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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 4 September 2007
MUSLIMA SUBKHANGULOVA (DOWDY);
DIANA SUBKHANGULOVA, a Minor
Child, By and through her
Guardian Ad Litem, G. ELVIN
SMALL, Attorney at Law; and
No. 05 CVS 141
GARY JOSEPH DOWDY, SR.,
Appeal by Defendant from order entered 6 February 2006 by
Judge Cy A. Grant in Dare County Superior Court. Heard in the
Court of Appeals 10 April 2007.
The Twiford Law Firm, P.C., by John S. Morrison, and Baker,
Jones, Daly, Murray, Carter, Daughtry, P.A., by Ronald G.
Baker and Darlene G. Chambers, for Plaintiffs.
Wyrick Robbins Yates & Ponton LLP, by K. Edward Greene and
Adrienne E. Allison, for Defendant.
On 24 April 2001, Muslima Subkhangulova (Muslima) and Gary
Joseph Dowdy, Sr. (Defendant) were married. Muslima had two
children before marrying Defendant, but no children were born of
her marriage to Defendant. On or about 20 July 2004, the couple
separated. On 15 September 2004, Muslima filed a complaint in Dare
County District Court seeking postseparation support, alimony,
divorce from bed and board, equitable distribution of the maritalproperty, and interim distribution of the marital assets. In the
complaint, Muslima alleged, inter alia, that the couple was married
outside the United States in the town of Yoshkar-Ola the Republic
of Mari El and that at the time of the wedding, Defendant
promised that upon bringing [Muslima] to the United States of
America that he would fully and faithfully provide support for her
and her two minor daughters, for at least ten years.
By a second complaint dated 18 February 2005 and filed in Dare
County Superior Court, Muslima and her daughters, Albina
Subkhangulova (Albina) and Diana Subkhangulova (Diana)
(collectively Plaintiffs), brought causes of action against
Defendant for assault, intentional infliction of emotional
distress, seduction and alienation of affections, and breach of
contract. Plaintiffs' complaint alleged, inter alia, that [f]rom
the summer 2002 to spring 2003, the Defendant approached [Albina]
out of the presence of her mother and sister, and on numerous
occasions made lewd and vulgar comments about . . . Albina's
body . . . and . . . did in fact place his hands on Albina's [body]
. . . in a rude and vulgar manner. The complaint alleged further
that [o]n numerous occasions, beginning in the Summer of 2002 and
continuing up until July 20, 2004, the Defendant maintained a
pattern of and practice of illicit sexual relations with the minor
child Diana[.] Additionally, the complaint stated that
[t]he Defendant on at least two occasions in
2004 struck [Muslima] in a violent, rude, and
offensive manner: Once by grabbing [her]
person by the throat and throwing her to the
floor, straddling her body, and pinning her
down as she cried for help from Diana[.]Secondly, by threatening to do her great
bodily harm unless she engaged in sexual
intercourse with the Defendant.
Finally, the complaint alleged that
[d]espite the obligations imposed on the
Defendant by his agreement . . . and the laws
of the United States of America, [through his
sponsorship of Plaintiffs during their
immigration into the United States,] the
Defendant has willfully failed and refused to
provide support to all Plaintiffs as
[required] by law . . . despite his ability to
Plaintiffs sought compensatory and punitive damages and attorneys'
On 8 April 2005, Plaintiffs and Defendant purportedly entered
into a settlement agreement (the agreement). By the terms of the
agreement, Defendant agreed to pay $1,500,000.00 to Diana,
$1,250,000.00 to Muslima, and $250,000.00 to Albina by noon on 31
May 2005. In exchange, Plaintiffs agreed that upon receipt of the
payments from Defendant, they would file a voluntary dismissal with
prejudice of the claims pending in Dare County Superior Court.
Additionally, the parties acknowledged that the agreement was a
final and binding release and discharge from
any and all claims, demands, actions, or suits
at law or in equity, contract or tort, or of
any kind or nature, in any manner arising out
of the alleged personal injuries or alleged
breach of contract suffered by the Plaintiffs
as specified in the pleadings.
