Appeal by plaintiff from judgment entered 6 September 2006 by
Judge William C. Griffin in Pitt County Superior Court. Heard in
the Court of Appeals 21 August 2007.
Ozie L. Hall, plaintiff-appellant, pro se.
Mills & Economos, L.L.P., by Larry C. Economos, for defendant-
Ozie L. Hall (plaintiff) appeals from an order entered 6
September 2006, granting a motion under Rule 60(b) in favor of
Steven I. Cohen, d/b/a Homestead Mobile Home Park (defendant). For
the reasons stated herein, we affirm the trial court's order.
Facts and Procedural History
Defendant owns a mobile home park. In November 1998 plaintiff
and defendant entered into an agreement whereby plaintiff would
perform various services related to the development for sale and
daily operations of the mobile home park in return for a percentage
of proceeds upon the sale of the park or a security interest in the
park. Despite performing some of those services, plaintiffreceived only partial payment according to the terms of the
original agreement. Plaintiff brought a civil suit claiming breach
of contract, specific performance, fraudulent misrepresentation,
and deceptive trade practice.
In a jury trial on this matter before the Honorable W. Russell
Duke, Jr., beginning on 15 March 2004, plaintiff offered into
evidence a document that he claimed to be the original agreement.
This document was noticeably torn, with a section measuring
approximately one and three-quarter inches missing from the bottom
of pages one and two. Plaintiff offered as explanation that a
phone number had been inadvertently written on the document and
that he had torn off the portion with the number. Defendant
claimed he had no memory of the contract or its specific terms,
though he did acknowledge that the signature appeared to be his
own. On 18 March 2004, the jury returned a verdict finding
defendant liable for breach of contract and awarding plaintiff
$41,000 in compensatory damages plus costs and interest. A
judgment was entered to that effect on 7 April 2004.
Defendant appealed the judgment on 13 April 2004. On 18 May
2004, defendant filed a motion in this Court that the case be
remanded back to the trial court for consideration under Rule 60(b)
for relief from the judgment on the basis of fraud or
misrepresentation. Prior to filing this motion, but after the
trial, defendant discovered in an old box of files another copy of
the contract at issue that had a paragraph seven, which appeared to
be in the portion of the contract torn off of the exhibit admittedat trial. Paragraph seven states This agreement shall be
formalized by a written contract to be executed by the parties
within ten (10) days of this memorandum of agreement. This Court
entered an Order on 5 October 2004 remanding the matter to the
trial court for a hearing on the Rule 60(b) motion and directed the
trial court to enter an indication of how it would rule on the
motion, notwithstanding the pending appeal.
A hearing on the Rule 60(b) motion was heard in the trial
court on 13 December 2004 before the Honorable William C. Griffin,
due to Judge Duke having recused himself from the matter. In that
hearing, plaintiff admitted to having torn off the portion of the
contract that contained paragraph seven and to have erased the
number 8. from in front of the final paragraph on the second
page. Plaintiff claimed the paragraph and number had been
scratched out by someone prior to signing and that he merely
removed them coincidentally prior to trial. On 18 February 2005,
the trial court entered Evidentiary Findings, Conclusions of Law
and Inclination to Rule in favor of defendant. Based on the
Inclination to Rule, this Court dismissed the appeal on 2 May 2006.
Hall v. Cohen
, 177 N.C. App. 456, 628 S.E.2d 469 (2006). The trial
court entered judgment on the Rule 60(b) motion on 31 August 2006.
In his appeal, plaintiff raises the issues of whether the
trial court: (I) abused its discretion in granting defendant's
Rule 60(b) motion; (II) erred in granting defendant's Rule 60(b)motion because the subject of the motion was immaterial to the
original case; and (III) erred in making several evidentiary
rulings and based its findings of fact on biased testimony.
Standard of Review and Interlocutory Appeal
The standard of review for Rule 60(b) determinations is abuse
of discretion. Davis v. Davis
, 360 N.C. 518, 523, 631 S.E.2d 114,
118 (2006). Generally a party may not appeal an interlocutory
order, defined as an order which does not dispose of a pendant
action and instead leaves the matter open for the trial court to
determine. Harris v. Matthews
, 361 N.C. 265, 269, 643 S.E.2d 566,
568-69 (2007). A trial court's order on a Rule 60(b) motion may be
interlocutory because the order may not affect the finality of the
decision and may not affect the power of the court to entertain an
independent action; in other words, the case may be tried anew if
the Rule 60(b) motion is granted. N.C. Gen. Stat. § 1A-1, Rule
60(b) (2005). However, an appeal from an interlocutory order may
be heard if it (1) affects a substantial right and (2) will result
in injury to the appealing party if not corrected before final
judgment. N.C. Gen. Stat. § 7A-27(d) (2005); Goldston v. American
, 326 N.C. 723, 725-26, 392 S.E.2d 735, 736 (1990).
The right to avoid two trials on the same issue is considered a
substantial right. Green v. Duke Power Co.
, 305 N.C. 603, 606, 290
S.E.2d 593, 595 (1982). Because in this case the trial court's
order results in a second trial on the merits, this Court properly
considers plaintiff's appeal from the trial court's interlocutory
Rule 60(b) Order.
Plaintiff first contends that the trial court abused its
discretion in granting the Rule 60(b) motion because (1) judgments
may not be reversed due to perjured testimony, (2) defendant did
not exercise due diligence to expose the perjury at trial, and (3)
defendant could not claim that his condition of Attention Deficit
Hyperactivity Disorder (ADHD) explained his inability to dispute
the document earlier because defendant had voluntarily refused to
take medication. We disagree.
