{ "id": 4364218, "name": "WILLIAM DAVID CARDEN, Plaintiff-Appellant v. OWLE CONSTRUCTION, LLC, Defendant-Appellee", "name_abbreviation": "Carden v. Owle Construction, LLC", "decision_date": "2012-01-17", "docket_number": "No. COA11-298", "first_page": "179", "last_page": "185", "citations": [ { "type": "official", "cite": "218 N.C. App. 179" } ], "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 869", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640274 ], "year": 2008, "pin_cites": [ { "page": "871", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/655/0869-01" ] }, { "cite": "653 S.E.2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639998 ], "year": 2007, "pin_cites": [ { "page": "891-92", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/653/0889-01" ] }, { "cite": "539 S.E.2d 334", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "336" }, { "parenthetical": "citation omitted" }, { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 131", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9440250 ], "year": 2000, "pin_cites": [ { "page": "134" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0131-01" ] }, { "cite": "31 S.E.2d 438", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1944, "pin_cites": [ { "page": "439", "parenthetical": "\"Federal Courts have final authority in matters of removal[.]\"" } ], "opinion_index": 0 }, { "cite": "224 N.C. 465", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8606316 ], "year": 1944, "pin_cites": [ { "page": "466", "parenthetical": "\"Federal Courts have final authority in matters of removal[.]\"" } ], "opinion_index": 0, "case_paths": [ "/nc/224/0465-01" ] }, { "cite": "28 U.S.C. \u00a7 1332", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "263 S.E.2d 859", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "864", "parenthetical": "\"Therefore, defendant's connection with the State of North Carolina is far too attenuated .... We hold that the trial court properly dismissed plaintiff's action for want of personal jurisdiction.\"" } ], "opinion_index": 0 }, { "cite": "45 N.C. App. 618", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550456 ], "year": 1980, "pin_cites": [ { "page": "625", "parenthetical": "\"Therefore, defendant's connection with the State of North Carolina is far too attenuated .... We hold that the trial court properly dismissed plaintiff's action for want of personal jurisdiction.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/45/0618-01" ] }, { "cite": "352 S.E.2d 413", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "415", "parenthetical": "citation omitted" }, { "page": "417" } ], "opinion_index": 0 }, { "cite": "319 N.C. 52", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4748431 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "55", "parenthetical": "citation omitted" }, { "page": "58" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0052-01" ] }, { "cite": "316 S.E.2d 870", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "873-74", "parenthetical": "citations and footnotes omitted" } ], "opinion_index": 0 }, { "cite": "69 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525718 ], "year": 1984, "pin_cites": [ { "page": "3-6", "parenthetical": "citations and footnotes omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/69/0001-01" ] }, { "cite": "188 N.C. App. 518", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4155214 ], "year": 2008, "pin_cites": [ { "page": "521", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0518-01" ] }, { "cite": "187 N.C. App. 795", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8376375 ], "year": 2007, "pin_cites": [ { "page": "797", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/187/0795-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-75.12", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 } ], "analysis": { "cardinality": 636, "char_count": 14468, "ocr_confidence": 0.755, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1488816529457895 }, "sha256": "4f0c712a97033cbafd3ca336b4b4ffed1f372077d324ad95015bd088da79c149", "simhash": "1:9f1a71f8f76a6fb3", "word_count": 2358 }, "last_updated": "2023-07-14T20:21:59.538017+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and HUNTER, JR. concur." ], "parties": [ "WILLIAM DAVID CARDEN, Plaintiff-Appellant v. OWLE CONSTRUCTION, LLC, Defendant-Appellee" ], "opinions": [ { "text": "McGEE, Judge.\nWilliam David Carden (Plaintiff) was struck by a passing vehicle while standing at a crosswalk at an intersection of U.S. Highway 19, near Harrah\u2019s Cherokee Hotel and Casino on the Qualla Boundary. Owle Construction, LLC (Defendant) was carrying out improvements to the curb and sidewalk at that intersection. Plaintiff filed a complaint in Durham County Superior Court (superior court), alleging he was injured as a result of the negligence of Harrah's Operating Company, Inc. and Harrah\u2019s N.C. Casino Company, LLC (collectively, Harrah\u2019s), as well as the negligence of Defendant.