Furthermore, the agreement provided that
the pending litigation in both the District
and Superior Courts of Dare County shall be
stayed by Plaintiffs and all time periods are
tolled, until June 1, 2005; if as of that date
payment has not been made in full as provided
in this agreement, then Plaintiffs are free topursue all legal remedies in litigation to the
same extent as if this agreement had not been
executed and no tolling agreement existed.
Provided, however, it is specifically
understood that Plaintiffs shall be entitled
to pursue enforcement of this agreement in law
and at equity in addition to such remedies as
are otherwise available to Plaintiffs under
the pending litigation.
With regard to potential criminal proceedings for various
felonious charges pending against Defendant in Dare County
Superior Court, the parties agreed that
[a]s a result of this settlement, the
Plaintiffs . . . will interpose no objection
to the Defendant negotiating any lesser plea,
on a single count or otherwise, and receiving
a suspended sentence for the service of any
active imprisonment, either in whole or in
part, provided any judgment imposed will
require counseling and treatment of the
Defendant as a sex offender, and further
provided, that any suspended sentence
completely prohibits the Defendant from any
contact whatsoever, direct or indirect,
physically or through communication of any
kind, personally or by a third party with the
Plaintiffs, or any one of the Plaintiffs,
except through their counsel. . . .
[Additionally,] nothing in this agreement is
to be construed in any way as making the
settlement contingent upon the outcome of the
criminal litigation. There are no
representations that the Plaintiffs have
complete control over the criminal litigation,
that they will not cooperate fully with the
District Attorney or other authorities, that
they will not testify truthfully if called
upon to do so, nor that they will not make
themselves fully available to the District
Attorney in this cause.
Finally, through the agreement, the parties consented that
[i]n the event that the terms of this
agreement have not been complied with, a copy
of this agreement shall be filed with the
court in each pending civil litigation action.
The parties further agree that this agreementshall form the basis of an appropriate
judgment to be entered by the court in this
action without further contest by either
party. And it is stipulated that this
document is in compliance with the North
Carolina Rules of Civil Procedure as to a
confession of judgment.
Upon a motion for approval, on 14 April 2005, the Honorable J.
Richard Parker approved the settlement agreement as it pertained to
Diana, after finding that the agreement was in the minor's best
interest[.] Additionally, Judge Parker ordered that the Motion
for Approval of this Settlement, the Order, and all exhibits in
support of the same, including the Settlement Agreement, now
approved, be sealed until further Orders of this Court[.]
Defendant failed to make any payments required by the
agreement and, on 21 July 2005, Plaintiffs moved the trial court to
unseal the court file and enter judgment against Defendant for the
sums set forth in the . . . Settlement Agreement[.] On 14
November 2005, the Honorable Gary E. Trawick held a hearing on this
motion, and that same day, Plaintiffs filed the agreement in Dare
County Superior Court. After the hearing, Judge Trawick entered
judgment against Defendant for the sums due Plaintiffs under the
terms of the agreement. In the judgment, Judge Trawick found,
inter alia, that
1. Plaintiffs and Defendant entered into a
Settlement Agreement in this matter . . . .
. . . .
3. The Defendant has failed to comply with
the terms of the Settlement Agreement and has
failed to pay the sums called for therein.
4. In the Settlement Agreement the parties
agreed that Plaintiffs shall be entitled topursue enforcement of the Settlement
5. The Settlement Agreement further provides
that it may be treated as a Confession of
Judgment and that the Court might enter
Judge Trawick then concluded that [t]he Settlement Agreement, by
its terms, is enforceable by this Court and that Plaintiffs are
entitled to judgment in the amounts called for by the Settlement
Agreement. Upon these findings and conclusions, the court ordered
Defendant to pay the sums due Plaintiffs pursuant to the
(See footnote 1)
By motion dated 30 November 2005, pursuant to Rule 60(b) of
the North Carolina Rules of Civil Procedure, Defendant moved the
trial court for relief from Judge Trawick's judgment. Defendant
asserted that he was entitled to relief from judgment for the
following pertinent reasons:
3) That the Defendant was not instructed by
his then counsel
(See footnote 2)
to be present for the
judicial review of the purported
Settlement Agreement and was explicitly
instructed by his then counsel not to
appear in court on the date of entry of
4) That prior to the November 14, 2005
hearing referenced above, the Defendant
instructed his former counsel to resistthe . . . enforcement of the Settlement
5) That on February 17, 2005 Diana . . .
