{ "id": 4167013, "name": "HARBIN YINHAI TECHNOLOGY, DEVELOPMENT COMPANY, LTD., Plaintiff v. GREENTREE FINANCIAL GROUP, INC., and R. CHRISTOPHER COTTONE, Defendants", "name_abbreviation": "Harbin Yinhai Technology, Development Co. v. Greentree Financial Group, Inc.", "decision_date": "2009-05-05", "docket_number": "No. COA08-1115", "first_page": "615", "last_page": "627", "citations": [ { "type": "official", "cite": "196 N.C. App. 615" } ], "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": "655 S.E.2d 840", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640264, 12640265, 12640263 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/655/0840-02", "/se2d/655/0840-03", "/se2d/655/0840-01" ] }, { "cite": "362 N.C. 88", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12640263, 12640328, 12640329, 12640265, 12640268 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/655/0840-01", "/se2d/656/0278-01", "/se2d/656/0279-01", "/se2d/655/0840-03", "/se2d/655/0841-03" ] }, { "cite": "647 S.E.2d 667", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638973 ], "opinion_index": 0, "case_paths": [ "/se2d/647/0667-01" ] }, { "cite": "623 S.E.2d 793", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634746 ], "year": 2006, "pin_cites": [ { "page": "796" } ], "opinion_index": 0, "case_paths": [ "/se2d/623/0793-01" ] }, { "cite": "657 S.E.2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640450 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "363" }, { "page": "366" } ], "opinion_index": 0, "case_paths": [ "/se2d/657/0361-01" ] }, { "cite": "668 S.E.2d 63", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642237 ], "year": 2008, "pin_cites": [ { "page": "65", "parenthetical": "holding that the order of the dismissal without prejudice was interlocutory because it did not deprive the appellant of a substantial right" } ], "opinion_index": 0, "case_paths": [ "/se2d/668/0063-01" ] }, { "cite": "448 S.E.2d 521", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "337 N.C. 691", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549352, 2550922, 2550897, 2550744, 2552156 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/337/0691-03", "/nc/337/0691-05", "/nc/337/0691-04", "/nc/337/0691-02", "/nc/337/0691-01" ] }, { "cite": "442 S.E.2d 363", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "365" } ], "opinion_index": 0 }, { "cite": "114 N.C. 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Stat.", "weight": 7, "pin_cites": [ { "parenthetical": "emphasis added" }, { "page": "(b)" }, { "page": "(b)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1012, "char_count": 29612, "ocr_confidence": 0.755, "pagerank": { "raw": 6.915641350561419e-08, "percentile": 0.420062714081014 }, "sha256": "ee8c8ef8bd0e72af52f38b6a38580d293a06706902afe774cfeeff8548d5cbe8", "simhash": "1:b9a8de6b876eac5e", "word_count": 4706 }, "last_updated": "2023-07-14T15:08:58.268450+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER, Robert C., and CALABRIA concur." ], "parties": [ "HARBIN YINHAI TECHNOLOGY, DEVELOPMENT COMPANY, LTD., Plaintiff v. GREENTREE FINANCIAL GROUP, INC., and R. CHRISTOPHER COTTONE, Defendants" ], "opinions": [ { "text": "HUNTER, JR., ROBERT N., Judge.\nPlaintiff Harbin Yinhai Technology Development Company, Ltd. appeals three orders which deny partial summary judgment, dismiss its complaint without prejudice, and deny its motion to set aside judgment of dismissal for fraud and misconduct and for Rule 11 sanctions. Defendants filed a motion to dismiss plaintiff\u2019s appeal. We dismiss the appeal for the order denying partial summary judgment as interlocutory. We agree that the order dismissing the complaint without prejudice is interlocutory; however, in our discretion under Rule 21 of the Rules of Appellate Procedure as discussed supra, we treat the appeal of that issue as a writ of certiorari, and reverse and remand. We hold that the trial court erred in concluding that it did not have jurisdiction to set aside the dismissal for attorney fraud, but dismiss the appeal on this matter as moot. We vacate the trial court\u2019s denial of Rule 11 sanctions and remand for consideration in light of this opinion.