time for filing motion\nA motion for Rule 11 sanctions was not filed within a reasonable time where defendant obviously formed an opinion of the alleged impropriety of plaintiff\u2019s pleadings long before the filing of its motion for sanctions. The Court of Appeals declined to impose any time limits contrary to the plain language of the rules, which do not contain explicit time limits for Rule 11 motions; however, a party should make a motion within a reasonable time after discovering an alleged impropriety.\n2. Pleadings\u2014 Rule 11 sanctions \u2014 effect of jury verdict\nThe fact that the jury found against plaintiff is not proof as a matter of law that her pleadings were unfounded, baseless, improper, or interposed for an improper purpose.\n3. Costs\u2014 fees denied \u2014 no abuse of discretion\nThe trial court was well within its discretionary powers in denying defendant\u2019s motion for attorney fees under N.C.G.S. \u00a7 95-25.22(d) where the court had presided over a week-long jury trial as well as these post-judgment matters, had the advantage of being able to consider the evidence presented at the trial, and had concluded that plaintiffs action was not frivolous.\n4. Appeal and Error\u2014 notice of appeal \u2014 timeliness\u2014motion for attorney fees \u2014 separate proceeding\nThe trial court did not err in dismissing plaintiffs appeal from a judgment on a jury verdict where plaintiff did not deny that her notice of appeal from that judgment was entered more than one year after entry but contended that she did not have to appeal from the judgment on the verdict until all claims arising from the action were determined. Defendant\u2019s motion for attorney fees was a separate proceeding which did not toll the time in which plaintiff had to give notice of appeal.\n5. Appeal and Error\u2014 notice of appeal from sanctions\u2014 timeliness\nPlaintiff\u2019s appeal from an order denying Rule 11 sanctions must be dismissed where plaintiff did not give notice of appeal until more than 30 days after denial of her motion, although she . did file a notice of appeal within ten days of defendant\u2019s notice of appeal of the denial of its motion for sanctions. Plaintiff\u2019s motion for sanctions was an independent motion and the 10-day extension provided by Rule 3 of the Rules of Appellate Procedure does not apply.\nAppeal by plaintiff from orders entered 19 November 1997, 23 December 1997, and 17 April 1998 by Judge Edward H. McCormick in Lee County District Court; and appeal by defendant from order entered 23 December 1997 by Judge Edward H. McCormick in Lee County District Court. Heard in the Court of Appeals 23 February 1999.\nOn 19 October 1995, Jennifer P. Rice (plaintiff) filed a complaint against her former employer, Danas, Incorporated (defendant), seeking unpaid wages and attorney fees pursuant to the Wage and Hour Act, and damages for her funds and property allegedly retained by defendant. Defendant filed an answer and counterclaims for unfair and deceptive acts and practices, constructive fraud, and punitive damages on 3 January 1996. The case was tried before a jury for almost eight days beginning 12 November 1996. The jury returned a verdict favorable to defendant upon its counterclaims finding that plaintiff breached her employment with defendant by diverting business which she was hired to produce for defendant, finding that defendant was actually damaged in the sum of $2,489.32, and awarding punitive damages in the sum of $12,500.00 to defendant. On 5 December 1996, the trial court entered judgment on the jury verdict in the above amounts of actual and punitive damages, and taxed plaintiff with the costs.\nOn 10 December 1996, defendant moved that the costs of this action, including deposition costs, be taxed to plaintiff. On 30 June 1997, defendant filed an amendment to its motion for costs, asking that the trial court require plaintiff to pay defendant\u2019s attorney fees pursuant to provisions of the Wage and Hour Act. On the same date, defendant also filed a motion for sanctions against plaintiff and her counsel pursuant to the provisions of Rule 11 of the North Carolina Rules of Civil Procedure. On 22 July 1997, plaintiff filed a Rule 11 motion for sanctions against defendant\u2019s counsel based on defendant\u2019s motion for sanctions against plaintiff and her counsel. The trial court heard all the post-judgment motions on 17 November 1997, denying plaintiff\u2019s motion for sanctions by order entered 19 November 1997. The trial court allowed defendant\u2019s motion for recovery of its deposition costs, but denied defendant\u2019s motion for sanctions and attorney fees by order entered 23 December 1997.\nOn 21 January 1998 defendant appealed from the denial of its motions. On 2 February 1998, plaintiff attempted to appeal from the denial of her motion for sanctions, from the order taxing deposition costs, and from the judgment on the verdict entered 5 December 1996. Defendant then moved to dismiss plaintiff\u2019s appeal from the judgment entered on the jury verdict and moved to dismiss plaintiff\u2019s appeal from the denial of her motion for sanctions. On 20 April 1998, the trial court allowed defendant\u2019s motion to dismiss plaintiff\u2019s appeal from the judgment on the jury verdict, but denied defendant\u2019s motion to dismiss plaintiff\u2019s appeal from the denial of plaintiff\u2019s motion for sanctions. Plaintiff appealed from the trial court\u2019s order partially dismissing her appeal. On 18 August 1998, defendant moved in this Court to dismiss plaintiffs appeal from the denial of her motion for sanctions on the grounds that notice of appeal was given more than 30 days from the entry of the order denying sanctions.\nG. Hugh Moore for plaintiff appellant/appellee.\nWilson & Waller, P.A., by Betty S. Waller, for defendant appellant/appellee." }, "file_name": "0736-01", "first_page_order": 770, "last_page_order": 778 }