{ "id": 4170313, "name": "ANGELA MONIQUE WELCH, Plaintiff v. CORRIE LUMPKIN, INTERSTATE COMPANY POLICE, INCORPORATED RONNIE L. DELAPP, RCD PRODUCTIONS, LLC, Defendants", "name_abbreviation": "Welch v. Lumpkin", "decision_date": "2009-09-01", "docket_number": "No. COA08-1424", "first_page": "593", "last_page": "599", "citations": [ { "type": "official", "cite": "199 N.C. App. 593" } ], "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": "193 S.E.2d 362", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "365" } ], "opinion_index": 0 }, { "cite": "17 N.C. App. 74", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553260 ], "year": 1972, "pin_cites": [ { "page": "80" } ], "opinion_index": 0, "case_paths": [ "/nc-app/17/0074-01" ] }, { "cite": "102 S.E.2d 248", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1958, "pin_cites": [ { "page": "249" } ], "opinion_index": 0 }, { "cite": "247 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628329 ], "year": 1958, "pin_cites": [ { "page": "701" } ], "opinion_index": 0, "case_paths": [ "/nc/247/0699-01" ] }, { "cite": "364 S.E.2d 190", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "193", "parenthetical": "finding no error in the trial court's decision to deny the defendant's Rule 60(b) motion to set the judgment on an error of law" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 513", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358534 ], "year": 1988, "pin_cites": [ { "page": "519", "parenthetical": "finding no error in the trial court's decision to deny the defendant's Rule 60(b) motion to set the judgment on an error of law" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0513-01" ] }, { "cite": "360 S.E.2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1987, "pin_cites": [ { "page": "777" }, { "page": "777" }, { "page": "777" } ], "opinion_index": 0 }, { "cite": "320 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4730978 ], "weight": 3, "year": 1987, "pin_cites": [ { "page": "677" }, { "page": "677" }, { "page": "677" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0669-01" ] }, { "cite": "321 S.E.2d 157", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 769", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4685827, 4683427, 4686693, 4682357, 4682613 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0769-01", "/nc/311/0769-05", "/nc/311/0769-04", "/nc/311/0769-03", "/nc/311/0769-02" ] }, { "cite": "314 S.E.2d 814", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "819" } ], "opinion_index": 0 }, { "cite": "68 N.C. App. 74", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526700 ], "year": 1984, "pin_cites": [ { "page": "79" } ], "opinion_index": 0, "case_paths": [ "/nc-app/68/0074-01" ] }, { "cite": "367 S.E.2d 655", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "658", "parenthetical": "holding that Rule 6(b) gives courts the discretion to extend the time provided under Rule 4(c) for serving a dormant summons" } ], "opinion_index": 0 }, { "cite": "322 N.C. 271", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2516033 ], "year": 1988, "pin_cites": [ { "page": "276", "parenthetical": "holding that Rule 6(b) gives courts the discretion to extend the time provided under Rule 4(c) for serving a dormant summons" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0271-01" ] }, { "cite": "311 S.E.2d 67", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "68" }, { "page": "68", "parenthetical": "concluding \"[t]he language of the rule [Rule 41(d)] directing that the court 'shall dismiss the action' (emphasis added) if the costs assessed have not been paid remains the same, thus the rule as amended [to include a 30-day grace period] still constitutes a mandatory directive\"" } ], "opinion_index": 0 }, { "cite": "66 N.C. App. 470", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525469 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "471" }, { "page": "471-72" } ], "opinion_index": 0, "case_paths": [ "/nc-app/66/0470-01" ] }, { "cite": "42 U.S.C. