{ "id": 8240610, "name": "WILLIAM ALLEN GAILEY, III v. TRIANGLE BILLIARDS & BLUES CLUB, INC., JERRY SEXTON, INDIVIDUALLY and in his capacity as an OWNER, OFFICER and DIRECTOR of Triangle Billiards & Blues Club, Inc., SUSAN SEXTON, INDIVIDUALLY and in her capacity as an OWNER, MANAGER and DIRECTOR of Triangle Billiards & Blues Club, Inc.", "name_abbreviation": "Gailey v. Triangle Billiards & Blues Club, Inc.", "decision_date": "2006-10-17", "docket_number": "No. COA06-327", "first_page": "848", "last_page": "852", "citations": [ { "type": "official", "cite": "179 N.C. App. 848" } ], "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": "524 S.E.2d 605", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "607", "parenthetical": "stating that \"a specific statute controls over a general statute if the two cannot be reconciled\"" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 505", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240749 ], "year": 2000, "pin_cites": [ { "page": "508", "parenthetical": "stating that \"a specific statute controls over a general statute if the two cannot be reconciled\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0505-01" ] }, { "cite": "271 S.E.2d 393", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "399", "parenthetical": "concluding that the court's denial of a motion to amend was based on a misapprehension of the law, was an abuse of discretion and reversible error" } ], "opinion_index": 0 }, { "cite": "49 N.C. App. 226", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520529 ], "year": 1980, "pin_cites": [ { "page": "234", "parenthetical": "concluding that the court's denial of a motion to amend was based on a misapprehension of the law, was an abuse of discretion and reversible error" } ], "opinion_index": 0, "case_paths": [ "/nc-app/49/0226-01" ] }, { "cite": "187 S.E.2d 768", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "774", "parenthetical": "stating that \"where rulings are made under a misapprehension of the law, the orders or rulings of the trial judge may be vacated and the case remanded for further proceedings, modified or reversed, as the rights of the parties and the applicable law may require\"" } ], "opinion_index": 0 }, { "cite": "281 N.C. 20", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573638 ], "year": 1972, "pin_cites": [ { "page": "30", "parenthetical": "stating that \"where rulings are made under a misapprehension of the law, the orders or rulings of the trial judge may be vacated and the case remanded for further proceedings, modified or reversed, as the rights of the parties and the applicable law may require\"" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0020-01" ] }, { "cite": "328 S.E.2d 437", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "445" } ], "opinion_index": 0 }, { "cite": "313 N.C. 200", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4721484 ], "year": 1985, "pin_cites": [ { "page": "213" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0200-01" ] }, { "cite": "299 S.E.2d 298", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "300", "parenthetical": "holding that appellate review of an involuntary dismissal is limited to a determination of whether abuse appears in the exercise of the court's discretion" } ], "opinion_index": 0 }, { "cite": "60 N.C. App. 585", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522845 ], "year": 1983, "pin_cites": [ { "page": "586", "parenthetical": "holding that appellate review of an involuntary dismissal is limited to a determination of whether abuse appears in the exercise of the court's discretion" } ], "opinion_index": 0, "case_paths": [ "/nc-app/60/0585-01" ] } ], "analysis": { "cardinality": 431, "char_count": 9679, "ocr_confidence": 0.759, "pagerank": { "raw": 2.843626614767067e-07, "percentile": 0.8401204085643603 }, "sha256": "882e51f8fdb5fb78ea16e46862ae081f4780adfe5920443bcc7a3dc48a264171", "simhash": "1:9f1e8df372078b6c", "word_count": 1579 }, "last_updated": "2023-07-14T22:27:33.869735+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GEER and STEPHENS concur." ], "parties": [ "WILLIAM ALLEN GAILEY, III v. TRIANGLE BILLIARDS & BLUES CLUB, INC., JERRY SEXTON, INDIVIDUALLY and in his capacity as an OWNER, OFFICER and DIRECTOR of Triangle Billiards & Blues Club, Inc., SUSAN SEXTON, INDIVIDUALLY and in her capacity as an OWNER, MANAGER and DIRECTOR of Triangle Billiards & Blues Club, Inc." ], "opinions": [ { "text": "STEELMAN, Judge.\nWilliam Allen Gailey, III (plaintiff) appeals from orders entered 11 October 2005 and 7 November 2005 dismissing with prejudice plaintiffs complaint due to plaintiffs failure to comply with the trial court\u2019s order for a mediated settlement conference. For the reasons set forth herein, we reverse the order of the trial court.