CHARLES MICHAEL WADDELL,
Plaintiff,
v
.
Alamance County
No. 97 CVS 1306
J. MICHAEL WILLIAMS,
Defendant.
Walker & Bullard, by Daniel S. Bullard and James F. Walker,
for plaintiff-appellant.
Law Offices of Wade E. Byrd, by Sally A. Lawing, for
defendant-appellee.
BIGGS, Judge.
This appeal arises from an altercation between Charles Waddell
(plaintiff) and Michael Williams (defendant), occurring on 6
January 1997. Plaintiff appeals from the trial court's order
setting aside the jury's verdict and ordering a new trial. For the
reasons that follow, we reverse.
The facts are as follows: Prior to their fight, plaintiff and
defendant were lifelong friends. Plaintiff was both an employee
and a part-owner of defendant's business, Alamance Machine. The
two men socialized outside of work, were joint owners of a beach
house, and had vacationed together. In the fall of 1996, a conflict developed between them, based on
plaintiff's belief that his share of work at Alamance Machine was
excessive. This disagreement was not resolved, and, in December,
1996, defendant gave plaintiff a formal termination notice from
Alamance Machine. As a result, the two had several financial
matters to wind down. On 6 January 1997, plaintiff and defendant
met at a bank to settle some of their joint business affairs, and
then went to the plant to retrieve documents that plaintiff needed.
While plaintiff and defendant were alone, an altercation arose in
which the parties engaged in physical fighting. As a result,
plaintiff filed suit against defendant in June, 1997, seeking
compensatory and punitive damages for civil assault and battery,
and conversion of property. In addition, plaintiff sought
attorneys' fees. Defendant's answer, filed in September 1997,
denied all charges, and raised the issue of self defense.
Defendant also filed a counterclaim against plaintiff for civil
assault and battery, and for malicious prosecution.
The case was tried on 31 March 1999. At trial, defendant and
plaintiff presented very different accounts of the fight.
Plaintiff contended that defendant was angry, became verbally
abusive, and then physically attacked plaintiff; and that defendant
cut plaintiff's lip and threw him to the floor while choking him
and demanding an apology. Defendant also inflicted a deep bite on
plaintiff's wrist, leaving a scar. Defendant, on the other hand,
asserted that the fight was not an attack, but a voluntary affray,
which plaintiff started. Defendant acknowledged threatening,hitting, and choking plaintiff, and admitted that he “bit into
[plaintiff's] arm like a snapping turtle.” However, defendant
contended that his actions towards plaintiff were in self defense.
During trial, plaintiff presented evidence, to which defendant
objected, of prior instances of violence and intimidation by
defendant, including: (1) defendant's attacking a woman on an
airplane, throwing her glasses on the ground, and stomping them;
(2) defendant's threatening to assault a man who complained when
defendant hit his vehicle with gravel while mowing the lawn; and
(3) defendant's attacking a stranger while on vacation at the
beach. After a voir dire, the trial court admitted such evidence
pursuant to North Carolina Rules of Evidence 404(b), “Other Crimes,
Wrongs, or Acts.”
On 5 April 1999, the jury returned a verdict finding defendant
liable on all claims and awarding plaintiff $30,000.00 in
compensatory damages for assault and battery, $3,500.00 for
conversion, and $50,000.00 in punitive damages. The jury rejected
defendant's claim of self defense, and all of defendant's
counterclaims. On 28 June 1999, judgment was entered in accord
with the verdict.
Defendant has never appealed from the judgment in this case.
However, on 7 July 1999, defendant filed a motion for judgment
notwithstanding the verdict, pursuant to N.C.G.S. § 1A-1, Rule 50,
and sought a new trial under Rule 59. On the same date, defendant
filed a motion for stay of proceedings to enforce judgment. On 30
May 2000, plaintiff filed a motion to strike defendant's motions. Plaintiff argued that, despite the entry of judgment a year
earlier, defendant had neither complied with the judgment, nor made
any effort to obtain a ruling on his motions. Plaintiff moved that
defendant's motions be dismissed for failure to prosecute, pursuant
to N.C.G.S. § 1A-1, Rule 41(b). In addition, he argued that the
defendant's motion to stay judgment should be dismissed on the
grounds that defendant had not provided security, as required under
Rule 62(b).
On 29 June 2000 defendant filed two motions for relief from
judgment under N.C.G.S. § 1A-1, Rule 60(b)(2), (3), and (6), which
authorize the court to grant relief upon evidence of newly
discovered evidence, fraud, or for “[a]ny other reason justifying
relief from the operation of the judgment.” In one motion,
defendant argued that “recent decisions of our Court of Appeals
make it clear that the admission, during the liability phase of the
trial, of evidence of prior bad acts by the defendant was
reversible error.” Defendant claimed that “[t]hese new decisions
. . . were not available to the Court when this case was tried,”
and urged the trial court to “save the parties the expense of an
appeal by setting aside the judgment and granting the defendant the
new trial to which he is entitled under these recent decisions.”
In the other motion, not before this Court, defendant argued that
newly discovered evidence deprived him of a fair trial.
On 3 July 2000, plaintiff's motion to dismiss was denied, and
on 5 July 2000, defendant's motions for judgment notwithstanding
the verdict, new trial, and relief from judgment were heard. Thetrial court concluded that “errors of law occurred in the admission
of evidence under Rule 404, and in the Court's instructions to the
jury regarding that evidence, . . . [that] prejudiced the defendant
and deprived him of a fair trial[.]” On this basis, the trial
court ruled as follows:
(1) The Motion for Judgment Notwithstanding
the Verdict [was] DENIED.
