An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A p p e l l a t e P r o c e d u r e .
NO. COA13-550
NORTH CAROLINA COURT OF APPEALS
Filed: 17 June 2014
JAMES B. TAYLOR FAMILY LIMITED
PARTNERSHIP, JAMES B. TAYLOR, and
MARY ANN TAYLOR,
Plaintiffs,
v. Caldwell County
No. 12-CVS-1041
BANK OF GRANITE,1
Defendant.
Appeal by Plaintiffs from Order entered 20 December 2012 by
Judge H. William Constangy, Jr., in Caldwell County Superior
Court. Heard in the Court of Appeals 9 October 2013.
Law Offices of Matthew K. Rogers, PLLC, by Matthew K.
Rogers, for Plaintiffs.
Moore & Van Allen PLLC, by Scott M. Tyler, Joshua D.
Lanning, and Christopher D. Tomlinson, for Defendant.
1
The trial court’s 20 December 2012 order lists Defendant as
“BANK OF GRANITE.” On 28 June 2013, however, Defendant moved
this Court for an order substituting “CommunityOne Bank, N.A.”
for Bank of Granite because CommunityOne Bank, N.A. is the
surviving entity of a merger with Bank of Granite. We granted
that motion on 15 October 2013. Therefore, we list the original
party name in the caption, pursuant to the custom and practice
of this Court, and use the name of the substituted party
elsewhere in this opinion.
-2-
STEPHENS, Judge.
Procedural History and Factual Background
This case arises from proceedings surrounding the 14
September 2012 foreclosure sale of three properties owned by
Plaintiff James B. Taylor Family Limited Partnership (“FLP”),
the borrower. A hearing by the Clerk of Superior Court to
determine whether to authorize foreclosure was set for 8 August
2012. On 7 August 2012, Plaintiffs James B. Taylor (“Mr.
Taylor”), Mary Ann Taylor, and FLP filed suit against Defendant
Bank of Granite Association, now CommunityOne Bank, N.A.
(“Defendant”), and alleged the following:
Prior to 1994, Mr. Taylor owned and operated a construction
business. Plaintiffs received loans from Defendant in 1994 and
1995 amounting to $1,697,061.51 for the construction of Property
1. Defendant loaned Plaintiffs $1,489,065 on 23 October 1996 for
the construction of Property 2 and the purchase of the
surrounding land. These loans were consolidated on 23 November
1998 into a $3,100,000 note. Full payment on the 1998 note was
due by 3 December 2013.
Defendant loaned Plaintiffs an additional $3,500,000 on 16
February 2000 in order to build and lease Property 3, a facility
-3-
for use by Broyhill Furniture. The 2000 note was due at the end
of a twenty-year term. “The 2000 [note] was contingent on and
relied on income received relating to the Broyhill [twenty-year]
lease.”2 That same day, Plaintiffs signed a guaranty agreement,
promising to be liable on the 2000 note. “The [g]uaranty
[a]greement was a part of, conditioned on[,] and dependent on
the 2000 [note] and lease terms.”3 Defendant loaned Plaintiffs
$1,200,000 on 18 October 2000 so that they could buy and rent
the property adjacent to Property 2.
One year later, on 4 October 2001, the parties decided to
split the loan relating to Property 1 and Property 2. Therefore,
Plaintiffs signed a $2,350,000 note on Property 1 and a guaranty
agreement. Plaintiffs signed a $2,500,000 note on Property 2 and
a guaranty agreement. Both notes were set to mature on 4 October
2006. Plaintiffs allege that they signed both guaranty
2
Though Plaintiffs allege that payment on the 2000 note was
“contingent on” the receipt of income from Property 3, an
examination of the note, attached to Plaintiffs’ complaint as
Exhibit 3, indicates that “the entire remaining indebtedness”
was required to be paid by 15 December 2020. By its terms, the
2000 note states that Plaintiffs were not required to make
payments during the period leading up to 14 January 2011 unless
they secured a tenant. After that date, however, Plaintiffs were
required begin repayment whether they procured a tenant or not.
3
A review of the attached agreement does not support this
allegation.
-4-
agreements pursuant to promises by Defendant that rent payments
for the respective properties would be used to pay the loans.
In September of 2005, Plaintiffs became unable to make
payments on the notes for Properties 1 and 2 using the rent
received from their tenants. When Plaintiffs informed Defendant
of this fact, Plaintiffs allege that Defendant “acknowledged”
the notes “were reliant on sufficient tenant rental income to
pay principal and interest.” Plaintiffs further allege that
Defendant “expressly waived Plaintiffs[’] default for [the
notes].” The parties then orally modified their agreement “so
that Plaintiff[s] would pay interest only when there were not
sufficient tenants in the relevant property, but when there were
sufficient tenants, Plaintiff[s] would make principal payments
as well as interest.”
Plaintiffs accumulated “sufficient tenant income” to make
payments on the principal by October of 2006, when the notes
were set to mature by their written terms. Nonetheless,
Plaintiffs “understood that the term of both the loans . . . was
for so long as it took Plaintiff[s] to pay off the loans
according to the rental[-]tenant[-]occupancy formula agreed with
[Defendant].” (Emphasis added).
56. At all times, [Defendant] was aware of
the lease terms and the “spread” between the
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money Plaintiff[s] received in rental income
from leases and the money required to pay
the principal of the loans back.
57. [Defendant] loaned money based on a
formula allowing Plaintiff[s] to profit from
leases with reference to the terms of the
leases for the [p]roperties.
The complaint describes a number of ways in which Defendant was
allegedly aware of Plaintiffs’ financial condition.
Defendant sought to sell the three loans in October of 2008
for 50% of the amount owed by Plaintiffs. That same month,
Defendant “demanded that Plaintiff[s] repay all loans relating
to Property 1, Property 2[,] or Property 3 immediately . . . .”
Alternatively, Defendant “demanded” that Plaintiffs “consolidate
the loans into a single note with [a] much shorter term.”
Defendant gave Plaintiffs six weeks to decide. When Plaintiffs
objected to these “demands” as “not right” and accused Defendant
of “strong-arming” them, one of Defendant’s vice presidents
agreed, but said the matter was out of his control. Believing
they had no other “practical choice,” Plaintiffs agreed to the
consolidation. Plaintiffs signed the consolidated note and a
personal guaranty in November of 2008.
In 2011, the vice president informed Plaintiffs that
Defendant had tried to sell the loans at 50% of the amount owed,
but was unable to find a buyer. “[The vice president]
-6-
represented to [Plaintiffs] that [Defendant] intended to sell
the loans at a discount, but intended to continue to collect the
full amount of the loan, thereby reaping profits on the loans.”
In November of 2011, Plaintiffs met with Defendant “to discuss
extending the term of the [consolidated loan] or paying off the
[consolidated loan] at a discount.” An agent for Defendant
agreed to renew the note for another three years and told
Plaintiffs to contact a different agent “to discuss potentially
paying off the [consolidated loan] for a discount.”