\nI. Background\nPlaintiff Harbin Yinhai Technology Development Company, Ltd. (\u201cplaintiff\u2019) is a corporation, organized under the laws of the People\u2019s Republic of China, engaged in specialty printing for financial institutions in China. Defendant Greentree Financial Group, Inc. (\u201cGreentree\u201d) is a Florida corporation, which provides financial advisory and consulting services, with an office in Cornelius, North Carolina. Defendant, R. Christopher Cottone (\u201cCottone\u201d), an officer of Greentree, is a resident of Florida. On 18 October 2004, plaintiff contracted with Greentree and Cottone (collectively \u201cdefendants\u201d) for assistance in arranging a reverse merger transaction with a public shell corporation whose shares were traded in the over-the-counter bulletin board of NASDAQ.\nPlaintiff asserts it paid defendants $70,000.00 for consulting services, and deposited $500,000.00 into escrow, to be released upon the closing of the reverse merger. Upon defendants\u2019 recommendation, plaintiff retained the services of defendants\u2019 North Carolina Attorney, Harold H. Martin.\nDefendants identified WorldTeq Group International, Inc. (\u201cWorldTeq\u201d), a Nevada Corporation, as a suitable reverse merger target. However, after WorldTeq was delisted, defendants identified GFR Pharmaceuticals, Inc. (\u201cGFRP\u201d), a Nevada corporation, as a substitute target for the merger.\nOn 15 August 2005, defendants faxed plaintiff a letter confirming that plaintiff \u201cwill not incur any additional expenses .to close the deal with GFRP instead of WorldTeq\u201d and that the \u201c$500,000 paid into Greentree\u2019s escrow will be applied to the GFRP deal in lieu of WorldTeq.\u201d In October of 2005, plaintiff terminated the merger with GFRP because of its concern that the transaction would give rise to significant liabilities, following the merger. Around 11 October 2005, plaintiff asked defendants to return its escrow deposit of $500,000.00. Defendants replied that there was only $350,000.00 in escrow funds because defendants had applied the remaining $150,000.00 to cover expenses. Plaintiff contends that defendants did not return the escrow funds of $350,000.00 until April of 2006.\nOn 10 April 2007, plaintiff filed claims against defendants for: breach of contract, breach of fiduciary duty, conversion, civil theft and embezzlement, unfair and deceptive trade practices, and constructive fraud. Defendants filed answers denying plaintiff\u2019s allegations. Defendants failed to respond in a timely manner to plaintiff\u2019s requests for admissions and were deemed, by order entered 28 February 2008, to have conclusively admitted that \u201c[plaintiff] deposited a total of $500,000 into escrow with [defendants] as escrow agent\u201d. Plaintiff moved for partial summary judgment and the matter was heard on 26 February 2008. The Honorable Yvonne Mims Evans denied the motion on 28 February 2008 (\u201corder denying partial summary judgment\u201d).\nOn 31 March 2008, when the matter was scheduled for trial, defendants moved to dismiss on the grounds that plaintiff had failed to obtain a certificate of authority to do business as a foreign corporation, pursuant to N.C. Gen. Stat. \u00a7 55-15-02. Lacking prior notice of defendants\u2019 motion, plaintiff requested that the trial court allow it a brief period to research the issue. The Honorable-Timothy S. Kincaid denied plaintiff\u2019s request and dismissed the case without prejudice on 31 March 2008. A written order of dismissal \u201corder of dismissal\u201d) was subsequently entered on 8 April 2008.\nOn 31 March 2008, plaintiff filed a motion to reconsider dismissal order. On or about 10 April 2008, plaintiff filed a joint motion to set aside judgment of dismissal for fraud and misconduct and for Rule 11 sanctions. Plaintiff claimed that defendants\u2019 attorney had violated Rule 11 because its motion to dismiss was lacking in legal merit. Plaintiff contended that defendants\u2019 counsel misled the trial court by failing to disclose the controlling legal authority of N.C. Gen. Stat. \u00a7 55-15-01. The Honorable Timothy S. Kincaid denied plaintiff\u2019s motions on 30 April 2008. A written order was entered on 27 May 2008 that denied the motion to set aside judgment of dismissal for fraud and misconduct \u201cdenial of the motion to set aside dismissal\u201d) and motion for Rule 11 sanctions(\u201cdenial of Rule 11 sanctions\u201d).