(2) The Motion for New Trial [was] ALLOWED in
the Court's discretion, and there shall be a
new trial on all issues. The judgment entered
in this matter on June 29, 1999, is hereby SET
ASIDE, and the Clerk shall strike it from the
judgment book.
(3) The Motion for Relief from Judgment
pursuant to Rule 60 is moot.
(4) The order taxing costs against the
defendant is hereby STRIKEN. Costs will be
determined following the new trial.
Plaintiff appeals from this order.
The trial court granted defendant a new trial under N.C.G.S.
§ 1A-1, Rule 59. A motion made under Rule 59 must comply with
N.C.G.S. § 1A-1, Rule 7(b)(1), which requires the following:
(1) An application to the court for an order
shall be by motion which, . . . shall be made
in writing, shall state the grounds therefor,
and shall set forth the relief or order
sought. (emphasis added)
In order to satisfy Rule 7(b)(1), a motion must “supply information
revealing the basis of the motion.” Smith v. Johnson, 125 N.C.
App. 603, 606, 481 S.E.2d 415, 417, disc. review denied, 346 N.C.
283, 487 S.E.2d 554 (1997). Mere technical defects do not offend
Rule 7(b)(1). McGinnis v. Robinson, 43 N.C. App. 1, 9, 258 S.E.2d
84, 89 (1979) (where motion provides details of alleged perjury,
this Court holds that, because the “substantive grounds and reliefdesired [are] manifest on the face of the motion[],” failure to
state rule number is “not fatal”). However, a Rule 59 motion must
inform the court and the non-movant of the specific factual or
legal issue being raised, and mere recitation of the statutory
language of Rule 59(a) is insufficient to accomplish this. Smith,
125 N.C. App. 603, 481 S.E.2d 415. In Smith, the defendants stated
that their motion was based upon Rule 59(a)(2) and (7), but
provided no further details. This Court held that the motion did
not comply with Rule 7(b)(1):
The mere recitation of the rule number relied
upon by the movant is not a statement of the
grounds within the meaning of Rule 7(b)(1).
The motion, . . . must supply information
revealing the basis of the motion. . . . There
are, however, no allegations in the motion
revealing any [factual or legal basis].
Id. at 606, 481 S.E.2d at 417. See also Meehan v. Cable, 135 N.C.
App. 715, 721, 523 S.E.2d 419, 423 (1999) (where motion states that
defendants entitled to new trial under Rule 59(a)(7) and (8), but
does not “state any specific basis for granting a new trial,” the
motion is invalid); Dusenberry v. Dusenberry, 87 N.C. App. 490,
492, 361 S.E.2d 605, 606 (1987) (“where court and adverse party
cannot comprehend the basis of a motion, they are rendered
powerless to respond to it”).
Moreover, a motion that fails to inform the non-movant of its
specific basis does not preserve the alleged error for appellate
review. Meehan, 135 N.C. App. at 721, 523 S.E.2d at 423 (where
Rule 59 motion does not comply with Rule 7(b)(1), the alleged“issue is not properly before this Court”, and Court does not
address it).
In the instant case, defendant's motion simply quoted from the
statutory list of grounds for a new trial under Rule 59, including
59(a)(8), “[e]rror in law occurring at the trial and objected to by
the Defendant.” However, the motion states no specific factual or
legal issue, or any basis for a new trial. There is no way to
discern from the motion what aspect of the trial, or which of the
trial court's rulings, defendant was challenging. Defendant's Rule
59 motion does not refer to North Carolina Rules of Evidence
404(b); nor does it identify or describe the contested evidence.
We conclude that defendant's motion provided no basis upon which
plaintiff might be informed that defendant was attempting to argue
the admissibility of Rule 404(b) evidence, and that, because
defendant did not state the legal basis of his Rule 59(a)(8)
motion, he failed to comply with Rule 7(b)(1). We further
conclude, therefore, that defendant did not preserve his Rule
404(b) claim for review by filing this motion, and that defendant's
Rule 59 motion should have been dismissed.
Nor can this Court construe the trial court's ruling as an
order entered pursuant to defendant's Rule 60(b)(6) motion. It is
settled law that Rule 60(b)(6) may not be used as a vehicle to
raise legal issues. Jenkins v. Middleton, 114 N.C. App. 799, 801,
443 S.E.2d 110, 112 (1994) (Greene, J. concurring with separate
opinion) (“the broad general language of Rule 60(b)(6) does not
include relief for errors of law”). In the instant case, the legalissue that defendant attempted to raise under Rule 60(b)(6) could
properly be presented only by means of a timely appeal or a valid
Rule 59(a)(8) motion.
As stated above, defendant did not appeal from the judgment
entered in this case. The time for giving notice of appeal from
the entry of judgment expired 28 July 2000. N.C. Rule of Appellate
Procedure 3(c) provides that “[t]he running of the time for filing
and serving a notice of appeal in a civil action . . . is tolled .
. . by a timely [Rule 59] motion” for a new trial. However, a Rule
59 motion that fails to state the specific grounds for relief does
not “qualify as a Rule 59 motion within the meaning of Rule 3 of
the Rules of Appellate Procedure,” and thus does not toll the time
for filing notice of appeal. Smith, 125 N.C. App. at 606, 481
S.E.2d at 417. Defendant's Rule 59 motion, because it did not
state a specific factual or legal basis for the relief sought,
failed to toll the time for giving notice of appeal.
For the reasons discussed above, we conclude that the
defendant did not preserve the issue of the admissibility of Rule
404(b) evidence under Rule 59(a)(8), and was not entitled to raise
the issue through Rule 60(b)(6) motion. Consequently, we reverse
the trial court's order, and remand for reinstatement of the
judgment and order entered at trial.
Reversed and Remanded.
Chief Judge EAGLES and Judge MARTIN concur.
Report per Rule 30(e).
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