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Gentry v. Hill

Filed: May 4, 1982.

A. E. GENTRY T/A A. E. GENTRY CONSTRUCTION
v.
DAULTON H. HILL AND WIFE, MRS. DAULTON H. HILL, T/A BIG D LOUNGE



Appeal by plaintiff from Tanis, Judge. Order entered 1 June 1981 in District Court, Forsyth County. Heard in the Court of Appeals 1 April 1982.

Martin (Harry C.), Judge. Judges Martin (Robert M.) and Whichard concur.

Martin

Plaintiff offers the following arguments in support of his position:

1. Defendant Precious Hill failed to show that counsel of record lacked the requisite authority to consent to the entry of summary judgment against her.

2. Precious Hill failed to show excusable neglect in that she did not give her defense the attention which a person of ordinary prudence usually gives important business.

3. Precious Hill did not have a meritorious defense.

N.C.R. Civ. P. 60 states in pertinent part:

(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;

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

Upon hearing of a Rule 60 motion, the findings of fact by the trial court are conclusive on appeal if supported by any competent evidence. Schloss v. Jamison, 258 N.C. 271, 128 S.E.2d 590 (1962). The granting of the motion is within the sound discretion of the trial court. Greenhill v. Crabtree, 45 N.C. App. 49, 262 S.E.2d 315, aff'd praesumitur pro negante, 301 N.C. 520, 271 S.E.2d 908 (1980); Trucks, Inc. v. Greene, 34 N.C. App. 279, 237 S.E.2d 862 (1977). Appellate review is limited to a determination of whether the court abused its discretion; that is, whether the facts found support the legal conclusion that the party is entitled to relief from judgment for one of the enumerated reasons set out under the rule. In re Snipes, 45 N.C. App. 79, 262 S.E.2d 292 (1980).

Upon the record before us, we find that the evidence amply supports the trial court's findings of fact. Nor has plaintiff excepted to the findings. Therefore, they are conclusive on appeal. Durland v. Peters, Comr. of ...


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