Sides v. Reid , 35 N.C. App. 235 ( 1978 )

241 S.E.2d 110 (1978) 35 N.C. App. 235

Ginny SIDES
v.
Robert REID.

No. 7718DC227.

Court of Appeals of North Carolina.

February 7, 1978.

Morgan, Byerly, Post, Herring & Keziah, by Charles L. Cromer, High Point, for the plaintiff.

No counsel contra.

MARTIN, Judge.

The only question posed by this appeal is whether there was sufficient evidence from which the trial court could find that defendant was entitled as a matter of law to have the default judgment set aside.

Motions to set aside a final judgment are governed by Rule 60(b) of the Rules of Civil Procedure. This rule provides, in pertinent part, that:

"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;

* * * * * *

"(6) Any other reason justifying relief from the operation of the judgment."

If a movant is uncertain whether to proceed under clause (1) or (6) of Rule 60(b), he need not specify if his motion is timely and the reason justifies relief. Brady v. Town of Chapel Hill, 277 N.C. 720, 178 S.E.2d 446 (1971). Under either clause the movant must show that he has a meritorious defense. Doxol Gas v. Barefoot, 10 N.C.App. 703, 179 S.E.2d 890 (1971).

In the instant case, defendant alleged in his motion and the trial court found as fact a meritorious defense. This finding of fact is supported by competent evidence and thus, binding on appeal. Moore v. Deal, 239 N.C. 224, 79 S.E.2d 507 (1954). However, defendant did not assert excusable neglect as grounds for relief nor did the trial court find the same as fact in its order setting aside the judgment. Therefore, we must presume that the trial court based its authority to set aside the judgment upon clause (6) of Rule 60(b).

Allowing a trial court to set aside a final judgment for "any other reason" justifying such relief, Rule 60(b)(6) has been described as "a grand reservoir of equitable power to do justice in a particular case." 7 Moore's Federal Practice § 60.27(2) (2d ed. 1970). Our Supreme Court has stated that the "broad language of clause (6) ``gives the court ample power to vacate judgments whenever such action is appropriate to accomplish justice.'" Brady v. Town of Chapel Hill, supra. In light of these principles, we must determine whether, based upon the evidence presented, a compelling reason has been shown which warrants the exercise of such broad equitable power. See Standard Equipment Co., Inc. v. Albertson, N.C.App., 240 S.E.2d 499 (filed January 24, 1978). We find no such reason in the evidence presented by defendant in support of his motion.

Defendant presented no evidence of any unusual or extraordinary circumstances which might explain his failure to file answer; nor was there any finding of the same by the trial court. The trial court found only that defendant had mailed a handwritten note to the court denying liability and that plaintiff's own affidavit established this lack of liability and thus, constituted a meritorious defense. We note that defendant was able to offer no proof of, and the court's records were devoid of evidence of, the existence of the handwritten note. Moreover, this is not a case where the movant employed and relied upon an attorney who failed to take action. In the instant case, although defendant owned and managed three corporations and admitted reading and generally understanding the summons and complaint, he made no effort to consult an attorney until after the supplemental proceeding. In fact, defendant took no action—other than the handwritten note for which he cannot account—until this time, some thirteen months after he was personally served with process.

In view of defendant's failure to use proper diligence in the case at bar, we cannot say that equity should act to relieve him from the judgment by default. See Brady v. Town of Chapel Hill, supra. Notwithstanding the broad equitable power of a trial court to vacate judgments pursuant to Rule 60(b)(6), it should not grant such relief absent a showing based on competent evidence that justice requires it. Norton v. Sawyer, 30 N.C.App. 420, 227 S.E.2d 148, cert. denied, 291 N.C. 176, 229 S.E.2d 689 (1976). This showing simply does not appear from the evidence presented in the instant case.

Accordingly, the trial court erred in concluding, as a matter of law, that defendant was entitled to have the default judgment set aside. The order vacating said judgment is reversed.

Reversed.

PARKER and ARNOLD, JJ., concur.