\nPlaintiff filed notice of appeal on 6 May 2008. Defendants filed a motion to dismiss this appeal on 24 November 2008.\nII. Defendants\u2019 Motion to Dismiss Appeal\nDefendants move to dismiss this appeal and argue that: 1) both the order denying partial summary judgment and the order of dismissal are interlocutory; 2) this Court lacks jurisdiction over the order denying the motion to set aside dismissal and Rule 11 sanctions; and 3) plaintiff violated the Rules of Appellate Procedure. We grant defendants\u2019 motion to dismiss plaintiff\u2019s appeal of the order denying partial summary judgment.\nA. Interlocutory Orders.\nAn interlocutory order is \u201cone made during the pendency of an action which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.\u201d Cagle v. Teachy, 111 N.C. App. 244, 247, 431 S.E.2d 801, 803 (1993). There is generally no right to appeal an interlocutory order. N.C. Dept. of Transportation v. Page, 119 N.C. App. 730, 733, 460 S.E.2d 332, 334 (1995). \u201cThe reason for this rule is to prevent fragmentary, premature and unnecessary appeals by permitting the trial court to bring the case to final judgment before it is presented to the appellate courts.\u201d Fraser v. Di Santi, 75 N.C. App. 654, 655, 331 S.E.2d 217, 218, disc. review denied, 315 N.C. 183, 337 S.E.2d 856 (1985).\nOrders which deny summary judgment are ordinarily interlocutory and not appealable. Cagle, 111 N.C. App. at 245, 431 S.E.2d at 802. A party is only permitted to appeal from an interlocutory order if there has been a final determination of at least one claim, and the trial court certifies there is no just reason to delay the appeal or if delaying the appeal would prejudice a substantial right. Liggett Group v. Sunas, 113 N.C. App. 19, 23-24, 437 S.E.2d 674, 677 (1993). As neither exception applies, we dismiss plaintiffs appeal of the order denying partial summary judgment.\nWe also agree with defendants that trial court\u2019s order of dismissal without prejudice is interlocutory. Unless an exception applies, an order of dismissal without prejudice is interlocutory. See Atkins v. Peek, 193 N.C. App. 606, 609, 668 S.E.2d 63, 65 (2008) (holding that the order of the dismissal without prejudice was interlocutory because it did not deprive the appellant of a substantial right). It is our view that the administration of justice will be best served by using our discretionary authority under Rule 21 of the N.C. Rules of Appellate Procedure to issue a writ of certiorari on the following question: Did the trial court err as a matter of law in determining that the plaintiff' was transacting business in North Carolina and needed a certificate of authority to maintain its lawsuit within the meaning of N.C. Gen. Stat. \u00a755-15-02?\u201d See N.C. R. App. P. 21(a)(1) (2009).\nA writ of certiorari \u201cwill only be issued upon a showing of appropriate circumstances in a civil case where the right of appeal has been lost by failure to take timely action or where no right to appeal from an interlocutory order exists.\u201d Graham v. Rogers, 121 N.C. App. 460, 464, 466 S.E.2d 290, 293 (1996). Because the dismissal in this case involves a motion to dismiss on the eve of trial, a misapplication of law by the trial judge which may have been supplied with incomplete statutory authority by defendants and because this ruling, unless reversed, may prejudice plaintiff should it attempt to refile this action, we find there to be \u201cappropriate circumstances\u201d in which to grant the writ. Furthermore, the parties have fully briefed these issues. Thus, we reach the merits of this issue.\nB. Lack of Jurisdiction\nDefendants assert that this Court does not have jurisdiction over the order denying the motion to set aside dismissal and motion for Rule 11 sanctions because the notice of appeal was not timely filed. Rule 3 of the North Carolina Rules of Appellate Procedure requires a notice of appeal to be filed \u201cwithin 30 days after entry of judgment^]\u201d N.C. R. App. P. 3(c)(1) (2009). We have previously held that:\n\u201crendering of an order commences the time when notice of appeal may be taken by filing and serving written notice, while entry of an order initiates the thirty-day time limitation within which notice of appeal must be filed and served.