Armstrong v. Hutchens

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.

NO. COA13-1225
NORTH CAROLINA COURT OF APPEALS
Filed: 1 July 2014
ARTHUR O. ARMSTRONG,
Plaintiff

Guilford County
v.
No. 00 CVS 3986

H. TERRY HUTCHENS,
Defendant

Appeal by plaintiff from order entered 3 September 2013 by

Judge Lindsay R. Davis, Jr., in Guilford County Superior Court.

Heard in the Court of Appeals 4 February 2014.

Arthur O. Armstrong, pro se.

Hutchens Law Firm, by J. Scott Flowers and Natasha M.
Barone, for Defendant.

ERVIN, Judge.

Plaintiff Arthur O. Armstrong appeals from an order denying

a motion for relief from judgment that Plaintiff submitted on or

about 20 August 2013. On appeal, Plaintiff contends that the

trial court erred by denying his motion for relief from judgment

on the grounds that Defendant H. Terry Hutchens failed to

conduct an adequate investigation sufficient to determine that

Plaintiff did not owe a debt to United Companies Lending
 -2-
Corporation, that Defendant had defamed Plaintiff by filing and

publishing a notice of foreclosure hearing that falsely asserted

that Plaintiff owed a debt to United, that Defendant had

assisted in the making of false loan reports, and that Defendant

had improperly obtained a writ of possession that deprived

Plaintiff of the right to occupy a tract of real property.

After careful consideration of Plaintiff’s challenges to the

trial court’s order in light of the record and the applicable

law, we conclude that the trial court’s order should be

affirmed.

I. Factual Background

A. Foreclosure Proceeding

On 19 June 1998, Defendant, acting as substitute trustee

under a deed of trust applicable to a tract of property located

at 309 Leland Drive in Greensboro, North Carolina, executed by

Plaintiff and Marcia H. Armstrong on 6 December 1995 for the

purpose of securing a note in favor of United, filed a notice of

hearing indicating that the Armstrongs were in default under the

note and that Defendant would attempt to foreclose under the

deed of trust. After receiving this notice, Plaintiff notified

Defendant that Plaintiff had filed a “petition” against United

in the Guilford County Superior Court “alleging fraud and

misrepresentation”; that, since the notice of foreclosure was
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based upon the false and fraudulent representation that he owed

a debt to United, the publication of the notice would constitute

an act of defamation; and that Defendant should read the

“petition” before acting in an “irresponsibl[e]” manner. On 21

July 1998, the Clerk of Superior Court of Guilford County

entered an order allowing the foreclosure to proceed. On the

same date, Defendant transmitted a notice of foreclosure sale to

the Greensboro News & Record with a request that the notice be

published during the weeks of 28 July 1998 and 4 August 1998.

On 24 September 1998, a foreclosure sale under the deed of trust

was held. On 16 October 1998, Defendant filed a final report

describing the disposition of the sale proceeds. On the same

date, Defendant executed a trustee’s deed transferring the

property secured by the deed of trust to United. On 13 April

1999, Defendant requested the issuance of a writ of possession

directing the Sheriff of Guilford County to remove the

Armstrongs from the property.

B. Present Civil Action

On 3 February 2000, Plaintiff filed a complaint against

Defendant in which he alleged that Defendant had failed to

conduct a proper investigation before initiating the foreclosure

proceeding, that he did not owe any debt to United, and that

Defendant had defamed him by filing and publishing a notice of
 -4-
foreclosure that falsely alleged that he was indebted to United.1