Plaintiffs called the different agent and asked for a 50%
discount because Defendant had allegedly offered to sell the
loans at that rate. The different agent denied having ever made
such an attempt and declined to allow Plaintiffs to pay off the
loans at a discount. Plaintiffs contacted the original agent
about renewing the loan. The original agent failed to express
concern or doubts about the process and did not provide a date
for completion. “At that point, Plaintiff[s] believed and [were]
led to believe[] that Defendant renewed the loan but . . . was
working on documents reflecting the renewal.” Accordingly,
Plaintiffs “understood [that] . . . no payments should be made
until the renewal documents were completed.”
-7-
Defendant told Plaintiffs that it needed to have “‘current
appraisals’ before the loan renewal could be formally
documented.” Defendant sought to have Plaintiffs pay for an
appraisal, and they did. In November of 2011, the original agent
informed Plaintiffs that “it was only a matter of time . . .”
before the paperwork was completed. In December, the agent
“promised that the loan documents would be completed” later that
month.
On 27 December 2011, the agent presented Plaintiffs with
the renewal documents and “told Plaintiff[s] that [they would
have to] pay [approximately] $100,000[] in interest accruing
from [the previous month] before [Defendant] would provide any
loan extension or renew the loan.” The documents were only open
for acceptance on that day, and Plaintiffs accused Defendant of
“punishing Plaintiffs for delays” by presenting renewal
documents that were only valid for one day. The parties did not
agree to renewal. The next day Defendant sent Plaintiffs a
letter “demand[ing] Plaintiff[s] turn[ ]over rents and
threaten[ing] foreclosure . . . .” Defendant also notified the
tenants that they were required to pay rent directly to
Defendant.
-8-
The following month, January of 2012, a third agent for
Defendant appraised the value of Property 1 and informed
Plaintiffs that Defendant would “release” the property if
Plaintiffs could sell it for $1,000,000. This new agent informed
Plaintiffs that the rent on the remaining properties would be
sufficient to pay off the note in nine years. Defendant sent
Plaintiffs a forbearance sheet in February of 2012, which
extended the loan through March of 2012. Pursuant to the third
agent’s statements, Plaintiffs were expecting to receive a nine-
year extension.
In March of 2012, Defendant allegedly informed Plaintiffs
for the first time “that the terms of the [consolidated note]
would not be extended for at least three years and that the
interest rate would not be reduced. . . . Plaintiff[s] submitted
a loan commitment for $3,000,000 to Defendant . . . and offered
[that commitment] to pay off [Defendant] in full.”4 Defendant
declined this offer and initiated foreclosure proceedings.
Given these allegations, Plaintiffs asserted causes of
action against Defendant for (1) breach of the covenant of good
faith and fair dealing, (2) economic duress and coercion, (3)
fraud, (4) tortious interference with contract, and (5) unfair
4
The principal owed on the consolidated note is $6,921,994.38.
-9-
and deceptive trade practices. Accordingly, Plaintiffs requested
relief in the form of an injunction preventing the foreclosure
sale, compensatory damages, punitive damages, treble damages,
costs, and attorneys’ fees. Defendant moved to dismiss
Plaintiffs’ claims under Rule 12(b)(6) of the North Carolina
Rules of Civil Procedure on 8 October 2012. In its motion,
Defendant asserted that the clerk of court entered an order
authorizing the foreclosure sale on 8 August 2012 and denied
Plaintiffs’ motion for a preliminary injunction. According to
Defendant, the foreclosure sale went forward on 14 September
2012, and Plaintiffs’ properties were sold that day. The matter
was heard on 3 December 2012, and the trial court entered an
order granting Defendant’s motion on 27 December 2012.
Plaintiffs appealed that order on 17 January 2013.
Approximately ten months after the trial court’s order, on
23 October 2013, Plaintiffs filed motions for relief under Rule
60(b) of the North Carolina Rules of Civil Procedure and to
amend their complaint under Rule 15. Plaintiffs notified this
Court of their motions, and we held their appeal in abeyance
pending an order by the trial court. James B. Taylor Family Ltd.
P’ship v. Bank of Granite, No. 13-550 (N.C. Ct. App. 5 December
2013), available at
-10-
http://appellate.nccourts.org/orders.php?t=&court=2&id=283136&pd
f=1&a=0&docket=1&dev=1. Plaintiffs made the following additional
allegations in their motions:
The trial court entered a temporary restraining order
(“TRO”) on 16 August 2012, nine days after Plaintiffs filed
their complaint. “Despite the [TRO], the substitute trustee
advertised the foreclosure sale . . . ,” which was set to occur
on 7 September 2012. Plaintiffs sought discovery from Defendants
on 22 August 2012, but Defendant did not comply with those
requests. On 14 September 2012, Defendant purchased the three
properties for less than the amount owed by Plaintiffs and
transferred title to three affiliated limited liability
companies “without notice to Plaintiffs.” During this process,
Plaintiffs spoke to the vice president, who was no longer
affiliated with Defendant. He informed Plaintiffs that
information relating to the loans was located in his files with
Defendant.
According to Plaintiffs, Defendant had collected “at least
$517,602[] in rent from tenants [on the properties] after August
8, 2012 until the date of [the m]otion.” Property 3 was later
sold to a third party “for $275,000 more than the ‘credit bid’
for [that property].”
-11-
16. On October 16, 2013[ Mr.] Taylor
realized that discussions and written
correspondence between [Plaintiffs] and
[Defendant] in October 2010 through January
2011 evidence that Plaintiffs did not ratify
the [c]onsolidated [l]oan . . . and [that
Plaintiffs] effectively told [Defendant that
they] continued to believe the properties
were subject to independent loan value
calculations.
In addition, Defendant brought suit against Plaintiffs on 27
September 2013 to recover the deficiency on the consolidated
note and for “purported fraudulent conveyances” made by
Plaintiffs, but “intentionally withheld service of process on
Plaintiffs . . . .”
Plaintiffs’ motion was heard on 2 December 2013. Two weeks
later, on 16 December 2013, Plaintiffs notified this Court that
the trial court intended to deny their motion. The trial court
entered its written decision on 18 December 2013, making the
following pertinent conclusions:
8. There is no newly discovered evidence
(not otherwise available to Plaintiffs prior
to December 3, 2012) pursuant to Rule
60(b)(2) that is relevant to any issue
raised by Plaintiffs’ original [c]omplaint.
9. Additionally, Plaintiffs fail to submit
sufficient reasons to justify relief . . .
pursuant to Rule 60(b)(1), 60(b)(3),
60(b)(6) or otherwise under Rule 60 of the
North Carolina Rules of Civil Procedure.
-12-
As a result, the trial court stated that “if there were
continuing jurisdiction over [the] matter . . . , it would deny
Plaintiffs’ Rule 60 [m]otion for [r]elief and would deny as moot
Plaintiffs’ [m]otion to [a]mend under Rule 15.” Following that
decision, we issued an order stating that further appeal was
unnecessary because “[j]urisdiction remains in this Court.”
James B. Taylor Family Ltd. P’ship v. Bank of Granite, No. 13-
550 (N.C. Ct. App. 15 January 2014), available at
http://appellate.nc
courts.org/orders.php?t=&court=2&id=286166&pdf=1&a=0&docket=1&de
v=1. Accordingly, we directed the parties to file a supplemental
record and supplemental briefs. Id. The supplemental record was
filed on 4 February 2014. Plaintiffs and Defendant filed their
supplemental briefs on 19 February and 3 March 2014,
respectively.
