{
  "id": 3821845,
  "name": "JOYCE OTTO, Plaintiff v. DANIEL AND KIMBERLY CERTO, Defendants",
  "name_abbreviation": "Otto v. Certo",
  "decision_date": "2011-03-15",
  "docket_number": "No. COA10-172",
  "first_page": "468",
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  "last_updated": "2023-07-14T21:51:45.819483+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Chief Judge MARTIN and Judge ERVIN concur."
    ],
    "parties": [
      "JOYCE OTTO, Plaintiff v. DANIEL AND KIMBERLY CERTO, Defendants"
    ],
    "opinions": [
      {
        "text": "STROUD, Judge.\nDaniel and Kimberly Certo (\u201cdefendants\u201d) appeal from a district court\u2019s judgment and from an order denying their motion for a new trial. Because defendants did not receive notice of the hearing on their motion for new trial, we reverse the district court\u2019s 5 October 2009 order and remand for further proceedings.\nOn 18 August 2008, Joyce Otto (\u201cplaintiff\u2019) initiated this action by filing a \u201cComplaint in Summary Ejectment\u201d in district court alleging that defendants had entered into an \u201coral\u201d lease agreement with plaintiff to pay the \u201cFirst of each month____$744.62\u201d to rent the property located at \u201c170 High Rock Mountain Road],] Marshall, NC 28753\u201d but the lease had ended on \u201cAugust 1, 2008\u201d and \u201cdefendant[s] [were] holding over after the end of the lease period.\u201d A \u201cMagistrate Summons\u201d for a small claims action was issued on 18 August 2008 setting the date of trial for 10:00 A.M. on 3 September 2008 and was served on both defend\u00e1nts on 23 August 2008. On 29 August 2008, defendants, proceeding pro se, filed a written answer denying plaintiff\u2019s title to the property in question, counterclaiming for equitable relief, and demanding trial by jury. Defendants amended their answer and counterclaim on 29 August 2008.\nFollowing a bench trial on 17 September 2008, the district court, on 19 September 2008, entered a handwritten judgment finding that on 12 November 1996 plaintiff and defendants entered into a written offer to purchase real estate in Madison County, North Carolina; defendants were the buyers and plaintiff was the seller; the purchase price was $89,400 and the earnest money was $4,500 paid by \u201cpersonal check, nonrefundable by seller];]\u201d by agreement on September 1997, the parties extended the contract to purchase for an additional 36 months and at the end of 24 months they agreed for payment of an additional $2,550.00; and under the terms of the extension, defendants had until 12 November 2001 to purchase the real property. The Court then \u201cOrdered Adjudged and decreed\u201d:\nThat the Defendants are granted an extension to purchase said property until Jan. 2, 2009: On Jan 2, 2009 if Defendants have failed [to] purchase said property and pay to the Plaintiff the balance of the amount owing to Plaintiff, Then Plaintiff shall be entitled to recover the said Real Estate upon payment to the Defendants all amounts paid by the[m] for back Real Estate Tax and Insurance on said real Estate. The costs of this action shall be share[d] equally by the parties. This 19 day of September 2008. [District Court Judge Klass\u2019 Signature].\n[Addendum:] The court in rendering this Judgment feels that from the evidence [that] Both Parties should have acted sooner to finalize this matter\u2014\nThis is a very rough order I will be glad to be more specific on Sept 29, 2008, when I return. Thanx.\nDespite the district court\u2019s note that \u201c[t]his is a very rough order I will be glad to be more specific on Sept. 29, 2008,\u201d no additional order appears in the record on appeal.\nOn 29 September 2008, defendants filed a pro se motion for (T) transfer of the matter to superior court; (2) a new trial pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 59; (3) relief from the judgment pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 60; and (4) summary judgment. In this motion, defendants also raised arguments regarding \u201cLack of Adequate Notice [,]\u201d \u201cMatter Not Ripe for Hearing[,]\u201d \u201cOrder Unclear[,]\u201d \u201cCompliance with Court\u2019s Order Inequitable[,]\u201d \u201cCertos Have Note [sic] Breached Contract[,]\u201d and \u201cFraud by Plaintiff[,]\u201d among others. On 7 October 2008, plaintiff moved to (1) strike defendants\u2019 29 September 2008 pleadings; (2) to dismiss defendant\u2019s motions to transfer to superior court, for a new trial, relief from the judgment, and summary judgment; and (3) for sanctions pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 11. On 6 November 2008, plaintiff filed a \u201cNotice of Hearing\u201d setting plaintiff\u2019s motions for 24 November 2008 in District Court, Madison County at 9:30 a.m. \u201cor as soon thereafter as the Court may hear same.