\nIn a motion dated 12 March 2008, Harrah\u2019s and Defendant moved to dismiss Plaintiff\u2019s complaint, arguing, inter alia, that the Tribal Casino Gaming Enterprise was a necessary party but could not be sued in a North Carolina court because of issues related to sovereign immunity. Harrah\u2019s moved, in the alternative, to \u201cremove ... to the\u201d Cherokee Court of the Eastern Band of Cherokee Indians (the Tribal Court), pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(3). The superior court entered a consent order on 17 April 2008, which contained the following:\nCONCLUSIONS OF LAW\n1. The issues in this matter present difficult issues of subject matter jurisdiction that have not been resolved by controlling decisions of the United States Supreme Court and the North Carolina Supreme Court.\n2. This court makes no decision at present over whether it has subject matter jurisdiction in this matter.\n3. As a matter of comity,. . . Plaintiff should exhaust his remedies before the [Tribal] Court before this court decides the difficult issue of subject matter jurisdiction. The Tribal Casino Gaming Enterprise should be added as party Defendant.\n4. Further proceedings in this matter will be stayed in [superior court] pending the outcome of proceedings in the Tribal Court.\n5. This matter is properly brought before the [Tribal] Court.\nNOW, THEREFORE IT IS ORDERED:\n1. That the Tribal Casino Gaming Enterprise is hereby added as party Defendant.\n2. That this matter is removed to the [Tribal] Court.\n3. That after the Clerk [of superior court] transfers this file to the [Tribal] Court, Plaintiff shall file an Amended Complaint naming the Tribal Casino Gaming Enterprise as party defendant.\nA jury trial was conducted before the Tribal Court and after \u201cthe longest civil trial in Tribal Court history\u201d resulted in a mistrial on 15 December 2009. The Tribal Court thereafter ordered mediation, which resulted in a settlement of Plaintiffs claims against Harrah\u2019s and the Tribal Casino Gaming Enterprise. Plaintiff filed a notice of voluntary dismissal with prejudice on 19 May 2010 in the Tribal Court with respect to his claims against Harrah\u2019s and the Tribal Casino Gaming Enterprise.\nThereafter, Plaintiff filed a motion with the Tribal Court asking for an order \u201cstaying this case or dismissing it, effectively transferring the case to the Superior Court of Durham County.\u201d The record on appeal does not contain a copy of Plaintiff's motion, but does contain the Tribal Court\u2019s 2 September 2010 order denying Plaintiff\u2019s motion.\nPlaintiff filed a motion on 21 October 2010, in Superior Court, Durham County, to \u201clift the stay\u201d pursuant to N.C. Gen. Stat. \u00a7 1-75.12. Prior to the superior court\u2019s ruling on Plaintiff\u2019s motion to lift the stay, Plaintiff also filed in Tribal Court a voluntary dismissal without prejudice of his claims against Defendant. The superior court entered an order on 16 December 2010, denying Plaintiff\u2019s motion to lift the stay, concluding that \u201c[bjecause . . . [Plaintiff\u2019s action was removed to the [Tribal] Court and has been completely dismissed in the [Tribal] Court, no case regarding . . . [Plaintiff's claims in this matter is now open in Durham County Superior Court.\u201d Plaintiff appeals the superior court\u2019s order denying his motion to lift the stay.\nI. Issue on Anneal\nPlaintiff contends the superior court erred by denying his motion to lift the stay based on its erroneous determination that the action was no longer pending in superior court. Plaintiff asserts the superior court incorrectly determined that this case could be \u201cstarted in the superior court [and then] removed or transferred from the General Court of Justice to the Cherokee Tribal Court[.]\u201d\nII. Standard of Review\nA \u201c \u2018trial court\u2019s conclusions of law . . . are fully reviewable on appeal.\u2019 \u201d State v. Robinson, 187 N.C. App. 795, 797, 653 S.E.2d 889, 891-92 (2007) (citation omitted). \u201c \u2018Questions of statutory interpretation are questions of law, which are reviewed de novo by an appellate court.\u2019 \u201d In re Estate of Bullock, 188 N.C. App. 518, 521, 655 S.E.2d 869, 871 (2008) (citation omitted).\nIII. Discussion\nPlaintiff first argues that the superior court erred in determining that the action was no longer pending in superior court because \"there is no mechanism in either federal or North Carolina law to \u2018remove\u2019 or transfer a case from a North Carolina court to Tribal Court.\u201d Defendant counters that there is only one action involved in the present case and it was filed in Durham County Superior Court, transferred to Tribal Court, and then dismissed. The fundamental issue in this case is whether the underlying civil action between Plaintiff and Defendant, filed originally in Durham County Superior Court, was \u201ctransferred\u201d or \u201cremoved\u201d from superior court to the Tribal Court or, instead, was simply stayed while the issue was tried in another jurisdiction.