Discussion
On appeal, Plaintiffs contend that the trial court erred in
granting Defendant’s motion to dismiss under Rule 12(b)(6) for
failure to state a claim. Alternatively, Plaintiffs assert that
relief from the trial court’s order should be awarded pursuant
to Rule 60(b). We affirm the trial court’s order granting
-13-
Defendant’s motion to dismiss and decline to grant relief
pursuant to Rule 60(b).
I. Rule 12(b)(6)
The motion to dismiss under [Rule]
12(b)(6) tests the legal sufficiency of the
complaint. In ruling on the motion the
allegations of the complaint must be viewed
as admitted, and on that basis the court
must determine as a matter of law whether
the allegations state a claim for which
relief may be granted.
Stanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d 611, 615
(1979) (citations omitted). “This Court must conduct a de novo
review of the pleadings to determine their legal sufficiency and
to determine whether the trial court’s ruling on the motion to
dismiss was correct.” Leary v. N.C. Forest Prods., Inc., 157
N.C. App. 396, 400, 580 S.E.2d 1, 4, affirmed per curiam, 357
N.C. 567, 597 S.E.2d 673 (2003).
In their first argument on appeal, Plaintiffs contend that
the trial court erred in granting Defendant’s motion to dismiss
because they properly stated claims for: (1) the following
“equitable defenses and equitable claims [for] relief” (a)
waiver, (b) modification, (c) ratification, (d) lack of
consideration, (e) over-reaching and unfair bargaining, (f)
economic duress, (g) fraud and estoppel, and (h) unfair trade
practices; (2) breach of the implied covenant of good faith and
-14-
fair dealing; (3) economic duress; (4) misrepresentation and
fraud; (5) tortious interference with contract; and (6) unfair
and deceptive trade practices. Plaintiffs also assert that
discovery would reveal any missing elements of their claims and
argue that granting the motion without discovery is unfairly
prejudicial. We disagree.
(1) Waiver, Modification, Ratification, Lack of
Consideration, Over-Reaching and Unfair
Bargaining, Economic Duress, Fraud and Estoppel,
and Unfair Trade Practices
Plaintiffs assert that their complaint properly stated the
“equitable defenses and equitable claims [for] relief” listed
above.5 For support, Plaintiffs cite to various paragraphs in
their complaint and argue that “[Defendant’s] representations
and actions in 2005 and [Defendant] accepting payments for more
than 3 years thereafter are sufficient to establish [all of
these claims].” Plaintiffs further assert that the consolidated
loan “is the result of egregious tortious conduct and cannot be
legally enforced” and claim that they “understood the parties
5
As noted above, Plaintiffs only explicitly list (1) breach of
the covenant of good faith and fair dealing, (2) economic duress
and coercion, (3) fraud, (4) tortious interference with
contract, and (5) unfair and deceptive trade practices in their
complaint. Plaintiffs’ argument on appeal indicates that they
believe these other causes of action were impliedly stated in
the allegations of the complaint.
-15-
were operating pursuant to modified loans and a course of
dealings developed over many years.” (Emphasis added). The only
legal authority Plaintiffs provide are quotations regarding the
remedies of specific performance and reformation of contracts.
This argument lacks merit.
As a preliminary matter, we note that Plaintiffs’ first
argument consists almost entirely of listing the eight different
“defenses and claims” that they believe were properly stated in
their complaint and citing the paragraphs that they believe
support those claims. Plaintiffs offer no specific reasons or
arguments for these claims and provide no citations in their
brief to the relevant legal standards. Indeed, Plaintiffs’
claims are not even explicitly included in their complaint. This
practice makes it difficult to properly address Plaintiffs’
arguments on appeal and treads dangerously close to abandonment.
See N.C.R. App. P. 28(a); see also United Leasing Corp. v.
Miller, 45 N.C. App. 400, 403, 263 S.E.2d 313, 316 (1980)
(“Questions raised . . . in appeals from trial tribunals but not
then presented and discussed in a party’s brief are deemed
abandoned.”) (citations omitted). Nonetheless, we elect to
review Plaintiffs’ arguments on the merits and conclude that
-16-
they have failed to state any of the alleged “defenses and
claims” described above.
Waiver is an equitable defense to foreclosure that may be
present when the lender accepts late payments on a loan. See
Meehan v. Cable, 127 N.C. App. 336, 340, 489 S.E.2d 440, 444
(1997) (citations omitted). As Defendant notes in its brief, the
paragraphs cited by Plaintiffs as evidence of waiver only apply
to the notes on Property 1 and Property 2 from October of 2001.
“[S]uch allegations have no bearing on the [consolidated n]ote —
the loan which was secured by the properties foreclosed upon by
[Defendant].” Indeed, the paragraphs of the complaint relied
upon by Plaintiffs specifically state that “[Defendant] refused
to accept anything less than the full amount of the . . .
[c]onsolidated [n]ote as satisfaction . . . .” There is no
allegation that Defendant accepted late payments on the
consolidated note. Therefore, Plaintiffs’ argument as it
pertains to waiver is overruled.
“Modification” is not a stand-alone equitable doctrine.
What Plaintiffs appear to mean by the use of this term is that
the consolidated note was amended in a manner that prevented
foreclosure. However, as Defendant observes, the cited
paragraphs of Plaintiffs’ complaint fail to reference the
-17-
consolidated note, which is the relevant instrument in this
case. Therefore, Plaintiffs’ argument as it pertains to
“modification” is overruled.
“Ratification” refers to the idea that a principal may be
held liable for the actions of an individual who lacks authority
to act as an agent, but nonetheless “makes a contract as an
agent for [the principal]” when the principal, “upon discovery
of the facts, . . . ratif[ies] the contract . . . .” Patterson
v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 266 N.C. 489,
492, 146 S.E.2d 390, 393 (1966) (citations omitted). Plaintiffs
assert that their complaint reveals Defendant ratified the
“rent-spread” agreement, i.e., the alleged agreement that
Defendant would only accept payments to the extent they were
covered by rental payments made to Plaintiffs by their tenants.
Again, we note that these allegations refer to the 2001 notes on
Properties 1 and 2, not the consolidated note. Even assuming
those notes were modified and such modification was ratified by
Defendant, it is not relevant to Plaintiffs’ complaint or this
appeal. Therefore, Plaintiffs’ argument as it pertains to
“ratification” is overruled.