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 3, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 612, "char_count": 14708, "ocr_confidence": 0.747, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1365176116445399 }, "sha256": "18b40c18b80e5f6a3a83ab7ed45238e4b1c8e25ef4cb99e8266c850bb0d691e3", "simhash": "1:0f2cd6a42b0c6ed9", "word_count": 2570 }, "last_updated": "2023-07-14T20:19:28.879345+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JACKSON and HUNTER, JR. concur." ], "parties": [ "ANGELA MONIQUE WELCH, Plaintiff v. CORRIE LUMPKIN, INTERSTATE COMPANY POLICE, INCORPORATED RONNIE L. DELAPP, RCD PRODUCTIONS, LLC, Defendants" ], "opinions": [ { "text": "WYNN, Judge.\nRule 6(b) \u201cwas not intended to have the effect of giving the court the discretion to amend a final order entered under the mandatory directive of statute.\u201d Here, Plaintiff argues that the parties\u2019 stipulation, pursuant to Rule 6(b), extended the time for Plaintiff\u2019s payment of Rule 41(d) costs associated with a prior voluntary dismissal under Rule 41(a). Because Rule 6(b) may not be read in conjunction with Rule 41(d) to allow parties to stipulate to an extension of the time period to pay costs, we affirm the dismissal of Plaintiffs action.\nOn 6 June 2006, Plaintiff Angela Monique Welch filed suit against Defendants Corrie Lumpkin, Interstate Company Police, Inc, (\u201cICP\u201d), Ronnie L. DeLapp, and RCD Productions, LLC, alleging assault and battery, false imprisonment, intentional infliction of emotional distress, abuse of process, malicious prosecution, negligence, and violations under 42 U.S.C. \u00a7 \u00a7 1981 and 1983. On 27 November 2006, Welch voluntarily dismissed her action without prejudice under Rule 41(a). She refiled the action on 20 November 2007, asserting all of the claims from the previous action except the 42 U.S.C. \u00a7 1983 claim.\nOn 14 January 2008, Northfield Insurance Company (\u201cNorthfield\u201d) filed two motions seeking to intervene as carrier for ICP and Lumpkin, and payment of costs incurred as a result of the original action pursuant to \u00a7 1A-1, Rule 41(d). On 23 January 2008, the trial court granted both motions and ordered Welch to pay within 30 days Northfield\u2019s costs in the amount of $2,005.56 \u201cwith interest accruing at the legal rate until paid in full.\u201d On 25 February 2008, Welch tendered payment to Northfield in the amount of $2,005.56.\nOn 16 April and 30 April 2008, Defendants filed motions to dismiss. Thereafter, Welch filed a motion for relief pursuant to Rule 60(b) of the North Carolina Rules of Civil Procedure. N.C. Gen. Stat. \u00a7 1A-1, Rule 60(b) (2007). The trial court entered an order on 26 June 2008, denying Welch\u2019s motion for relief and granting Defendants\u2019 motions to dismiss.\nWelch appeals, arguing that the trial court erred by: (I) finding she failed to comply with the order to pay costs pursuant to Rule 41(d); (II) concluding that the doctrines of equitable estoppel and estoppel by benefit did not apply; and (III) denying her motion for relief pursuant to Rule 60(b). We find no error.\nI.\nWelch first argues that the trial court erred by holding that she did not comply with the 23 January 2008 order to pay costs to Northfield. Welch contends that it was reversible error not to consider valid the parties\u2019 stipulation, pursuant to N.C. R. Civ. P. 6(b), to extend the time period for Plaintiff\u2019s payment of costs set forth in N.C. R. Civ. P. 41(d). \u00a7 1A-1, Rule 6(b). Further, Welch argues that the 30-day deadline imposed by the order only applied to the amount of costs due ($2,005.56) and not to amounts of interest accrued. Thus, Welch argues that her $2,005.56 payment to Northfield on 25 February 2008 indicates compliance with the order.\nUnder Rule 41(a), a plaintiff may voluntarily dismiss an action by filing notice with the court any time prior to resting his case, and \u201ca new action based on the same claim may be commenced within one year after such dismissal[,]\u201d if the original action commenced within the time prescribed. \u00a7 1A-1, Rule 41(a). Additionally, plaintiff \u201cshall be taxed with the costs of the [voluntarily dismissed] action unless the action was brought in forma pauperis.