\u201d On this notice was a stamped \u201cCertificate of Service\u201d stating that \u201ccounsel for the opposing party\u201d had been served with this notice of hearing \u201cby depositing in the United States Mail a copy of same in a properly addressed envelope with adequate postage thereon,\u201d that was dated 30 October 2008, and signed by plaintiffs counsel. (Emphasis added.) Despite the certificate of service\u2019s reference to serving defendants\u2019 \u201ccounself,]\u201d the record does not include any indication that defendants were ever represented by counsel in the proceedings before the district court in this matter.\nOn 21 July 2009, the district court held a hearing on all pending motions of both plaintiff and defendants. On 8 October 2009, the district court entered an order denying defendants\u2019 motions for a transfer to superior court, new trial, relief from the judgment, and summary judgment. The district court also denied plaintiff\u2019s motion to strike and for sanctions and ordered the parties to bear their own costs. The district court\u2019s order notes that only plaintiff\u2019s counsel was present for the 22 July 2009 hearing on plaintiff\u2019s and defendants\u2019 motions. Defendants gave written notice of appeal on 28 October 2009 from the 19 September 2008 judgment and the 8 October 2009 order.\nAlthough defendants first argue their issues arising from the 19 September 2008 judgment, we find that the second issue, regarding the denial of their motion for new trial, is dispositive. \u201cAppellate review of a denial of a Rule 59 motion for a new trial is distinct from review of the underlying judgment or order upon which such a motion may be based.\u201d Davis v. Davis, 360 N.C. 518, 526, 631 S.E.2d 114, 120 (2006). We will therefore address the second issue, regarding lack of notice of the 21 July 2009 hearing.\nDefendants argue that the district court abused its discretion in denying their Rule 59 request for a new trial because they lacked notice of the 21 July 2009 hearing on plaintiff\u2019s and defendants\u2019 motions and this amounted to a violation of their due process rights. We have noted that\nNotice and an opportunity to be heard prior to depriving a person of his property are essential elements of due process of law which is guaranteed by the Fourteenth Amendment of the United States Constitution and Article 1, section 17, of the North Carolina Constitution. Notice is adequate if it is reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.\nBrown v. Ellis, -N.C. App. -, -, 696 S.E.2d 813, 822 (2010) (citation omitted). \u201cWhether a party has adequate notice is a question of law, which we review de novo.\" Id. (citation omitted).\nHere, following the 19 September 2008 judgment on the merits of the case, defendants on 29 September 2008, filed a motion making numerous requests, including a motion for a new trial pursuant to Rule 59. On 7 October 2008, plaintiff filed concurrent motions to strike, for sanctions, and to dismiss defendants\u2019 motion. On 6 November 2008, plaintiff\u2019s counsel filed a \u201cnotice of hearing\u201d setting plaintiff\u2019s motions \u201cat the November 24th, 2008 term of Madison County District Court at 9:30 a.m. or as soon thereafter as the Court may hear same.\u201d However, the hearing was not held on 24 November 2008. Although the record neither reveals any reason that the hearing was not held on 24 November 2008 nor any additional notice of hearing, all of the plaintiff\u2019s and defendants\u2019 pending motions were heard on 21 July 2009. It was noted in the hearing transcript that defendants were not present or represented by counsel and there is no indication in the record that defendants received notice of the 21 July 2009 hearing.