“Lack of consideration” refers to the principle that a
contract must be supported by valuable consideration in order to
-18-
be enforceable. See, e.g., Brown v. Ray, 32 N.C. (10 Ired.) 72,
73 (1849) (“[T]here must be a consideration to support a promise
. . . .”). The cited paragraphs of Plaintiffs’ complaint
describe the process of consolidating the loans on properties 1
and 2, but do not allege that the parties’ agreement lacked
consideration. In addition, “[i]t is well settled that a loan is
sufficient consideration to support the obligation of a
promissory note . . . .” In re Blue Ridge Holdings Ltd. P’ship,
129 N.C. App. 534, 537–38, 500 S.E.2d 446, 449 (1998) (citation
omitted); see also Smith v. Allison, 83 N.C. App. 232, 234, 349
S.E.2d 623, 624 (1986) (deeming evidence that the promisee
intended to lend the corporation money and that funds were
advanced to the corporation sufficient to show the existence of
consideration to support promissory notes), disc. review denied,
319 N.C. 406, 354 S.E.2d 718 (1987). Therefore, Plaintiffs’
argument as it pertains to lack of consideration for the
consolidated note is overruled.
“Over-reaching” and “unfair bargaining” are not documented
equitable doctrines in North Carolina. As Defendant notes in its
brief, however, “Plaintiffs appear to be using these terms as
synonyms for their claims of duress and breach of the covenant
of good faith and fair dealing.” Plaintiffs offer no argument
-19-
regarding these particular terms, but to the extent they deal
with their other causes of action, those arguments are addressed
below.
Similarly, Plaintiffs’ remaining “defenses and claims” —
economic duress, fraud and estoppel, and unfair trade practices
— are synonymous with their named causes of action. Therefore,
we address those claims below.
(2) Implied Covenant of Good Faith and Fair Dealing
In their second argument on appeal, Plaintiffs contend that
Defendant breached an implied covenant of good faith and fair
dealing between the parties because the parties had developed a
“‘small town’ banking relationship,” which resulted in
additional, unwritten terms to the loans. Specifically,
Plaintiffs assert their “belie[f]” that “payments [on the]
principal and interest were required only as tenants occupied
the properties,” citing Defendant’s alleged modification of the
2001 notes “from time-to-time to reflect the rental income
received.” Plaintiffs contend this constitutes a course of
dealing, which should have been read into the consolidated loan.
This argument is without merit.
“In every contract there is an implied covenant of good
faith and fair dealing that neither party will do anything which
-20-
injures the right of the other to receive the benefits of the
agreement.” Williams v. Craft Dev., LLC, 199 N.C. App. 500, 506,
682 S.E.2d 719, 723 (2009) (citations and internal quotation
marks omitted), disc. review denied, 363 N.C. 859, 695 S.E.2d
452 (2010). Plaintiffs’ argument conflates the implied covenant
of good faith and fair dealing with the parol evidence rule.
Whether Defendant breached certain additional, unwritten terms
contained in the consolidated loan is relevant to a cause of
action for breach of contract, not breach of the implied
covenant of good faith and fair dealing. As Plaintiffs do not
allege breach of contract in their complaint, this argument is
out of place.
Furthermore, Plaintiffs’ complaint fails to properly allege
facts evidencing a breach of the covenant of good faith and fair
dealing.6 Plaintiffs assert that Defendant breached the covenant
by (1) failing to sell the loans to Plaintiffs at the 50%
discount that Defendant allegedly offered to other would-be
purchasers and (2) “collecting rents and withholding material
information about the properties (including . . . appraisals)
6
Plaintiffs’ complaint also alleges “lack of consideration” for
the consolidated note as a part of their claim for breach of the
implied covenant of good faith and fair dealing. As we explained
in the preceding section, that argument is without merit.
-21-
thereby hindering Plaintiffs[’] ability to find . . .
alternatives.” Defendant was under no contractual obligation,
however, to offer Plaintiffs a 50% discount. Such a right would
directly contradict the terms of the consolidated note, which
requires Plaintiffs to pay the loan in full. In addition,
Defendant had the right to collect rents pursuant to the
parties’ agreement in the deed of trust, and Plaintiffs had no
contractual or legal right to the appraisals. See, e.g., Camp v.
Leonard, 133 N.C. App. 554, 559, 515 S.E.2d 909, 913 (1999)
(“Other courts have . . . held the relationship between borrower
and lender is not a confidential one. Unless a further
obligation is assumed by the lender, its inspection of the
premises to be mortgaged is made only to determine whether the
property has sufficient value to secure the loan[] and is for
the benefit of the lender only.”) (citations omitted).
Accordingly, Plaintiffs’ second argument is overruled.
(3) Economic Duress
Plaintiffs also assert that Defendant fraudulently “created
the circumstances” that led to economic duress and then “used
the economic distress7 to force and coerce Plaintiffs to sign the
[consolidated n]ote” and personal guaranty in 2008. On appeal,
7
Plaintiffs do not distinguish between “duress” and “distress.”
-22-
Plaintiffs argue that their only source of income at this time
was “rent received from the properties” and allege that they
were “prevented from finding alternative[ financing] because of
[Defendant’s] fraud and refusal to provide appraisals.” These
allegations do not state a valid claim of duress.
Duress exists where one, by the
unlawful act of another, is induced to make
a contract or perform or forego some act
under circumstances which deprive him of the
exercise of free will. A wrongful act or
threat is an important element of duress.
The act threatened is wrongful if made with
the corrupt intent to coerce a transaction
grossly unfair to the victim and not related
to the subject of such proceedings. . . .
Radford v. Keith, 160 N.C. App. 41, 43–44, 584 S.E.2d 815, 818
(2003). Furthermore,
[a] mere assertion of a grievance is
insufficient to state a claim upon which
relief can be granted [under Rule 12(b)(6)].
Some degree of factual particularity is
required. The statement of a claim for
relief must satisfy the requirements of the
substantive law which give[s] rise to the
pleadings. A complaint, to state a claim for
relief, must [therefore] refer to “the
transactions, occurrences, or series of
transactions or occurrences[] intended to be
proved” [as articulated in Rule 8(a) of the
North Carolina Rules of Civil Procedure].
Alamance Cnty v. N.C. Dep’t of Human Res., 58 N.C. App. 748,
750, 294 S.E.2d 377, 378 (1982) (citations and certain internal
quotation marks omitted) (holding that the plaintiff failed to
-23-
state a claim of fraud for which relief could be granted when
its complaint made only “conclusory allegations of grievances
and offer[ed] no indication of the existence of facts which, if
proven, would permit a finding of fraud . . .”); see also Biddix
v. Henredon Furniture Indus., 76 N.C. App. 30, 33, 331 S.E.2d
717, 720 (1985) (“Plaintiff’s complaint, therefore, must give
sufficient notice of the events on which he bases his claim[]
and state sufficient facts to satisfy the substantive elements
of a legally recognized claim [to avoid dismissal under Rule
12(b)(6)].”) (emphasis added).
In this case, Plaintiffs’ complaint does not allege any
particular transactions, occurrences, or series of transactions
or occurrences invoking the elements of duress. Rather,
Plaintiffs assert that Defendant “used economic duress” to force
Plaintiffs’ compliance with the contract. On appeal, Plaintiffs
offer little clarification, only noting that they had few
financial resources at the time they agreed to the consolidation
loan and attributing this fact to Defendant’s undefined “fraud.”
These “merely conclusory” allegations “offer[] no indication of
the existence of facts which, if proven, would permit a finding”
of duress. See Alamance Cnty, 58 N.C. App. at 750, 294 S.E.2d at
-24-
378. Accordingly, Plaintiffs’ argument as it pertains to duress
is overruled.