Plaintiff misapprehends the case he cites in support of his
contention that judgments may not be set aside due to perjured
testimony. This Court has held that a judgment will not be set
aside on the grounds of perjured testimony or for any other matter
that was presented and considered in the judgment[.] Hooks v.
, 159 N.C. App. 681, 686, 587 S.E.2d 352, 355 (2003).
However, a closer reading of Hooks
reveals a distinction between
extrinsic and intrinsic fraud. Extrinsic fraud 'deprives the
unsuccessful party of an opportunity to present his case to the
at 684, 587 S.E.2d at 354 (quoting Stokley v. Hughes
30 N.C. App. 351, 354, 227 S.E.2d 131, 134 (1976)). Intrinsic
fraud describes matters that are involved in the determination of
a cause on its merits, specifically when a party (1) has proper
notice of an action, (2) has not been prevented from full
participation in the action, and (3) has had an opportunity to
present his case to the court and to protect himself from any fraud
attempted by his adversary. Id.
When the fraud is characterizedas intrinsic, then relief is possible only through Rule 60(b)(3).
at 685, 587 S.E.2d at 354.
In the case at bar, defendant was able to fully participate in
the trial after proper notice and was able to present evidence and
defend himself against any possible fraud. However, the issue of
the missing paragraph goes directly to the heart of the merits,
i.e., whether an enforceable contract between the parties was
breached. Furthermore, due to the fraud on the court perpetrated
by plaintiff in offering an altered document, the matter was not
fully presented to the jury. The trial court was within its
discretion to conclude that the omission of the paragraph so
affected the merits as to constitute intrinsic fraud and thus
judgment under Rule 60(b)(3) was proper.
Plaintiff also contends that defendant did not exercise due
diligence to expose the perjury at trial, and therefore should not
now be allowed to contest evidence that was available to him at the
time of trial. Because this position relies on a portion of Rule
60(b) not implicated in the trial court's judgment, we disagree.
Rule 60(b)(2) does in fact refer to [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). Plaintiff contends that defendant
should have been able to discover the copy that he had in his
possession in time to present evidence on its authenticity at the
time of trial. However, the trial court granted relief based
solely on Rule 60(b)(3), which describes fraud, misrepresentationor misconduct of an adverse party. N.C. Gen. Stat. § 1A-1, Rule
60(b)(3) (2005). Essentially the trial court granted relief based
on the fraud upon the court committed by plaintiff, irrespective of
the contents of any newly discovered evidence, and therefore was
within its discretion to grant the motion under Rule 60(b)(3).
Plaintiff next contends that defendant could not claim that
his condition of ADHD explained his inability to dispute the
document earlier because defendant had voluntarily refused to take
medication. This argument would only be applicable to a ruling
under the newly discovered evidence provision of Rule 60(b)(2).
Since in the instant case relief was granted based on Rule 60(b)(3)
fraud, defendant's inaction, whatever its underlying reason, is
irrelevant. This assignment of error is overruled.
Plaintiff contends that the Rule 60(b) relief was improperly
granted because the subject of the inquiry was immaterial to the
original case. Plaintiff's contention that the disputed paragraph
was superfluous to the original contract rests on the assumption
that execution of a later document is not required to render a
memorandum of agreement enforceable. Because this requirement
depends on the language of the document, we disagree.
Where a memorandum of agreement contains language that states
the preliminary nature of the document by wording that indicates it
is either incomplete or subject to revision, then the document's
efficacy as a contract is destroyed. Boyce v. McMahan
, 285 N.C.
730, 208 S.E.2d 692 (1974). If the document states explicitly thatit will serve as a contract until another document is executed,
then it can be considered a valid contract. N.C. Nat'l Bank v.
, 26 N.C. App. 580, 217 S.E.2d 12 (1975). Here, the
paragraph at issue states that the agreement shall be formalized
by a written contract to be executed by the parties. Such wording
is not an explicit statement that the document is to serve as a
contract. In fact, the wording indicates the opposite, that the
document was strictly temporary and, during the process of
formalization, subject to changes by the parties. Because the
trial court was within its discretion to determine that the
disputed document did not reflect finality, this assignment of
error is overruled.
Plaintiff finally contends: (1) the trial court erred in
allowing plaintiff's twenty-six-year-old conviction for assault,
armed robbery and conspiracy to be used for impeachment purposes;
(2) the trial court erred in refusing to compel the testimony of
the judge in the original jury trial; (3) the witnesses were
biased; and (4) the expert testimony was inapposite to the question
before the trial court because the witness could not tell if the
passage in question had been scratched out before it was torn from
the original. Because plaintiff failed to properly assign error to
any of these arguments, this Court declines to consider them.
The Rules of Appellate Procedure require that the complaining
party set forth assignments of error that direct the attention of
the Court to the specific issue on appeal. N.C. R. App. P. 10(c)(1). [T]he scope of review on appeal is limited to those
issues presented by assignment of error in the record on appeal.
Koufman v. Koufman
, 330 N.C. 93, 98, 408 S.E.2d 729, 731 (1991)
(citations omitted). Plaintiff's assignments of error allege only
that the trial court abused its discretion in granting the motion
and made reversible errors of law and fact. The assignments of
error include no references to the specific exceptions mentioned in
these arguments. The assignments of error are so broad and vague
they fail to correspond to the specific arguments set forth in
plaintiff's brief; thus they are not sufficient to meet the
standard required by Rule 10(c)(1). Because these arguments do not
comport with any other assignment of error, the subject of those
arguments falls outside the scope of review. These assignments of
error are not properly before this Court.
Judges WYNN and Judge HUNTER concur.
Report per Rule 30(e).
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