Chaparral Supply v. Bell

Judge BECTON

dissenting.

Believing that defendant has shown excusable neglect within the meaning of Rule 60(b)(1) of the North Carolina Rules of Civil Procedure, a meritorious defense to plaintiffs motion for summary judgment, and another “reason justifying relief from the op*122eration of the judgment,” within the meaning of Rule 60(b)(6), I dissent.

First, the appeal entries which the trial court specifically included in its order denying defendant’s motion for relief pursuant to Rule 60 state that defendant appeals from the “signing and entry of the foregoing Order and Judgment.” By appealing, defendant excepts to the order and challenges the sufficiency of the findings of fact and conclusions of law which support that order.

Second, defendant’s verified motion states that neither he nor his attorney expected to see, or noticed, that the case was calendared for summary judgment hearing within two months of the Answer, and that his attorney did not timely receive a copy of the summary judgment motion because his attorney had relocated his office at the time the summary judgment motion was filed. This constitutes excusable neglect.

Third, I believe defendant’s forecast of evidence from several office workers, that none had purchased office supplies from plaintiff, a Florida-based company, and that one of defendant’s office workers “had answered a call from a representative of the plaintiff soliciting orders, and had informed said representative that all supplies for the entire office were purchased from a local source,” coupled with defendant’s argument that follows, constitute a meritorious defense:

Both [of plaintiffs invoices] are made out in the firm name, ‘Bell, King & McCallum,’ a name which had not been used for at least four (4) years prior to the commencement of this action. In the unlikely event that the defendant had ordered any supplies from the plaintiff, in February of 1983, he would have had no reason to order any supplies in that firm name, which, the defendant argues, gives further credence to his contention that the plaintiff is one of a legion of insidious sifters of mailing lists or of attorneys’ directories (including, apparently, outdated ones) who attempt to solicit sales by telephone.

Finally, I believe the trial court erred in concluding that there “is no other reason justifying relief from the operation of the judgment” pursuant to Rule 60(b)(6). At the time the trial court ruled on defendant’s Rule 60 motion, it had before it an af*123fidavit from one of plaintiffs representatives which stated: “[t]hat on or about January 11, 1984, [before the date the summary judgment motion was filed], the plaintiff did receive back from the defendant all of the aforesaid office supplies except one gross (twelve dozen) of the Bic pens.” In my view, defendant is entitled to some relief from the judgment that awards plaintiff $1,244.16 for 144 Bic pens, and which does not credit defendant’s account in any amount for the items returned to plaintiff.

Based on the foregoing, I cannot concur in the majority’s opinion affirming the trial court.