(4) Misrepresentation and Fraud
Plaintiffs next allege that “Defendant’s representations,
acts[,] and omissions[,] both in 2008 and again in November 2011
through December 2011, amount to fraud . . . .” Plaintiffs
assert that this fraud “induced [them] to enter [into] the
[consolidated note],” was “intended to cause [them] to breach
the [consolidated note],” caused them to rely on Defendant’s
promises, and was “intentional and wanton.” These allegations do
not amount to a valid claim of fraud.
The elements of a civil cause of action
for fraud are (1) a false representation or
concealment of a material fact (2) that is
reasonably calculated to deceive (3) made
with intent to deceive (4) which does in
fact deceive and (5) results in damage to
the injured party. [For an action in fraud]
to survive a motion to dismiss pursuant to
Rule 12(b)(6), the complaint must allege
with particularity all material facts and
circumstances constituting the fraud,
although intent and knowledge may be averred
generally. Thus, there is a requirement of
specificity as to the element of a
representation made by the alleged
defrauder: The representation must be
definite and specific.
Charlotte Motor Speedway, LLC v. Cnty of Cabarrus, __ N.C. App.
__, __, 748 S.E.2d 171, 178 (2013) (citations and internal
-25-
quotation marks omitted) (holding that the trial court correctly
dismissed the plaintiff’s fraud claim under Rule 12(b)(6) when
the complaint alleged that the defendant “made false
representation of material fact[,] . . . concealed material
facts regarding [the] ability to fund . . . promised amounts [of
money],” and based those allegations on a letter that did not
provide any “definite and specific” timeframe), disc. review
allowed, __ N.C. __, 753 S.E.2d 664 (2014).
Plaintiffs’ complaint is entirely devoid of particularity
as it relates to the claim of fraud. Plaintiffs merely allege in
sweeping terms that Defendant committed fraud and employed
“fraudulent representations” to induce them to sign the note. As
with Plaintiffs’ claim of economic duress and similar to the
claims from our opinion in Charlotte Motor Speedway, these
allegations are not sufficiently “definite and specific” to
support a claim of fraud. Accordingly, Plaintiffs’ argument is
overruled as it relates to fraud.
(5) Tortious Interference with Contract
Plaintiffs allege that Defendant tortiously interfered with
contracts between Plaintiffs and their tenants by collecting
rent from the tenants pursuant to the terms of the consolidated
note. Even assuming the truth of these allegations, they are not
-26-
sufficient to state a claim of tortious interference with
contact.
To establish a claim for tortious
interference with contract, a plaintiff must
show:
(1) a valid contract between the plaintiff
and a third person which confers upon the
plaintiff a contractual right against a
third person; (2) the defendant knows of the
contract; (3) the defendant intentionally
induces the third person not to perform the
contract; (4) and in doing so acts without
justification; (5) resulting in actual
damage to [the] plaintiff.
Interference is without justification if a
defendant’s motive is not reasonably related
to the protection of a legitimate business
interest.
Whether an actor’s conduct is justified
depends upon the circumstances surrounding
the interference, the actor’s motive or
conduct, the interests sought to be
advanced, the social interest in protecting
the freedom of action of the actor, and the
contractual interests of the other
party. . . .
A complaint must show that the defendant
acted with malice and for a reason not
reasonably related to the protection of a
legitimate business interest of the
defendant party.
Sellers v. Morton, 191 N.C. App. 75, 81–82, 661 S.E.2d 915, 921
(2008) (citations, internal quotation marks, and brackets
omitted). If the complaint admits a motive for the interference
-27-
other than malice, it must be dismissed. Filmar Racing, Inc. v.
Stewart, 141 N.C. App. 668, 674–75, 541 S.E.2d 733, 738 (2001)
(affirming the trial court’s dismissal of the plaintiff’s
complaint as it related to tortious interference with contract
under Rule 12(b)(6) because the complaint only alleged that the
defendant “lacked justification” for its acts, not that it acted
maliciously) (citations omitted).
In this case, Plaintiffs’ complaint states that Defendant
“incorrectly and unlawfully relie[d] on terms [in the
consolidated note] which were caused by fraud, economic
duress[,] and unfair trade practices.” Plaintiffs offer no
allegation that Defendant acted maliciously. Though Plaintiffs
assert that the consolidated note is an unlawful contract, they
admit that Defendant was acting pursuant to the terms of the
consolidated note. Indeed, Plaintiffs’ complaint includes a copy
of a letter from Defendant, which states its intention to
collect the rents “to secure [Plaintiffs’] obligations to
[Defendant] with respect to [the loan].” This indicates that
Defendant was acting in reasonable protection of its legitimate
business interests and not out of malice. Accordingly,
Plaintiffs have failed to state a claim of tortious interference
-28-
with contract for which relief may be granted, and their
argument is overruled as it pertains to that claim.
(6) Unfair and Deceptive Trade Practices
Plaintiffs allege that Defendant engaged in unfair and
deceptive trade practices by “demanding” immediate payment on
all three loans in September of 2008, before the loans were
consolidated, even though the loans were not in default.
Plaintiffs also characterize Defendant’s behavior as an
“intentional breach of contracts accompanied [by] aggravating
circumstances” and further allege that Defendant made different
representations regarding the interest rate charged on the
loans, but “actually charged interest” at the higher rates.
These allegations do not state a valid claim of unfair and
deceptive trade practices.
To establish a claim for unfair and
deceptive trade practices, [the complaining
party] must show: (1) that [the responding
party] committed an unfair or deceptive act
or practice, (2) [that] the action in
question was in or affecting commerce, and
(3) [that] the act proximately caused injury
to [the complainant]. An act or practice is
unfair if it is immoral, unethical,
oppressive, unscrupulous, or substantially
injurious to [customers]. An act or practice
is deceptive if it has the capacity or
tendency to deceive.
. . . .
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A mere breach of contract, even if
intentional, is not an unfair or deceptive
act . . . . It is well recognized that
actions for unfair or deceptive trade
practices are distinct from actions for
breach of contract and that a mere breach of
contract, even if intentional, is not
sufficiently unfair or deceptive to sustain
an action . . . . To recover for unfair and
deceptive trade practices, a party must show
substantial aggravating circumstances
attending the breach of contract. . . .
Bob Timberlake Collection, Inc. v. Edwards, 176 N.C. App. 33,
41–42, 626 S.E.2d 315, 322–23 (citations, internal quotation
marks, and certain ellipses omitted), disc. review denied, 360
N.C. 531, 633 S.E.2d 674 (2006).
On appeal, Plaintiffs argue that “[t]he allegations show
that [Defendant] used [its] inequitable position and power,
combined with [its] knowledge of Plaintiffs’ financial
condition, to cause Plaintiffs to sign a [p]romissory [n]ote in
violation of the law.” For support, Plaintiffs cite three cases
as examples of similar conduct: Wilder v. Squires, 68 N.C. App.
