{ "id": 4356983, "name": "KATHY LYNN SISK, Plaintiff v. GLENN L. SISK, SR., Defendant", "name_abbreviation": "Sisk v. Sisk", "decision_date": "2012-07-17", "docket_number": "No. COA11-1320", "first_page": "631", "last_page": "637", "citations": [ { "type": "official", "cite": "221 N.C. App. 631" } ], "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": "641 S.E.2d 751", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637933 ], "year": 2007, "pin_cites": [ { "page": "754" } ], "opinion_index": 0, "case_paths": [ "/se2d/641/0751-01" ] }, { "cite": "665 S.E.2d 505", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641748 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "514" } ], "opinion_index": 0, "case_paths": [ "/se2d/665/0505-01" ] }, { "cite": "182 N.C. App. 329", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8171923 ], "year": 2007, "pin_cites": [ { "page": "333" } ], "opinion_index": 0, "case_paths": [ "/nc-app/182/0329-01" ] }, { "cite": "361 S.E.2d 909", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "919" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 512", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358661 ], "year": 1987, "pin_cites": [ { "page": "528" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0512-01" ] }, { "cite": "255 S.E.2d 322", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "325" } ], "opinion_index": 0 }, { "cite": "41 N.C. App. 524", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550246 ], "year": 1979, "pin_cites": [ { "page": "528" } ], "opinion_index": 0, "case_paths": [ "/nc-app/41/0524-01" ] }, { "cite": "275 S.E.2d 485", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 332", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565508 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0332-01" ] }, { "cite": "193 S.E.2d 709", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "282 N.C. 477", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566690 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/282/0477-01" ] }, { "cite": "192 N.C. App. 376", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4160144 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "390" } ], "opinion_index": 0, "case_paths": [ "/nc-app/192/0376-01" ] }, { "cite": "689 S.E.2d 590", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "592", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "202 N.C. App. 509", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4175288 ], "year": 2010, "pin_cites": [ { "page": "511", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/202/0509-01" ] } ], "analysis": { "cardinality": 621, "char_count": 14169, "ocr_confidence": 0.745, "pagerank": { "raw": 4.400479698708787e-08, "percentile": 0.2761398444465295 }, "sha256": "ae9ec64016ebb615075f11559adf37b3a8d938a7f70373bbf0e1d9ffd8deb4eb", "simhash": "1:3f8b313c6598856d", "word_count": 2417 }, "last_updated": "2023-07-14T16:36:11.101860+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and STROUD concur." ], "parties": [ "KATHY LYNN SISK, Plaintiff v. GLENN L. SISK, SR., Defendant" ], "opinions": [ { "text": "STEELMAN, Judge.\nA judge who did not preside at trial had no jurisdiction to rule on a Rule 59 motion for new trial. We consider the motion for a new trial de novo on appeal, and hold it to be without merit.\nI. Factual and Procedural Background\nKathy Lynn Sisk (plaintiff) and Glenn L. Sisk (defendant) were once married, but are now divorced. On 17 January 2006, plaintiff filed a complaint, which asserted several claims for relief, including a claim for equitable distribution of marital property. On 26 January 2006, defendant filed an answer and counterclaim, which also sought equitable distribution of marital property. These claims were tried before Judge K. Dean Black in June and July of 2008.\nOn 9 April 2009, Judge Black met with both parties\u2019 counsel at the Court Street Grille to discuss the case. Subsequently, counsel for defendant submitted to the court an additional memorandum of law and a proposed judgment of equitable distribution. Copies of these documents were sent to plaintiff\u2019s counsel, who objected to them. At a hearing on 2 June 2009, Judge Black indicated that he had not reviewed the proposed judgment and invited plaintiff\u2019s counsel to submit additional law contrary to that submitted by defendant. On 5 June 2009, counsel for plaintiff made such a submission. At a conference with the parties and counsel on 1 July 2009, the court advised that it was working on a judgment, and that it had considered the proposed judgment and other submissions of the parties.