Preview:

NO. COA11-1320 NORTH CAROLINA COURT OF APPEALS Filed: 17 July 2012 KATHY LYNN SISK, Plaintiff, v. GLENN L. SISK, SR., Defendant. From Lincoln County No. 06 CVD 86

Appeal 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. Crowe & Davis, appellee. P.A., by H. Kent Crowe, for plaintiff-

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. STEELMAN, Judge. A 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. I. Factual and Procedural Background Kathy Lynn Sisk (plaintiff) and Glenn L. Sisk (defendant) were once married, but are now divorced. On 17 January 2006,

-2plaintiff 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. On 9 April 2009, Judge Black met with both parties' counsel at the Court Street Grille to discuss the case. Subsequently, counsel for defendant of law submitted a to the court an of additional equitable

memorandum

and

proposed

judgment

distribution. Copies of these documents were sent to plaintiff's 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's 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. On 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

-359 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's judgment of 13 July 2010. These 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 "reasonable questions as to Judge Black's partiality and bias against the Plaintiff." 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. On 3 March 2011, Judge Wilson filed an order setting aside the Judgment of Equitable Distribution dated 13 July 2010 and granting a new trial. Defendant appeals.

-4II. Jurisdiction of Judge Wilson to Order a New Trial Defendant contends that Judge Wilson had no jurisdiction to enter an order granting a new trial. We agree. A. Standard of Review "Whether a trial court has subject-matter jurisdiction is a question of law, reviewed de novo on appeal." McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592 (2010) (citation omitted). B. Analysis In Gemini Drilling & Found., LLC v. Nat'l 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

Download 11-1320.pdf

South Carolina Law