\u201d\nMerrick v. Peterson, 143 N.C. App. 656, 660, 548 S.E.2d 171, 174 (citation omitted), disc. review denied, 354 N.C. 364, 556 S.E.2d 572 (2001).\nOn 30 April 2008, the trial court announced its decision to deny the motion to set aside dismissal and the motion for Rule 11 sanctions. Plaintiff filed notice of appeal on 6 May 2008, explaining that the order being appealed was \u201crendered orally by [the court] on April 30, 2008 and to be entered shortly.\u201d The order was subsequently entered on 27 May 2008. Defendants\u2019 contention that plaintiff was required to file another notice of appeal after 27 May 2008 is incorrect, and therefore, plaintiff\u2019s notice of appeal was timely filed.\nC. Appellate Procedure Violations\nDefendants argue that plaintiff violated the Rules of Appellate Procedure, in its brief, by: 1) failing to state the standard of review in its first argument, 2) failing to make clear references to the record and transcript in its assignments of error, 3) assigning error to matters that were not ordered by the trial court in its fifth assignment of error, and 4) failing to state the legal basis for its sixth assignment of error. Defendants\u2019 contentions, if correct, concern nonjurisdictional violations, and are not of an egregious nature warranting dismissal.\nOur Supreme Court described three commonly occurring circumstances of default under the appellate rules: \u201c(1) waiver occurring in the trial court; (2) defects in appellate jurisdiction; and (3) violation of nonjurisdictional requirements.\u201d Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 194, 657 S.E.2d 361, 363 (2008). The Court stressed that \u201conly in the most egregious instances of nonjurisdictional default will dismissal of the appeal be appropriate.\u201d Id. at 200, 657 S.E.2d at 366. The nonjurisdictional rules at issue in the present case are Rule 10(c)(1), which directs the form of assignments of error, and Rule 28(b), which governs the content of the appellant\u2019s brief. See N.C. R. App. P. 10(c)(1), 28(b) (2009).\nDefendants claim that plaintiff failed to state the standard of review in its first argument, as required by Rule 28(b)(6) of the Rules of Appellate Procedure. We disagree. In its brief, plaintiff set forth the standard of review when it stated that:\ndismissal of the complaint was error because the facts [the trial court] found did not support its conclusion that [plaintiff] is \u201ctransacting business\u201d in this state. Harold Lang Jewelers, Inc. v. Johnson, 156 N.C. App. 187, 189, 191, 576 S.E.2d 360, 361, 362 (applying standard of review), disc. review denied, 357 N.C. 458, 585 S.E.2d 765 (2003)[.]\nDefendants assert that plaintiff violated Rule 10(c) because it made incorrect references to the record in its assignments of error. See N.C. R. App. P. 10(c)(1) (requiring each assignment of error to have clear and specific references to the record or transcript). All such errors were remedied by plaintiff when we granted its motion to amend the page references contained in its assignments of error.\nIII. Issues\nPlaintiffs remaining arguments are that the trial court erred in: (1) ordering dismissal of the case for plaintiffs failure to obtain a certificate of authority, (2) denying its motion to set aside dismissal, and (3) denying its motion for Rule 11 sanctions.\nIV. Order of Dismissal\nPlaintiff assigns error to the order of dismissal for plaintiffs failure to obtain a certificate of authority pursuant to N.C. Gen. Stat. \u00a7 55-15-02. When determining whether a party is required to obtain a certificate of authority, our Court reviews whether the trial court\u2019s factual findings support its conclusions of law. Harold Lang Jewelers, Inc. v. Johnson, 156 N.C. App. 187, 191, 576 S.E.2d 360, 362-63, disc. review denied, 357 N.C. 458, 585 S.E.2d 765 (2003). We reverse the order of dismissal and hold that the trial court erred in concluding that plaintiff was required to obtain a certificate of authority.