Concrete Supply v. RAMSEUR BAPTIST CH.

383 S.E.2d 222 (1989)

CONCRETE SUPPLY COMPANY, Plaintiff, v. RAMSEUR BAPTIST CHURCH, Defendant and Third-Party Plaintiff, v. Willie T. HOWELL, Third-Party Defendant.

No. 8927DC52.

Court of Appeals of North Carolina.

September 19, 1989.

*223 Church, Paksoy & Wray by Ali Paksoy, Jr., Shelby, for plaintiff.

Brenda S. McLain, Shelby, for defendant.

LEWIS, Judge.

Defendant Ramseur Baptist Church contests the denial of its motion under G.S. 1A-1, Rule 60(b)(6). Rule 60(b)(6) sets forth the grounds for granting relief from a judgment 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: ... (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 judgment, order, or proceeding was entered or taken....

Rule 60(b)(6) is equitable in nature. Howell v. Howell, 321 N.C. 87, 91, 361 S.E.2d 585, 587 (1987). This section empowers the court with the authority to set aside or modify a final judgment, order or proceeding whenever such action is necessary to do justice under the circumstances. Id. Relief under this rule is discretionary, and the only question for appellate review is whether the trial court abused its discretion in denying defendant's motion for relief from judgment. Sawyer v. Goodman, 63 N.C.App. 191, 193, 303 S.E.2d 632, 633, cert. denied, 309 N.C. 823, 310 S.E.2d 352 (1983).

Rule 60(b)(6) is not as broad as it first appears. While subsection (b)(6) has been described as a "grand reservoir" of equitable power to do justice in a particular case, it is not a "catch-all" rule. Standard Equipment Co., Inc. v. Albertson, 35 N.C. App. 144, 147, 240 S.E.2d 499, 501 (1978). Although the Church's full payment of the contract price to Willie T. Howell would extinguish Concrete Supply's right to a materialsman's lien on the church's property, Ramseur Baptist Church failed to assert this defense at trial and then failed to bring an appeal. "Motions under 60(b)(6), however, are not to be used as a substitute for appeal, and an erroneous judgment cannot be attacked under this clause." Waters v. Qualified Personnel, Inc., 32 N.C.App. 548, 551, 233 S.E.2d 76, 78 (1977), rev'd on other grounds, 294 N.C. 200, 240 S.E.2d 338 (1978). If the trial court's findings of fact and conclusions of law were erroneous, Ramseur Baptist Church should have filed an appeal from the judgment or made a motion for a new trial under Rule 59. See, Waters, supra (where we held that the only remedy from the judge's erroneous entry of summary judgment was by appeal to this Court). Since it did neither here, we must affirm.

Affirmed.

HEDRICK, C.J., and ORR, J., concur.