recanted her statement that she was a
victim of sexual assaults by
Defendant . . . .
6) That further, evidence of this
recantation of the charges, which formed
the basis for the complaint, was provided
to Defendant's former counsel on March 9,
2005 but that the Defendant was not so
informed of said recantation prior to the
approval of the settlement Agreement on
April 14, 2005 or Defendant's execution
of his signature on that facsimile dated
April 8, 2005.
. . . .
8) That . . . Muslima . . . attempted to
suborn perjury in the filing of this
complaint and made false statements
Defendant also alleged that the agreement was not properly
executed, that he received inappropriate advice from his trial
counsel because his trial counsel had a financial interest in the
completion of the agreement, and that he did not understand the
agreement would leave him exposed to criminal prosecution. This
matter came on for hearing on 3 January 2006 in Dare County
Superior Court before the Honorable Cy A. Grant. Following the
hearing, by order entered 6 February 2006, Judge Grant denied
Defendant's Rule 60(b) motion. Defendant appeals from Judge
Grant's order. For the reasons set forth herein, we affirm the
order of the trial court.
Defendant first argues that the trial court erred in denying
his motion for relief from judgment pursuant to Rule 60(b)(1). Specifically, Defendant contends that the trial court failed to
make sufficient findings of fact regarding the conduct of
Defendant's trial counsel which Defendant contends constituted
excusable neglect. We disagree.
Rule 60(b)(1) of the North Carolina Rules of Civil Procedure
provides that the court may relieve a party or his legal
representative from a final judgment, order, or proceeding if the
moving party can show [m]istake, inadvertence, surprise, or
excusable neglect[.] N.C. Gen. Stat. § 1A-1, Rule 60(b)(1)
(2005). Whether neglect is 'excusable' or 'inexcusable' is a
question of law which 'depends upon what, under all the surrounding
circumstances, may be reasonably expected of a party' to
litigation. JMM Plumbing & Utils., Inc. v. Basnight Constr. Co.,
169 N.C. App. 199, 202, 609 S.E.2d 487, 490 (2005) (quoting Thomas
M. McInnis & Assocs., Inc. v. Hall, 318 N.C. 421, 425, 349 S.E.2d
552, 555 (1986)). A motion for relief under Rule 60(b) is
addressed to the sound discretion of the trial court and will not
be disturbed absent an abuse of discretion. Grant v. Cox, 106
N.C. App. 122, 124-25, 415 S.E.2d 378, 380 (1992) (citations
omitted). This Court will find an abuse of discretion when the
trial court's decision is unsupported by reason and could not have
been a result of competent inquiry[.] Wiencek-Adams v. Adams, 331
N.C. 688, 691, 417 S.E.2d 449, 451 (1992) (citation omitted).
When ruling on a 60(b) motion, [t]he trial judge has the duty
to make findings of fact, which are deemed conclusive on appeal if
there is any evidence on which to base such findings. Briley v.Farabow, 348 N.C. 537, 547, 501 S.E.2d 649, 655 (1998) (citing
Hoglen v. James, 38 N.C. App. 728, 248 S.E.2d 901 (1978)); see
also Trent v. River Place, LLC, 179 N.C. App. 72, 632 S.E.2d 529
(2006) (holding that the trial court has a duty to make findings of
fact when ruling on a 60(b) motion); but see Condellone v.
