{ "id": 4163175, "name": "LIAM PATRICK WALLIS, individually, PLANTATION PROPERTY MANAGEMENT, LLC and LIAM PATRICK WALLIS, as representative shareholder on behalf of CHARTWELL HOMES, INC., Plaintiffs v. ANDREW CAMBRON, RICHARD M. GREENE, BAY POINT, LLC, and BIG BALD MOUNTAIN, LLC, Defendants", "name_abbreviation": "Wallis v. Cambron", "decision_date": "2008-12-02", "docket_number": "No. COA08-178", "first_page": "190", "last_page": "195", "citations": [ { "type": "official", "cite": "194 N.C. App. 190" } ], "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": "654 S.E.2d 507", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640045 ], "year": 2007, "pin_cites": [ { "page": "512", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/654/0507-01" ] }, { "cite": "657 S.E.2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640450 ], "year": 2008, "pin_cites": [ { "page": "365", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/657/0361-01" ] }, { "cite": "187 N.C. App. 684", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8375722 ], "year": 2007, "pin_cites": [ { "page": "689", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/187/0684-01" ] }, { "cite": "502 S.E.2d 7", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "10", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 635", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11652052 ], "year": 1998, "pin_cites": [ { "page": "639", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0635-01" ] }, { "cite": "599 S.E.2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "589" } ], "opinion_index": 0 }, { "cite": "165 N.C. App. 575", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8999281 ], "year": 2004, "pin_cites": [ { "page": "580" } ], "opinion_index": 0, "case_paths": [ "/nc-app/165/0575-01" ] }, { "cite": "362 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4149183 ], "year": 2008, "pin_cites": [ { "page": "197", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0191-01" ] }, { "cite": "486 S.E.2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "737", "parenthetical": "citation omitted" }, { "page": "737", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 800", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11713506 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "802", "parenthetical": "citation omitted" }, { "page": "802" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0800-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 55-7-42", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 474, "char_count": 10791, "ocr_confidence": 0.743, "pagerank": { "raw": 1.7784857145783928e-07, "percentile": 0.7131226569579925 }, "sha256": "342af07dfab02bd337556bb75f967ffdd857e8de91c4d05fc023577e13d74164", "simhash": "1:afec932a2d5ea8b9", "word_count": 1771 }, "last_updated": "2023-07-14T16:50:43.594733+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and ARROWOOD concur." ], "parties": [ "LIAM PATRICK WALLIS, individually, PLANTATION PROPERTY MANAGEMENT, LLC and LIAM PATRICK WALLIS, as representative shareholder on behalf of CHARTWELL HOMES, INC., Plaintiffs v. ANDREW CAMBRON, RICHARD M. GREENE, BAY POINT, LLC, and BIG BALD MOUNTAIN, LLC, Defendants" ], "opinions": [ { "text": "BRYANT, Judge.\nPlaintiffs Liam Wallis, individually and as representative shareholder on behalf of Chartwell Homes, Inc., and Plantation Property Management, LLC, (PPM) appeal from an order entered 10 September 2007, which granted in part defendants\u2019 Rule 12(b)(6) motion to dismiss plaintiffs\u2019 claims, and from an order entered 22 October 2007, which denied plaintiffs\u2019 Rule 60 motion for relief from the order entered 10 September 2007. For the reasons stated below, we dismiss plaintiffs\u2019 appeal in part and affirm in part.\nThe dispute between these parties arose from an agreement between Defendant Andrew Cambr\u00f3n and Plaintiff Liam Wallis to enter into a joint venture for the purpose of acquiring, developing, and selling real estate. Cambr\u00f3n was an officer and shareholder of Chartwell Homes, Inc. Plaintiffs alleged that pursuant to the agreement Cambr\u00f3n was responsible for raising capital, soliciting investors, and marketing, while Wallis was to be president and a 40% shareholder of Chartwell.\nLater, Wallis alleged that Cambr\u00f3n refused to share internal Chartwell documents, usurped corporate opportunities, and failed to raise funds, bring in investors, and market properties to third parties per their agreement. Therefore, in an effort to market Chartwell properties, Wallis formed PPM but was unsuccessful as a result of the alleged conduct of defendants Cambr\u00f3n and Richard Greene.