Jenkins v. Richmond County , 118 N.C. App. 166 ( 1995 )

454 S.E.2d 290 (1995) 118 N.C. App. 166

Wimphrey W. JENKINS, Peggy Johnson, Ruby J. Baskerville, and Emma Clemons, Plaintiffs,
v.
RICHMOND COUNTY, North Carolina; Lat Purser & Associates, Inc.; Cornerstone Development Company; Food Lion, Inc.; and John Alden Life Insurance Company and Charles L. Fulton, Trustee, Defendants.

No. 9420SC268.

Court of Appeals of North Carolina.

March 7, 1995.

No brief filed for plaintiffs-appellees.

Leath, Bynum, Kitchin & Neal, P.A. by Henry L. Kitchin and Stephan R. Futrell, Rockingham, for defendants-appellants.

JOHN C. MARTIN, Judge.

G.S. § 1A-1, Rule 60(b) provides:

(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;

(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;

(4) The judgment is void;

(5) The judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or

(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....

Plaintiffs did not specify in their motion the subsection of Rule 60(b) pursuant to which they sought relief; however, the trial court determined that plaintiffs were entitled to relief under both subsections (5) and (6). The trial court concluded that the 23 October 1991 judgment had been satisfied when plaintiffs' property was transferred to defendant Cornerstone Development Company to satisfy the lien on the value of the permanent improvements placed on the property. Judge Ross alternately concluded that defendants' attempt to collect interest on the value of the improvements constituted an extraordinary circumstance justifying relief pursuant to Rule 60(b)(6).

Under both Rule 60(b)(5) and (6), the motion for relief must be made within a reasonable time. We conclude that plaintiffs' motion was not made within a reasonable time, and we reverse the order of the trial court granting plaintiffs relief.

Plaintiffs waited literally an entire year before filing their motion for relief, and this motion followed not only the dismissal of their appeal from the judgment itself, but also the dismissal of their appeal from the order dismissing their appeal from the judgment. Both dismissals were the result of appellate rules violations due to plaintiffs' failure to file and serve their proposed records on appeal within the time prescribed by the North Carolina Rules of Appellate Procedure.

That which constitutes a reasonable time under Rule 60(b) is determined by examining the circumstances of the individual case. Brown v. Windhom, 104 N.C.App. 219, 408 S.E.2d 536 (1991). In Brown, the defendant's only explanation for a year-long delay in filing his motion for relief was uncertainty as to his legal rights. This Court held such an explanation to be insufficient justification to award relief after a year's delay.

Here, plaintiffs have offered no explanation for the one-year delay in filing their motion for relief, or the subsequent additional year-long delay in prosecuting the motion. Under the circumstances present here, the motion simply cannot be considered as having been made within a reasonable time. (See Nickels v. Nickels, 51 N.C.App. 690, 277 S.E.2d 577, disc. review denied, 303 N.C. 545, 281 S.E.2d 392 (1981), where a twenty-three month interval between entry of a consent judgment and defendant's asking for relief from that judgment was considered an unreasonable delay.) The record shows that plaintiffs became aware of the judgment's inclusion of interest and costs beyond the value of the improvements upon the property no later than early February 1992, within four months of the date of judgment. Nevertheless, plaintiffs waited over eight more months before filing their motion for relief based on defendants' execution on the judgment, and another year before bringing the motion before the court for a decision.

We cannot help but observe that dilatory practices, amounting to violations of appellate rules designed to expedite the efficient handling of disputes to final resolution, have twice led to the dismissal of plaintiffs' appeals. We also note that plaintiffs did not appeal from Judge Mills' second order, which effectively ended their appeal in this matter. Thus, plaintiffs appear to have attempted to employ a motion for relief pursuant to Rule 60(b) as a substitute for appeal from the 23 October 1991 judgment after the proper avenues for that appeal had been closed to them through their own inaction. Motions pursuant to Rule 60(b) may not be used as a substitute for appeal. Concrete Supply Co. v. Ramseur Baptist Church, 95 N.C.App. 658, 383 S.E.2d 222 (1989). The order of the trial court is reversed.

Reversed.

COZORT and JOHN, JJ., concur.