Filed version on 2020-12-25: Grodner.v.Grodner.306P18-3.Motion.to.Clarify.20201225.pdf
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No. 306P18-3 THREE-A DISTRICT
SUPREME COURT OF NORTH CAROLINA
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HUNTER F. GRODNER, )
(now Summerlin) )
Plaintiff-Appellee-Respondent, )
) From Pitt County
vs. ) No. (COA) P19-308
)
ANDRZEJ GRODNER, )
(now Andrew Grodner) )
Defendant-Appellant-Petitioner,)
____________________________________)
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MOTION TO CLARIFY
THIS COURT'S DISMISSAL ORDER FROM 22 DECEMBER 2020
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(Filed electronically 25 DECEMBER 2020)
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TO THE HONORABLE SUPREME COURT OF NORTH CAROLINA:
Defendant-Appellant-Petitioner Andrzej Grodner (currently Andrew Grodner) ("Defendant"), acting pro se, pursuant to North Carolina Rules of Appellate Procedure ("N.C.R.A.P.") Rule 37, pursuant to North Carolina General Statutes ("N.C.G.S.") 1A-1, Rule 41, pursuant to the due process and access to the courts provisions in both the United States and North Carolina Constitutions, Defendant respectfully requests this Court to clarify the exact reason for its dismissal of the Defendant's 13 May 2020 SECOND MOTION TO DISQUALIFY OPPOSING COUNSEL ("SECOND MOTION TO DISQUALIFY") when this Court issued its 22 December 2020 Order (EXHIBIT A). Such clarification is critical to preserve Defendant's right of due process and access to the courts because without a reason for dismissal the Defendant cannot properly respond to this Court's Order, pursue his claims in this cause, and continue with his appeal at the North Carolina Court of Appeal. In support of this Motion, Defendant shows the following:
SUPPORT IN FACT
- On 9 October 2019 Jeffrey L. Miller filed with this Court PLAINTIFF'S MOTION TO TAX COSTS AND ATTORNEY FEES ("MOTION TO TAX"). On 16 October 2019 the Defendant filed VERIFIED RESPONSE TO MOTION TO TAX and based on the same facts he also filed MOTION TO DISQUALIFY OPPOSING COUNSEL ("MOTION TO DISQUALIFY").
- On 6 May 2020 this Court denied MOTION TO TAX (EXHIBIT B) but deemed Defendant's MOTION TO DISQUALIFY as moot (EXHIBIT C). Therefore, on 13 May 2020 the Defendant filed SECOND MOTION TO DISQUALIFY and showed that this Court committed an error "because Defendant sought disqualification of Jeffrey L. Miller, which has not been yet granted, and because of clear confirmation by 11 May 2020 email that [Jeffrey L. Miller] is still representing the Plaintiff, the controversy is still in front of this Court and thus cannot be moot."
- On 22 December 2020 this Court issued an Order dismissing Defendant's SECOND MOTION TO DISQUALITY but this time, as opposed its 13 May 2020 Order, it failed to provide any explanation for its dismissal (EXHIBIT A).
SUPPORT IN LAW
4. Defendant files this Motion within ten (10) days of the time when this Court issued its 22 December 2020 Order, which is the default time limit when no other time limit is explicitly provided (N.C.R.A.P. Rule 37(a))
5. This Court is the only one that can resolve the dispute between the parties because the misconduct by Jeffrey L. Miller occurred in front of this tribunal when Jeffrey L. Miller knowingly and willfully provided false and misleading statements to this Court in his MOTION TO TAX.
6. Jeffrey L. Miller's MOTION TO TAX was denied by this Court, as opposed to being dismissed. Therefore, this Court considered Jeffrey L. Miller's MOTION TO TAX to be properly before this Court and determined it on the merits. This means that the Defendant's initial MOTION TO DISQUALIFY, as well as SECOND MOTION DISQUALITY, are also properly before this court and should be considered on its merits.
7. Pursuant N.C.G.S. 1A-1, Rule 41, this Court cannot dismiss an action by the party without proper rationale:
§ 41(b). Dismissal of Action. By Order of Judge. (...) [A]n action or any claim therein shall not be dismissed at the plaintiff's instance save upon order of the judge and upon such terms and conditions as justice requires. (...)
8. Due process is guaranteed to litigants in both the US (via the Fourteenth Amendment) and NC Constitutions. It means that a party is entitled to know the reasoning behind an adverse ruling just like the party is entitled to know charges in criminal case or claims in civil case. Thus, such information is critical in order to allow a party to be able to properly defend itself.
SHOWING OF PROPER PURPOSE
9. Becase this Court provided an explanation for dimissing the initial MOTION TO DISQUALIFY as moot, therefore the Defendant could defend himself by showing that this Court comitted an error as he argued in his SECOND MOTION TO DISQUALITY.
10. However, in the most recent Order by this Court (22 December 2020) dismissing Defendant's SECOND MOTION TO DISQUALIFY there is no mention of any rationale for its decision and thus Defendant cannot possibly infer whether his motion was again improperly dismissed as moot or was there some other reason(s).
11. Without knowing the proper rationale for the 22 December 2020 Order to dismiss, the Defendant is prejudiced because he is denied the right to defend himself.
12. When the motion is denied then it is implicit that it was ruled on the merits since it was argued before the court on the merits. However, there is no such implicit inference when it comes to the motion to dismiss and thus a proper reason must be given such as deeming motion moot, showing lack of jurisdiction, etc., among many other possible reasons.
WHEREFORE, Defendant respectfully requests that this Court to clarify the exact reason for its 22 December 2020 dismissal of the Defendant's SECOND MOTION TO DISQUALITY to protect pro se Defendant's due process rights and access to the courts.
Respectfully submitted, this __25__ day of _December_, _2020_.
_____________/s/_______________
Andrzej Grodner, pro se
(currently Andrew Grodner)
P.O. Box 3571
Greenville, NC 27836
252-558-3040
email: agrodnercase@gmail.com
Defendant-Appellant, pro se
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing was served upon all counsel of record by emailing and mailing a copy thereof by first-class mail, postage paid, and addressed as follows:
Mr. Jeffrey Miller, Esq.
Miller and Audino, LLP
2510 E. 10th Street
Greenville, NC 27858
252-493-6138
email: jeff@millerandaudino.com
Counsel for Plaintiff-Appellee
This the __25_ Day of __December___(month), __2020___(year).
_______________/s/________________
Andrzej Grodner, pro se
(currently Andrew Grodner)
P.O. Box 3571
Greenville, NC 27836
252-558-3040
email: agrodnercase@gmail.com
Defendant-Appellant, pro se