\nOn 13 July 2010, nearly two years after trial, Judge Black entered a written Equitable Distribution Judgment. On 22 July 2010, plaintiff filed a motion for a new trial pursuant to Rule 59 of the Rules of Civil Procedure. This motion alleged that Judge Black acted improperly in using the proposed judgment submitted by counsel for defendant. On 5 August 2010, plaintiff filed a motion pursuant to Rule 62 of the Rules of Civil Procedure seeking a stay of Judge Black\u2019s judgment of 13 July 2010.\nThese motions came on for hearing before Judge Larry J. Wilson at the 18 August 2010 session of District Court. Judge Wilson declined to hear the motions and ordered that they be scheduled for hearing before Judge Black. Judge Wilson found that no motion had been made for Judge Black to be recused from hearing the case. On 13 September 2010, plaintiff filed a motion to recuse Judge Black, asserting that there were \u201creasonable questions as to Judge Black\u2019s partiality and bias against the Plaintiff.\u201d On 10 November 2010, Judge Black filed an order that recused him from hearing further matters in the case. The order contained no explanation for the recusal, and it continued the case to be scheduled for hearing before Judge Wilson.\nOn 3 March 2011, Judge Wilson filed an order setting aside the Judgment of Equitable Distribution dated 13 July 2010 and granting a new trial.\nDefendant appeals.\nII. Jurisdiction of Judge Wilson to Order a New Trial\nDefendant contends that Judge Wilson had no jurisdiction to enter an order granting a new trial. We agree.\nA. Standard of Review\n\u201cWhether a trial court has subject-matter jurisdiction is a question of law, reviewed de novo on appeal.\u201d McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592 (2010) (citation omitted).\nB. Analysis\nIn Gemini Drilling & Found., LLC v. Nat\u2019l Fire Ins. Co., 192 N.C. App. 376, 665 S.E.2d 505 (2008), we held that a judge who did not try a case may not rule upon a motion for a new trial. Id. at 388-90, 665 S.E.2d at 513-14 (citing Hoots v. Callaway, 282 N.C. 477, 193 S.E.2d 709 (1973) and Graves v. Walston, 302 N.C. 332, 275 S.E.2d 485 (1981)). Judge Wilson was without jurisdiction to hear plaintiffs Rule 59 motion for a new trial. The order filed on 3 March 2011 granting a new trial is hereby vacated.\nIII. Plaintiff\u2019s Motion for a New Trial\nIn his second argument on appeal, defendant contends that plaintiff is not entitled to a new trial pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 59. We agree.\nA. Standard of Review\n\u201c[I]t is not appropriate for a superior court judge who did not try a case to rule upon a motion for a new trial, and in that situation, an appellate court should conduct the review of errors to determine if the party is entitled to a new trial.\u201d Gemini, 192 N.C. App. at 390, 665 S.E.2d at 514.\nB. Analysis\nPlaintiff\u2019s motion for a new trial recites that it is made pursuant to Rule 59(a)(1) (irregularity by which a party was prevented from having a fair trial); 59(a)(2) (misconduct of the prevailing party); 59(a)(3) (surprise which ordinary prudence could not have guarded against); and 59(a)(9) (other reason heretofore recognized as grounds for a new trial). Plaintiff\u2019s factual allegations supporting the motion are that defendant\u2019s counsel submitted an additional memorandum of law and proposed judgment to the court on 14 April 2009; that at a status conference on 2 June 2009, Judge Black stated that he had not considered defendant\u2019s proposed judgment; that at a hearing on 1 July 2009, Judge Black acknowledged that, in preparing a judgment, he was working from both a pretrial affidavit and defendant\u2019s proposed judgment; that the judgment entered by Judge Black on 13 July 2010 was based upon defendant\u2019s proposed judgment; that the use of defendant\u2019s proposed judgment by Judge Black constituted grounds for a new trial pursuant to Rule 59(a)(1), (2), (3), and (9); and that an additional basis for new trial was the submission by defendant\u2019s counsel of a memorandum of law containing law not submitted at trial.