310, 315 S.E.2d 63, disc. rev. denied, 311 N.C. 769, 321 S.E.2d
158 (1984) (affirming the trial court’s award of damages for
unfair and deceptive trade practices by a vendor against a
prospective purchaser when the vendor threatened the purchaser
with loss of his deposit if the purchaser would not accept the
financing scheme offered by the vendor); Pedwell v. First Union
-30-
Nat’l Bank of N.C., 51 N.C. App. 236, 275 S.E.2d 565 (1981)
(reversing the trial court’s dismissal of the plaintiffs’
complaint of unfair and deceptive trade practices by the
defendant financial services provider when the plaintiffs
alleged that the services “conspired to keep [them] from
purchasing [a] condominium by . . . refus[ing] . . . a loan when
it was too late for [the plaintiffs] to obtain alternate
financing,” i.e., six days before closing on the purchase); and
Fallston Finishing, Inc. v. First Union Nat’l Bank, 76 N.C. App.
347, 333 S.E.2d 321 (concluding that evidence of a breach or
threat of breach of loan commitments by the defendant bank and
of great financial hardship faced by the plaintiff corporations
raised a jury issue as to whether an accord and satisfaction
occurred), cert. denied, 314 N.C. 664, 336 S.E.2d 621 (1985). We
are unpersuaded.
First, the mere act of “demanding” that a borrower
consolidate its loans is neither immoral, unethical, oppressive,
unscrupulous, substantially injurious, or deceptive. Cf. Shell
Trademark Mgmt. BV & Motiva Enters. v. Ray Thomas Petroleum Co.,
642 F. Supp. 2d 493 (2009) (“It was neither unfair nor deceptive
for Motiva to insist that RTP pay out their contract rather than
substitute another gas station for the gas station which
-31-
closed.”). To the extent there is a power differential between
the parties, that difference is an organic element of the
lender/borrower relationship. It is not grounds to support a
claim of unfair and deceptive trade practices. Plaintiffs do not
allege that Defendant made deceptive statements, used its
authority to coerce or force Plaintiffs to agree to consolidate,
or otherwise acted inappropriately in its demand for payment.
Whether the loan payments were in default or not, the facts
alleged in the complaint reveal that Defendant gave Plaintiffs a
full six weeks to decide how to handle the situation. This is
sufficient time to evaluate Defendant’s “demand,” consult a
lawyer, if necessary, and respond appropriately. The validity of
Defendant’s demand, alone, does not establish a claim of unfair
and deceptive trade practices. Even assuming that Defendant
breached a contract with Plaintiffs, Plaintiffs simply do not
allege facts showing the existence of other aggravating factors
that might transform Plaintiffs’ claims from mere grievances to
colorable causes of action.
Second, the cases cited by Plaintiffs are not applicable
here. In Wilder, the defendant threatened the plaintiff with the
loss of a substantial monetary deposit if he did not agree to
the defendant’s terms. 68 N.C. App. at 315, 315 S.E.2d at 66.
-32-
Plaintiffs allege no such threat here. In Pedwell, the
plaintiffs alleged that the defendant financial services
provider conspired to refuse a necessary loan with only six days
remaining before closing on certain property. 51 N.C. App. at
237, 275 S.E.2d at 566. Here, unlike the financial services
provider in Pedwell, Defendant gave Plaintiffs notice of its
demand a full six weeks before payment was expected. As
discussed above, this was a sufficient amount of time to allow
Plaintiffs to collect themselves and respond appropriately.
Additionally, Fallston Financing, Inc. involves economic duress,
not unfair and deceptive trade practices. 76 N.C. App. at 364,
333 S.E.2d at 331. Therefore, it is not applicable in this case.
Lastly, Plaintiffs’ allegations that Defendant explained
its interest rate on the loans using different values and
eventually charged Plaintiffs at the higher value is not
sufficient, alone, to establish a claim of unfair and deceptive
practices. Even assuming that Defendant communicated two
different methods of calculating the interest on the loans to
Plaintiffs, the plain language of the consolidated note
indicates that “[i]nterest will be calculated on a[n]
[a]ctual/360 basis.” The fact that Defendant described two
different ways of calculating such rate before the loans were
-33-
consolidated does not have an appreciable effect on the
marketplace and does not amount to unfair and deceptive trade
practices. See Carcano v. JBSS, LLC, 200 N.C. App. 162, 172, 684
S.E.2d 41, 50 (2009) (“The ‘relevant gauge’ of an act’s
unfairness or deception is the effect of the actor’s conduct on
the marketplace.”) (citation, certain internal quotation marks,
and brackets omitted). Accordingly, Plaintiffs’ argument as it
pertains to its claim of unfair and deceptive trade practices is
overruled.
(7) Discovery
In the alternative, Plaintiffs argue that any “technical
discrepancy” in their pleadings could be remedied by discovery.
Therefore, Plaintiffs assert that it would be “unfairly
prejudicial” to allow dismissal of their case without giving
them the opportunity to review the “vast majority of the
evidence relating to the[ir] claims” that is in Defendant’s
control. We disagree. “While absolute precision in pleading is
not necessary, [the] plaintiffs may not simply state a
generalized grievance and thereby gain the right to go on a
discovery fishing expedition.” Smith v. City of Charlotte, 79
N.C. App. 517, 529–30, 339 S.E.2d 844, 852 (1986). Plaintiffs’
argument is therefore overruled. Accordingly, we affirm the
-34-
trial court’s order granting Defendant’s motion to dismiss
Plaintiffs’ complaint under Rule 12(b)(6) for failure to state
any claim upon which relief may be granted.
II. Rule 60(b)
Alternative to their argument that the trial court erred in
granting Defendant’s motion to dismiss their complaint,
Plaintiffs argue that relief is proper pursuant to Rule 60(b),
subsections (1)–(3) and (6), and that they should be allowed to
amend their complaint pursuant to Rule 15. We agree with the
trial court’s decision that, if it had jurisdiction over the
matter, Plaintiffs’ Rule 60(b) motion should be denied and do so
here.
(1) Any Reason Justifying Relief
Under Rule 60(b)(6), the court may grant relief from a
judgment for any reason “justifying relief.” N.C.R. Civ. P.
60(b)(6).
The grounds for setting aside judgment
pursuant to Rule 60(b)(6) are equitable in
nature. What constitutes cause to set aside
judgment pursuant to Rule 60(b)(6) is
determined by whether (1) extraordinary
circumstances exist; and (2) whether the
action is necessary to accomplish justice.
-35-
Trivette v. Trivette, 162 N.C. App. 55, 63, 590 S.E.2d 298, 304
(2004) (citations omitted). This is a two-pronged test. See id.
Plaintiffs argue that relief is proper under Rule 60(b)(6)
because the circumstances surrounding their case have changed so
substantially that justice demands relief. Plaintiffs describe
those circumstances as follows: First, Defendant filed a
deficiency action against Plaintiffs. Second, Defendant failed
to disclose material facts before the 12(b)(6) hearing which
“support prejudicial irregularity in the foreclosure
proceedings.” Third, the consideration paid for Property 3 was
grossly inadequate. Fourth, Defendant has neither answered the
allegations in Plaintiffs’ complaint nor allowed discovery, and
the trial court erred in refusing to allow Plaintiffs to offer
evidence at the 2 December 2013 hearing on their motion for
60(b) relief. Fifth, the decisions of the clerk of court in the
foreclosure action should not be given preclusive effect in the
deficiency action. We are unpersuaded.
