Sparks Oil Co., Inc. v Brown

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA11-820 NORTH CAROLINA COURT OF APPEALS Filed: 6 December 2011 SPARKS OIL CO., INC., Plaintiff, v. Rockingham County No. 10-CVD-667 MICHAEL J. BROWN d/b/a COACH GAS AND GROCERY, Defendant. Appeal by defendant from order entered 8 February 2011 by Judge James A. Grogan in District Court, Rockingham County. Heard in the Court of Appeals 16 November 2011. Farver, Skidmore & plaintiff-appellee. McDonough, by H. Craig Farver, for Michael J. Brown, pro se. STROUD, Judge. On 8 defendant April 2010, alleging that plaintiff the filed plaintiff a complaint delivered against petroleum products to the defendant and that defendant has refused and continues to refuse to pay the outstanding balance[;] plaintiff sought monetary relief. motion to dismiss. On 20 August 2010, defendant filed a On 24 August 2010, plaintiff filed a MOTION -2AND ENTRY OF DEFAULT[.] court entered default On or about 25 August 2010, the trial judgment against defendant. On 23 September 2010, defendant filed a MOTION TO SET ASIDE THE ENTRY OF DEFAULT AND DEFAULT JUDGMENT[.] On 15 December 2010, the trial court denied defendant s motion to set aside. On or about 6 January 2011, defendant filed a REQUEST FOR REHEARING OR MODIFICATION OF THE DECEMBER 9, 2010 ORDER OF THE COURT[.] On 8 February 2011, the trial court denied defendant s request for rehearing or modification. I. On 8 March 2011, defendant appealed. Rehearing or Modification Defendant s REQUEST FOR REHEARING OR MODIFICATION OF THE DECEMBER 9, 2010 ORDER OF THE COURT fails to provide the statutory basis upon which defendant is requesting such relief. We presume defendant is requesting relief under N.C. Gen. Stat. § 1A-1, Rule 59 and/or 60 as these rules provide for [n]ew trials; amendment of judgments and [r]elief from judgment or order. Under either Rule 59 or 60, we review the trial court s order for abuse of discretion. See Ollo v. Mills, 136 N.C. App. 618, 624, 525 S.E.2d 213, 217 (2000) ( Our review of a trial court s denial of a Rule 59 motion is limited to a determination of whether the trial judge abused his discretion. Our review of a denial of a Rule 60 motion is also subject to the abuse of -3discretion standard of review. (citation omitted)). Here, defendant fails even to argue that the trial court abused its discretion. Defendant s entire argument on appeal is: Negotiations between parties after institution of an action may constitute an appearance. . . . For those reasons a default and default judgment were both improper. has failed discretion. to demonstrate that the Accordingly, defendant trial court abused its This argument is overruled. II. Notice of Appeal Defendant next directs this Court s attention to the order denying defendant s motion to set aside the default judgment and the judgment entering default against him. However, defendant s notice of appeal references only the 8 February 2011 order. As such, we do not have jurisdiction to consider these issues on appeal. See N.C.R. App. P. 3(d) ( The notice of appeal required to be filed and served by subsection (a) of this rule . . . shall designate the judgment or order from which appeal is taken[.] ); see also Zairy v. VKO, Inc., ___ N.C. App. ___, ___, 712 S.E.2d 392, 393 (2011) (refusing designated in the notice of appeal). III. Conclusion to consider order not -4As to the trial court s denial of defendant s motion for rehearing or modification, we affirm. As to defendant s other issues on appeal, we dismiss. AFFIRMED IN PART; DISMISSED IN PART. Judges BRYANT and CALABRIA concur. Report per Rule 30(e).

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