\nOur review of case law and the North Carolina General Statutes leads us to the conclusion that Plaintiff is correct in his argument that there is no prescribed statutory method for the \u201cremoval\u201d of a case from the General Court of Justice of North Carolina to the Tribal Court. This Court has stated the following concerning the Eastern Band of Cherokee:\nThe general subject of Indian law is well beyond the scope of this opinion and we confine ourselves to the issue of jurisdiction over civil suits arising on tribal lands. A few, well-established principles of law bear repeating at the outset, beginning with the proposition that federal power to regulate Indian affairs is plenary and supreme. The states generally have only such power over Indian affairs on a reservation as is granted by Congress, while the tribes retain powers inherent to a sovereign state, except as qualified and limited by Congress.\nFederal recognition of the Eastern Band as an Indian tribe has at least two major implications for the issue of state jurisdiction: (1) \u2022 the federal government continues to maintain plenary power over the Eastern Band, a fact which strictly limits extensions of state power . . ., and (2) the Eastern Band, like all recognized Indian tribes, possesses the status of a \u201cdomestic dependent nation\u201d with certain retained inherent sovereign powers .... These two principles also constitute the test for determining the scope of state court jurisdiction over members of an Indian tribe, referred to by some authorities as the infringement-preemption test.\nWildcatt v. Smith, 69 N.C. App. 1, 3-6, 316 S.E.2d 870, 873-74 (1984) (citations and footnotes omitted). Further,\n\u201c[t]he status of the tribes has been described as \u2018an anomalous one and of complex character,\u2019 for despite their partial assimilation into American culture, the tribes have retained \u2018a semi-independent position . . . not as States, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations, and thus far not brought under the laws of the Uni\u00f3n or of the State within whose limits they reside.\u2019 \u201d\nJackson Co. v. Swayney, 319 N.C. 52, 55, 352 S.E.2d 413, 415 (1987) (citation omitted).\nThus, the Tribal Court is a \u201csemi-independent\u201d entity. It is neither a division of the General Court of Justice of the State of North Carolina, nor a federal court for which procedures of removal are dictated by the United States Code. An analogue to the relationship between the Tribal Court and a North Carolina state court would be the relationship between a North Carolina state court and a court of another state. For example, if a party files an action in superior court in North Carolina, but the matter is properly a South Carolina action, the proper procedure is not \u201cremoval\u201d to South Carolina, but rather for the party to file an action in South Carolina and either dismiss the North Carolina action or move for a stay. See, e.g. Globe, Inc. v. Spellman, 45 N.C. App. 618, 625, 263 S.E.2d 859, 864 (1980) (\u201cTherefore, defendant\u2019s connection with the State of North Carolina is far too attenuated .... We hold that the trial court properly dismissed plaintiff\u2019s action for want of personal jurisdiction.\u201d).\nWhen a petition for removal from state to federal court is filed, the state court shall not enter any further rulings in a case unless it is remanded by the federal court. See N.C. Gen. Stat. \u00a7 1A-1, Rule 12(a)(2) (2011) (\u201cUpon the filing in a district court of the United States of a petition for the removal of a civil action or proceeding from a court in this State and the filing of a copy of the petition in the State court, the State court shall proceed no further therein unless and until the case is remanded.\u201d). Removal of an action from a state court to a federal court is governed by federal law. The determination of whether a case is removable is a determination left to the federal court. See 28 U.S.C. \u00a7 1332 and 1441; Kerley v. Oil Co., 224 N.C. 465, 466, 31 S.E.2d 438, 439 (1944) (\u201cFederal Courts have final authority in matters of removal[.]\u201d). We have reviewed the Cherokee Code of the Eastern Band of the Cherokee Nation, and have found no guidance therein for removal of an action from a state court to Tribal Court. We are cognizant that the parties and courts in the present case had no statutory guidance in dealing with the issues before them. The parties executed a consent order whereby the \u201cmatter [was] removed to the [Tribal] Court.\u201d Further, the superior court\u2019s order contained language indicating that the clerk of Durham County Superior Court \u201ctransferQ this file to the [Tribal] Court[.]