(a) The Deficiency Action
Plaintiffs do not provide a clear reason for why the act of
filing a deficiency action constitutes an extraordinary
circumstance justifying relief from the trial court’s order.
Instead, Plaintiffs cite an opinion of this Court in Sloan v.
-36-
Sloan, 151 N.C. App. 399, 566 S.E.2d 97 (2002). Plaintiffs also
assert that Defendant wrongly failed to reveal the following
facts in its deficiency action: Defendant’s continued receipt of
rents from tenants, the transfer of property to the affiliated
corporations, the sale of Property 3 for substantial profit, and
its intention to pursue the deficiency action.8
We need not address the merits of Plaintiffs’ argument as
it pertains to the deficiency action or the application of our
opinion in Sloan. Even if Defendant erred in failing to reveal
certain facts in its deficiency action, the act of filing such
an action is not an extraordinary circumstance justifying
relief. The proper action for Plaintiffs to pursue in the event
that a deficiency action is inappropriate is not relief pursuant
to Rule 60(b), but a motion to dismiss. See generally N.C.R.
Civ. P. 12. Therefore, Plaintiffs’ argument as it relates to the
deficiency action is overruled.
(b) “Prejudicial Irregularities” at Foreclosure
Plaintiffs also assert that extraordinary circumstances
were present justifying relief from the trial court’s judgment
8
Plaintiffs do not specify why they believe Defendant should
have notified them of its intention to pursue the deficiency
action in that same action. Obviously, such notification would
have little value once the action was filed.
-37-
because Defendant failed to disclose certain material facts
relating to “prejudicial irregularit[ies]” in the foreclosure
proceedings. Specifically, Plaintiffs assert that Defendant
incorrectly failed to disclose: the issuance of an “excessive”
6.8 million dollar bond to stay the foreclosure sale and allow
appeal, the use of “en masse” advertising by Defendant to inform
potential buyers about the foreclosure sale, and the act of
advertising the sale during the TRO. We again disagree.
These facts are not relevant to the causes of action
Plaintiffs allege in their complaint. To the extent that
Defendant’s failure to reveal certain facts relating to the
foreclosure proceedings was improper, it does not justify relief
from the trial court’s grant of Defendant’s motion to dismiss
under Rule 12(b)(6). Accordingly, Plaintiffs’ argument is
overruled as it relates to these so-called irregularities.
(c) “Grossly Inadequate” Consideration
Lastly, Plaintiffs assert that extraordinary circumstances
sufficient to justify relief from the trial court’s order on
Defendant’s motion to dismiss are present in the form of
“grossly inadequate” consideration paid for Property 3 in May of
2013, i.e., consideration amounting to a $275,000 profit for
-38-
Defendant. For the reasons discussed in the preceding section,
this argument is without merit.
(d) Discovery, Plaintiffs’ Allegations, and
Plaintiffs’ Evidence
Plaintiffs next argue that extraordinary circumstances
justifying relief are present in this case because Defendant
failed to answer the allegations in Plaintiffs’ complaint or
allow discovery and because the trial court refused to allow
Plaintiffs to present evidence regarding the validity of the
consolidated note and their inability to pay the 6.8 million
dollar security bond. We are unpersuaded.
The rule of civil procedure requiring a defendant to file
counterclaims in a responsive pleading, N.C.R. Civ. P. 13(a), is
not applicable when a defendant files a motion to dismiss
instead of a pleading. Cf. Mellon Bank, N.A. v. Ternisky, 999
F.2d 791, 795 (1993) (“[Federal Rule 13(a)] does not come into
play when a defendant files only a motion to dismiss, instead of
a pleading.”); see generally Hardin v. York Mem’l Park, __ N.C.
App. __, __, 730 S.E.2d 768, 773 (2012) (“For purposes of [Rule
15(a)], a Rule 12(b)(6) motion to dismiss is not a responsive
pleading and thus does not itself terminate [the] plaintiff’s
unconditional right to amend a complaint under Rule 15(a).”)
(citation and internal quotation marks omitted), disc. review
-39-
denied, 366 N.C. 571, 738 S.E.2d 376 (2013). Therefore,
Defendant’s failure to answer Plaintiffs’ allegations is not an
extraordinary circumstance justifying relief.
In addition, for the reasons discussed in section I(7) of
this opinion, supra, Defendant’s failure to allow discovery does
not constitute an extraordinary circumstance justifying relief.
Lastly, Plaintiffs allege that the trial court erred in
refusing to allow them to present evidence “which (1) supports
invalidating the ‘consolidated note’ and (2) . . . [proves]
Plaintiffs could not obtain a []6.8 [m]illion [d]ollar security
bond necessary to challenge the [c]lerk’s findings.” Plaintiffs
do not describe this evidence, but cite to a portion of the
transcript of the 2 December 2013 hearing in which counsel for
Plaintiffs — discussing Defendant’s deficiency action — states
the following:
So, with that being said, Your Honor, again,
I don’t want to — I want to preserve my
right to offer into evidence Mr. Taylor’s
testimony to the extent it’s necessary to
preserve our right in the [N.C. Gen. Stat. §
45-21.16] hearing to insure that there is no
claim for preclusive effect. But I think
that I’m hearing the other side acknowledge,
and I think Your Honor, from the bench
stated earlier that we travelled on separate
tracks, that that’s not the intent of that
[N.C. Gen. Stat. § 45-21.16] hearing or the
appeal there[]from to preclude us from
entering evidence. And with that being said
-40-
I’d leave it to Your Honor. If Your Honor
would like me — in order to preserve that
right I’d be glad to bring Mr. Taylor to the
bench.
The trial court responded by saying: “At this point and time and
[sic] I don’t believe the testimony is appropriate or
necessary.”9
This testimony relates to the deficiency action, not
Plaintiffs’ Rule 60 motion for relief. Thus, it is not relevant
to Plaintiffs’ argument that extraordinary circumstances are
present to justify relief under Rule 60(b). Accordingly,
Plaintiffs’ argument as it relates to this testimony is
overruled.
(e) Claim Preclusion, Res Judicata, and Judicial
Estoppel
Next, Plaintiffs argue that they would “potential[ly]” be
unfairly prejudiced by applying the clerk of court’s findings in
the foreclosure proceedings to Defendant’s deficiency case and,
9
Plaintiffs’ use of the word “refused” to describe the trial
court’s action is inaccurate. The testimony quoted above
indicates that Plaintiffs were content to refrain from
introducing the testimony as long as they could preserve their
right to use it in the hearing on Defendant’s deficiency action.
-41-
therefore, that res judicata and judicial estoppel should not
apply. As discussed at length above, this argument is entirely
unrelated to Plaintiffs’ Rule 60(b) motion for relief, despite
its placement in the “extraordinary circumstances” section of
Plaintiffs’ brief. Accordingly, we decline to review it here. If
Plaintiffs wish to litigate the validity of the foreclosure
proceedings, to the extent those issues are not moot, they
should do so in a separate action.
