An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA05-246

NORTH CAROLINA COURT OF APPEALS

Filed: 1 November 2005

MARK A. WARD,
    Plaintiff,

         v.                        Forsyth County
                                No. 04 CVS 3825
WACHOVIA BANK, NA,
    Defendant.
    

    Appeal by Plaintiff from order entered 30 November 2004 by Judge James M. Webb in Superior Court, Forsyth County. Heard in the Court of Appeals 10 October 2005.

    Mark A. Ward, plaintiff-appellant, pro se.

    Bell, Davis & Pitt, P.A., by Kevin G. Williams and Michael D. Phillips, for defendant-appellee.

    WYNN, Judge.

    A trial court may relieve a party from a final judgment or an order for “[f]raud . . . , misrepresentation, or other misconduct of an adverse party[.]” N.C. Gen. Stat. § 1A-1, Rule 60(b)(3) (2004). In this case, Plaintiff alleged that Defendant perpetrated fraud upon the trial court by providing false bank statements and affidavits which contained false declarations. As the record does not support Plaintiff's contentions, the trial court did not abuse its discretion in denying Plaintiff's motion to vacate judgment.
    In 2002, Plaintiff Mark A. Ward brought an action against his ERISA plan administrator when his request for disability benefitsunder the retirement plan was denied. After having that matter removed to federal court, he caused a subpoena to be issued for Defendant Wachovia Bank, NA to produce copies of an account holder's bank statements. Although Wachovia Bank provided the requested documents, Mr. Ward brought an action on 8 March 2004, against Wachovia Bank alleging that Wachovia Bank had deliberately falsified the documents which it had provided in response to the subpoena in his federal action. He further asserted that the “bogus manually generated bank statements [from Wachovia Bank] were falsified and distinctly different . . . from the actual carbon image” and that “[a]s a result of Wachovia's intentional tortious interference, interference which was accomplished by fraud, plaintiff's attempts to recover earned benefits owed to plaintiff has been disrupted.” Mr. Ward sought $1,000,000.00 in compensatory and punitive damages from Wachovia Bank.
    On 25 May 2004, the trial court dismissed Mr. Ward's complaint under North Carolina Civil Procedure Rule 12(b)(6). Mr. Ward appealed from that order but after the federal court granted summary judgment for the ERISA plan administrator on 14 June 2004, he withdrew his notice of appeal from the 25 May 2004 dismissal.
    Nonetheless, Mr. Ward brought a second action against Wachovia Bank on 17 June 2004, again alleging that Wachovia Bank had provided “knowingly and maliciously falsified bank statements” pursuant to the subpoena with the intent to interfere with his contract with his retirement benefits plan. He asserted that as a direct result of Wachovia Bank's actions, a judgment had beenentered in which “the benefits plan prevailed” and his “earned benefits were denied.” Mr. Ward again sought $1,000,000.00 in compensatory and punitive damages from Wachovia Bank.
    On 11 August 2004, Wachovia Bank filed a motion to dismiss and motion for judgment on the pleadings in which it sought dismissal of Mr. Ward's second complaint for failure to state a claim upon which relief may be granted, N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2004), and because the action was barred by the doctrines of res judicata and collateral estoppel, N.C. Gen. Stat. § 1A-1, Rule 12(c) (2004). Mr. Ward filed a motion to compel discovery and for sanctions on 13 August 2004, in which he alleged Wachovia Bank had failed to provide the register of Automatic Clearing House transactions for all direct deposits into the account holder's checking and savings accounts. He filed a second motion for sanctions on 9 September 2004.
    In an affidavit dated 16 September 2004, Carla N. Archie, Wachovia Bank's vice president and assistant general counsel, stated that Wachovia Bank “does not possess a separate 'register of Automatic Clearing House transactions evidencing all direct deposits to'” the requested account holder's checking and savings accounts. Thereafter, Mr. Ward filed an affidavit opposing Wachovia Bank's motion to dismiss and motion for judgment on the pleadings on 23 September 2004. By order entered 7 October 2004, the trial court allowed Wachovia Bank's motion, dismissed Mr. Ward's action with prejudice, and denied Mr. Ward's motion for sanctions.    On 12 November 2004, Mr. Ward filed a motion to vacate judgment under North Carolina Civil Procedure Rule 60(b)(3) alleging that “[t]he judgment was entered as a result of fraud upon the court on the part of defendant.” He attached an affidavit in support of the motion which contained operating rules of the Automated Clearing House, Ms. Archie's affidavit, and an order entered 31 August 2004, which directed Wachovia Bank to respond fully and completely to Mr. Ward's motion to compel discovery. Mr. Ward also asserted in his affidavit that Wachovia Bank possessed a register of Automatic Clearing House transactions separate from an account statement.
