City of Durham v. Keen

253 S.E.2d 585 (1979)

40 N.C. App. 652

CITY OF DURHAM, Plaintiff, v. Marjorie S. KEEN and spouse, the County of Durham, Original Defendants, and Robert C. Knott and wife, Patricia P. Knott, Additional Defendants.

No. 7814SC511.

Court of Appeals of North Carolina.

April 17, 1979.

*589 Rufus C. Boutwell, Jr., Asst. County Atty., Durham, for plaintiff-appellee City of Durham.

Blackwell M. Brogden, Jr., and E. C. Harris, Jr., Durham, for defendant-appellant Marjorie S. Keen.

C. Horton Poe, Jr., Durham, for defendants-appellees Robert C. Knott and Patricia P. Knott.

No counsel for defendant-appellee County of Durham.

HEDRICK, Judge.

Defendant first contends that the sale of the subject property is void and thus should have been set aside under Rule 60(b)(4) and (6) because the Commissioner failed to comply with the applicable statutes concerning notice of the sale. Defendant first argues that the provisions of G.S. § 1-339.17(a)(1), requiring that notice be posted at the courthouse door for thirty days immediately preceding the sale, were not met. The record, however, discloses that notice was posted on 19 September 1977 and that the sale was held at 12:00 noon on 19 October 1977. Rule 6(a) provides in pertinent part:

In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, including rules, orders or statutes respecting publication of notices, the day of the . . . publication after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included . .

Additionally, G.S. § 1-594 provides: "The time for publication of legal notices shall be computed so as to exclude the first day of publication and include the day on which the act or event of which notice is given is to happen, or which completes the full period required for publication." See also G.S. § 1-593. Applying the foregoing rules to the facts in the present case, it is clear that the notice was posted for thirty days as required. Defendant next argues that the Commissioner should have given her notice in accord with the provisions of G.S. § 45-21.17(4), which requires that notice of a foreclosure sale be mailed twenty days prior to the sale. Pursuant to G.S. § 45-21.1, however, this statute applies only to "a sale of real property pursuant to an express power of sale contained in a mortgage or deed of trust." We hold that the provisions of G.S. § 45-21.17(4) do not apply to a tax foreclosure sale.

Defendant next contends that the court erred in holding that the defendant failed to show excusable neglect or sufficient equitable grounds to support her motion to set aside the judgment under Rule 60(b)(1) and (6). Defendant argues that she introduced evidence tending to show that she paid her employer $400.00 for transmittal to the tax supervisor of the City of Durham, that she thought that the payments were going to discharge her tax liability, and that after being served she took no action because she was unaware that her account was not being credited with the payments. The court found as facts that the defendant "had received service of a Summons and Complaint to foreclose taxes and testified that she understood the City was attempting to foreclose her property for failure to pay taxes" and that she "had not responded to any demands, notices or legal process prior to the application for a Writ of Possession." *590 The Court concluded that the defendant "was not diligent in protecting her interest in her property," that her "evidence fails to show that her failure to answer was through mistake, inadvertence, surprise, or excusable neglect," and that her actions "with respect to her lack of diligence in protecting her interest do not entitle her to any equitable relief."

The trial judge's findings of fact on a Rule 60(b) motion are conclusive on appeal when supported by competent evidence; however, the conclusions of law based thereon are reviewable on appeal. Dishman v. Dishman, 37 N.C.App. 543, 246 S.E.2d 819 (1978); U. S. I. F. Wynnewood Corp. v. Soderquist, 27 N.C.App. 611, 219 S.E.2d 787 (1975). The trial court found that the defendant received notice of the action against her, understood the nature of the action, and did not respond until after her property had been sold. These facts are supported by competent, uncontroverted evidence. The court concluded that the defendant had failed to show excusable neglect or that she was entitled to equitable relief. We think the facts found support the court's conclusions. The exceptional relief provided by Rule 60(b) "will not be granted where there is inexcusable neglect on the part of the litigant. `A lawsuit is a serious matter. He who is a party to a case in court "must give it that attention which a prudent man gives to his important business." [citations]' Pepper v. Clegg, 132 N.C. 312, 43 S.E. 906 (1903)." Holcombe v. Bowman, 8 N.C.App. 673, 676, 175 S.E.2d 362, 364 (1970).

Finally defendant contends that the gross inadequacy of the sale price coupled with "the numerous defects appearing in the record" requires that the sale be set aside. It has long been held that inadequacy of price alone is not grounds for setting aside a tax sale, but that some element of fraud, suppression of bidding or other unfairness must appear before a court of equity can afford relief. Duplin County v. Ezzell, 223 N.C. 531, 27 S.E.2d 448 (1943). The defendant in the present case has failed to show any fraud, suppression of bidding or other unfairness in the conduct of the sale.

We hold there is plenary evidence in the record to support the decision of the trial court and the defendant's motion to set aside the judgment was properly denied.

Affirmed.

VAUGHN and CARLTON, JJ., concur.