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Clendening v. Sears8/20/2002
UNPUBLISHED
A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).
This appeal arises out of Plaintiff Doris Brakefield Clendening's failure to appear at a court-ordered arbitration hearing which resulted in the dismissal of her personal injury action against Defendant Sears, Roebuck and Co. From the trial court's denial of her motion seeking relief from that judgment, Ms. Clendening appeals to this Court. We affirm.
In brief, the facts show that on 23 March 1999, the trial court entered an order for civil arbitration requiring arbitration to be conducted within sixty days. The hearing was initiallyscheduled for 6 May 1999 but it was rescheduled for 20 May 1999. However, on that date Ms. Clendening's attorney was in a domestic case hearing so the matter was rescheduled for 6 July 1999. When neither Ms. Clendening nor her attorney appeared at the scheduled arbitration hearing on 6 July 1999, the arbitrator entered an award against her dismissing the action. On 10 August 1999, the trial court adopted the arbitrator's award as the judgment of the court. On 30 June 2000, Ms. Clendening filed a motion in the cause under Rule 60(b) of the North Carolina Rules of Civil Procedure seeking relief from judgment. After conducting a hearing on Ms. Clendening's motion, the trial court denied the motion. She now appeals to this Court.
On appeal, Ms. Clendening contends that the trial court erroneously found that her Rule 60(b) motion was not made within a reasonable time. We disagree.
"Generally, a motion for setting aside a judgment pursuant to Rule 60(b) is addressed to the sound discretion of the trial court, and the standard of appellate review is limited to determining whether the court abused its discretion." McLean v. Mechanic, 116 N.C. App. 271, 276, 447 S.E.2d 459, 462 (1994), disc. review denied, 339 N.C. 738, 454 S.E.2d 653 (1985); Coppley v. Coppley, 128 N.C. App. 658, 663, 496 S.E.2d 611, 616, disc. review denied, 348 N.C. 281, 502 S.E.2d 846 (1998). "An abuse of discretion is a decision manifestly unsupported by reason or one so arbitrary that it could not have been the result of a reasoned decision." Briley v. Farabow, 348 N.C. 537, 547, 501 S.E.2d 649, 656 (1998). "Whether a motion is made within a reasonable time depends upon the circumstances of the individual case." Nickels v. Nickels, 51 N.C. App. 690, 277 S.E.2d 577, cert. denied, 303 N .C. 545, 281 S.E.2d 392 (1981).
In her appeal, Ms. Clendening relies solely on her assertion that Rule 60(b) creates a presumption that a filing of a motion within one year is a timely filing. However, in Jenkins v. Richmond County, 118 N.C. App. 166, 454 S.E.2d 290, review denied, 340 N.C. 166, 460 S.E.2d 318 (1995), this Court held that complying with the one year limitation is not necessarily sufficient to make a motion under Rule 60(b) timely. In that case, the plaintiffs filed a Rule 60(b) motion exactly one year from the date of the judgment. The trial court found the motion to be timely and granted the plaintiff relief from the earlier judgment. However, on appeal, our Court concluded that the plaintiffs' motion was not made within a reasonable time and reversed the order of the trial court granting the plaintiffs relief. In so doing, the Court reasoned,
That which constitutes a reasonable time under Rule 60(b) is determined by examining the circumstances of the individual case. Brown v. Windhom
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