Bruton v. Sea Captain Properties, Inc.

386 S.E.2d 58 (1989)

96 N.C. App. 485

D.P. BRUTON, Plaintiff, v. SEA CAPTAIN PROPERTIES, INC., Ralph Serrapede and wife, Kathleen Serrapede, C. Thomas Qualey and wife, Christine A. Qualey, Fred Nahas and wife, Virginia Nahas, and James R. Nance, Jr., Trustee, Defendants.

No. 8913SC540.

Court of Appeals of North Carolina.

December 5, 1989.

*59 Hafer Day & Wilson, P.A. by R.W. Day and Betty S. Waller, Raleigh, for plaintiff-appellee.

Frink, Foy, Gainey & Yount, P.A. by Henry G. Foy, Southport, for appellants Nahas.

Fairley, Jess & Isenberg by William F. Fairley, Southport, for appellants Qualey.

LEWIS, Judge.

The sole question on appeal is whether Judge Barnette abused his discretion when he denied appellant's Rule 60(b) motion to set aside the judgment. Vaglio v. Town and Campus Intern. Inc., 71 N.C.App. 250, 256, 322 S.E.2d 3, 7 (1984). G.S. 1A-1, Rule 60 provides:

(b) ... On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) Mistake, inadvertence, surprise, or excusable neglect; (2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; ... (6) Any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken.

G.S. Section 1A-1, Rule 60.

Appellants have argued that their motions should have been granted because they relied upon the representations of their Pennsylvania counsel that their case was being properly managed and that their interests were being protected in North Carolina. In point of fact, no one was "minding the shop" in North Carolina, including the appellants, and a judgment of nearly $500,000.00 was entered against them in this action. Defendants argue that because their Pennsylvania attorney had competently procured North Carolina counsel in the past, and had made representations to them in this case that "everything was taken care of" and "not to worry", they should be excused for failing to take further measures to keep informed about the status of their case. They ask us to set aside the judgment entered against them. We decline.

One of the conditions precedent that must be proven before a court will consider a Rule 60(b) motion is timeliness. The motion must be made "within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment... was entered or taken." G.S.1A-1, Rule 60(b). In the present case, appellants are arguing that the incompetent representation by their Pennsylvania counsel justifies their failure to seek North Carolina counsel or to otherwise appear on their own behalf. At its very best, this argument would bring their motions under Rule 60(b)(1) "excusable neglect." The Rule expressly requires motions under Rule 60(b)(1) to be made not more than one year after entry of the judgment. Here the parties waited well over one year after entry of the judgment and therefore are not timely in bringing their motions.

Appellants make a "totality of the circumstances" type argument that, taking all factors into consideration, the facts amount to "extraordinary circumstances" which justify relief under 60(b)(6). We disagree.

Rule 60(b)(6) cannot be the basis for a motion to set aside judgment if the facts *60 supporting it are facts which more appropriately would support one of the five preceding clauses. We have repeatedly held that a movant may not be allowed to circumvent the requirements for clauses (b)(1) through (b)(5) by "designating their motion as one made under Rule 60(b)(6), which grants relief from a judgment or order for `any other reason justifying relief from the operation of the judgment.'" Akzona, Inc. v. American Credit Indem. Co., 71 N.C.App. 498, 505, 322 S.E.2d 623, 629 (1984). This Court, in Akzona, expressly refused to allow defendants to present discussion of Rule 60(b)(6) because their motion actually was based on newly discovered evidence which brought it "within the scope of Rule 60(b)(2), and not within the scope of Rule 60(b)(6), which speaks of any other reason, i.e., any reason other than those contained in Rule 60(b)(1)-(5). Thus, this motion was not properly brought under Rule (b)(6)...." Id. (Emphasis original).

Appellants' arguments are based upon circumstances which would allow relief, if at all, under Rule 60(b)(1) and not 60(b)(6). Since they did not bring their motions within one year of entry of judgment, their motions were not timely filed and denial was proper. Accordingly, we

Affirm.

JOHNSON and COZORT, JJ., concur.