K&S Res. ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-409
No. COA21-484
Filed 21 June 2022
Guilford County, No. 19CVS7663
K&S RESOURCES, LLC, Plaintiff,
v.
JEANETTE DAVIS GILMORE, Defendant.
Appeal by defendant from judgment and order entered 1 June 2021 by Judge
William A. Wood in Guilford County Superior Court. Heard in the Court of Appeals
8 March 2022.
Brown, Faucher, Peraldo & Benson, PLLC, by Drew Brown, for defendant-
appellant.
Gordon Law Offices, by Harry G. Gordon, for plaintiff-appellee.
GORE, Judge.
¶1 Defendant Jeanette Davis Gilmore appeals from the trial court’s Judgment
and Order denying her Motion for Summary Judgment and granting Summary
Judgment in favor of plaintiff assignee K&S Resources, LLC. We reverse.
I. Factual and Procedural Background
¶2 On 9 August 2019, plaintiff filed its Complaint in this action as “a suit on
Judgment.” Plaintiff aims to renew a prior amended judgment against defendant, 08
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CVS 7912, filed 29 September 2009 nunc pro tunc to 20 July 2009. As an affirmative
defense, defendant pled plaintiff’s action is barred by the 10-year statute of
limitations and repose.
¶3 Pertinent to the instant appeal, this Court previously affirmed the trial court’s
2009 amended judgment by unpublished opinion in Henry James Bar-Be-Que v.
Gilmore, No. COA10-729, 2011 N.C. App. LEXIS 617 (Ct. App. Apr. 5, 2011)
(unpublished), disc. rev. denied, 365 N.C. 206, 710 S.E.2d 17 (N.C. 2011). In the prior
action,
Henry James Bar-Be-Que, Inc., ([the] Plaintiff) filed a
complaint on 4 June 2008 seeking to recover damages from
Jeanette Davis Gilmore (Defendant) for breach of a
commercial lease in the amount of $866,515.64. [The]
Plaintiff also sought attorneys’ fees in the amount of
$129,977.35, as well as costs. This matter was tried before
the trial court judge at the 27 April 2009 Civil Session of
Superior Court, Guilford County. The trial court entered
judgment in favor of [the] Plaintiff on 20 July 2009.
Id. at *1. “Defendant moved to amend the judgment on 30 July 2009, and the trial
court entered an amended judgment on 29 September 2009, nunc pro tunc 20 July
2009. In its amended judgment, the trial court made additional findings of fact and
conclusions of law . . . .” Id. at *5.
¶4 Both the original judgment filed 20 July 2009, and amended judgment filed 29
September 2009 nunc pro tunc 20 July 2009,
order[ed] that [the] Plaintiff recover (1) the principal sum
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of $687,298.22, (2) pre-judgment accrued interest in the
amount of $303,617.65, and (3) interest at the rate of eight
percent per annum from 20 July 2009 until paid. The trial
court also ordered Defendant to pay Plaintiff’s reasonable
attorney’s fees in the amount of fifteen percent of the
amount owed, from the date the action was commenced,
which amount was $127,438.06.
Id. at *1-2. This Court affirmed. Id. at *24.
¶5 The plaintiff in 08 CVS 7912, Henry James Bar-Be-Que, Inc., proceeded with
execution under the amended judgment but was unsuccessful in collecting any
amount. On or about 14 April 2016, Henry James Bar-Be-Que, Inc., assigned the
2009 amended judgment to plaintiff K&S Resources, LLC. The assignment of
judgment was duly recorded with the Register of Deeds pursuant to N.C. Gen. Stat.
§ 1-246.
¶6 In the instant appeal, the trial court ultimately heard Cross-Motions for
Summary Judgment on 18 May 2021. In an Order and Judgment filed 1 June 2021,
the trial court concluded from the record that there is no genuine issue as to any
material fact, and that plaintiff is entitled to judgment as a matter of law. The trial
court denied defendant’s Motion for Summary Judgment, granted Summary
Judgment in favor of plaintiff, and awarded plaintiff recovery in the sum of
$1,651,471.94 plus additional interest on the principal sum of $687,298.22 at the legal
rate of eight percent (8%) per annum from 1 August 2019 until paid, plus the costs of
this action.
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¶7 On 22 June 2021, defendant timely filed notice of appeal.
II. Summary Judgment
¶8 On appeal, defendant argues the trial court erred in denying her Motion for
Summary Judgment and granting Summary Judgment in favor of plaintiff.
