Appeal by Plaintiffs from order entered 18 January 2006 by
Judge Michael E. Beale in Superior Court, Cabarrus County. Heard
in the Court of Appeals 6 December 2006.
Wilson & Coffey L.L.P., by G. Gray Wilson and Edward T.
Shipley, III, for Plaintiffs-Appellants.
Womble Carlyle Sandridge & Rice, PLLC, by Mark P. Henriques
and Sarah A. Motley, for Defendant-Appellee.
TWAM, LLC and Danny G. Bost (Plaintiffs) filed a complaint
against the Cabarrus County Board of Education (Defendant) on 2
April 2004, alleging that Plaintiffs purchased forty-three acres of
real property on which they planned to construct a residential
subdivision. Defendant agreed to grant Plaintiffs a water and
sewer easement on real property known as Mount Pleasant Elementary
School for the sum of $3,750.00. However, Defendant's grant of the
easement was contingent upon the approval of the proposed
subdivision by the Mt. Pleasant Planning and Zoning Commission (the
Commission). Plaintiffs tendered a check in the amount of$3,750.00 to Defendant, which Defendant accepted.
Plaintiffs also alleged they filed an application with the
Commission seeking approval of a preliminary plat subdividing the
real property for the proposed subdivision. The Commission
considered Plaintiffs' application on two occasions and each time
delayed a decision on the application. However, the Commission's
planning staff recommended approval of the application, subject to
two conditions. Plaintiffs subsequently filed a petition for writ
of certiorari with the trial court, seeking an order requiring the
Commission to approve Plaintiffs' subdivision. While the writ of
certiorari was pending, the Commission voted to deny Plaintiffs'
application for a preliminary plat. Defendant then mailed a check
in the amount of $3,750.00 to Plaintiffs, along with a letter
explaining that Defendant was returning the check because the
Commission had voted to deny Plaintiffs' application, and that
Defendant's grant of an easement had been conditional upon the
Commission's approval of Plaintiffs' application.
Plaintiffs alleged they returned Defendant's check. They also
sent Defendant a letter stating that no final action had been taken
because the Commission's vote to deny Plaintiffs' application had
been invalid and the matter was still pending. The trial court
found that the Commission's vote denying Plaintiffs' application
was invalid and ordered that the Commission approve Plaintiffs'
application subject to the conditions recommended by the
Commission's planning staff. The Commission then approved
Plaintiffs' application subject to those conditions. Plaintiffsfurther alleged that Defendant again sent Plaintiffs a check for
$3,750.00 and a letter stating that Defendant had decided to
"revoke its conditional approval of the easement." Plaintiffs
returned that check to Defendant and wrote a letter stating that
"[D]efendant could not unilaterally 'revoke' the decision to grant
a sewer easement because [P]laintiffs had paid for the easement,
[the Commission] had approved the development, and [P]laintiffs had
expended substantial amounts of time and money in reliance on
[D]efendant's promise to grant the easement." Plaintiffs alleged
they entered into a contract with Defendant for the purchase of the
easement and that Defendant breached the contract by failing to
grant Plaintiffs the easement. Plaintiffs sought specific
performance and damages.
A jury determined that (1) "Plaintiffs and . . . Defendant
enter[ed] into a contract for an easement of right of way for
purposes of constructing sewer and water lines across the property
of Mount Pleasant Elementary School[,]" but (2) "Defendant [did
not] breach the contract by repudiation[.]" The trial court
entered judgment on 7 February 2005 and ordered that "[P]laintiffs
take nothing by this action and that it be dismissed with
prejudice." No appeal was filed from the trial court's judgment.
Plaintiffs filed a motion on 3 November 2005 for relief from
judgment under N.C. Gen. Stat. § 1A-1, Rule 60(b)(1) and (6).
Plaintiffs alleged they lost the right to appeal the trial court's
7 February 2005 judgment due to the excusable neglect of their
trial counsel. Plaintiffs also alleged that the jury's verdict wasinconsistent.
The trial court entered an order on 18 January 2006 denying
Plaintiffs' motion for relief from judgment. The trial court found
that Plaintiffs' trial counsel erroneously informed Plaintiffs that
the trial court's 7 February 2005 judgment was favorable to
Plaintiffs. The trial court also found that if Plaintiffs' trial
counsel had properly informed Plaintiffs that the jury's verdict
was not favorable to them, Plaintiffs would have appealed the 7
February 2005 judgment. The trial court concluded that the conduct
and advice of Plaintiffs' trial counsel constituted excusable
neglect. However, the trial court also concluded that the jury's
verdict and judgment were not inconsistent on their face.
Therefore, the trial court concluded that Plaintiffs failed to
demonstrate a meritorious defense to the judgment. Plaintiffs
Plaintiffs argue the trial court abused its discretion by
denying Plaintiffs' motion for relief from judgment under N.C. Gen.
Stat. § 1A-1, Rule 60(b)(1) and (6). Plaintiffs argue the trial
court abused its discretion by concluding that Plaintiffs failed to
demonstrate a meritorious defense to the judgment. Specifically,
Plaintiffs argue they demonstrated a meritorious defense because
the jury's verdict was inconsistent.
Pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b)(1) (2005), a
trial court may grant a party relief from a final judgment on
grounds of "[m]istake, inadvertence, surprise, or excusableneglect[.]" N.C. Gen. Stat. § 1A-1, Rule 60(b)(6) (2005) allows a
trial court to grant relief from a final judgment for "[a]ny other
reason justifying relief from the operation of the judgment." "The
setting aside of a judgment pursuant to [N.C.]G.S. [§] 1A-1, Rule
60(b)(6) should only take place where (i) extraordinary
circumstances exist and (ii) there is a showing that justice
demands it." Huggins v. Hallmark Enterprises, Inc.
