{ "id": 8240961, "name": "SEA RANCH II OWNERS ASSOCIATION, INC., Plaintiff v. SEA RANCH II, INC., Defendant", "name_abbreviation": "Sea Ranch II Owners Ass'n v. Sea Ranch II, Inc.", "decision_date": "2006-11-07", "docket_number": "No. COA05-1528", "first_page": "226", "last_page": "230", "citations": [ { "type": "official", "cite": "180 N.C. App. 226" } ], "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": "631 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636049 ], "year": 2006, "pin_cites": [ { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/se2d/631/0114-01" ] }, { "cite": "518 S.E.2d 780", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "786" } ], "opinion_index": 0 }, { "cite": "134 N.C. 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App.", "case_ids": [ 11218566 ], "year": 1999, "pin_cites": [ { "page": "233" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0221-01" ] } ], "analysis": { "cardinality": 494, "char_count": 10482, "ocr_confidence": 0.739, "pagerank": { "raw": 4.2860904194187834e-07, "percentile": 0.9162190536977253 }, "sha256": "022ff0e919cd335b95ecc9b217f028f1f4045fe5fce53977d27ee93ac98c4ae2", "simhash": "1:23eae6232e448eec", "word_count": 1755 }, "last_updated": "2023-07-14T16:41:00.069129+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and TYSON concur." ], "parties": [ "SEA RANCH II OWNERS ASSOCIATION, INC., Plaintiff v. SEA RANCH II, INC., Defendant" ], "opinions": [ { "text": "HUDSON, Judge.\nOn 20 September 2000, plaintiff Sea Ranch Owner\u2019s Association, Inc., (\u201cthe owner\u2019s association\u201d) filed a complaint seeking past-due maintenance and special assessments from 1990 forward from ' defendant Sea Ranch II, Inc. (\u201cthe developer\u201d). In November 2002, the court granted defendant\u2019s motion for partial summary judgment as to past-due assessments from 1990 to 1999. The matter came on for jury trial in November 2003. At the close of all evidence, the parties announced that they had reached a settlement agreement, the terms . of which were stated in open court on 19 November 2003. Defendant drafted a proposed consent judgment, but plaintiff refused to sign it and defendant moved for entry of judgment. At the motion hearing on 28 January 2004, plaintiff repudiated the terms of the settlement in open court. On 15 March 2004, the court entered an order determining settlement terms between the parties and attaching a draft of the consent judgment prepared by defendant and containing red-line changes by plaintiff. On 19 November 2004, plaintiff moved for relief from the judgment pursuant to Rule 60(b), which motion the court denied. On 15 June 2005, plaintiff filed its notice of appeal from orders entered 15 March 2004 and 23 May 2005. On 29 November 2005, defendant moved to dismiss this appeal, which motion we dismissed as untimely; on 17 January 2006, defendant filed a supplemental motion to dismiss and for sanctions and attorney\u2019s fees. On 20 January 2006, defendant filed a second supplemental motion to dismiss and for sanctions and attorney\u2019s fees. As discussed below, we affirm in part and dismiss in part.\nSea Ranch II is an interval ownership condominium development organized pursuant to Chapter 47A of the North Carolina General Statutes and governed by its declaration of unit ownership. The declaration requires unit owners and the developer to pay various assessments. Plaintiff owner\u2019s association manages the development and collects assessments. Defendant is the developer and owns several of the units. The owner\u2019s association instituted this action to collect past due assessments from the developer.\nWe first consider the developer\u2019s motion to dismiss this appeal as not timely filed. The owner\u2019s association appealed from a judgment entered 15 March 2004, but did not file this appeal until 15 June 2005, well outside the thirty-day window for appealing. The owner\u2019s association counters that the 15 March 2004 judgment was not a final order, and that the matter remained pending until entry of denial of its motion for relief pursuant to Rule 60(b) on 23 May 2005. We are not persuaded by this argument.