\nIn a complaint filed 18 September 2006 and amended 30 August 2007, plaintiffs raised twelve causes of action, including breach of contract, derivative shareholder claims against Cambr\u00f3n and Greene, the imposition of a trust, and a claim of civil conspiracy. In their answer, defendants\u2019 asserted that plaintiffs failed to set forth claims upon which relief could be granted which subjected the complaint to dismissal under Rule 12(b)(6).\nIn an order entered 7 September 2007, the trial court granted in part and denied in part defendants\u2019 motion to dismiss. As grounds for dismissal of plaintiffs\u2019 derivative shareholder claims, the trial court concluded plaintiffs failed to satisfy the shareholder demand requirement under N.C. Gen. Stat. \u00a7 55-7-42(a). Furthermore, the trial court concluded \u201cno action for \u2018civil conspiracy\u2019 really exists in law\u201d and dismissed that claim.\nOn 17 September 2007, plaintiffs filed a Motion For Relief From Order pursuant to North Carolina Civil Procedure Rule 60. Plaintiffs attached as \u201cExhibit A\u201d a copy of the order entered 7 September 2007. On 17 October 2007, the trial court entered an order denying plaintiffs\u2019 Rule 60 motion. On 7 November 2007, plaintiffs filed-a notice of appeal from both the 7 September 2007 order and the 17 October 2007 order.\nOn appeal, plaintiffs raise four issues: whether, in its 7 September 2007 order, the trial court erred by (I) concluding that the demand requirement under N.C. Gen. Stat. \u00a7 55-7-42(a) had not been met and (II) concluding no action for civil conspiracy exists under North Carolina law; whether the trial court erred by (III) dismissing plaintiffs\u2019 claim for cancellation of a notice of lis pendens filed by defendants; and (IV) denying plaintiffs\u2019 Rule 60 motion.\nI&II\nDefendants argue that plaintiffs\u2019 appeal from the trial court\u2019s order entered 7 September 2007 should be dismissed for failure to timely file a notice of appeal pursuant to the North Carolina Rules of Appellate Procedure, Rule 3(c). We agree.\nUnder our North Carolina Rules of Appellate Procedure, Rule 3(c), \u201cTime for Taking Appeal,\u201d states, in pertinent part, the following:\nIn civil actions and special proceedings, a party must file and serve a notice of appeal:\n(1) within 30 days after entry of judgment if the party has been served with a copy of the judgment within the three-day period prescribed by Rule 58 of the Rules of Civil Procedure; or\n(2) within 30 days after service upon the party of a copy of the judgment if service was not made within th\u00e1t three-day period ....\nN.C. R. App. P. 3(c) (2007). \u201cThe provisions of Rule 3 are jurisdictional, and failure to follow the requirements thereof requires dismissal of an appeal.\u201d Abels v. Renfro Corp., 126 N.C. App. 800, 802, 486 S.E.2d 735, 737 (1997) (citation omitted). Motions entered pursuant to Rule 60 do not toll the time for filing a notice of appeal. See N.C. R. App. P. 3(c) (2007).\nOn 7 September 2007, the trial court entered an order which granted in part and denied in part defendants\u2019 motion to dismiss plaintiffs\u2019 twelve causes of action. On 17 September 2007, plaintiffs filed a Rule 60 motion. In the motion, plaintiffs incorporated as \u201cExhibit A\u201d a copy of the order entered on and bearing a file date stamp of 7 September 2007. On 17 October 2007, the trial court entered an order denying plaintiffs\u2019 Rule 60 motion. On 7 November 2007, plaintiffs filed a notice of appeal from both the 7 September 2007 order and the 17 October 2007 order.\nWhile the record does not reflect when plaintiffs were served a copy of the trial court order, it is clear plaintiffs were in possession of the order as their Rule 60 Motion filed 17 September 2007 included a copy of the 7 September 2007 order. Plaintiffs then appealed from the 7 September 2007 order on 7 November 2007 \u2014 more than thirty days after the trial court order was filed, and more than thirty days after plaintiffs filed the Rule 60 Motion. Therefore, plaintiffs have failed to comply with appellate procedure Rule 3(c).\nAs previously stated, \u201c[t]he provisions of Rule 3 are jurisdictional.\u201d Abels, 126 N.C. App. at 802, 486 S.E.2d at 737 (citation omitted). And, \u201c[a] jurisdictional default. . . precludes the appellate court from acting in any manner other than to dismiss the appeal.\u201d Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 197, 657 S.E.2d 361, 365 (2008) (citations omitted). Accordingly, plaintiffs\u2019 appeal from the trial court order entered 7 September 2007 is dismissed.\nIII\nPrior to oral argument the parties stipulated that issue (III) had been resolved. Accordingly, the issue is no longer before us.\nIV\nLast, plaintiffs argue that the trial court erred in denying plaintiffs\u2019 Rule 60 motion. Plaintiffs assert that the trial court\u2019s 7 September 2007 order effectively precludes any shareholder derivative claim and amounted to a misapplication of the law where the trial court found that the shareholder demand requirement under N.C. Gen. Stat. \u00a7 55-7-42(a) had not been met and no action for civil conspiracy existed under North Carolina law. Plaintiffs\u2019 argument is misplaced.