Specifically, defendant asserts plaintiff’s action is time-barred because the 10-year
statute of limitations on the commencement of a new action accrued from the original
judgment entered 20 July 2009, and the subsequent amended Judgment, filed 29
September 2009 nunc pro tunc 20 July 2009, did not expand or toll the applicable 10-
year statute of limitations. Thus, defendant contends, the wrong party prevailed.
A. Standard of Review
¶9 “The standard of review for summary judgment is de novo.” Forbis v. Neal,
361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007) (citation omitted).
B. Statute of Limitations
¶ 10 In this case, plaintiff assignee filed a Complaint in Action to renew a prior
judgment against defendant. North Carolina General Statutes § 1-47(1) governs the
statute of limitations on the renewal of a prior judgment, for other than real property.
The statute provides:
Within ten years an action . . . [u]pon a judgment or decree
of any court of the United States, or of any state or territory
thereof, from the date of its entry. No such action may be
brought more than once, or have the effect to continue the
lien of the original judgment.”
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N.C. Gen. Stat. § 1-47(1) (2020) (emphasis added); see also § 1-46 (2020) (“The periods
prescribed for the commencement of actions, other than for the recovery of real
property, are as set forth in this Article.”). “[A] judgment is entered when it is reduced
to writing, signed by the judge, and filed with the clerk of court . . . .” N.C. R. Civ. P.
58.
¶ 11 “The question whether a cause of action is barred by the statute of
limitations is a mixed question of law and fact. When a defendant asserts the statute
of limitations as an affirmative defense, the burden rests on the plaintiff to prove that
his claims were timely filed.” White v. Consol. Planning, Inc., 166 N.C. App. 283, 305,
603 S.E.2d 147, 162 (2004) (citation and quotation marks omitted).
¶ 12 Plaintiff contends the statute of limitations ran from the filing date of the
amended judgment, not the original judgment. In the alternative, it argues that
assuming the statute of limitations does run from the original judgment, there are
multiple statutory tolling provisions that make its Complaint on Judgment timely
filed.
¶ 13 After careful examination, we determine the statute of limitations ran from
the original judgment, and plaintiff’s alternative contention is without merit.
Plaintiff filed its complaint after the expiration of the 10-year statute of limitations
period, and its action is time-barred.
1. Amended Judgment
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¶ 14 Throughout its brief, plaintiff contends defendant filed and prevailed upon a
Motion to Alter or Amend Judgment pursuant to Rule 59 of the North Carolina Rules
of Civil Procedure. Plaintiff has not identified that Rule 59 Motion anywhere in the
record. We do, however, note defendant filed a Motion to Amend Judgment pursuant
to Rule 52(b) of the North Carolina Rules of Civil Procedure on 30 July 2009.
Furthermore, defendant’s notice of appeal and proposed issues on appeal from Henry
James Bar-Be-Que v. Gilmore are included in the record. Those documents indicate
the trial court declined to provide relief pursuant to Rule 52(b) and declined to enter
the specific facts and conclusions the defendant requested. Contrary to plaintiff’s
contention, there is no indication in the record now before us that the trial court
altered or amended the original judgment pursuant to Rule 59.
¶ 15 Rule 59(e) and Rule 52(b) are similar mechanisms. A party seeking post-
judgment relief may, and often does, file both contemporaneously for consideration
by the trial court. See N.C. R. Civ. P. 52(b) (“The motion may be made with a motion
for a new trial pursuant to Rule 59.”).
¶ 16 Rule 52(b) of the North Carolina Rules of Civil Procedure provides that “[u]pon
motion of a party made not later than 10 days after entry of judgment the court may
amend its findings or make additional findings and may amend the judgment
accordingly. However, Rule 52(b) is not intended to provide a forum for the losing
party to relitigate aspects of their case. G. Gray Wilson, North Carolina Civil
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Procedure, Ch. 52, § 52-6 (Matthew Bender) (4th ed. 2021). “The primary purpose of
a Rule 52(b) motion is to enable the appellate court to obtain a correct understanding
of the factual issues determined by the trial court.” Branch Banking & Tr. Co. v.