Condellone, 137 N.C. App. 547, 550, 528 S.E.2d 639, 642
(recognizing that this Court consistently has held: 'Although it
would be the better practice to do so when ruling on a Rule 60(b)
motion, the trial court is not required to make findings of fact
unless requested to do so by a party') (citations omitted), disc.
review denied, 352 N.C. 672, 545 S.E.2d 420 (2000). When required,
'findings of fact and conclusions of law must be made even on
rulings resting within the trial court's discretion.' See N.C.
Indus. Capital, LLC v. Clayton, ___ N.C. App. ___, ___, ___ S.E.2d
___, ___ (August 21, 2007) (COA06-732) (quoting Andrews v. Peters,
318 N.C. 133, 139, 347 S.E.2d 409, 413 (1986)). However, when a
trial court fails to make findings of fact with respect to the
elements of Rule 60(b), the order will be reversed 'unless there is
evidence in the record sustaining findings which the trial court
could have made to support such order.' Parris v. Light, 146 N.C.
App. 515, 521, 553 S.E.2d 96, 99 (2001) (quoting Gibson v. Mena,
144 N.C. App. 125, 128-29, 548 S.E.2d 745, 747 (2001)), disc.
review denied, 355 N.C. 349, 562 S.E.2d 283 (2002).
Addressing the impact of an attorney's conduct on a party's
ability to succeed on a Rule 60(b)(1) motion for relief fromjudgment because of excusable neglect, our Supreme Court has
Clearly, an attorney's negligence in handling
a case constitutes inexcusable neglect and
should not be grounds for relief under the
excusable neglect provision of Rule
60(b)(1). In enacting Rule 60(b)(1), the
General Assembly did not intend to sanction an
attorney's negligence by making it beneficial
for the client and to thus provide an avenue
for potential abuse. Allowing an attorney's
negligence to be a basis for providing relief
from orders would encourage such negligence
and present a temptation for litigants to use
the negligence as an excuse to avoid
court-imposed rules and deadlines. . . .
Holding the client responsible for the
lawyer's deeds ensures that both clients and
lawyers take care to comply. If the lawyer's
neglect protected the client from ill
consequences, neglect would become all too
common. It would be a free good_the neglect
would protect the client, and because the
client could not suffer the lawyer would not
Briley, 348 N.C. at 546-47, 501 S.E.2d at 655 (citations omitted).
The Court in Briley thus concluded that an attorney's negligent
conduct is not 'excusable neglect' under Rule 60(b)(1) and that in
determining such, the court must look at the behavior of the
attorney. Id. at 547, 501 S.E.2d at 655.
Here, based on our Supreme Court's decision in Briley, the
trial court should have considered the conduct of Defendant's trial
counsel. Further, the court had a duty to make findings of fact
thereupon. However, under Parris, we may review the record to
determine if there is any evidence upon which findings of fact
could have been made to support the trial court's ultimate decision
that Rule 60(b)(1) relief was not warranted. We conclude thatthere is evidence from the proceedings before the trial court to
support the court's decision.
In his Rule 60(b) motion, Defendant alleged that his trial
attorney (1) failed to instruct him to be present for the judicial
review of the purported Settlement Agreement and was explicitly
instructed by his then counsel not to appear in court on the date
of entry of Judgment[;] (2) failed to inform Defendant of Diana's
recantation of her allegations prior to the execution of the
agreement; and (3) failed to explain the terms of the settlement
to Defendant before Defendant signed the agreement. At trial, the
evidence was conflicting as to whether Defendant's trial counsel
properly reviewed the agreement with Defendant before obtaining his
signature. Defendant also testified that his attorney told him if
he signed the agreement, all criminal charges would go away[,]
but failed to inform him that Diana had recanted her allegations.
Defendant's attorney disputed both of these claims.
In his order denying Defendant's motion for relief, Judge
Grant made the following relevant finding of fact:
8. Defendant has testified that [Defendant's
trial counsel] never fully explained the
Settlement Agreement to him but told him that
the agreement settled everything including the
criminal charges. [Defendant's]
[a]ttorney . . . has denied that he made any
such statement to Defendant or others but
instead testified that he fully explained the
agreement to Defendant.