\nA foreign corporation is not required to obtain a certificate of authority unless it is \u201ctransacting business\u201d in North Carolina. N.C. Gen. Stat. \u00a7 55-15-02 provides:\nNo foreign corporation transacting business in this State without permission obtained through a certificate of authority . . . shall be permitted to maintain any action or proceeding in any .court of this State unless the foreign corporation has obtained a certificate of authority prior to trial.\nN.C. Gen. Stat. \u00a7 55-15-02 (2007) (emphasis added).\nN.C. Gen. Stat. \u00a7 55-15-01(b) provides a list of activities which \u201cshall not be considered to be transacting business in this State solely for the purposes of this Chapter[.]\u201d \u00d1.C. Gen. Stat. \u00a7 55-15-01(b) (2007). Some of the relevant exclusions include:\n(1) Maintaining or defending any action or suit. . . ;\n(2) Holding meetings of its directors or shareholders or carrying on other activities concerning its internal affairs;\n(8) Transacting business in interstate commerce[.]\nId.\nThe trial court found that plaintiff\u2019s initiation of a lawsuit against defendants constituted transacting business. However, N.C. Gen. Stat. \u00a7 55-15-01(b) provides that maintaining a lawsuit shall not be considered as transacting business. N.C. Gen. Stat. \u00a7 55-15-01(b)(l). \u201c[A] foreign corporation need not obtain a certificate of authority in order to maintain an action or lawsuit so long as the company is not otherwise transacting business in this State.\u201d Quantum Corporate Funding, Ltd. v. B.H. Bryan Bldg. Co., 175 N.C. App. 483, 486, 623 S.E.2d 793, 796 (2006); see also N.C. Gen. Stat. \u00a7 55-15-01 Official Comment (2007) (\u201c[A] corporation is not \u2018transacting business\u2019 solely because it resorts to the courts of the state to recover an indebtedness, enforce an obligation, ... or pursue appellate remedies.\u201d).\nThe trial court also found that plaintiff transacted business in North Carolina by contracting with defendants and their attorney, Harold H. Martin (\u201cMartin\u201d), to perform the following services: locating a shell corporation so that plaintiff could become a publicly traded company, executing a plan of exchange for a reverse merger into a Nevada corporation, serving as an escrow agent, and preparing corporate documents and SEC filings. The trial court erred when it concluded that plaintiff was transacting business by engaging in those activities because each activity is excluded by the provisions in N.C. Gen. Stat. \u00a7 55-15-02(b) governing interstate commerce and internal affairs. See N.C. Gen. Stat. \u00a7 55-15-02(b).\nThe Commerce Clause grants and reserves to Congress the regulation of \u201ccommerce with foreign nations, and among the several states[.]\u201d U.S. Const, art. I, \u00a7 8, cl. 3. A foreign corporation shall not be considered to be transacting business in this state for \u201c[transacting business in interstate commerce[.]\u201d N.C. Gen. Stat. \u00a7 55-15-01 (b)(8); see also Allenberg Cotton Co., Inc. v. Pittman, 419 U.S. 20, 42 L. Ed. 2d 195 (1974) (holding that a foreign corporation transacting interstate business cannot be required to qualify before maintaining suit). \u201c[E]very negotiation, contract, trade and dealing between citizens of different states . . . whether it be of goods, persons or information, is a transaction of interstate commerce.\u201d Snelling & Snelling v. Watson, 41 N.C. App. 193, 198, 254 S.E.2d 785, 789 (1979) (citation omitted) (deciding that the plaintiffs solicitation and negotiation of interstate licensing agreements in North Carolina were transactions of interstate commerce).\nDefendants and Martin acted as independent contractors when rendering services to plaintiff. The activities of an independent contractor cannot be attributed to a foreign corporation when determining if the corporation is required to obtain a certificate of authority. See id. at 202, 254 S.E.2d at 792. Furthermore, any attempts to execute reverse mergers with WorldTeq and GFRP were interstate transactions, as both corporations are organized in Nevada.\nIndependent of the interstate commerce exclusion, plaintiffs interactions with defendants and Martin were excluded as \u201ccarrying on other activities concerning its internal affairs[.]