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McGinnis v. Robinson

Filed: September 18, 1979.

TERRY LYNN MCGINNIS, BY HIS GUARDIAN AD LITEM, LOIS MCGINNIS
v.
JOHN ROBINSON AND ELAM TORRENCE ROBINSON, SR.



Appeal by defendants from Friday, Judge. Order granting a new trial to plaintiff entered 19 May 1978. Heard in the Court of Appeals 23 August 1979.

Vaughn, Judge. Judges Martin (Robert M.) and Webb concur.

Vaughn

The trial judge was of the opinion that the proceeding was under Rule 60(b)(3) and (6). The pertinent parts of Rule 60(b) provide:

"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: . . . (3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; . . . 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. . . . This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. The procedure for obtaining any relief from a judgment, order, or proceeding shall be by motion as prescribed in these rules or by an independent action."

The trial judge properly proceeded pursuant to Rule 60(b)(3) and (6). If a party is unsure under which of subsections (1), (2) and (3) or (6) of Rule 60(b) to proceed, "he need not specify if his 'motion is timely and the reason justifies relief.'" Brady v. Town of Chapel Hill, 277 N.C. 720, 723, 178 S.E.2d 446, 448 (1971).

The evidence would have permitted a finding that Robinson, Sr., encouraged King to give false testimony but the judge did not so find. In the absence of a finding of fraud, misrepresentation or other misconduct on the part of an adverse party, Rule 60(b)(3) would not apply.

The next to the last sentence of Rule 60(b) provides that "this rules does not limit the power of a court to entertain an independent

action . . . to set aside a judgment for a fraud upon the court." Generally, however, perjured testimony is not usually recognized as a "fraud upon the court" within the meaning of the quoted sentence. Serzysko v. Chase Manhattan Bank, 461 F.2d 699 (2d Cir.), cert. den., 409 U.S. 883, reh. den., 409 U.S. 1029 (1972); Keys v. Dunbar, 405 F.2d 955 (9th Cir.), cert. den., 396 U.S. 880 (1969); Dowdy v. Hawfield, 189 F.2d 637 (D.C. Cir.), cert. den., 342 U.S. 830 (1951); contra: Toscano v. Commissioner, 441 F.2d 930 (9th Cir. 1971); see Annot. 19 A.L.R. Fed. 761 (1974).

The question now is whether plaintiff was properly granted relief under Rule 60(b)(6) for "any other reason justifying relief from the operation of the judgment." We first consider defendants' procedural objection. They question the timeliness of the motions and the alleged failure to state grounds or rules for the motions.

Timing under Rule 60(b)(6) requires the motion to be made within a reasonable time. What constitutes a reasonable time depends on the circumstances of the individual case. 7 Moore's Federal Practice, para. 60.27[3] at 383 (2d ed. 1979). Rule 60(b)(3) motions in their timing must not only be reasonable but also within one year. Defendants contend plaintiff did not meet the laches-type limitation on a Rule 60(b)(6) motion or the express statute of limitation on a Rule 60(b)(3) motion. Plaintiff made a new trial motion on 23 February 1977, eight days after the jury verdict. The motion specified no particular rule but the wording made out the grounds provided by subsections (7) and (8) of Rule 59(a). These grounds of insufficiency of the evidence, verdict contrary to rule of law and error in law in admitting certain evidence had nothing to do with perjury. While this motion was pending, plaintiff, on 2 May 1977, filed another motion requesting a new trial because of materially harmful perjury on the part of defendants' witness, King. Defendants maintain the motions were not properly made until the 24 April 1978 hearing because it was not until then that plaintiff amended his motion to reflect the rule under which he was proceeding. Plaintiff's 2 May 1977 motion was within a year of judgment while a motion for new trial filed within ten days was pending. It was made within a short time of plaintiff's learning of the perjured testimony. It was all done within a year of judgment. We hold plaintiff acted within a reasonable time on the facts of the case.

Defendants also object to the failure of plaintiff to state any rules or procedural grounds for his motions of 23 February and 2 May 1977 as originally filed. The substantive grounds and relief desired as manifest on the face of the motions as required by Rule 7(b)(1) of the North Carolina Rules of Civil Procedure. Rule 6 of the General Rules of Practice for the Superior and District Courts, which supplement the Rules of Civil Procedure as provided by G.S. 7A-34, provides, in part: "All motions, written or oral, shall state the rule number under which the movant is proceeding." Rule 1 of the same General Rules of Practice provides: "These rules . . . shall at all times be construed and enforced in such a manner as to avoid technical delay and to permit just and prompt consideration and determination of all the business before them." Where there is an awareness by the trial judge of the grounds, the motion is adequately stated for the purposes of General Practice Rule 6. Wood v. Wood, 297 N.C. 1, 252 S.E.2d 799 (1979); Taylor v. Triangle Porsche-Audi, Inc., 27 N.C. App. 711, 220 S.E.2d 806 (1975), cert. den., 289 N.C. 619, 223 S.E.2d 396 (1976). Failure to state the rule is not fatal in this case where the trial judge expressed his opinion that he was proceeding under Rule 60(b)(3) and (6) and then granted plaintiff's motion to ...


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