{ "id": 8997370, "name": "ROBERT A. LEVERETTE, on behalf of himself and all other persons similarly situated, Plaintiffs v. BATTS TEMPORARY SERVICES, INC. d/b/a LABOR WORKS or LABOR WORLD, BILL C. SCHLEUNING, LORRAINE SCHLEUNING, and SEAN A. FORE, Defendants", "name_abbreviation": "Leverette v. Batts Temporary Services, Inc.", "decision_date": "2004-07-06", "docket_number": "No. COA03-818", "first_page": "328", "last_page": "332", "citations": [ { "type": "official", "cite": "165 N.C. App. 328" } ], "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": "474 S.E.2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "787", "parenthetical": "stating \"a case is 'moot' when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy\"" } ], "opinion_index": 0 }, { "cite": "344 N.C. 394", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867707 ], "year": 1996, "pin_cites": [ { "page": "398-99", "parenthetical": "stating \"a case is 'moot' when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy\"" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0394-01" ] }, { "cite": "563 S.E.2d 224", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "227" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 928", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9133374 ], "year": 2002, "pin_cites": [ { "page": "933" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0928-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 6-4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "405 S.E.2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "133" } ], "opinion_index": 0 }, { "cite": "329 N.C. 84", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553368 ], "year": 1991, "pin_cites": [ { "page": "100" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0084-01" ] }, { "cite": "340 S.E.2d 408", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "417" }, { "page": "417" } ], "opinion_index": 0 }, { "cite": "315 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4713937 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "538" }, { "page": "538" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0523-01" ] }, { "cite": "408 S.E.2d 859", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "864", "parenthetical": "quoting Smith v. Price, 315 N.C. 523, 538, 340 S.E.2d 408, 417 (1986)" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 142", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520576 ], "year": 1991, "pin_cites": [ { "page": "149", "parenthetical": "quoting Smith v. Price, 315 N.C. 523, 538, 340 S.E.2d 408, 417 (1986)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0142-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 6-20", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 0 } ], "analysis": { "cardinality": 496, "char_count": 10413, "ocr_confidence": 0.743, "pagerank": { "raw": 6.939155244961223e-08, "percentile": 0.4208884378973446 }, "sha256": "3313255051f8b83c72854706386495b9f659c97e12d00fd550a99834cb19a4fc", "simhash": "1:8a8bc764564e5ce4", "word_count": 1714 }, "last_updated": "2023-07-14T17:46:04.930387+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and TYSON concur." ], "parties": [ "ROBERT A. LEVERETTE, on behalf of himself and all other persons similarly situated, Plaintiffs v. BATTS TEMPORARY SERVICES, INC. d/b/a LABOR WORKS or LABOR WORLD, BILL C. SCHLEUNING, LORRAINE SCHLEUNING, and SEAN A. FORE, Defendants" ], "opinions": [ { "text": "WYNN, Judge.\nThis appeal concerns the dismissal of a second action based on Plaintiff\u2019s failure to pay costs awarded to Defendants in an earlier action that was dismissed on jurisdictional grounds. Plaintiff contends in this appeal that the dismissal of his second action was improper because although it arose under the same facts as the earlier dismissed action, it involved different claims. We hold that the trial court lacked authority to dismiss Leverette II because of Plaintiff\u2019s failure to pay costs under Leverette I. Accordingly, we remand this matter to the trial court.\nThe facts tend to show that in Leverette I, Plaintiff brought an action against Defendants Batts Temporary Services, Inc., and its owners, Bill Schleunirig, Lorraine Schleuning, and Sean Fore on behalf of himself and other similarly situated former employees of Defendants. Plaintiff contended Defendants had violated the North Carolina Wage and Hour Act by making wage deductions for transportation charges that were incident of and necessary to the temporary employment provided by Defendants.\nBy order entered 21 February 2002, the trial court dismissed Leverette I for insufficient process, insufficient service of process, and lack of personal jurisdiction over Defendants. Thereafter, the trial court granted Defendants\u2019 motion for costs under N.C. Gen. Stat. \u00a7 6-20 stating in pertinent part: \u201cIt is, therefore, ORDERED, in the Court\u2019s discretion, that Defendants\u2019 deposition costs, in the amount of $514.40, are hereby taxed against Plaintiffs.