\u201d N.C. Gen. Stat. \u00a7 55-15-01 (b)(2). Plaintiffs relationship with defendants and Martin related exclusively to its efforts to reorganize as a publically traded company in the United States. Our Court has interpreted transacting business to \u201c \u2018require the engaging in, carrying on or exercising, in North Carolina, some of the functions for which the corporation was created.\u2019 \u201d Harold Lang Jewelers, Inc., 156 N.C. App. at 190, 576 S.E.2d at 362 (quoting Canterbury v. Hardware Imports, 48 N.C. App. 90, 96, 268 S.E.2d 868, 872 (1980)). The activities carried on by a corporation in North Carolina must be substantial, continuous, systematic, and regular. Canterbury, 48 N.C. App. at 96, 268 S.E.2d at 872. \u201cTypical conduct requiring a certificate of authority includes maintaining an office to conduct local intrastate business, selling personal property not in interstate commerce, entering into contracts relating to the local business or sales, and owning or using real estate for general corporate purposes.\u201d N.C. Gen. Stat. \u00a7 55-15-01 Official Comment.\nThe purpose of plaintiff\u2019s corporation was to prepare documents for financial institutions in China. There is no evidence that plaintiff carried on any such activity in North Carolina. Plaintiff did not maintain offices in this state nor did it solicit business to any North Carolina corporations. The evidence indicates that plaintiffs representatives had not even visited North Carolina prior to this lawsuit.\nDefendants argue that even though some of plaintiffs activities, viewed in isolation, do not constitute transacting business, \u201cthis lawsuit combined with multiple other activities [are] sufficient to constitute conducting business.\u201d Defendants claim that in order to determine whether plaintiff was transacting business, this Court should evaluate the \u201ccumulative effect of its activities in North Carolina.\u201d This contention is contrary to N.C. Gen. Stat. \u00a7 55-15-01(b) which provides that \u201ca foreign corporation shall not be considered to be transacting business in this State solely for the purposes of this Chapter, by reason of carrying on in this State any one or more of the following activities[.]\u2019\u2019 N.C. Gen. Stat. \u00a7 55-15-01(b); see also Russell M. Robinson, II, Robinson on North Carolina Corporation Law \u00a7 30.03 at 1 (2007) (\u201c[Conducting more than one of the listed activities [in N.C. Gen. Stat. \u00a7 55-15-01(b)] will not have the cumulative effect of requiring qualification.\u201d). Each of plaintiffs interactions with defendants and Martin concern interstate commerce or its internal affairs, and are therefore, excluded by N.C. Gen. Stat. \u00a7 55-I5-01(b). The trial court erred in concluding that plaintiff transacted business in North Carolina and was required to obtain a certificate of authority. We reverse the order of dismissal and remand for further proceedings.\nV. Denial of the Motion to Set Aside Dismissal\nThe trial court denied plaintiffs motion to set aside dismissal because of fraud, misrepresentation, and misconduct of defendants\u2019 counsel. Plaintiff argues that the trial court erred in concluding it lacked jurisdiction under Rule 60(b) to set aside an order of dismissal for fraud by a party\u2019s attorney. We agree.\nWe review an order ruling upon a Rule 60(b) motion to determine whether the trial court abused its discretion. State ex rel. Davis v. Adams, 153 N.C. App. 512, 515, 571 S.E.2d 238, 240 (2002). \u201c \u2018A judge is subject to reversal for abuse of discretion only upon a showing by a litigant that the challenged actions are manifestly unsupported by reason.\u2019 \u201d Id. (quoting Clark v. Clark, 301 N.C. 123, 129, 271 S.E.2d 58, 63 (1980)).\nRule 60(b) provides that upon motion, the court may relieve a party from a final judgment if there is fraud, misrepresentation, or other misconduct of an adverse party. N.C. Gen. Stat. \u00a7 1A-1, Rule 60(b)(3) (2007). Relief from attorney fraud on the court \u201cis to be granted only where the judgment was obtained by the improper conduct of the party in whose favor it was rendered.