Vaglio v. Town and Campus Intern. Inc.

322 S.E.2d 3 (1984)

Dr. Anthony J. VAGLIO, Jr. (d/b/a Vaglio Financial Enterprises), Milt Cohen, and David Weddington, Collectively d/b/a Century 21 A-1 v. TOWN AND CAMPUS INTERNATIONAL INC., A Missouri Corporation, Town and Campus, Inc., A Missouri Corporation, Bonhomme Equities, Inc., A Missouri Corporation, Joseph O. Morrissey, Jr., Richard M. Zitzmann, Calmark Asset Management, Inc., A Delaware Corporation, and George B. Brewster.

No. 8310SC1165.

Court of Appeals of North Carolina.

November 6, 1984.

*5 Marc W. Sokol, Raleigh, for plaintiffs-appellants.

Bryant, Drew, Crill & Patterson, P.A. by Victor S. Bryant, Jr., Durham, for defendants-appellees.

JOHNSON, Judge.

This is an appeal from an action to obtain relief from judgment pursuant to Rule 60(b)(1), (3) and (6) of the Rules of Civil Procedure. G.S. 1A-1. The rule, in pertinent part, reads as follows:

(b) Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud, etc.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; (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. ...

In denying the plaintiff's 60(b) motion, the trial court did not make any findings of fact. Had it been requested to do so, it would have been error for the court not to have found the facts. Sprinkle v. Sprinkle, 241 N.C. 713, 86 S.E.2d 422 (1955). However, absent a request it was not required to do so. G.S. 1A-1, Rule 52(a)(2). The record in the present case does not disclose any request that the court make findings of fact.

The question for this court thus becomes whether, on the evidence presented to the trial court, the court could have made findings of fact sufficient to support its denial of plaintiff's motion. In support of the motion, plaintiff submitted affidavits on its behalf that the trial court examined. Plaintiff alleges in one instance that relief should be granted pursuant to Rule 60(b)(3) because the defendant misrepresented to the court the nonexistence of a contract. By plaintiff's own admission, he states that the document, "purportedly a contract," was brought to the attention of the court. There were no findings of fact made, but we must conclude that the trial judge did not take defendants' bare allegation of the nonexistence of a contract in its order to grant summary judgment and in the other order to deny plaintiff's motion for relief from judgment. The trial judge examined the document before him and decided as a matter of law that no contract existed between the parties. From a careful reading of the record, there was sufficient evidence for the court below to deny plaintiff's motion for relief from judgment. In light of the judge's decision that no contract existed, we fail to find any fraud, misrepresentation or misconduct on the part of the *6 defendants to warrant any relief. We find plaintiff's argument without merit.

Plaintiff next contends that relief should be granted on the ground of mistake, inadvertence, surprise, or excusable neglect. Rule 60(b)(1). Specifically, plaintiff argues that he was effectively prevented from opposing the defendants' motion for summary judgment by failure of plaintiff's counsel to submit affidavits and other evidence on the motion due to the fact counsel did not know summary judgment would be heard on 20 September 1982. Plaintiff argues that his attorney's negligence and failure to file affidavits should not be imputed to him. We disagree.

Where it appeared, upon the defendant's motion to set aside a default judgment, that the same had been regularly calendered for trial, the defendant had notice thereof and was afforded full opportunity to file his answer, but that his attorney had failed to do so, his attorney's negligence was imputed to him. His neglect was not excusable.

Dishman v. Dishman, 37 N.C.App. 543, 246 S.E.2d 819 (1978) (citing Gaster v. Thomas, 188 N.C. 346, 124 S.E. 609 (1924)). The motion for summary judgment was filed on 9 March 1981 and was originally calendared in the trial court for 9 September 1982. This was ample time for the plaintiff to file affidavits in opposition to the motion. Although the motion was originally calendared to be heard 9 September 1982, it was continued and not heard until 20 September 1982, affording the plaintiff further opportunity to file affidavits. Also, the record reveals sufficient evidence that plaintiff had notice: (1) by the motion being calendared for 9 September 1982 and being continued; (2) by receiving notice from opposing counsel. There was no evidence of any objection by plaintiff's attorney. We do not find that plaintiff's attorney was surprised by the hearing of the motion nor do we find plaintiff's actions excusable.

Plaintiff contends that the court erred in denying the motion to set aside the judgment where discovery was still pending when the summary judgment motion was granted. "Ordinarily it is error for a court to hear and rule on a motion for summary judgment when discovery procedures, which might lead to the production of evidence relevant to the motion, are still pending and the party seeking discovery has not been dilatory in doing so." Conover v. Newton, 297 N.C. 506, 256 S.E.2d 216 (1979). The trial court is not barred in every case from granting summary judgment before discovery is completed. Joyner v. Hospital, 38 N.C.App. 720, 248 S.E.2d 881 (1978). The decision to grant or deny a continuance [of discovery proceedings] is solely within the discretion of the trial judge, and his decision will not be reviewed absent a manifest abuse of discretion. Manhattan Life Ins. Co. v. Miller Machine Co., 60 N.C.App. 155, 298 S.E.2d 190 (1982), cert. denied, 307 N.C. 697, 301 S.E.2d 389 (1983). At the time summary judgment was granted, discovery had been in progress for at least six months. The trial judge concluded that the defendants were answering the plaintiff's interrogatories in good faith and declined to enact sanctions against the defendants. Plaintiff had ample time to gain useful information from the discovery proceedings and only after plaintiff had received notice of the summary judgment motions were new interrogatories filed. The trial court ruled as a matter of law that no genuine issue of a material fact existed, thus no useful information could have been gained through discovery. The rule that summary judgment should not be granted while discovery is pending, presupposes that any information gleaned will be useful. Manhattan Life, supra, 60 N.C.App. at 159, 298 S.E.2d at 193. In light of these facts, the trial court was correct in its granting of summary judgment before discovery was complete and we find no abuse of discretion.

Plaintiff's final contention is that the court abused its discretion by not granting relief pursuant to 60(b)(6) when neither the court nor counsel raised the issue of whether the plaintiff had procurred a ready, willing, and able buyer. *7 "While Rule 60(b)(6) has been described as `a grand reservoir of equitable power to do justice in a particular case,' (citation omitted), it should not be `catch-all' rule." (Citation omitted.) Courts have the power to vacate judgments when such is appropriate, yet they should not do so under Rule 60(b)(6) except in extraordinary circumstances and after a showing that justice demands it. Equipment Co. v. Albertson, 35 N.C.App. 144, 240 S.E.2d 499 (1978). Plaintiff was not prevented from raising the issue of whether a ready, willing and able buyer was procured. It is not the duty of the trial court to raise issues and litigate cases for parties. Plaintiff failed to raise the issue at the hearing on the motion and cannot now argue that as an extraordinary reason to obtain relief under Rule 60(b)(6).

A motion pursuant to Rule 60(b) of the North Carolina Rules of Civil Procedure is addressed to the sound discretion of the trial court and its decision is not reviewable on appeal absent a showing of abuse of its discretion. Sink v. Easter, 288 N.C. 183, 217 S.E.2d 532 (1975). We have reviewed the entire record and fail to find any abuse of discretion.

Affirmed.

WEBB and PHILLIPS, JJ., concur.