The trial court's finding of fact number eight does not address all
of the actions of Defendant's trial attorney that Defendant alleges
constituted excusable neglect. From our review of the Recordbefore us, however, we conclude that the evidence Defendant
presented would provide support for findings of fact that the trial
court could have made to establish negligence on the part of
Defendant's trial counsel. Because negligent representation on the
part of a party's attorney does not constitute excusable neglect
under Rule 60(b)(1), the trial court did not err in denying
Defendant's motion. See Briley, supra. Accordingly, this argument
By his next assignment of error, Defendant contends the trial
court erred by failing to include findings of fact or conclusions
of law regarding Defendant's motion under Rule 60(b)(2). We
Pursuant to Rule 60(b)(2) of the North Carolina Rules of Civil
Procedure, the court may relieve a party or his legal
representative from a final judgment, order, or proceeding if
there is [n]ewly discovered evidence which by due diligence could
not have been discovered in time to move for a new trial under Rule
59(b)[.] N.C. Gen. Stat. § 1A-1, Rule 60(b)(2) (2005). In order
for evidence to be 'newly discovered evidence' under these rules,
it must have been in existence at the time of the trial, and not
discoverable through due diligence. Broadbent v. Allison, 176
N.C. App. 359, 364, 626 S.E.2d 758, 763 (2006) (quoting Parks v.
Green, 153 N.C. App. 405, 412, 571 S.E.2d 14, 19 (2002)), appeal
dismissed and disc. review denied, 361 N.C. 350, 644 S.E.2d 4
(2007). We review a Rule 60(b) decision of the trial court forabuse of discretion. Sink v. Easter, 288 N.C. 183, 217 S.E.2d 532
As discussed supra, there is conflicting authority regarding
a trial court's duty to make unrequested findings of fact on a Rule
60(b) motion. However, even when required, if the trial court
fails to make findings of fact with respect to the elements of Rule
60(b), the order will [not] be reversed '[if] there is evidence in
the record sustaining findings which the trial court could have
made to support such order.' Parris, 146 N.C. App. at 521, 553
S.E.2d at 99 (quoting Gibson, 144 N.C. App. at 128-129, 548 S.E.2d
at 747). Therefore, although there are no findings of fact in
Judge Grant's order specifically addressing this allegedly newly
discovered evidence, we review the record to determine if there is
evidence from which the trial court could have made findings of
fact to support its ultimate determination.
Defendant argues that the trial court erred by failing to make
findings of fact or conclusions of law regarding the failure of
Defendant's trial counsel to inform Defendant, in March of 2005,
that Diana had recanted her allegations. Defendant argues that
Diana's recantation and his trial counsel's knowledge of the same
constituted newly discovered evidence upon which relief should have
been granted under Rule 60(b)(2). We disagree. The transcript of
proceedings before the trial court establishes that on 17 February
2005, before he signed the agreement on 8 April 2005, Defendant
learned that Diana was saying the allegations she had previously
made against Defendant were not true. Since Defendant was aware ofthis evidence prior to signing the agreement and thus, prior to
entry of the judgment on 14 November 2005, the evidence is not
newly discovered under the plain meaning of the rule. This
argument is overruled.
Defendant next argues the trial court's determination that
Defendant's consent to the agreement was not induced by fraud is
not supported by findings of fact in the trial court's order
denying his Rule 60(b)(3) motion. Again, we disagree.
Rule 60(b)(3) of the North Carolina Rules of Civil Procedure
provides that the court may relieve a party or his legal
representative from a final judgment, order, or proceeding when
there has been [f]raud (whether heretofore denominated intrinsic
or extrinsic), misrepresentation, or other misconduct of an adverse
party[.] N.C. Gen. Stat. § 1A-1, Rule 60(b)(3) (2005). To obtain
relief under Rule 60(b)(3), the moving party must 1) have a
meritorious defense, 2) that he was prevented from presenting prior
to judgment, 3) because of fraud, misrepresentation or misconduct
by the adverse party. 2 G. Gray Wilson, North Carolina Civil
Procedure § 60-8, at 392 (1995) (citing Square Constr. Co. v.