\u201d Purcell Int\u2019l Textile Grp., Inc. v. Algemene AFW N.V., 185 N.C. App. 135, 138, 647 S.E.2d 667, (citation omitted) disc. review denied, 362 N.C. 88, 655 S.E.2d 840 (2007).\nHere, plaintiff claimed that the dismissal was a result of the fraud and misrepresentation of defendants\u2019 attorney in its motion to dismiss for plaintiff\u2019s failure to obtain a certificate of authority. Plaintiff argued that defendants\u2019 counsel argued the motion in a misleading way by failing to provide the court with the relevant legal authority of N.C. Gen. Stat. \u00a7 55-15-01, which was paramount in the determination of whether plaintiff was required to obtain a certificate of authority. See N.C. Gen. Stat. \u00a7 55-15-01. The trial court erred in concluding that it lacked jurisdiction under Rule 60(b) to set aside an order of dismissal for attorney fraud. Because we are reversing the order of dismissal, the issue of whether the trial court should have set aside the order of dismissal is moot.\nVI. Denial of Rule 11 Sanctions\nPlaintiff contends that the trial court erred in denying Rule 11 sanctions for defendants\u2019 counsel. \u201c[U]nder Rule 11, the signer certifies that three distinct things are true: the pleading is (1) warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law (legal sufficiency); (2) well grounded in fact; and (3) not interposed for any improper purpose.\u201d Bumgardner v. Bumgardner, 113 N.C. App. 314, 322, 438 S.E.2d 471, 476 (1994); N.C. R. App. P. 11(a) (2009). A violation of any one of these requirements \u201cmandates the imposition of sanctions under Rule 11.\u201d Dodd v. Steele, 114 N.C. App. 632, 635, 442 S.E.2d 363, 365, disc. review denied, 337 N.C. 691, 448 S.E.2d 521 (1994).\nAfter the trial court granted defendants\u2019 motion to dismiss for plaintiff\u2019s failure to obtain a certificate of authority, plaintiff filed a motion for Rule 11 sanctions and argued that defendants\u2019 counsel violated Rule 11 because its motion to dismiss was legally insufficient, filed for an improper purpose, and failed to disclose the relevant legal authority of N.C. Gen. Stat. \u00a7 55-15-01. We vacate the trial court\u2019s denial of Rule 11 sanctions and remand for further proceedings in light of this opinion.\nVII. Conclusion\nWe grant defendants\u2019 motion to dismiss plaintiff\u2019s appeal of the order denying partial summary judgment. We reverse the order of dismissal and remand for further proceedings. We dismiss the appeal of the denial of the motion to set aside dismissal as moot and vacate the denial of Rule 11 sanctions and remand for consideration in light of this opinion.\nAppeal dismissed in part; reversed and remanded in part; and vacated and remanded in part.\nJudges HUNTER, Robert C., and CALABRIA concur.", "type": "majority", "author": "HUNTER, JR., ROBERT N., Judge." } ], "attorneys": [ "Bishop, Gapitano & Moss, P.A., by J. Daniel Bishop and Joseph A. Davies, for plaintiff-appellant.", "Leslie C. Rawls and Newkirk Law Office, by Robert B. Newkirk, III, for defendant-appellees." ], "corrections": "", "head_matter": "HARBIN YINHAI TECHNOLOGY, DEVELOPMENT COMPANY, LTD., Plaintiff v. GREENTREE FINANCIAL GROUP, INC., and R. CHRISTOPHER COTTONE, Defendants\nNo. COA08-1115\n(Filed 5 May 2009)\n1. Appeal and Error\u2014 appealability \u2014 order denying partial summary judgment \u2014 order dismissing complaint \u2014 writ of certiorari\nPlaintiff\u2019s appeal from an interlocutory order denying its motion for partial summary judgment was dismissed. However, the Court of Appeals treated plaintiff\u2019s appeal from an interlocutory order of dismissal of the complaint without prejudice as a writ of certiorari and allowed the petition in its discretion because: (1) the dismissal involved a motion to dismiss on the eve of trial and a misapplication of law by the trial judge which may have been supplied with incomplete statutory authority by defendants; and (2) the ruling, unless reversed, may prejudice plaintiff should it attempt to refile this action.