\nOur review of a trial court\u2019s ruling on a Rule 60(b) motion is limited to a determination of whether the trial court abused its discretion. Barnes v. Wells, 165 N.C. App. 575, 580, 599 S.E.2d 585, 589 (2004). Therefore, a trial court\u2019s decision to grant or deny relief pursuant to Rule 60(b) will not be overturned absent an abuse of discretion. Id.\nUnder North Carolina General Statutes section 1A-1, Rule 60,\nOn 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 for the following reasons:\n(1) Mistake, inadvertence, surprise, or excusable neglect;\n(6) Any other reason justifying relief from the operation of the judgment.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 60(b) (2008). \u201cA 60(b) order does not overrule a prior order but, consistent with statutory authority, relieves parties from the effect of an order.\u201d Charns v. Brown, 129 N.C. App. 635, 639, 502 S.E.2d 7, 10 (1998) (citation omitted). However, \u201cjudgments involving misapplication of the law may be corrected only by appeal and Rule 60(b) motions cannot be used as a substitute for appeal.\u201d Spangler v. Olchowski, 187 N.C. App. 684, 689, 654 S.E.2d 507, 512 (2007) (citation omitted). Accordingly, we hold the trial court did not err in denying plaintiffs\u2019 Rule 60(b) motion.\nDismissed in part and affirmed in part.\nJudges WYNN and ARROWOOD concur.\n. The following claims were dismissed: 1) all derivative shareholder claims raised on behalf of Chartwell; 2) unfair and deceptive trade practices, except as based on allegations of defamation; 3) tortious interference with prospective contract; 4) defamation of PPM; 5) all derivative shareholder claims against Cambr\u00f3n and Greene individually; 6) cancellation of notice of lis pendens; and 7) imposition of \u201cequitable, parole or resulting trust.\u201d", "type": "majority", "author": "BRYANT, Judge." } ], "attorneys": [ "Forman Rossabi Black, RA., by Amiel J. Rossabi and Emily J. Meister, for plaintiff-appellants.", "Mary K. Nicholson for Andrew Cambr\u00f3n and Bay Point, LLC. defendant-appellees.", "Richard M. Greene pro se." ], "corrections": "", "head_matter": "LIAM PATRICK WALLIS, individually, PLANTATION PROPERTY MANAGEMENT, LLC and LIAM PATRICK WALLIS, as representative shareholder on behalf of CHARTWELL HOMES, INC., Plaintiffs v. ANDREW CAMBRON, RICHARD M. GREENE, BAY POINT, LLC, and BIG BALD MOUNTAIN, LLC, Defendants\nNo. COA08-178\n(Filed 2 December 2008)\n1. Appeal and Error\u2014 appealability \u2014 failure to timely file notice of appeal\nPlaintiffs\u2019 appeal from the trial court\u2019s order entered 7 September 2007 should have been dismissed for failure to timely file a notice of appeal under N.C. R. App. P. 3(c) because: (1) motions entered under Rule 60 do not toll the time for filing a notice of appeal; (2) while the record did not reflect when plaintiffs were served a copy of the trial court order, plaintiffs were in possession of the order as their N.C.G.S. \u00a7 1A-1, Rule 60 motion filed 17 September 2007 included a copy of the 7 September 2007 order, and plaintiffs then appealed from the 7 September 2007 order on 7 November 2007, which was more than thirty days after the trial court order was filed; and (3) the provisions of Rule 3 are jurisdictional, and a jurisdictional default precludes the appellate courts from acting in any manner other than to dismiss the appeal.\n2. Civil Procedure\u2014 Rule 60 motion \u2014 misapplication of law requires appeal\nThe trial court did not err by denying plaintiffs\u2019 N.C.G.S. \u00a7 1A-1, Rule 60 motion even though plaintiffs contend the trial court\u2019s 7 September 2007 order effectively precluded any shareholder derivative claim and amounted to a misapplication of the law where the trial court found that the shareholder demand requirement under N.C.G.S. \u00a7 55-7-42(a) had not been met and no action for civil conspiracy existed under North Carolina law because: (1) a Rule 60(b) order does not overrule a prior order but, consistent with statutory authority, relieves parties from the effect of an order; and (2) judgments involving misapplication of the law may be corrected only by appeal and Rule 60(b) motions cannot be used as a substitute for appeal.\nAppeal by plaintiffs from orders entered 10 September 2007 and 22 October 2007 by Judge Lindsay R. Davis, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 7 October 2008.\nForman Rossabi Black, RA., by Amiel J. Rossabi and Emily J. Meister, for plaintiff-appellants.\nMary K. Nicholson for Andrew Cambr\u00f3n and Bay Point, LLC. defendant-appellees.\nRichard M. Greene pro se." }, "file_name": "0190-01", "first_page_order": 222, "last_page_order": 227 }