On 13 March 2000, Defendant filed an answer in which he denied

the material allegations set forth in Plaintiff’s complaint and

asserted a number of affirmative defenses, including collateral

estoppel and res judicata. On 6 April 2000, Plaintiff filed a

motion seeking summary judgment in his favor. On 27 April 2000,

Defendant filed a response to Plaintiff’s summary judgment

motion and a request for the entry of summary judgment in

Defendant’s favor. On 18 May 2000, Judge Judson D. DeRamus,

Jr., entered an order determining that Plaintiff was

collaterally estopped from asserting the claims set forth in his

complaint on the grounds that the fact of Plaintiff’s

indebtedness had been established in the foreclosure proceeding,

that the claims asserted in Plaintiff’s complaint were not well-

grounded in either law or fact, that Plaintiff’s complaint

should be dismissed with prejudice, and that Plaintiff should

pay Defendant’s attorneys’ fees.2

1
On 1 December 1997, Plaintiff filed a complaint against
multiple defendants, including United, in which he sought relief
on the basis of fraud and misrepresentation. Judge Howard R.
Greeson, Jr., dismissed Plaintiff’s action in May of 1998.
Despite the dismissal, Plaintiff filed another complaint a week
later, which Judge Russell G. Walker, Jr., dismissed as “not
well grounded in fact or warranted by existing law” and
“redundant, irrelevant, immaterial and impertinent.”
2
A similar set of sanctions had been imposed upon Plaintiff
by means of an order entered by Judge Walker on 15 July 1998 in
 -5-
On 9 April 2002, Plaintiff filed a request for leave to

file a motion seeking relief from Judge DeRamus’ order pursuant

to N.C. Gen. Stat. § 1A-1, Rule 60(b), in which Plaintiff

contended that Defendant had defamed him by filing and

publishing a notice of foreclosure alleging that he owed a debt

to United, with this motion having been accompanied by various

documents, some of which named United as a party defendant in

addition to Defendant, which spelled out Plaintiff’s contentions

in more detail. On 6 March 2002, Judge W. Douglas Albright

entered an order denying Plaintiff’s motion for relief from

judgment, imposing monetary sanctions upon Plaintiff, and

prohibiting Plaintiff from making any further filings against

United.

On 4 December 2008,3 Plaintiff filed a motion seeking leave

to file an amended complaint in this action that named

a related case in which Plaintiff had asserted fraud and
misrepresentation claims against United and other defendants.
3
On 23 September 2008, Judge Carl R. Fox entered an order in
a civil action that Plaintiff brought in the Wake County
Superior Court against a number of former state and local
officials finding that “Plaintiff has a long history of filing
suit against state judicial and elected officials for monetary
claims arising out of prior criminal prosecutions,” finding that
the complaint that Plaintiff had filed in the action in question
and certain other actions were “frivolous and [had] no basis in
law,” and prohibiting Plaintiff “from filing any paper writing”
in any North Carolina court “without first obtaining leave to
file from the Senior Resident Superior Court Judge of the county
in which [Plaintiff] proposes to file a paper writing.”
 -6-
Defendant’s law firm as a party defendant and that alleged that

Defendant’s law firm had violated Plaintiff’s rights under the

federal constitution by filing and publishing a notice of

foreclosure hearing that contained false and defamatory matter,

rendering Defendant’s law firm liable to Plaintiff pursuant to

42 U.S.C. § 1983. Four days later, Plaintiff filed a motion

seeking the entry of summary judgment in his favor. On 30

January 2009, Defendant and his law firm filed a motion seeking

to have Plaintiff’s proposed amended complaint dismissed and to

have appropriate sanctions imposed upon Plaintiff. On 4 August

2009, Judge Catherine Eagles entered an order noting that the

“case was dismissed on the merits years ago,” determining that

Plaintiff’s amended complaint was “barred by res judicata and is

frivolous,” and dismissing Plaintiff’s amended complaint. The

Supreme Court denied Plaintiff’s subsequent mandamus petition on

18 December 2009.

On 15 March 2011, Plaintiff filed a motion seeking leave to

“reopen” this case and to file an amended complaint that

restated Plaintiff’s assertion that Defendant and his law firm

had defamed him by filing and publishing a notice of foreclosure

hearing that contained false and defamatory material, thereby

rendering them liable to him pursuant to 42 U.S.C. § 1983. On

13 June 2011, Judge John O. Craig, III, entered an order denying
 -7-
Plaintiff’s request for leave to “reopen” the case and file an

amended complaint as “totally without merit,” directing the

Clerk of Superior Court to refuse to accept any further filings

from Plaintiff, and warning Plaintiff that he would be subject

to being held in contempt in the event that he filed any further

motions in this or two other specifically enumerated cases.

