106 N.C. App. 66 | N.C. Ct. App. | 1992
On appeal, plaintiff first contends Judge Honeycutt erred in finding that plaintiff had instituted an action against GMAC and that this finding was not supported by the record. We disagree.
Plaintiff’s complaint clearly indicates that GMAC was named as a defendant in the action, and the record discloses that GMAC was served with a Summons and a copy of the complaint on 29
We find ample evidence in the record from which the trial judge could find that plaintiff did in fact institute an action against defendant GMAC. Plaintiff’s contention is meritless.
Plaintiff next assigns error to Judge Honeycutt’s imposition of sanctions pursuant to Rule 11 against plaintiff and plaintiff’s counsel. Rule 11(a) in pertinent part provides:
The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation .... If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party . . . the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.
In the present case, Judge Honeycutt found that both Mr. Drake and his client signed the complaint causing legal process to be served on defendant GMAC. He further found:
16. That Attorney Henry T. Drake, stipulates in open Court that he did not sign the Complaint intending to make a good faith argument for the extension, modification, or reversal of existing law; further, that he offers neither existing law supporting the existence of any justiciable claim in the Complaint against the Defendant G.M.A.C. nor testimony that he has made reasonable inquiry that the claim against the*70 Defendant G.M.A.C. was well-founded in fact; he offers no explanation as to the basis upon which the Plaintiff declared herself, in the Complaint, to be entitled to receive from the Defendant G.M.A.C. costs and attorney fees.
From these findings, Judge Honeycutt concluded that Mr. Drake and his client had violated Rule 11 and ordered that they pay defendant GMAC’s costs and expenses in connection with the defense of the lawsuit.
Although not argued at the motion hearing, plaintiff now contends that the purpose of including GMAC as a party in the pleading was to give it notice as a lienholder. Plaintiff further argues that “[t]o construe this claim as an action against or adverse to GMAC is straining at gnats.” We find plaintiff’s argument on appeal to border on the frivolous, and in light of plaintiff’s stipulations made at the motion hearing find no error in the trial judge’s imposition of sanctions pursuant to Rule 11 against plaintiff and her attorney. Plaintiff’s assignment of error is meritless.
Finally, plaintiff contends the trial judge erred in ruling on defendant’s motion for sanctions and attorney’s fees pursuant to Rule 11 after the case was dismissed and adjudicated by another judge. Plaintiff, in his brief, points out that at the time the matter was heard by the trial judge a court ordered voluntary dismissal terminates all pending motions before the court. Wesley v. Brand, 92 N.C. App. 513, 374 S.E.2d 475 (1988). We note, however, that in an opinion filed 27 January 1992, the North Carolina Supreme Court ruled that the trial court is not deprived of jurisdiction to determine the appropriateness of sanctions under Rule 11 by plaintiff’s filing of an involuntary dismissal. See Bryson v. Sullivan, 330 N.C. 644, 412 S.E.2d 327 (1992). Plaintiffs contention is overruled.
Judge Honeycutt’s order entered 11 February 1991 ordering plaintiff and her attorney to pay defendant GMAC’s reasonable attorney’s fees is affirmed.
Affirmed.