\u201d \u00a7 1A-1, Rule 41(d). Where a plaintiff brings a new action before paying costs, the court shall, on motion by the defendant, \u201cmake an order for the payment of such costs by the plaintiff within 30 days and shall stay the proceedings in the action until the plaintiff has complied with the order.\u201d Id. \u201cIf the plaintiff does not comply with the order, the court shall dismiss the action.\u201d Id. (emphasis added). However, Rule 6(b) of the N.C. Rules of Civil Procedure provides:\n[P]arties may enter into binding stipulations without approval of the court enlarging the time, not to exceed in the aggregate 30 days, within which an act is required or allowed to be done under these rules, provided, however, that neither the court nor the parties may extend the time for taking any action under Rules 50(b), 52, 59(b), (d), (e), 60(b), except to the extent and under the conditions stated in them.\n\u00a7 1A-1, Rule 6(b).\nIn its 26 June 2008 order, granting Defendants\u2019 motions to dismiss, the trial court found that Welch\u2019s counsel \u201cspoke with counsel for Northfield, who told Plaintiff\u2019s counsel that he would not move to dismiss the action if the costs were paid by 25 February 2008.\u201d However, the trial court ultimately rejected Welch\u2019s claim that the parties could stipulate to extend the deadline past 23 February, concluding that \u201cit is not at all clear that Rule 6(b) may be used to extend by stipulation the time for complying with orders to pay costs entered pursuant to Rule 41(d).\u201d On review, we uphold the trial court\u2019s determination that Rule 6(b) may not be read in conjunction with Rule 41(d) to allow parties to stipulate to an extension of the 30-day time period to pay costs.\nThis Court has previously held that Rule 41(d) constitutes a \u201cmandatory directive\u201d and should not be read in conjunction with Rule 6(b) to allow the extension of time by a court order. Cheshire, 17. N.C. App. at 80, 193 S.E.2d at 365; see also Sanford v. Starlite Disco, Inc., 66 N.C. App. 470, 471, 311 S.E.2d 67, 68 (1984); cf. Lemons v. Old Hickory Council, 322 N.C. 271, 276, 367 S.E.2d 655, 658 (1988) (holding that Rule 6(b) gives courts the discretion to extend the time provided under Rule 4(c) for serving a dormant summons). In Sanford, this Court rejected the plaintiffs contention that the 30-day provision in Rule 41(d) should be read in conjunction with Rule 6(b), and upheld the dismissal of the action for failure to pay costs within 30 days. Sanford, 66 N.C. App. at 471-72, 311 S.E.2d at 68 (concluding \u201c[t]he language of the rule [Rule 41(d)] directing that the court \u2018shall dismiss the action\u2019 (emphasis added) if the costs assessed have not been paid remains the same, thus the rule as amended [to include a 30-day grace period] still constitutes a mandatory directive\u201d). In Cheshire, this Court concluded that Rule 6(b) \u201cwas not intended to have the effect of giving the court the discretion to amend a final order entered under the mandatory directive of statute.\u201d Cheshire, 17 N.C. App. at 80, 193 S.E.2d at 365-66 (noting that Rule 6(b) prohibits court and parties from extending the time \u201cwithin which a motion can be made for action which would affect a judgment entered or findings of fact in a judgment entered\u201d).\nIt follows that if Rule 6(b) fails to give the court discretion to amend an order to pay costs, 6(b) also fails to give the parties discretion to amend an order to pay costs, as the parties purported to do here. Not giving the court or the parties the discretion to amend an order to pay costs following a voluntary dismissal is in keeping with the object of Rule 41(d), which \u201cis clearly to provide superior and district courts with authority for the efficient collection of costs in cases in which voluntary dismissals are taken.