\u201d Shortly thereafter, Plaintiff filed a notice of appeal for Leverette I.\nIn the meantime, upon the dismissal of Leverette I on 21 February 2002, Plaintiff filed a second action against Defendants\u2014 Leverette II \u2014 alleging two claims under Chapter 95 of our General Statutes. However, the trial court stayed that action pending the appeal of Leverette I. Plaintiff responded by dismissing his appeal of Leverette I thus prompting the dissolution of the stay of Leverette II.\nIn January 2003, Defendants moved to stay Leverette II on the grounds that Plaintiff had not paid the costs awarded in Leverette I; in turn, Plaintiff moved for Rule 11 sanctions. At the hearing on these motions, Defendants orally moved to amend their motion to include a request for dismissal pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 41(b). On 10 April 2003, the trial court granted Defendants\u2019 motion and dismissed Leverette II based upon Plaintiffs failure to pay costs awarded in Leverette I. Plaintiff appeals.\nOn appeal, Plaintiff first contends the costs order in Leverette I taxing the deposition costs upon him could not be enforced pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 41 or the trial court\u2019s contempt powers or inherent authority; rather, he contends the order should be treated as a civil judgment and enforced as such. We agree.\nIn explaining the distinction between taxing costs against a party and ordering the payment of costs, this Court in In re Estate of Tucci stated,\n\u201cThere is a clear difference between including, attorney\u2019s fees in the costs taxed against a party to a lawsuit and in ordering the payment of attorney\u2019s fees. When costs are taxed, they establish a liability for payment thereof, and if a fund exists which is the subject matter of the litigation, costs may be ordered paid out of the fund prior to distribution of the balance thereof to the persons entitled. If no such fund exists, the satisfaction of the judgment for costs may be obtained by methods as for the enforcement of any other civil judgment.\u201d\nId., 104 N.C. App. 142, 149, 408 S.E.2d 859, 864 (1991) (quoting Smith v. Price, 315 N.C. 523, 538, 340 S.E.2d 408, 417 (1986)). In Leverette I, the trial court\u2019s order stated \u201cIt is, therefore, ORDERED, in the Court\u2019s discretion, that Defendants\u2019 deposition costs, in the amount of $514.40, are hereby taxed against Plaintiffs.\u201d Thus, the trial court\u2019s order in Leverette I should not be characterized as an order; rather, it was a civil judgment.\nIn dismissing Leverette II for failure to pay the deposition costs, the trial court indicated it was utilizing its authority under N.C. Gen. Stat. \u00a7 1A-1, Rule 41 and its \u201cinherent power to take those actions necessary to the proper administration of justice, including those actions necessary to enforce its own appropriately entered orders and to sanction their disobedience.\u201d However, Rule 41 does not authorize the trial court\u2019s dismissal in this case. Indeed, under Rule 41(d), dismissal of an action is required when a plaintiff fails to pay the costs taxed upon him as a result of a voluntary dismissal. Under subsection (b), a defendant may move for dismissal \u201cfor failure of the plaintiff to prosecute or to comply with these rules or any order of court.\u201d Neither situation is present in this case as Leverette I was involuntarily dismissed and the taxation of costs in Leverette I was not an order.\nMoreover, the trial court did not have the inherent authority to dismiss Leverette II.\nThe very conception of inherent power carries with it the implication that its use is for occasions not provided for by established methods .... [Only w]hen [established] methods fail and the court shall determine that by observing them the assistance necessary for the due and effective exercise of its own functions cannot be had, or when an emergency arises which the established methods cannot or do not instantly meet, then and not till then does occasion arise for the exercise of the inherent power.\nIn re Alamance County Court Facilities, 329 N.C. 84, 100, 405 S.E.2d 125, 133 (1991). The trial court in Leverette I, taxed costs upon Plaintiff pursuant to N.C. Gen. Stat. \u00a7 6-20. Under N.C. Gen. Stat. \u00a7 6-4, \u201cwhen costs are not paid by the party from whom they are due, the clerk of superior court shall issue an execution for the costs and attach a bill of costs to each execution. The sheriff shall levy the execution as in other cases.