Washington Metro. Area Transit Auth., 657 F.2d 68 (4th Cir. 1981)).
The 'nearly identical provisions of our Rule 60(b) and Federal
Rule 60(b) point to the Federal decisions for interpretation and
enlightenment.' Briley, 348 N.C. at 545-56, 501 S.E.2d at 655
(quoting Wiggins v. Bunch, 280 N.C. 106, 110, 184 S.E.2d 879, 881
(1971)). Our research reveals that to make a successful Rule 60(b)(3)
motion, the moving party must demonstrate that fraud,
misrepresentation, or misconduct on the part of an adverse party
prevented the presentation of a meritorious defense. Square
Constr. Co., supra. In this case, Defendant asserts on appeal that
there was fraud, misconduct, or misrepresentation perpetrated by
Muslima and Diana. He does not contend that this alleged conduct
prevented him from asserting a meritorious defense. On the
contrary, as discussed supra, the evidence before the trial court
established that Defendant had evidence of Diana's alleged
misconduct before he signed the agreement and before entry of the
judgment enforcing the agreement. Therefore, Diana's conduct could
not have prevented Defendant from asserting a meritorious defense.
Furthermore, Defendant relies on an affidavit averring that on or
about 19 April 2005, Muslima attempted to suborn perjured testimony
from a mutual friend of the couple. This alleged testimony would
have shown that the friend had witnessed Defendant assault
Plaintiffs. Though the affidavit raises questions about Muslima's
actions, no testimony from this potential witness was ever
elicited. Moreover, because the alleged solicitation of perjury
occurred after the parties had entered into the agreement and after
the trial court approved the settlement as it pertained to Diana,
Muslima's actions could have no bearing on a defense that the
agreement was induced by fraud, misrepresentation, or misconduct.
Defendant's Rule 60(b)(3) argument is overruled.
By his fourth argument, Defendant contends that the trial
court erred in denying his Rule 60(b)(4) motion for relief from
judgment. For the reasons set forth in Subkhangulova v. Dowdy
N.C. App. ___, ___ S.E.2d ___ (Sept. 4, 2007) (COA06-1101)
(unpublished), this argument fails.
Pursuant to Rule 60(b)(4), a trial court may relieve a party
from a judgment imposed if [t]he judgment is void[.] N.C. Gen.
Stat. § 1A-1, Rule 60(b)(4) (2005). 'A judgment is void only when
the issuing court has no jurisdiction over the parties or subject
matter in question or has no authority to render the judgment
entered.' Britt v. Britt
, 168 N.C. App. 198, 203, 606 S.E.2d 910,
913 (2005) (quoting Burton v. Blanton
, 107 N.C. App. 615, 616, 421
S.E.2d 381, 382 (1992)). On appeal in this case, Defendant sets
forth an abbreviated version of those arguments contesting the
validity of the parties' agreement which appear in Defendant's
brief in the companion case of Subkhangulova v. Dowdy
essence, Defendant argues that because the agreement was not valid,
the trial court's judgment enforcing the agreement was void, and
therefore, he was entitled to relief under Rule 60(b)(4). For the
reasons set forth in our opinion in the companion case, we hold
that the agreement was valid, and thus, the trial court's entry of
judgment upon the agreement was not void. Id.
(See footnote 3)
Defendant was not entitled to relief from judgment under Rule
60(b)(4). This argument is overruled.
By his final assignment of error, Defendant asserts that this
matter requires remand because there are no findings of fact or
conclusions of law in Judge Grant's order which expressly address
Defendant's Rule 60(b)(6) motion. We disagree.