\nThe owner\u2019s association bases this assertion on the following language in the decretal portion of the order:\n5. That this Order may be enforced or modified by either party upon petition, motion or request to the undersigned Judge who retains jurisdiction herein. . . .\nRegardless of the court\u2019s intent in including this language, it does not change the fact that the order disposed of all matters at issue between the parties. \u201cA mere designation of an order as temporary by a trial court is not sufficient to make that order interlocutory and not appealable.\u201d Cox v. Cox, 133 N.C. App. 221, 233, 515 S.E.2d 61, 69 (1999). In Cox, the trial court specifically designated its order as temporary and open to being revisited in the future; however, because all issues were resolved in the order, this Court held that the \u201ctemporary\u201d order was, in fact, final and appealable. Id. at 232-33, 515 S.E.2d at 69.\nFurther, the owner\u2019s association contends that it was not a final order until the entry of the order in response to its Rule 60(b) motion. Rule 60(b) provides that \u201c[o]n motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding. . . .\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 60(b) (2004). Thus, relief under Rule 60(b) is from final orders. By filing its Rule 60(b) motion, the owner\u2019s association has judicially admitted that the 15 March 2004 order was final. At the hearing on the Rule 60(b) motion, the court stated, \u201cIt was my understanding that plaintiffs position that this was a final order and became final, within the expiration of any appeal period from March 4th.\u201d The record reflects that the owner\u2019s association did not correct the court\u2019s understanding. Because it was not timely filed, we dismiss the owner\u2019s association\u2019s appeal of the 15 March 2004 order.\nThe owner\u2019s association also argues that the court erred in denying its motion in the cause pursuant to Rule 60(b). We do not agree.\nThe standard of review of a trial court\u2019s denial of a Rule 60(b) motion is abuse of discretion. Davis v. Davis, 360 N.C. 518, 523, 631 S.E.2d 114, 118 (2006). \u201cA ruling committed to a trial court\u2019s discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision.\u201d Id (internal quotation marks and citations omitted).\nThe owner\u2019s association\u2019s motion argued that relief should be granted pursuant to Rule 60(b)(4) (\u201cjudgment is void\u201d) or (6) (\u201cany other reason justifying relief\u201d). A motion made pursuant to Rule 60(b)(4), to set aside a void judgment, may be made at any time. Van Engen v. Que Scientific, Inc., 151 N.C. App. 683, 689, 567 S.E.2d 179, 184 (2002). Motions pursuant to subsection (6) \u201cshall be made within a reasonable time.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 60(b) (2004). \u201cWhat constitutes a \u201creasonable time\u201d depends upon the circumstances of the individual case.\u201d Nickels v. Nickels, 51 N.C. App. 690, 692, 277 S.E.2d 577, 578, disc. review denied, 303 N.C. 545, 281 S.E.2d 392 (1981). Further, to set aside a judgment or order pursuant to Rule 60(b)(6) requires a showing: (1) that extraordinary circumstances exist and (2) that justice demands relief. Howell v. Howell, 321 N.C. 87, 91, 361 S.E.2d 585, 588 (1987).\nThe trial court denied the owner\u2019s association\u2019s motion based on its conclusions that the 15 March 2004 order was not void and that the owner\u2019s association \u201cfailed to assert its rights claimed . . . within a reasonable time.\u201d The owner\u2019s association contends the 15 March order is void \u201cas against public policy because it includes terms which violate the parties\u2019 own declarations of unit ownership and the provisions of Chapter 47A . . . .\u201d However, a party is equitably estopped from attacking \u201cthe terms of [an] Order which he acknowledged, acquiesced in and attempted to modify and enforce . . . .\u201d Chance v. Henderson, 134 N.C. App. 657, 666, 518 S.E.2d 780, 786 (1999).