\u201d Ward v. Taylor, 68 N.C. App. 74, 79, 314 S.E.2d 814, 819, disc. review denied, 311 N.C. 769, 321 S.E.2d 157 (1984).\nIndeed, the object of efficiency in Rule 41(d) would be undermined if the parties were allowed to stipulate to an extension of time beyond the 30-day grace period set forth in Rule 41(d), as the extension would result in a delay of the collection of costs and delay of the re-filed proceedings. If the parties were able to stipulate to an extension of the 30-day period in which plaintiff must pay costs of the original action, not only would the collection of costs necessarily be delayed, the action would also be delayed beyond the one year period for re-filing plus 30 days from the order of payment under the \u201cmandatory directive\u201d set forth in Rule 41(d). See N.C. Gen. Stat. \u00a7 1A-1, Rule 41(d).\nAccordingly, we find no error in the determination of the trial court that Welch failed to comply with the order to pay costs within the 30-day time period set forth in Rule 41(d).\nII.\nNext, Welch argues that the trial court erred by denying Defendant\u2019s motion to dismiss under the doctrines of equitable estoppel and estoppel by benefit. She argues that she relied to her detriment on counsel for Defendant Northfield\u2019s representation that he would accept her payment on- 25 February without moving to enforce the order. She also contends that by accepting payment on 25 February, Northfield ratified the transaction. Having found that any stipulation by the parties to extend the time period set out under Rule 41(d) is invalid as a matter of law, we hold these assignments of error to be without merit.\nIII.\nFinally, Welch argues that the trial court abused its discretion in denying her motion for relief under Rules 60(b) and 54(b) of the N.C. Rules of Civil Procedure in its order entered 26 June 2008. N.C. Gen. Stat. \u00a7 1A-1, Rules 60(b), 54(b) (2007).\nOn 7 May 2008, Welch filed a \u201cMotion for Relief from Order\u201d pursuant to Rule 60. However, at the hearing on the motion, Welch requested relief pursuant to Rule 54(b), noting \u201cI think I improperly styled this as a Rule 60 motion\u201d and asking \u201cthat this order be rescinded and that a proper order be issued.\u201d The trial court concluded that Welch was not entitled to relief pursuant to Rule 60, stating, \u201cThe law is clear, however, that \u2018erroneous judgments may be corrected only by appeal and Rule 60(b) motions cannot be used as a substitute for appeal.\u2019 \u201d (internal citation omitted). The trial court\u2019s order did not reflect a ruling regarding Rule 54(b). Finding no abuse of discretion, we uphold the trial court\u2019s denial of relief.\nThe appropriate procedural posture for attacking a judgment or order depends largely on the defect asserted. Daniels v. Montgomery Mut. Ins. Co., 320 N.C. 669, 677, 360 S.E.2d 772, 777 (1987). Our courts have long held that Rule 60(b) provides no relief for errors of law. See Hagwood v. Odom, 88 N.C. App. 513, 519, 364 S.E.2d 190, 193 (1988) (finding no error in the trial court\u2019s decision to deny the defendant\u2019s Rule 60(b) motion to set the judgment on an error of law). \u201c \u2018Errors in law can only be rectified by an appellate court on proceedings properly taken in the action in which the judgment was rendered.\u2019 \u201d Daniels, 320 N.C. at 677, 360 S.E.2d at 777 (quoting Lumber Co. v. West, 247 N.C. 699, 701, 102 S.E.2d 248, 249 (1958)). Further, \u201c \u2018[a]n erroneous or irregular judgment binds the parties thereto until corrected in a proper manner.\u2019 \u201d Id. Accordingly, absent a void judgment, parties are bound by the rulings of the court until the judgment has been properly corrected. Thus, the inquiry on appeal is whether the trial court abused its discretion in declining to certify this issue for immediate appeal pursuant to Rule 54(b).