On 14 April 2012, Plaintiff filed a motion seeking leave to

file a complaint that alleged that he was entitled to recover

damages from Defendant and his law firm pursuant to 42 U.S.C. §

1983, with this request based on an allegation that Defendant

and his law firm had defamed Plaintiff by filing and publishing

a notice of foreclosure hearing that falsely alleged that

Plaintiff owed a debt to United. On 8 June 2012, 26 July 2012,

and 11 August 2012, Plaintiff filed motions for relief from

Judge DeRamus’ order pursuant to N.C. Gen. Stat. § 1A-1, Rule

60(b)(6), with all three motions resting on the assertion that

Defendant had defamed him and with at least two of these filings

being accompanied by either a draft amended complaint identical

to ones that Plaintiff had filed on other occasions or an

affidavit containing similar assertions. On 20 August 2012, the

trial court entered an order that noted the filing of

Plaintiff’s motions and the fact that, by virtue of Judge Fox’s

earlier order, Plaintiff was barred “from filing motions and
 -8-
pleadings without leave to do so” “because [Plaintiff] has filed

numerous motions and pleadings that lack factual or legal merit,

or both, and that are vexatious and wasteful of [the] limited

resources of the courts of this state and one or more other

jurisdictions”; that “the motion and proposed complaint lack any

merit as a matter of law”; and that “[t]he motion for leave to

file these paper-writings is denied, in the exercise of the

court’s discretion.”

On 20 August 2013, Plaintiff submitted a motion for relief

from Judge DeRamus’ order; an affidavit in which he alleged that

Defendant and his law firm had defamed him by filing a notice of

foreclosure sale that falsely asserted that he owed a debt to

United and that he was entitled to damages pursuant to 42 U.S.C.

§ 1983; and a motion seeking leave to file a “motion package”

consisting of his motion for relief from judgment, his

affidavit, and a notice of hearing. On 3 September 2013, the

trial court entered an order concluding that Plaintiff’s filings

“lack[] any merit as a matter of law” and were “denied, in the

exercise of the court’s discretion.” Plaintiff filed a notice

of appeal to this Court from the trial court’s order.

II. Substantive Legal Analysis

A. Appellate Rule Violations
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As an initial matter, we note that Plaintiff has violated

numerous provisions of the North Carolina Rules of Appellate

Procedure. More particularly, Plaintiff has failed, to a

considerable extent, to put the documents contained in the

record on appeal in chronological order as required by N.C.R.

App. P. 9(b)(1); failed to include a procedural history of the

case as required by N.C.R. App. P. 28(b)(3); failed to state the

grounds authorizing this Court to review Plaintiff’s challenge

to the trial court’s orders as required by N.C.R. App. P.

28(b)(4); failed to provide a non-argumentative statement of the

facts supported by citations to the appropriate portions of the

record or transcripts as required by N.C.R. App. P. 28(b)(5);

failed to discuss the applicable standard of review as required

by N.C.R. App. P. 28(b)(6); failed to cite any legal authorities

in support of his argument in violation of N.C.R. App. P.

28(b)(6); and failed to advance any substantive legal arguments

explaining Plaintiff’s belief that the trial court erred by

denying his motion for relief from judgment in violation of

N.C.R. App. P. 28(b)(6).4 Although Plaintiff’s numerous

4
Admittedly, some of the omitted material described in the
text of this opinion was contained in Plaintiff’s reply brief,
such as a statement of the basis upon which we had jurisdiction
to hear Plaintiff’s appeal and a statement of the applicable
standard of review. Aside from the fact that Plaintiff failed
to correct other deficiencies in his initial brief in his reply
brief, the applicable provisions of the North Carolina Rules of
 -10-
violations of the relevant provisions of the North Carolina

Rules of Appellate Procedure made our review of his challenges

to the trial court’s order unnecessarily difficult, we decline

to dismiss Plaintiff’s appeal given our strong preference for

deciding cases on the merits rather than on procedural grounds.

See Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co., 362 N.C.

191, 199-200, 657 S.E.2d 361, 366-67 (2008). However, Plaintiff

is admonished that, in the event that he makes any further

filings in this Court that fail to comply with the provisions of

the North Carolina Rules of Appellate Procedure, we will not

hesitate to impose appropriate sanctions upon him.

B. Denial of Plaintiff’s Motion for Relief From Judgment

On appeal, Plaintiff contends that the trial court erred by

denying his motion for relief from judgment and urges us to

reverse the trial court’s order and remand this case to the

Guilford County Superior Court for trial. More specifically,

Plaintiff contends that the trial court should have allowed his

motion for relief from judgment on the grounds that the

Defendant, by failing to adequately investigate the facts of the

underlying foreclosure proceeding, proceeded to foreclose upon

Plaintiff’s property despite the fact that he did not owe any

Appellate Procedure clearly require that the items that
Plaintiff omitted be set forth in his initial brief. For that
reason, we do not believe that Plaintiff cured the rule
violations present in his initial brief in his reply brief.
 -11-
debt to United; that Defendant had filed and published a notice

of foreclosure sale that falsely alleged that he owed a debt to

United; that Defendant had “connived” in the preparation of

loan-related documents that falsely reflected that he owed a

debt to United; and that Defendant had unlawfully obtained the

issuance of a writ of possession removing Plaintiff from his

property. Plaintiff is not entitled to relief from the trial

court’s order on the basis of these contentions.

According to N.C. Gen. Stat. 1A-1, Rule 60(b)(6), a party

may be relieved from the effect of a final judgment for “any

other reason justifying relief from the operation of the

judgment.” Relief from a judgment is available pursuant to N.C.

Gen. Stat. § 1A-1, Rule 60(b)(6) in the event that the moving

party shows that “(1) extraordinary circumstances exist, (2)

there is a showing that justice demands it, and (3) the movant

shows a meritorious defense.” Purcell Int’l Textile Grp., Inc.

v. Algemene AFW N.V., 185 N.C. App. 135, 138, 647 S.E.2d 667,

670, disc. review denied, 362 N.C. 88, 655 S.E.2d 840 (2007).

As a result of the fact that a motion for relief from judgment

“‘are not to be used as a substitute for appeal,’” “‘an

erroneous judgment cannot be attacked under’” N.C. Gen. Stat. §

1A-1, Rule 60(b)(6). Concrete Supply Co. v. Ramseur Baptist

Church, 95 N.C. App. 658, 660, 383 S.E.2d 222, 223 (1989)
 -12-
(quoting Waters v. Qualified Pers., Inc., 32 N.C. App. 548, 551,

233 S.E.2d 76, 78 (1977), reversed on other grounds, 294 N.C.

200, 240 S.E.2d 328 (1978)). “[A] motion for relief [from

judgment] under [N.C. Gen. Stat. § 1A-1,] 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). An “[a]buse of discretion results where

the court’s ruling is so manifestly unsupported by reason or is

[so] arbitrary that it could not have been the result of a

reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372

S.E.2d 523, 527 (1988).

The first problem raised by Plaintiff’s challenges to the

trial court’s order is that three of his four arguments were

never advanced in the trial court. More specifically, Plaintiff

did not assert in his motion for relief from judgment or in the

materials that he submitted in support of that motion that

Defendant had failed to conduct an adequate investigation before

commencing the underlying foreclosure proceeding, that Defendant

“connived” in the preparation of false loan documents, or that

Defendant had wrongfully obtained the issuance of a writ of

possession authorizing the removal of the Armstrongs from their

property. As this Court has clearly stated, “issues and
 -13-
theories of a case not raised below will not be considered on