\nHere, the record reflects that on 25 April 2005, the owner\u2019s association filed an action asking the trial court to \u201cinterpret and determine the rights and obligations of the parties\u201d under the 15 March order, and that the owner\u2019s association moved for a contempt of court order asking that the developer be found \u201cin willful contempt of the [15 March] court Order\u201d and asking for attorney\u2019s fees. Further, the owner\u2019s association accepted a check for $14,610 from defendant pursuant to the 15 March order. The owner\u2019s ^association through its actions has ratified the 15 March order and may not now challenge its validity.\nRegarding the trial court\u2019s finding that the owner\u2019s association \u201cfailed to assert its rights claimed... within a reasonable time,\u201d plaintiff filed its Rule 60(b) motion six months following entry of the 15 March 2004 order. Plaintiff has failed to show an abuse of discretion in the court\u2019s denial of the owner\u2019s association\u2019s motion where the 15 March 2004 order was not void, as discussed supra, and where the motion was not filed until six months after entry of the underlying order. This assignment of error is without merit.\nAffirmed in part, dismissed in part.\nJudges WYNN and TYSON concur.", "type": "majority", "author": "HUDSON, Judge." } ], "attorneys": [ "Wyrick, Robbins, Yates & Ponton, L.L.P., by K. Edward Greene and Alyssa M. Chen, and Hoyle & Stroud, L.L.P, by William S. Hoyle, for plaintiff", "Stallings & Bischoff P.G., by Steven C. Frucci, pro hac vice, and Bradford J. Lingg, for defendant." ], "corrections": "", "head_matter": "SEA RANCH II OWNERS ASSOCIATION, INC., Plaintiff v. SEA RANCH II, INC., Defendant\nNo. COA05-1528\n(Filed 7 November 2006)\n1. Appeal and Error\u2014 timeliness of appeal\nPlaintiff owner association\u2019s appeal of the 15 March 2004 order is dismissed as untimely, because: (1) plaintiff appealed from a judgment entered 15 March 2004, but did not file this appeal until 15 June 2005, well outside the thirty-day window for appealing; (2) although plaintiff contends the 15 March 2004 judgment was not a final order, the order disposed of all matters at issue between the parties and the mere designation of an order as temporary by a trial court is not sufficient to make that order interlocutory; (3) although plaintiff contends the 15 March 2004 judgment remained pending until entry of denial of its motion for relief under N.C.G.S. \u00a7 1A-1, Rule 60(b) on 23 May 2005, relief under Rule 60(b) is from final orders and by filing its Rule 60(b) motion, plaintiff has judicially admitted that the order was final; and (4) plaintiff did not correct the trial court when it stated plaintiffs position that this was a final order and became final within the expiration of any appeal period from March 4th.\n2. Civil Procedure\u2014 motion in the canse \u2014 equitable estop-pel \u2014 ratification\nThe trial court did not abuse its discretion in an action seeking past due maintenance and special assessments from 1990 forward from defendant developer by denying plaintiff owner association\u2019s motion in the cause under N.C.G.S. \u00a7 1A-1, Rule 60(b), because: (1) a party is equitably estopped from attacking the terms of an order which it acknowledged, acquiesced in, and attempted to modify and enforce; (2) plaintiff filed an action asking the trial court to interpret and determine the rights and obligations of the parties under the 15 March order, and plaintiff moved for a contempt of court order asking that defendant be found in willful contempt of the 15 March court order and asking for attorney fees; (3) plaintiff accepted a check for $14,610 from defendant under the 15 March order; and (4) plaintiff through its actions has ratified the 15 March order and may not now challenge its validity.\nAppeal by plaintiff from orders entered 15 March 2004 and 23 May 2005 by Judge Jerry R. Tillett in the Superior Court in Dare County. Heard in the Court of Appeals 12 September 2006.\nWyrick, Robbins, Yates & Ponton, L.L.P., by K. Edward Greene and Alyssa M. Chen, and Hoyle & Stroud, L.L.P, by William S. Hoyle, for plaintiff\nStallings & Bischoff P.G., by Steven C. Frucci, pro hac vice, and Bradford J. Lingg, for defendant." }, "file_name": "0226-01", "first_page_order": 256, "last_page_order": 260 }