\nBecause notice of hearing to defendants is the issue before us, and notice can be given to a party\u2019s counsel, we have examined the record for any indication that defendants received notice of the hearing through counsel but have found none. Although there is no appearance of an attorney of record for defendants before the trial court, the record does include a 1 May 2009 letter from a West Virginia attorney, Ralph C. Young, on behalf of defendants, to plaintiff\u2019s counsel. This letter does not state that Mr. Young would be appearing as counsel for defendants and in fact notes his understanding that both plaintiff\u2019s counsel and \u201cMr. Cogburn, as counsel for Mr. and Mrs. Certo, have agreed to let me work to accomplish\u201d a resolution of the case. In addition, the letter notes that Mr. Young had \u201cretained the services of a North Carolina attorney [April Sutton] to prepare a Quit-Claim Deed[.]\u201d Additionally, from the 21 July 2009 hearing transcript, it is clear that plaintiff\u2019s counsel had been in contact with Mr. Young and Mr. Cogburn, and he knew \u201cthat April Sutton may be involved in it.\u201d However, Ms. Sutton\u2019s first appearance as counsel for defendants was on 28 October 2009 on the notice of appeal. We further note that no additional documents or information regarding any scheduling or notice of a hearing upon the motions of either plaintiff or defendants are included in the record. While discussing defendants\u2019 absence with the trial court at the start of the 21 July 2009 hearing, plaintiff\u2019s counsel stated in open court that \u201c[i]f I made a phone call, I bet you I could have [defendants] here in five minutes.\u201d However, there is no indication in the hearing transcript that plaintiff\u2019s counsel contacted defendants prior to the hearing nor did plaintiff\u2019s counsel state that defendants had actual notice of the 21 July 2009 hearing. As defendants did not receive any notice, much less \u201cadequate\u201d notice \u201creasonably calculated ... to apprise\u201d them of the 21 July 2009 hearing, they were not afforded \u201can opportunity to present their objections[,]\u201d in violation of their due process rights. See Brown, -N.C. App. at-, 696 S.E.2d at 822. Because the defendants\u2019 motion as well as the plaintiff\u2019s motions must be heard again by the district court, we need not address the substantive issues raised in these motions. Accordingly, we reverse the district court\u2019s 8 October 2009 order which rules upon the defendants\u2019 and plaintiff\u2019s pending motions and remand for further proceedings consistent with this opinion.\nREVERSED.\nChief Judge MARTIN and Judge ERVIN concur.\n. We note that 29 September 2008, the date of defendants\u2019 motion, is the same date upon which the trial court indicated in its handwritten order that it would \u201cbe more specific!.]\u201d However, the record does not include any indication of any court proceedings on 29 September 2009.\n. It appears that Mr. Cogburn was representing defendants herein in another legal matter arising out of their contract to purchase the plaintiffs property.",
        "type": "majority",
        "author": "STROUD, Judge."
      }
    ],
    "attorneys": [
      "No plaintiff-appellee\u2019s brief filed.",
      "The Sutton Firm, P.A. by April Burt Sutton, for defendants-appellants."
    ],
    "corrections": "",
    "head_matter": "JOYCE OTTO, Plaintiff v. DANIEL AND KIMBERLY CERTO, Defendants\nNo. COA10-172\n(Filed 15 March 2011)\nConstitutional Law\u2014 due process \u2014 motion for new trial \u2014 failure to give notice of hearing\nThe trial court\u2019s order in a summary ejectment case was reversed and remanded for further proceedings because defendants\u2019 due process rights were violated when they did not receive notice of the hearing on their motion for a new trial.\nAppeal by defendants from a judgment entered on or about 5 October 2009 by Judge William A. Leavell, III and from an order entered 19 September 2008 by Judge Jack E. Klass in District Court, Madison County. Heard in the Court of Appeals 30 August 2010.\nNo plaintiff-appellee\u2019s brief filed.\nThe Sutton Firm, P.A. by April Burt Sutton, for defendants-appellants."
  },
  "file_name": "0468-01",
  "first_page_order": 476,
  "last_page_order": 481
}