, 84 N.C. App.
15, 24-25, 351 S.E.2d 779, 785 (1987). Additionally, to obtain
relief under either Rule 60(b)(1) or 60(b)(6), the moving party
must show that it has a meritorious defense. In the Matter of
Oxford Plastics v. Goodson
, 74 N.C. App. 256, 258, 328 S.E.2d 7, 9
(1985). "As is recognized in many cases, a motion for relief under
Rule 60(b) is addressed to the sound discretion of the trial court
and appellate review is limited to determining whether the court
abused its discretion." Sink v. Easter
, 288 N.C. 183, 198, 217
S.E.2d 532, 541 (1975).
"The elements of a claim for breach of contract are (1)
existence of a valid contract and (2) breach of the terms of that
contract." Poor v. Hill
, 138 N.C. App. 19, 26, 530 S.E.2d 838, 843
(2000). Our Court has recognized that "[i]t is basic contract law
that a party is not entitled to specific performance arising under
a contract unless the opposing party has breached its agreement
pursuant to the contract." N.C. Med. Soc'y v. N.C. Bd. of Nursing
169 N.C. App. 1, 11, 610 S.E.2d 722, 727, disc. review denied
N.C. 66, 621 S.E.2d 875 (2005). Although Plaintiffs argue that the
jury simply determined Defendant had not yet
breached the contract,the plain language of the jury's verdict belies this argument.
Moreover, despite Plaintiffs' argument to the contrary, the jury
did not determine that the parties continued to have a valid,
enforceable contract. The jury only determined that the parties
entered a contract, which Defendant did not breach. Therefore, we
hold that the jury's verdict in the present case was not
inconsistent as a matter of law.
In support of their argument, Plaintiffs cite Robertson v.
, 285 N.C. 561, 206 S.E.2d 190 (1974)
, where the minor
plaintiff was struck and injured by a vehicle operated by the
at 564, 206 S.E.2d at 192. The minor plaintiff
also presented uncontradicted evidence that, as a result of the
accident, he had been hospitalized for approximately twenty-six
days, had undergone two operations, had a permanent scar on his
shoulder, and had suffered pain over an extended period of time.
at 564, 206 S.E.2d at 192-93. The trial court properly
instructed the jury on negligence, contributory negligence, and
at 564-65, 206 S.E.2d at 193. The jury determined
that although the minor plaintiff was injured by the defendant's
negligence and was not contributorily negligent, the minor
plaintiff was not entitled to recover any amount from the defendant
for personal injury. Id.
at 566, 206 S.E.2d at 193. The jury did
determine that the minor plaintiff's father was entitled to recover
an amount for medical expenses. Id.
at 563, 206 S.E.2d at 192.
Our Court recognized in Robertson
that "'[t]he law is well
settled in this jurisdiction that in cases of personal injuriesresulting from [a] defendant's negligence, the plaintiff is
entitled to recover the present worth of all damages naturally and
proximately resulting from [a] defendant's tort.'" Id.
at 565, 206
S.E.2d at 193 (quoting King v. Britt
, 267 N.C. 594, 597, 148 S.E.2d
594, 597 (1966)). Our Court held that "[u]nder such circumstances,
with the evidence of pain and suffering clear, convincing and
uncontradicted, it is quite apparent that the verdict is not only
inconsistent but also that it was not rendered in accordance with
at 566, 206 S.E.2d at 193-94. Therefore, our Court
held that the trial court should have set aside the verdict. Id.
at 568, 206 S.E.2d at 195. Our Court remanded the matter for a new
trial on all issues because the issues regarding negligence,
contributory negligence, and damages were "inextricably
at 569-70, 206 S.E.2d at 196.
is distinguishable from the present case. In
, the jury's verdict was inconsistent because although
there was uncontradicted evidence of pain and suffering, the jury
determined that the minor plaintiff, who was not contributorily
negligent, could not recover for personal injuries caused by the
defendant's negligence. Id.
at 566, 206 S.E.2d at 193-94. In the
present case, unlike in Robertson
, the jury's verdict was not
Plaintiffs also rely upon Anuforo v. Dennie
, 119 N.C. App.
359, 458 S.E.2d 523 (1995). In Anuforo
, our Court held that the
plaintiff sufficiently alleged a meritorious defense "such that it
would not be 'a waste of judicial economy to vacate' the order ofthe trial court denying relief under Rule 60(b)." Anuforo
N.C. App. at 363, 458 S.E.2d at 526 (quoting Oxford Plastics
N.C. App. at 259, 328 S.E.2d at 9). However, in the present case,
we hold that the jury's verdict was not inconsistent as a matter of
law. Therefore, in the present case, unlike in Anuforo
, it would
be a waste of judicial economy to vacate the order of the trial
We note that Defendant argues the trial court erred by
concluding that the conduct and advice of Plaintiffs' trial counsel
constituted excusable neglect. However, Defendant did not file a
notice of appeal under N.C.R. App. P. 3(a) from the order denying
Plaintiffs' motion for relief from judgment, nor did Defendant
cross-assign error to the trial court's determination of excusable
neglect pursuant to N.C.R. App. P. 10(d). Therefore, this issue is
not before us.
In conclusion, we hold that the jury's verdict was not
inconsistent as a matter of law, and therefore the trial court
properly concluded that Plaintiffs failed to show a meritorious
defense. Accordingly, the trial court did not abuse its discretion
by denying Plaintiffs' motion for relief from judgment.
Judges BRYANT and STEELMAN concur.
Report per Rule 30(e).
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