(f) Justice
Finally, Plaintiffs assert that justice demands relief from
the trial court’s order. Because we have not found any
extraordinary circumstances justifying relief in this case, we
need not address this argument. See Huggins v. Hallmark Enters.,
84 N.C. App. 15, 25, 351 S.E.2d 779, 785 (1987) (“Th[e test for
relief under Rule 60(b)(6)] is two-pronged, and relief should be
forthcoming only where both requisites exist.”). Accordingly,
Plaintiffs’ argument for relief under Rule 60(b)(6) is
overruled.
(2) Excusable Neglect
Rule 60(b)(1) provides that the trial court may grant
relief to a party from a final order for “[m]istake,
-42-
inadvertence, surprise, or excusable neglect.” N.C.R. Civ. P.
60(b)(1).
To set aside a judgment on the grounds of
excusable neglect under Rule 60(b), the
moving party must show that the judgment
rendered against him was due to his
excusable neglect and that he has a
meritorious defense. . . .
. . . .
The issue of what constitutes excusable
neglect is a question of law which is fully
reviewable on appeal. While there is no
clear dividing line as to what falls within
the confines of excusable neglect . . . ,
[it] depends upon what, under all the
surrounding circumstances, may be reasonably
expected of a party in paying proper
attention to his case.
Thus, . . . deliberate or willful conduct
cannot constitute excusable neglect, nor
does inadvertent conduct that does not
demonstrate diligence.
And, clearly, an attorney’s negligence in
handling a case should not be grounds for
relief under the excusable neglect provision
of Rule 60(b)(1).
Monaghan v. Schilling, 197 N.C. App. 578, 584, 677 S.E.2d 562,
566 (2009) (citations, internal quotation marks, and certain
ellipses omitted).
In arguing that they are entitled to relief for excusable
neglect, Plaintiffs repeat their previous arguments in a new
context. Specifically, Plaintiffs assert that they delayed
-43-
amending their complaint to reflect claims of grossly inadequate
consideration because they lacked access to the appraisals and
were unable to pay the 6.8 million dollar bond. Plaintiffs also
characterize their delay as excusable neglect because they were
unaware (1) that Defendant would pursue the deficiency judgment
and (2) of certain communications made by Defendant regarding
the defense of ratification. Finally, Plaintiffs assert that
they were unaware of certain details regarding the foreclosure
proceedings and that this should be considered excusable neglect
sufficient to justify relief. We disagree.
To the extent Plaintiffs’ alleged neglect might have
otherwise allowed them to establish some meritorious defense to
dismissal,10 such neglect suggests that Plaintiffs were not
paying proper attention to their case. The foreclosure sale
occurred on 14 September 2012, giving Plaintiffs ample time to
determine whether the properties were sold for adequate
consideration at that sale. In addition, Defendant had no
obligation to inform Plaintiffs that it was planning to pursue a
deficiency judgment. Plaintiffs’ lack of knowledge that
Defendant intended to bring a deficiency action does not
10
We do not opine that it does. Indeed, as noted above,
Plaintiffs had no right to access the appraisals.
-44-
“excuse” anything related to their 12(b)(6) claim. Lastly,
Plaintiffs’ alleged misunderstanding about the nature of
Defendant’s communications on the issue of ratification is more
akin to carelessness than excusable neglect. Accordingly, the
trial court did not err by indicating that it would deny
Plaintiffs’ motion, and Plaintiffs’ argument as it pertains to
Rule 60(b)(1) is overruled.
(3) Newly Discovered Evidence
Rule 60(b)(2) provides that the trial court may relieve a
party from a final judgment on a showing of “[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.R. Civ.
P. 60(b)(2).
To constitute “newly discovered evidence”
within the meaning of Rule 60(b)(2), the
evidence must be such that it could not have
been obtained in time for the original
proceeding through the exercise of due
diligence. The “newly discovered evidence”
must have been in existence at the time of
the trial. This limitation on newly
discovered evidence has been justified on
the firm policy ground that, if the
situation were otherwise, litigation would
never come to an end.
Parks v. Green, 153 N.C. App. 405, 412, 571 S.E.2d 14, 19 (2002)
(citations, certain internal quotation marks, and brackets
omitted).
-45-
On appeal, Plaintiffs characterize the following facts as
newly discovered evidence justifying relief from the trial
court’s order: (1) the market value of the properties, which was
not discoverable by the time of the 12(b)(6) hearing because
Defendant refused to provide appraisals; (2) the fact that
Defendant transferred the properties to the affiliated
corporations, which was not discoverable by the time of the
12(b)(6) hearing because Defendant did not reveal this
information; and (3) the fact that the May 2013 sale of Property
3 “yielded a substantial profit of at least $275,000[],”
knowledge of which “was not possible at the 12(b)(6) hearing as
the events had not yet occurred.” We are unpersuaded
First, the market value of the properties does not
constitute newly discovered evidence justifying relief.
Plaintiffs were the owners of the properties for a number of
years and entirely capable — prior to the foreclosure sale — of
determining the market value of the property. In addition, we
have already determined that Plaintiffs’ had no right to access
the appraisals. Accordingly, this argument is overruled.
Second, Plaintiffs do not provide any cogent argument
explaining why Defendant’s decision to transfer the properties
to the affiliated corporations has any bearing on their
-46-
complaint, and we are unable to discern any such reason.
Therefore, Plaintiffs’ argument as it pertains to Defendant’s
decision to transfer the properties to the affiliated
corporations is overruled.
Third, Plaintiffs’ argument is defeated by its own words.
As noted above, newly discovered evidence sufficient to justify
relief must have been in existence at the time of the relevant
legal proceeding. See id. Plaintiffs state that the sale of
Property 3 occurred after the 3 December 2012 hearing on
Defendant’s motion to dismiss, in May of 2013. Therefore, the
profit resulting from the sale cannot constitute newly
discovered evidence justifying relief because the sale had not
occurred at the time of the 12(b)(6) hearing. As Plaintiffs
could not have discovered it on 3 December 2012, it cannot now
be “newly discovered.” Therefore, Plaintiffs’ argument is
overruled.
(4) Fraud, Misrepresentation, or Misconduct
Rule 60(b)(3) provides that a trial court may award relief
from an order because of fraud, misrepresentation, or misconduct
by the nonmoving party. N.C.R. Civ. P. 60(b)(3). Plaintiffs
allege on appeal that Defendant’s “refusals” to answer the
allegations in the complaint, answer the counterclaims in the
-47-
deficiency action, or respond to Plaintiffs’ discovery requests
constitute intrinsic fraud justifying relief.
As discussed above, Defendant’s decisions not to respond to
the allegations made by Plaintiffs or allow discovery were
appropriate. Even if those decisions were somehow inappropriate,
however, they would not constitute fraud under any definition of
the term. Therefore, Plaintiffs’ final argument is overruled.
Conclusion
For the reasons stated above, the trial court’s decision
indicating it would be inclined to deny Plaintiffs’ motion for
relief pursuant to Rule 60(b) is correct, and the trial court’s
order granting Defendant’s motion to dismiss under Rule 12(b)(6)
is
AFFIRMED.
Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).