\nWelch contends that the trial court\u2019s 23 January 2008 order erroneously ordered her to pay costs plus interest pursuant to Rule 41(d). Importantly, Welch\u2019s argument on appeal is not that the 23 January 2008 order was void ab initio, but rather that the order contained an error of law. Because erroneous judgments remain binding until corrected, Welch was obligated to comply with the terms of the order until corrected. Daniels, 320 N.C. at 677, 360 S.E.2d at 777.\nAs discussed supra, Welch failed to remit the costs awarded by the 23 January order within the 30-day time period prescribed by the order. Further, she failed to raise an objection to the interest award until 7 May 2008, more than 10 days after the awarded amounts were to be paid to Defendants. Based on these deficiencies, we hold that it was within the trial court\u2019s discretion to deny her motion for relief.\nAffirmed.\nJudges JACKSON and HUNTER, JR. concur.\n. N.C. Gen. Stat. \u00a7 1A-1, Rule 6(b) (2007).\n. Cheshire v. Aircraft Coip., 17 N.C. App. 74, 80, 193 S.E.2d 362, 365 (1972).\n. N.C. Gen. Stat. \u00a7 1A-1, Rule 41(a) and (d) (2007).\n. Defendant Northfield is the only remaining defendant in the present action. Welch reached a settlement agreement with defendant\u2019s DeLapp and RCD Productions, Inc., prior to filing the record on appeal.\n. Welch also argues that the trial court erred by denying her motion for reconsideration in its order entered 15 July 2008. However, because Welch failed to assign error to the trial court\u2019s 15 July 2008 order, the only issue properly before this Court is whether the trial court abused its discretion in its ruling on the motion for relief. N.C. R. App. P 10(c)(1) (2008).", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Richard L. Robertson & Associates, P.A., by Richard L. Robertson, for defendants-appellees.", "Everage Law Firm PLLC, by Charles Ali Everage, for plaintiff-appellant." ], "corrections": "", "head_matter": "ANGELA MONIQUE WELCH, Plaintiff v. CORRIE LUMPKIN, INTERSTATE COMPANY POLICE, INCORPORATED RONNIE L. DELAPP, RCD PRODUCTIONS, LLC, Defendants\nNo. COA08-1424\n(Filed 1 September 2009)\n1. Costs\u2014 timeliness of payment \u2014 Rules 6(b) and 41(d) not read in conjunction to extend time period\nN.C.G.S. \u00a7 1A-1, Rule 6(b) may not be read in conjunction with Rule 41(d) to allow parties to stipulate to an extension of the 30-day time period to pay costs. The trial court did not err by holding that plaintiff did not comply with an order to pay costs to the insurance company within the 30-day time period set forth in N.C.G.S. \u00a7 1A-1, Rule 41(d).\n2. Appeal and Error\u2014 appealability \u2014 improper stipulation as a matter of law\nAlthough plaintiff contends the trial court erred by denying. defendant\u2019s motion to dismiss under the doctrines of equitable estoppel and estoppel by benefit, these assignments of error are without merit because any stipulation by the parties to extend the time period set forth in N.C.G.S. \u00a7 1A-1, Rule 41(d) was invalid as a matter of law.\n3. Appeal and Error\u2014 appealability \u2014 error of law in judgment \u2014 denial of motion for relief \u2014 abuse of discretion standard\nThe trial court did not abuse its discretion by denying plaintiff\u2019s motion for relief under N.C.G.S. \u00a7 1A-1, Rules 60(b) and 54(b). The trial court\u2019s order did not reflect a ruling regarding Rule 54(b) and our courts have long held that Rule 60(b) provides no relief from errors of law which can only be rectified by an appellate court. On proceedings properly taken in the action in which the judgment was rendered, absent a void judgment, parties are bound by the rulings of the court until the judgment has been properly corrected.\nAppeal by plaintiff from order entered 26 June 2008 by Judge Albert Diaz in Superior Court, Mecklenburg County. Heard in the Court of Appeals 7 April 2009.\nRichard L. Robertson & Associates, P.A., by Richard L. Robertson, for defendants-appellees.\nEverage Law Firm PLLC, by Charles Ali Everage, for plaintiff-appellant." }, "file_name": "0593-01", "first_page_order": 619, "last_page_order": 625 }