Home Fed. Sav. & Loan Asso., 85 N.C. App. 187, 198, 354 S.E.2d 541, 548 (1987). “If
a trial court has omitted certain essential findings of fact, a motion under Rule 52(b)
can correct this oversight and avoid remand by the appellate court for further
findings.” Id. at 198-99, 354 S.E.2d at 548 (citation omitted). “A complete record on
appeal, resulting from a Rule 52(b) motion, will provide the appellate court with a
better understanding of the trial court’s decision, thus promoting the judicial
process.” Parrish v. Cole, 38 N.C. App. 691, 694, 248 S.E.2d 878, 880 (1978).
¶ 17 Rule 59 “is appropriate if the court has failed in the original judgment to afford
the relief to which the prevailing party is entitled. A motion under this rule may also
be employed by a party who seeks to have an order or judgment vacated in its
entirety.” G. Gray Wilson, North Carolina Civil Procedure, Ch. 59, § 59-17 (Matthew
Bender) (4th ed. 2021). Under Rule 59(e), “[a] motion to alter or amend the judgment”
must be based on one of the enumerated grounds in subsection (a). Rule 59(a)
provides, in pertinent part:
On a motion for a new trial in an action tried without a
jury, the [trial] court may open the judgment if one has
been entered, take additional testimony, amend findings of
fact and conclusions of law or make new findings and
conclusions, and direct the entry of a new judgment.
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N.C. R. Civ. P. 59(a) (emphasis added).
¶ 18 Thus, where the trial court sits without a jury, and enters an amended
judgment pursuant to Rule 59(e), the amended judgment is a new judgment. Where
the trial court amends a judgment pursuant to Rule 52(b) alone and includes
additional findings of fact and conclusions of law without disturbing the ultimate
relief afforded to the prevailing party, the validity of the original judgment is
undisturbed. An amended judgment entered pursuant to Rule 52(b) includes
additional findings of fact and conclusions of law that supplement, but do not
supplant, the original judgment.
¶ 19 Here, defendant filed a Motion to Amend Judgment pursuant to Rule 52(b) on
30 July 2009. Defendant requested the trial court adopt several proposed findings of
fact and conclusions of law, and recalculate damages awarded in accordance with and
consistent with those requested findings and conclusions. The trial court, in its
discretion, elected to add 20 additional paragraphs to its findings of fact and
conclusions of law, but declined to enter the specific facts and conclusions requested
by defendant. Moreover, it did not recalculate damages, or otherwise make any
alteration to the relief afforded to the plaintiff in the original judgment.
¶ 20 The amended judgment filed 29 September 2009, on its face, states “this the
25th day of September, 2009, nunc pro tunc to July 20, 2009,” and refers to 20 July
2009 as “the date of this Judgment.”
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A nunc pro tunc order is a correcting order. The function of
an entry nunc pro tunc is to correct the record to reflect a
prior ruling made in fact but defectively recorded. A nunc
pro tunc order merely recites court actions previously
taken, but not properly or adequately recorded. A court
may rightfully exercise its power merely to amend or
correct the record of the judgment, so as to make the
court[’]s record speak the truth or to show that which
actually occurred, under circumstances which would not at
all justify it in exercising its power to vacate the judgment.
However, a nunc pro tunc entry may not be used to
accomplish something which ought to have been done but
was not done.
Rockingham Cnty. DSS ex rel. Walker v. Tate, 202 N.C. App. 747, 752, 689 S.E.2d
913, 917 (2010) (citation omitted).
¶ 21 Additionally, the record contains several printouts from our Civil Case
Processing System (“VCAP”), where indexed judgments are abstracted electronically.
Under § 1-233:
Every judgment of the superior or district court, affecting
title to real property, or requiring in whole or in part the
payment of money, shall be indexed and recorded by the
clerk of said superior court on the judgment docket of the
court. The docket entry must contain the file number for
the case in which the judgment was entered, the names of
the parties, the address, if known, of each party and
against whom judgment is rendered, the relief granted, the
date, hour, and minute of the entry of judgment under G.S.
1A-1, Rule 58, and the date, hour, and minute of the
indexing of the judgment.
§ 1-233 (2020) (emphasis added). Each VCAP document included in the record lists
the judgment “clock” date as 20 July 2009. These judgment abstract summaries
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must, by statute, include the date of entry of the judgment as defined by Rule 58 of
our Rules of Civil Procedure. Thus, plaintiff had additional notice through VCAP
that 20 July 2009 is the entry date of judgment.