\u201d The consent order contains language concerning both \u201ca stay\u201d and \u201cremoval.\u201d\nBlack\u2019s Law Dictionary provides the following definition of removal:\n1. The transfer or moving of a person or thing from one location, position, or residence to another. 2. The transfer of an action from state to federal court.\nBlack\u2019s Law Dictionary 1409 (9th ed. 2009). In several of the Tribal Court\u2019s orders that are contained in the record on appeal before this Court, the Tribal Court refers to this case as having been \u201ctransferred to the Tribal Court[.]\u201d In light of the facts that the file was indeed transferred to the Tribal Court and that the Tribal Court, in its own orders, referred to the case as having been \u201ctransferred,\u201d we are persuaded that the effect of the consent order was \u201cremoval,\u201d notwithstanding the statutory uncertainty in this area.\nThus, the parties consented to the language in the superior court\u2019s order \u201cremoving]\u201d the case to the Tribal Court and the entire file was transferred to the Tribal Court. \u201cA consent judgment is a contract between the parties entered upon the records of a court of competent jurisdiction with its sanction and approval.\u201d Price v. Dobson, 141 N.C. App. 131, 134, 539 S.E.2d 334, 336 (2000) \u201c \u2018The power of a court to sign a consent judgment depends upon the unqualified consent of the parties theretof.]\u2019 \u201d Id. (citation omitted). \u201c \u2018A duly agreed to and entered consent order in a judicial proceeding is a final determination of the rights adjudicated therein and generally is a waiver of a consenting party\u2019s right to challenge the adjudication by appealing therefrom.\u2019 \u201d Id. (citation omitted).\nWe therefore hold that, in the absence of clear statutory guidance from either the General Assembly or the legislative body of the Eastern Band of Cherokee, the parties in the present case are bound by the language of their consent order. We view the matter as Defendant characterizes it: this was one action, filed in Durham County, and then removed to the Tribal Court. As the action was \u201cremoved\u201d to Tribal Court and the file was transferred there as well, there was no longer any action pending in Durham County. Thus, the superior court did not err when it concluded: \u201cBecause . . . [Plaintiff\u2019s action was removed to the [Tribal] Court and has been completely dismissed in the [Tribal] Court, no case regarding... [Plaintiff\u2019s claims in this matter is now open in Durham County Superior Court.\u201d We affirm the superior court\u2019s order denying Plaintiff\u2019s motion to lift the stay.\nPlaintiff also argues that the superior court \u201cshould have lifted the order staying the proceedings because in December 2010 no further jurisdiction existed in the Tribal Court for the dispute between Plaintiff and [Defendant].\u201d Any argument concerning the jurisdiction of the Tribal Court would not be a matter for this Court to consider and rule upon. Rather, such issues should be raised before the Tribal Court and the appellate courts of that jurisdiction, as an exercise of \u201cthe self-governance of the Eastern Band of Cherokee Indians.\u201d Jackson Co., 319 N.C. at 58, 352 S.E.2d at 417.\nAffirmed.\nJudges ELMORE and HUNTER, JR. concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Law Office of Michael W. Patrick, by Michael W. Patrick; and Suzanne Begnoche, for Plaintiff-Appellant.", "Bryant, Lewis & Lindsley, P.A., by David O. Lewis, for Defendant-Appellee." ], "corrections": "", "head_matter": "WILLIAM DAVID CARDEN, Plaintiff-Appellant v. OWLE CONSTRUCTION, LLC, Defendant-Appellee\nNo. COA11-298\n(Filed 17 January 2012)\nNative Americans \u2014 statutorily prescribed method of removing case from superior court to tribal court \u2014 consent order\nThe superior court did not err in a negligence case by denying plaintiff\u2019s motion to lift a stay based on its determination that the action was no longer pending in superior court. Although there was no statutorily prescribed method for the \u201cremoval\u201d of a case from the General Court of Justice of North Carolina to the Tribal Court, the effect of the parties\u2019 consent order was \u201cremoval,\u201d and the parties were bound by the language of the order. Any argument concerning the jurisdiction of the Tribal Court should be raised in that forum.\nAppeal by Plaintiff from order entered 16 December 2010 by Judge Shannon R. Joseph in Superior Court, Durham County. Heard in the Court of Appeals 27 September 2011.\nLaw Office of Michael W. Patrick, by Michael W. Patrick; and Suzanne Begnoche, for Plaintiff-Appellant.\nBryant, Lewis & Lindsley, P.A., by David O. Lewis, for Defendant-Appellee." }, "file_name": "0179-01", "first_page_order": 189, "last_page_order": 195 }