\nWe have carefully reviewed plaintiff\u2019s motion for a new trial, the transcripts of the hearings, and each of the documents referenced therein. We hold that plaintiff\u2019s motion is based primarily upon the lifting of selected portions from the transcript, out of context, and upon innuendo. Plaintiff asserts that it was improper for counsel for defendant to submit to the court a proposed judgment and memorandum of authority on 14 April 2009. Yet the record discloses that copies of these documents were sent to plaintiff\u2019s counsel at the same time that they were sent to the court. On 15 April 2009, counsel for plaintiff responded to defendant\u2019s 14 April 2009 submission as follows:\nIn our recent meeting, you asked Mr. Warren and me to point to any testimony given in court or any cases presented at trial with regard to classification of marital and separate property. It was my understanding you did not invite the parties to provide any additional Memorandum of Law not presented in court at the trial last July, nor did you invite the parties to provide further argument beyond what was presented at trial. Furthermore, at no time did you request either party to present a court order for signature.\nWe further note that the transcript of the hearing on 2 June 2009 reveals that defendant\u2019s counsel was not present during the hearing because he was on military reserve duty. Yet despite the absence of defendant\u2019s counsel, plaintiff\u2019s counsel insisted upon discussing the case with the court. Judge Black stated that he had not reviewed or considered the proposed judgment submitted by defendant. He also made it abundantly clear that if plaintiff had any law that contradicted defendant\u2019s submission, \u201cthat\u2019s what I want you to hit me with.\u201d At the hearing on 1 July 2009, Judge Black outlined the basic structure of his ruling. Defendant\u2019s counsel was instructed to modify the draft judgment to comport with his rulings, and then to forward it to plaintiff\u2019s counsel for his review.\nWe will now discuss each of plaintiff\u2019s grounds for a new trial under Rule 59.\n1. Rule 59iaYl): Irregularity Preventing a Fair Trial\n\u201cNew trials are not awarded because of technical errors. The error must be prejudicial.\u201d Dixon v. Weaver, 41 N.C. App. 524, 528, 255 S.E.2d 322, 325 (1979). \u201c[T]he party asserting the error must demonstrate that he has been prejudiced thereby.\u201d Robinson v. Seaboard Sys. R.R., 87 N.C. App. 512, 528, 361 S.E.2d 909, 919 (1987).\nThe irregularity alleged by plaintiff is that of Judge Black \u201cviewing, using and adopting the uninvited Order\u201d submitted by defendant\u2019s counsel. We hold that this did not constitute an irregularity. The proposed judgment was submitted nearly a year after trial, and after a conference where Judge Black asked counsel for additional support on the crucial question in the equitable distribution proceeding: whether certain property was marital or separate property. The communication was not ex parte, as copies were sent to counsel for plaintiff. The cover letter from defendant\u2019s counsel stated: \u201cIn our meeting on Thursday, April 9, one of the things you asked us to do was to present cases on the issue of whether putting personal property in joint names made it marital for the purposes of equitable distribution.\u201d The submissions by defendant\u2019s counsel were responsive to that request. Plaintiff\u2019s assertion that defendant\u2019s counsel acted wrongfully by submitting cases not considered at trial, which occurred nearly a year earlier, is disingenuous.\nWe further note that while Judge Black stated that he had not reviewed defendant\u2019s proposed judgment at the 2 June 2009 ex parte hearing, it was clear by the 1 July 2009 hearing that he was using the proposed judgment as a starting point. It is also clear that Judge Black made his own independent determinations of the relevant legal issues, and he directed that the proposed judgment be so modified. The final order was entered over a year after the 1 July 2009 hearing. At the 2 June 2009 hearing, it was made clear to the plaintiff that she was invited to rebut the submissions by defendant. This was in fact done by a submission to the court on 5 June 2009.\nWe further hold that plaintiff has failed to demonstrate prejudice under Rule 59(a)(1). Plaintiff states in her brief to the Court that she was \u201cleft to question\u201d whether prejudice occurred. This allegation is not sufficient to demonstrate prejudice. Plaintiff makes no argument, either in her motion for a new trial or her brief to this Court, as to how this alleged irregularity affected the equitable distribution judgment of Judge Black. \u201cIt is not the duty of this Court to peruse through the record, constructing an argument for appellant.