    Subsequently, the trial court issued a subpoena at Mr. Ward's request for Ms. Archie to appear and testify at the hearing, and Wachovia Bank filed a motion to quash the subpoena. On 24 November 2004, Wachovia Bank filed an affidavit from C. Devon Marsh, Wachovia Bank's vice president and Automatic Clearing House Process Support Manager, Electronic Services, in which Mr. Marsh discussed the applicable rules of the Automatic Clearing House. He asserted that Wachovia Bank was not required to maintain a separate register of Automatic Clearing House transactions and in fact did not maintain such a separate register.
    After reviewing the file and hearing arguments on 29 November 2004, the trial court allowed Wachovia Bank's motion to quash the subpoena and denied Mr. Ward's motion to vacate the judgment in an order entered 30 November 2004. Mr. Ward gave notice of appeal on 8 December 2004 “from the final judgment . . . entered on November29, 2004 . . . denying Mr. Ward's Motion to Vacate Judgment.”
        __________________________________________
    On appeal, Mr. Ward argues the trial court should have granted his motion to vacate judgment. He contends the trial court could have entered a default judgment against Wachovia Bank because Wachovia Bank's counsel first resisted production of the documents “on grounds of irrelevancy, burdensomeness, and confidentiality[,]” then claimed the evidence “simply 'does not exist.'” Mr. Ward further contends Wachovia Bank perpetrated fraud upon the trial court by providing false bank statements and affidavits which contained false declarations. He asserts that the judgment entered was the result of fraud upon the trial court and rendered the 29 [sic] November 2004 order void.
    A trial court may relieve a party from a final judgment or an order for “[f]raud . . . , misrepresentation, or other misconduct of an adverse party[.]” N.C. Gen. Stat. § 1A-1, Rule 60(b)(3). A Rule 60(b) motion “is addressed to the sound discretion of the trial court,” and the ruling will not be disturbed without a showing that the trial court abused its discretion. Sink v. Easter, 288 N.C. 183, 198, 217 S.E.2d 532, 541 (1975).
    In this case, although the trial court's order does not contain any findings of fact upon which it based its legal conclusion to deny Mr. Ward's motion to vacate the judgment, the record does not disclose any request by Mr. Ward that the trial court make such findings of fact. See Texas W. Fin. Corp. v. Mann, 36 N.C. App. 346, 349, 243 S.E.2d 904, 906 (1978). When a trialcourt does not make findings of fact in its order denying a motion to set aside a judgment or order, the question presented to this Court is “whether, on the evidence before it, the court could have made findings of fact sufficient to support its legal conclusion[.]” Id. at 349, 243 S.E.2d at 907.
    The evidence before the trial court at the hearing on the motion to vacate would support a finding that Wachovia Bank fully responded to Mr. Ward's discovery request when it provided copies of the monthly bank statements of the requested account holder. Further, it appears from Mr. Marsh's affidavit that Wachovia Bank was not required to maintain a separate register of Automated Clearing House transactions and in fact did not maintain such a register. Those facts negate Mr. Ward's contention that Ms. Archie and Wachovia Bank's counsel provided false statements to the trial court about the records provided to Mr. Ward. Upon careful review of the documents submitted by Mr. Ward in support of his motion to vacate, he has failed to show that the trial court abused its discretion by refusing to vacate the 7 October 2004 order pursuant to his Rule 60(b)(3) motion. This assignment of error is without merit.
    Mr. Ward also contends that his complaint was sufficient to sustain a motion to dismiss and for judgment on the pleadings. He argues his complaint did not allege that Wachovia Bank failed to comply with the subpoena, but that Wachovia Bank had provided falsified information that interfered with his contract with his benefits plan. We hold that Mr. Ward's argument is not properlybefore this Court.
    Proper notice of appeal requires that the appealing party “designate the judgment or order from which appeal is taken and the court to which appeal is taken . . . ” N.C. R. App. P. 3(d). Mr. Ward did not give notice of appeal from the trial court's order of 7 October 2004, which allowed Wachovia Bank's motion to dismiss and motion for judgment on the pleadings. He instead only gave notice of appeal from the trial court's order of 30 November 2004 which denied his motion to vacate judgment. “Without proper notice of appeal, this Court acquires no jurisdiction.” Brooks v. Gooden, 69 N.C. App. 701, 707, 318 S.E.2d 348, 352 (1984). Accordingly, this Court is without jurisdiction to consider Mr. Ward's first argument which addresses the trial court's order of 7 October 2004.
    Affirmed.
    Judges CALABRIA and JACKSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***