\nPlaintiff originally instituted this action against defendants in 1998, seeking monetary damages for personal injuries. This complaint was voluntarily dismissed on 31 August 2001, and plaintiff refiled the action on 30 August 2002. Following the service of defendant\u2019s answer on 23 October .2002, the senior resident superior court judge for the 22nd Judicial District entered an order on 30 October 2002 for a mediated settlement conference. This order was on AOC form CV-811 and set a date of 30 March 2003 for completion of the mediated settlement conference. The order stated the following:\nWithin twenty-one (21) days after the date of this Order, the parties may, by agreement, select a certified mediator or nominate a non-certified mediator to conduct their mediated settlement conference. Within twenty-one (21) days after the date of this Order, the plaintiff or plaintiff\u2019s attorney shall notify, the Court of the selection of a certified mediator or the nomination of a non-certified mediator, or the failure of the parties to agree on a mediator. Notice shall be on form AOC-CV-812.\nThe parties did not agree on a mediator; the senior resident superior court judge did not appoint a mediator, and no mediated settlement conference was ever held.\nThis case was set for trial on 10 October 2005 in Davidson County Superior Court. On 4 October 2005, defendants mailed a motion to counsel for plaintiff seeking dismissal of plaintiff\u2019s action based on plaintiff\u2019s failure to comply with the above-stated provisions of the court\u2019s order for a mediated settlement conference. On 11 October 2005, Judge Collier entered an order dismissing plaintiff\u2019s action with prejudice. On 21 October 2005, plaintiff filed a motion pursuant to N.C. R. Civ. P. 60, seeking relief from the order of dismissal. Plaintiff\u2019s Rule 60 motion was denied by Judge Mark E. Klass on 7 November 2005. On 9 November 2005, plaintiff gave notice of appeal from both orders.\nPlaintiff contends that the dismissal of his action constituted abuse of discretion. We agree.\nIn 1995, the General Assembly enacted N.C. Gen. Stat. \u00a7 7A-38.1, to facilitate the settlement of superior court civil actions through court-ordered mediated settlement conferences. The purpose of the statute was to \u201cmake civil litigation more economical, efficient, and satisfactory to litigants and the State.\u201d 1995 N.C. Sess. Laws ch. 500, \u00a7 1. This statute granted the senior resident superior court judge the discretion to order parties in a civil action to participate in a mediated settlement conference prior to trial. Subsection (c) provided that the Supreme Court may adopt rules to implement the statute. Id.; see also N.C. Gen. Stat. \u00a7 7A-38.1(c) (2005). Subsection (h) set forth the procedure for the parties to a civil action to select a mediator:\nThe parties to a superior court civil action in which a mediated settlement conference is to be held pursuant to this section shall have the right to designate a mediator. Upon failure of the parties to designate a mediator within the time established by the rules of the Supreme Court, a mediator shall be appointed by the senior resident superior court judge.\n1995 N.C. Sess. Laws ch. 500, \u00a7 1 (emphasis added). This statutory provision was further explained by the Rules of the North Carolina Supreme Court Implementing Statewide Mediated Settlement Conferences in Superior Court Civil Actions, adopted on 12 July 2000. Rule 2C of these Rules provided, in pertinent part:\nIf the parties cannot agree upon the selection of a mediator, the plaintiff or plaintiff\u2019s attorney shall so notify the court and request, on behalf of the parties, that the Senior Resident Superior Court Judge appoint a mediator.\nUpon receipt of a motion to appoint a mediator, or in the event the plaintiffs attorney has not filed a notice of Selection or Nomination of Non-Certified Mediator with the court within 21 days of the court\u2019s order, the Senior Resident Superior Court Judge shall appoint a mediator certified pursuant to these Rules, under a procedure established by said Judge and set out in local rules or other written document.\nOn 1 October 1995, the 22nd Judicial District (which includes Davidson County) adopted the Supreme Court Rules as its local rules for mediated settlement conferences.\nBoth the statute and the rules adopted by the Supreme Court contemplate that the parties or their attorneys will at times fail to agree upon a mediator or that plaintiff or plaintiffs attorney will fail to report this fact to the senior resident superior court judge. Upon the occurrence of one of these events, the statute and the rules provide that the senior resident superior court judge shall appoint a mediator for the case. The clear purpose of this provision is to insure that the case will go to mediation in a timely fashion, well in advance of the designated trial date.