Pursuant to Rule 60(b)(6) of the North Carolina Rules of Civil
Procedure, the court may relieve a party or his legal
representative from a final judgment, order, or proceeding for
[a]ny . . . reason justifying relief from the operation of the
judgment. N.C. Gen. Stat. § 1A-1, Rule 60(b)(6) (2005). This
subsection serves as a 'grand reservoir of equitable power' by
which a court may grant relief from a judgment whenever
extraordinary circumstances exist and there is a showing that
justice demands it. Dollar v. Tapp
, 103 N.C. App. 162, 163-64,
404 S.E.2d 482, 483 (1991) (quoting Oxford Plastics v. Goodson
N.C. App. 256, 259, 328 S.E.2d 7, 9 (1985)).
When reviewing a trial court's equitable
discretion under Rule 60(b)(6), our Supreme
Court has indicated that this Court cannot
substitute what it considers to be its own
better judgment for a discretionary ruling of
a trial court, and that this Court should not
disturb a discretionary ruling unless it
probably amounted to a substantial miscarriage
Surles v. Surles
, 154 N.C. App. 170, 173 n. 1, 571 S.E.2d 676, 678
(2002) (citations and quotation marks omitted).
In this case, Defendant's motion for relief from Judge
Trawick's order clearly references Rule 60(b)(6). Therefore, Judge
Grant was on notice that Defendant was seeking relief under thatprovision. Addressing that particular motion, in his order denying
Defendant's motion for relief, Judge Grant made the following
relevant findings of fact:
1. Defendant is an educated man, having a
high school diploma and a college degree from
East Carolina University.
2. Until late November, 2005 Defendant was
represented . . . by attorney Anthony Gay.
Mr. Gay was selected and retained by
Defendant. Defendant had previous experience
with civil litigation arising from the
operation of his . . . business and previous
. . . .
6. A settlement of the case was negotiated
between Anthony Gay on behalf of the Defendant
and attorney John Morrison on behalf of the
Plaintiffs between the filing of this lawsuit
in February 2005 and the signing of the
Settlement Agreement by the Defendant on or
about April 8, 2005.
. . . .
8. Defendant has testified that Anthony Gay
never fully explained the Settlement Agreement
to him but told him that the agreement settled
everything including the criminal charges.
Attorney Anthony Gay has denied that he made
any such statement to Defendant or others but
instead testified that he fully explained the
agreement to Defendant.
9. In either case Defendant was furnished a
copy of the Settlement Agreement, had the
opportunity to read it and familiarize himself
with its contents before signing it and, by
his own admission, failed to do so.
. . . .
12. Defendant never objected to the terms of
the settlement agreement until he learned that
the District Attorney's office was not going
to allow him a plea agreement on the criminal
charges pending against him that would result
in a probationary sentence.
Based on these findings, Judge Grant denied Defendant's Rule
60(b)(6) motion. Upon reviewing the trial court's findings of
fact, we conclude that Judge Grant thoroughly considered the
evidence before him, including Defendant's failure to read the
agreement before consenting to the conditions contained therein,
and that these findings of fact clearly address whether relief from
judgment was justified. After a review of the evidence presented
at the hearing and the findings of fact made by the trial court, we
cannot say that Judge Grant's ruling probably amounted to a
substantial miscarriage of justice. Id. This argument is
The order of the trial court denying Defendant's Rule 60
Judges McGEE and HUNTER concur.
Report per Rule 30(e).
Defendant appealed from Judge Trawick's 14 November 2005
judgment enforcing the settlement agreement. By an opinion filed
4 September 2007, this Court affirmed Judge Trawick's judgment.
See Subkhangulova v. Dowdy
, ___ N.C. App. ___, ___ S.E.2d ___
(Sept. 4, 2007) (COA06-1101) (unpublished).
After the trial court entered judgment in favor of
Plaintiffs, Defendant engaged different counsel to prosecute his
Rule 60(b) motion. Upon denial of his Rule 60(b) motion, Defendant
again engaged different appellate counsel.
In the underlying case, we affirmed the judgment of the trial
court because, although the agreement was not executed by its
express terms, it is enforceable under basic contract principles.
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