2. Statutory Tolling Provisions
¶ 22 Plaintiff also argues it filed its Complaint on Judgment in a timely fashion
because N.C. R. Civ. P. 62(a) and (b), N.C.R. App. P. 3, § 1-234, § 1-15, and § 1-23, all
have the effect of tolling the 10-year statute of limitations in § 1-47. Plaintiff’s
contention is without merit.
¶ 23 First, plaintiff argues that § 1-234 expressly provides a tolling provision for the
10-year statute of limitations period for a judgment. The statute provides, in
pertinent part:
But the time during which the party recovering or owning
such judgment shall be, or shall have been, restrained from
proceeding thereon by an order of injunction, or other order,
or by the operation of any appeal, or by a statutory
prohibition, does not constitute any part of the 10 years
aforesaid, as against the defendant in such judgment . . . .
§ 1-234 (2020) (emphasis added). Thus, plaintiff argues this tolling provision extends
to the 10-year statute of limitations for commencement of an action for renewal of a
judgment under § 1-47(1).
¶ 24 This Court’s decision in Fisher v. Anderson is instructive on this issue. 193
N.C. App. 438, 667 S.E.2d 292 (2008). In Fisher, the plaintiff assignee filed an action
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in the trial court to enforce a judgment entered against the defendants pursuant to
N.C. Gen. Stat. § 1-47. Id. at 438, 667 S.E.2d at 292-93. The trial court denied the
plaintiff’s motion for summary judgment and granted the defendants’ motion to
dismiss on grounds that the complaint was filed more than ten years after entry of
the judgment. Id. at 438-39, 667 S.E.2d at 293. On appeal, the plaintiff argued Rule
62(a) of the North Carolina Rules of Civil Procedure, when read in conjunction with
§ 1-234, operated to toll the ten-year statute of limitations in § 1-47(1) by thirty days.
Id. at 439-40, 667 S.E.2d at 293.
¶ 25 This Court held that because the plaintiff failed to assert a claim within the
ten-year statute of limitations, his complaint was properly dismissed. Id. at 440, 667
S.E.2d at 294. In reaching our decision, we noted that
the ten-year period referred to in N.C. Gen. Stat. § 1-234governs judgment liens on real property. Nothing in the
plain language of N.C. Gen. Stat. § 1-234 indicates the
limitations on the duration of a judgment lien should apply
to the statutory period set forth in N.C. Gen. Stat. § 1-47(1).
Id. at 440, 667 S.E.2d at 294.
¶ 26 Plaintiff also argues N.C. R. Civ. P. 62(a) and (b) expressly stay execution upon
a judgment, and these statutory prohibitions upon enforcement of a judgment also
toll the 10-year statute of limitations in § 1-47(1). However, in Fisher, we also noted
that “[n]othing in the plain language of Rule 62(a) indicates the legislature intended
the automatic stay from execution to add thirty days to the ten-year statute of
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limitations on commencing an action to enforce a judgment.” 193 N.C. App. at 440,
667 S.E.2d at 294. Similarly, the language in Rule 62(b), also applies to enforcement
of an existing judgment, and not to the commencement of an action to renew a
judgment under § 1-47(1). See N.C. R. Civ. P. 62(b).
¶ 27 Regarding plaintiff’s additional arguments that §§ 1-15, 1-23, and N.C.R. App.
P. 3, toll or extend the applicable 10-year statute of limitations in this case, the record
is devoid of any reference to a stay or injunction on commencement of a new action
that would implicate §§ 1-15 or 1-23. Moreover, Rule 3 of the North Carolina Rules
of Appellate Procedure provides, in pertinent part, “if a timely motion is made by any
party for relief under Rules 50(b), 52(b) or 59 of the Rules of Civil Procedure, the
thirty-day period for taking appeal is tolled as to all parties . . . .” N.C.R. App. P. 3(c)
(emphasis added). Yet nothing in the plain language of N.C.R. App. P. 3 could be
construed to have the effect of also tolling the 10-year statute of limitations on the
commencement of a new action under § 1-47(1). Thus, plaintiff has not shown to the
satisfaction of this Court the existence of any statutory tolling provision affecting the
applicable 10-year statute of limitations in this action.
III. Conclusion
¶ 28 For the foregoing reasons, we reverse the trial court’s Judgment and Order
denying defendant’s Motion for Summary Judgment and granting Summary
Judgment in favor of plaintiff.
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REVERSED.
Judges CARPENTER and GRIFFIN concur.