\nIn this matter, the trial court dismissed plaintiffs action with prejudice, pursuant to N.C. R. Civ. R 41(b), for plaintiffs failure to comply with the provisions of the order for a mediated settlement conference. Our standard of review of this order of dismissal is abuse of discretion. See Jones v. Boyce, 60 N.C. App. 585, 586, 299 S.E.2d 298, 300 (1983) (holding that appellate review of an involuntary dismissal is limited to a determination of whether abuse appears in the exercise of the court\u2019s discretion); see also Whedon v. Whedon, 313 N.C. 200, 213, 328 S.E.2d 437, 445 (1985). When discretionary rulings are made under a misapprehension of the law, this may constitute an abuse of discretion. See State v. Cornell, 281 N.C. 20, 30, 187 S.E.2d 768, 774 (1972) (stating that \u201cwhere rulings are made under a misapprehension of the law, the orders or rulings of the trial judge may be vacated and the case remanded for further proceedings, modified or reversed, as the rights of the parties and the applicable law may require\u201d); Cf. Ledford v. Ledford, 49 N.C. App. 226, 234, 271 S.E.2d 393, 399 (1980) (concluding that the court\u2019s denial of a motion to amend was based on a misapprehension of the law, was an abuse of discretion and reversible error).\nIn this matter, it is clear that the trial judge entered the order of dismissal without reference to the provisions of N.C. Gen. Stat. \u00a7 7A-38.1(h) and Rule 2C of the Rules Implementing Statewide Mediated Settlement Conferences. These documents prescribe what must occur when the parties fail to agree upon a mediator or the plaintiff fails to report this fact to the senior resident superior court judge: the parties forfeit their right to select the mediator, and the mediation takes place with a mediator selected by the court. When a specific remedy for a violation is set forth by statute or rule, this specific remedy must control over the provisions of a general rule or statute. See Clark v. Visiting Health Prof\u2019ls, Inc., 136 N.C. App. 505, 508, 524 S.E.2d 605, 607 (2000) (stating that \u201ca specific statute controls over a general statute if the two cannot be reconciled\u201d).\nThe purpose of the mediated settlement conference in Superior Court is to encourage the parties to resolve their dispute as early in the litigation process as possible. The dismissal of plaintiffs action clearly does not further this goal, especially in light of the statutory duty of the senior resident superior court judge to appoint a mediator in this precise situation.\nWe hold that the trial court\u2019s dismissal of plaintiff\u2019s action was an abuse of discretion, and this ruling is reversed.\nREVERSED.\nJudges GEER and STEPHENS concur.", "type": "majority", "author": "STEELMAN, Judge." } ], "attorneys": [ "Doherty & Nugent, P.G., by David S. Doherty, for plaintiff - appellant.", "Barnes Grimes Bunce and Fraley, PLLC, by Jerry B. Grimes, for defendant-appellee." ], "corrections": "", "head_matter": "WILLIAM ALLEN GAILEY, III v. TRIANGLE BILLIARDS & BLUES CLUB, INC., JERRY SEXTON, INDIVIDUALLY and in his capacity as an OWNER, OFFICER and DIRECTOR of Triangle Billiards & Blues Club, Inc., SUSAN SEXTON, INDIVIDUALLY and in her capacity as an OWNER, MANAGER and DIRECTOR of Triangle Billiards & Blues Club, Inc.\nNo. COA06-327\n(Filed 17 October 2006)\nArbitration and Mediation\u2014 failure to comply with order for mediated settlement conference \u2014 court\u2019s dismissal of action \u2014 misapprehension of law\nThe trial court abused its discretion by dismissing with prejudice plaintiff\u2019s action based on his failure to comply with the trial court\u2019s order for a mediated settlement conference, because: (1) the trial court entered the order of dismissal without reference to the provisions of N.C.G.S. \u00a7 7A-38.1(h) and Rule 2C of the Rules Implementing Statewide Mediated Settlement Conferences which prescribe what must occur when the parties fail to agree upon a mediator or plaintiff fails to report this fact to the senior resident superior court judge; (2) the senior resident superior court judge has a statutory duty to appoint a mediator in this precise situation; and (3) the purpose of the mediated settlement conference in superior court is to encourage the parties to resolve their dispute as early in the litigation process as possible, and the dismissal of plaintiff\u2019s action does not further this goal.\nAppeal by plaintiff from orders entered 11 October 2005 by Judge Christopher M. Collier and 7 November 2005 by Judge Mark E. Klass in Davidson County Superior Court. Heard in the Court of Appeals 21 September 2006.\nDoherty & Nugent, P.G., by David S. Doherty, for plaintiff - appellant.\nBarnes Grimes Bunce and Fraley, PLLC, by Jerry B. Grimes, for defendant-appellee." }, "file_name": "0848-01", "first_page_order": 880, "last_page_order": 884 }