\u201d Pers. Earth Movers, Inc., v. Thomas, 182 N.C. App. 329, 333, 641 S.E.2d 751, 754 (2007).\nThis argument is without merit.\n2.Rule 59(aY2): Misconduct by the Prevailing Party \u2022\nSince the proceedings at issue were non-jury, the only ground applicable to this case under Rule 59(a)(2) is alleged misconduct by a party. Plaintiff contends that the submissions of defendant\u2019s counsel on 14 April 2009 constituted misconduct. As noted above, this submission was responsive to the court\u2019s request, and was not an ex parte communication. Further, as noted above, plaintiff has failed to demonstrate prejudice.\nThis argument is without merit.\n3.Rule 59(aY3): Surprise\nWe fail to see how plaintiff could possibly have been surprised by a submission dated 14 April 2009, to which she responded in detail on 15 April 2009 and 5 June 2009. Further, the court conducted several hearings after the submission and prior to the entry of the judgment on 13 July 2010.\nThis argument is without merit.\n4.Rule 59iaY9): Other Reason\nRule 59(a)(9) provides that a new trial may be granted for \u201c[a]ny other reason heretofore recognized as grounds for new trial.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 59(a)(9). Plaintiff\u2019s motion for a new trial references the submission of the \u201cuninvited Order\u201d as being \u201cgood reason and cause for granting to the Plaintiff a new trial on the issues of Post Separation Support, Alimony, and Equitable Distribution, within the meaning of Rule 59(a)(9) of the Rules of Civil Procedure.\u201d Plaintiff\u2019s brief makes no reference to Rule 59(a)(9) and makes no argument as to why that rule would be applicable to this case.\nBased upon our discussion of the other subparts of Rule 59, we hold any argument made by plaintiff under Rule 59(a)(9) to be without merit.\nIV. Conclusion\nJudge Wilson was without jurisdiction to enter an order on plaintiff\u2019s motion for new trial. We have held that the conduct of Judge Black and counsel for defendant did not constitute grounds for a new trial under Rule 59. This does not mean that Judge Black is totally blameless in this matter. The trial was held in June and July of 2008, and the judgment was not filed until 13 July 2010. This delay clearly contributed to the germination of the issues raised by this appeal. The record reveals that Judge Black was assigned to hold court in another county shortly after trial in this matter was conducted. However, this is not an uncommon problem in multi-county judicial districts. It cannot excuse a two-year delay in the entry of the judgment in this case. Our State Constitution provides that \u201cright and justice shall be administered without favor, denial, or delay.\u201d N.C. Const. art. I, \u00a7 18.\nORDER VACATED.\nMOTION FOR NEW TRIAL DENIED.\nJudges ELMORE and STROUD concur.", "type": "majority", "author": "STEELMAN, Judge." } ], "attorneys": [ "Crowe & Davis, P.A., by H. Kent Crowe, for plaintiff-appellee.", "James, McElroy & Diehl, P.A., by Preston O. Odom, III, and The Jonas Law Firm, P.L.L.C., by Johnathan L. Rhyne, Jr., for defendant-appellant." ], "corrections": "", "head_matter": "KATHY LYNN SISK, Plaintiff v. GLENN L. SISK, SR., Defendant\nNo. COA11-1320\n(Filed 17 July 2012)\n1. Jurisdiction \u2014 subject matter \u2014 motion for new trial \u2014 judge did not preside over original trial\nThe trial court erred in an equitable distribution case by entering an order for a new trial. The trial judge was without jurisdiction to hear plaintiffs Rule 59 motion for a new trial where that judge did not preside over the original trial.\n2. Divorce \u2014 equitable distribution \u2014 motion for new trial \u2014 no grounds\nThe trial court erred in an equitable distribution case by entering an order for a new trial. Plaintiff was not entitled to a new trial pursuant to N.C.G.S. \u00a7 1A-1, Rule 59 as the conduct of the trial judge and counsel for defendant did not constitute grounds for a new trial.\nAppeal by defendant from an order directing a new trial entered 2 March 2011 by Judge Larry J. Wilson in Lincoln County District Court. Heard in the Court of Appeals 22 March 2012.\nCrowe & Davis, P.A., by H. Kent Crowe, for plaintiff-appellee.\nJames, McElroy & Diehl, P.A., by Preston O. Odom, III, and The Jonas Law Firm, P.L.L.C., by Johnathan L. Rhyne, Jr., for defendant-appellant." }, "file_name": "0631-01", "first_page_order": 641, "last_page_order": 647 }