\u201d Furthermore, as indicated by our Supreme Court in Smith v. Price, the costs judgment may be satisfied by methods used to enforce other civil judgments. Smith, 315 N.C. at 538, 340 S.E.2d at 417. Therefore, as other methods exist for the enforcement of the costs judgment, the occasion does not arise for the use of the trial court\u2019s inherent authority. Accordingly, we vacate the order dismissing Leverette II and remand for further proceedings.\nPlaintiff also contends the trial court erroneously denied his motion for Rule 11 sanctions under which he contended Defendants\u2019 motion to dismiss Leverette II for failure to pay costs in the earlier action was neither well-grounded in fact nor warranted by existing law or a good faith argument for the extension, modification, or reversal of case authority interpreting and applying Rule 41(d). \u201cIn reviewing a trial court\u2019s determination to award Rule 11 sanctions, the appellate court conducts a de novo review. Pursuant to this review, the appellate court must determine: (1) whether the trial court\u2019s conclusions of law support its judgment or determination, (2) whether the trial court\u2019s 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.\u201d Johnson v. Harris, 149 N.C. App. 928, 933, 563 S.E.2d 224, 227 (2002).\nIn this case, the trial court concluded:\nDefendants\u2019 motion to dismiss this action pursuant to G.S. \u00a7 1A-1, Rule 41(b), as well as Defendants\u2019 earlier motion to abate or stay this action, pursuant to G.S. \u00a7 6-20, are well-grounded in both fact and law and are not subject to sanctions pursuant to G.S. \u00a7 1A-1, Rule 11.\nWe agree with the trial court\u2019s conclusion and therefore affirm its denial of Rule 11 sanctions in this case.\nFinally, Plaintiff contends the trial court erroneously stayed Leverette II pending the appeal of Leverette I. However, instead of appealing from that order, Plaintiff dismissed his appeal of Leverette I and proceeded with discovery in Leverette II. As such, this issue is moot. See Roberts v. Madison County Realtors Ass\u2019n, 344 N.C. 394, 398-99, 474 S.E.2d 783, 787 (1996) (stating \u201ca case is \u2018moot\u2019 when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy\u201d).\nIn sum, in light of our Supreme Court\u2019s holding in Smith v. Price, the trial court in Leverette II misconstrued the taxation of costs in Leverette I as a costs order rather than a civil judgment. As the taxation of costs may be enforced as a civil judgment, the trial court abused its discretion in dismissing Leverette II for failure to pay costs in Leverette I. However, we affirm the trial court\u2019s denial of Rule 11 sanctions and dismiss Plaintiff\u2019s appeal of the order staying the proceedings in Leverette II pending the appeal of Leverette I as moot. Finally, we find no merit in Leverette\u2019s remaining issues on appeal.\nVacated in part, affirmed in part, dismissed in part.\nJudges HUNTER and TYSON concur.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Law Offices of Robert J. Willis, by Robert J. Willis, for plaintiff - appellant.", "Bailey & Dixon, L.L.P., by Gary S. Parsons, Kenyann Brown Stanford, and Jennifer D. Maldonado, for defendant-appellees." ], "corrections": "", "head_matter": "ROBERT A. LEVERETTE, on behalf of himself and all other persons similarly situated, Plaintiffs v. BATTS TEMPORARY SERVICES, INC. d/b/a LABOR WORKS or LABOR WORLD, BILL C. SCHLEUNING, LORRAINE SCHLEUNING, and SEAN A. FORE, Defendants\nNo. COA03-818\n(Filed 6 July 2004)\n1. Costs\u2014 refiled action \u2014 prior action involuntarily dismissed \u2014 inherent authority not appropriate\nThe trial court abused its discretion by dismissing a second action for failure to pay deposition costs in the first action. Although the court indicated that it was using its authority under N.C.G.S. \u00a7 1A-1, Rule 41 and its inherent power to enforce its own orders, the first case was involuntarily dismissed and the taxation of costs was not an order, and there was no occasion for the use of the court\u2019s inherent authority because other methods existed for the enforcement of a civil judgment.\n2. Pleadings\u2014 Rule 11 sanctions \u2014 properly denied\nRule 11 sanctions were properly denied where the court concluded that defendant\u2019s motion to dismiss and an earlier motion to stay were well-grounded in law and fact.\nAppeal by plaintiffs from order entered 10 April 2003 by Judge Evelyn W. Hill, Superior Court, Wake County. Heard in the Court of Appeals 30 March 2003.\nLaw Offices of Robert J. Willis, by Robert J. Willis, for plaintiff - appellant.\nBailey & Dixon, L.L.P., by Gary S. Parsons, Kenyann Brown Stanford, and Jennifer D. Maldonado, for defendant-appellees." }, "file_name": "0328-01", "first_page_order": 360, "last_page_order": 364 }