appeal.” Westminster Homes, Inc. v. Town of Cary Zoning Bd. of

Adjustment, 354 N.C. 298, 309, 554 S.E.2d 634, 641 (2001); see

also N.C.R. App. P. 10(a)(1) (stating that, “[i]n order to

preserve an issue for appellate review, a party must have

presented to the trial court a timely request, objection, or

motion, stating the specific grounds for the ruling the party

desired the court to make if the specific grounds were not

apparent from the context” and “to obtain a ruling upon the

party’s request, objection, or motion”). As a result, the only

basis upon which Plaintiff is entitled to challenge the trial

court’s decision to deny his relief from judgment is his

contention that Defendant defamed him by publishing an allegedly

false notice of foreclosure sale, with this contention, like all

of the other contentions that Plaintiff has advanced, resting on

Plaintiff’s claim that he did not owe a debt of any sort to

United.

Aside from his failure to properly preserve three of his

four arguments for appellate review, the fundamental problem

with Plaintiff’s challenge to the trial court’s order is that he

is barred from advancing all of the arguments set out in his

brief on the basis of collateral estoppel considerations. The

essential basis for each of the arguments that Plaintiff has
 -14-
advanced in support of his challenge to the trial court’s order

is his contention that he did not owe a debt to United. “A

party seeking to go forward with [a] foreclosure under a power

of sale must establish, inter alia, by competent evidence, the

existence of a valid debt.” In re Foreclosure of Connolly v.

Potts, 63 N.C. App. 547, 550, 306 S.E.2d 123, 125 (1983) (citing

N.C. Gen. Stat. § 45-21.16(d); In re Foreclosure of Burgess, 47

N.C. App. 599, 604, 267 S.E.2d 915, 918 appeal dismissed, 301

N.C. 90, __ S.E.2d __ (1980)). As a result of the fact that the

Clerk of Superior Court of Guilford County allowed the

foreclosure to proceed and the fact that the order authorizing

the foreclosure to proceed was not overturned on appeal, the

fact that Plaintiff owed a valid debt to United was addressed

and decided adversely to Plaintiff’s position in the foreclosure

proceeding.

According to well-established North Carolina law, “‘a final

judgment on the merits prevents relitigation of issues actually

litigated and necessary to the outcome of the prior action in a

later suit involving a different cause of action between the

parties and their privies.’” State ex rel. Tucker v. Frinzi,

344 N.C. 411, 414, 474 S.E.2d 127, 128 (1996) (quoting Thomas M.

McInnis & Assocs. v. Hall, 318 N.C. 421, 428, 349 S.E.2d 552,

557 (1986)). Thus, since the Clerk of Superior Court decided
 -15-
that Plaintiff owed a debt to United, Plaintiff is not entitled

to relitigate that issue in this or any other proceeding, Phil

Mech. Constr. Co. v. Haywood, 72 N.C. App. 318, 322, 325 S.E.2d

1, 3 (1985) (stating that “when a mortgagee or trustee elects to

proceed under [N.C. Gen. Stat. §] 45-21.1 et. seq., issues

decided thereunder as to the validity of the debt and the

trustee’s right to foreclose are res judicata and cannot be

relitigated in an action for strict judicial foreclosure”), a

determination that clearly establishes that the claim that

Plaintiff wishes to assert against Defendant is not a valid one.

As a result, the trial court did not abuse its discretion by

denying Plaintiff’s motion for relief from judgment.5

III. Conclusion

Thus, for the reasons set forth above, Plaintiff’s

challenge to the trial court’s order lacks merit. As a result,

the trial court’s order should be, and hereby is, affirmed.

AFFIRMED.

Judges McGEE and STEELMAN concur.

Report per Rule 30(e).

5
Although this fact is not the basis for our decision in
this case, we note that Plaintiff has advanced the same
challenge to the result reached in Judge DeRamus’ order in
numerous filings in the trial courts and urge him to recognize
that, once a particular argument is rejected in the judicial
system, he is not entitled to continue to reassert that same
argument in the hope of obtaining a different outcome.