\n2. Appeal and Error\u2014 notice of appeal \u2014 timeliness\nPlaintiff\u2019s notice of appeal from an order of dismissal without prejudice was timely filed, even though it was filed prior to entry of the dismissal order, where the trial court announced its decision to deny the motion to set aside dismissal and the motion for Rule 11 sanctions on 30 April 2008, plaintiff filed notice of appeal on 6 May 2008 explaining that the order being appealed was rendered orally by the court on 30 April 2008 and was to be entered shortly, and the order was subsequently entered on 27 May 2008.\n3. Appeal and Error\u2014 appellate rules violations \u2014 standard of review \u2014 incorrect references to record in assignments of error\nThe trial court did not err by concluding plaintiff did not violate the Rules of Appellate Procedure in its brief because: (1) contrary to defendants\u2019 assertion, plaintiff set forth the standard of review in its brief as required by N.C. R. App. P. 28(b)(6); and (2) although defendants assert that plaintiff violated N.C. R. App. P. 10(c) based on incorrect references to the record in its assignments of error, all such errors were remedied by plaintiff when the Court of Appeals granted its motion to amend the page references contained in its assignments of error.\n4. Corporations\u2014 Chinese corporation \u2014 contract for services \u2014 not transacting business in this state \u2014 certificate of authority not required to maintain lawsuit\nPlaintiff Chinese corporation was not transacting business in North Carolina and thus was not required to obtain a certificate of authority in order to maintain a lawsuit in this state because: (1) N.C.G.S. \u00a7 55-15-01(b) provides that maintaining a lawsuit shall not be considered as transacting business; (2) by contracting with a Florida corporation with an office in this state and its North Carolina attorney for services involving reverse merger transactions with Nevada corporations, plaintiff was engaged in interstate commerce or was carrying on activities concerning its internal affairs, both of which were exempt from the certificate requirement by N.C.G.S. \u00a7 55-15-01(b)(2) and (8); (3) defendants and their attorney acted as independent contractors when rendering services to plaintiff, and the activities of an independent contractor cannot be attributed to a foreign corporation when determining if the corporation is required to obtain a certificate of authority; and (4) the purpose of plaintiffs corporation was to prepare documents for financial institutions in China, there was no evidence that plaintiff carried on any such activity in North Carolina, plaintiff did not maintain offices in this state and did not solicit business to any North Carolina corporations, and plaintiffs representatives had not even visited North Carolina prior to this lawsuit.\n5. Appeal and Error\u2014 appealability \u2014 motion to set aside order of dismissal \u2014 mootness\nAlthough plaintiff contends the trial court abused its discretion by concluding it lacked jurisdiction to deny plaintiffs motion under N.C.G.S. \u00a7 1A-1, Rule 60(b) to set aside dismissal of its complaint based on fraud, misrepresentation, and misconduct of defendants\u2019 counsel, the issue of whether the trial court should have set aside the order of dismissal is moot because the Court of Appeals reversed, the order of dismissal.\n6. Pleadings\u2014 Rule 11 sanctions \u2014 remanded for further proceedings\nThe trial court\u2019s denial of N.C.G.S. \u00a7 1A-1, Rule 11 sanctions for defendants\u2019 counsel based upon plaintiff\u2019s argument that defendants\u2019 counsel violated Rule 11 because its motion to dismiss was legally insufficient, filed for an improper purpose, and failed to disclose relevant legal authority is vacated and remanded for further proceedings.\nAppeal by plaintiff from order entered on 28 February 2008 by Judge Yvonne Mims Evans in Mecklenburg County Superior Court and orders entered 8 April 2008 and 27 May 2008 by Judge Timothy S. Kincaid in Mecklenburg County Superior Court. Heard in the Court of Appeals 25 February 2009.\nBishop, Gapitano & Moss, P.A., by J. Daniel Bishop and Joseph A. Davies, for plaintiff-appellant.\nLeslie C. Rawls and Newkirk Law Office, by Robert B. Newkirk, III, for defendant-appellees." }, "file_name": "0615-01", "first_page_order": 643, "last_page_order": 655 }