Kennedy v. Starr

HEDRICK, Judge.

Defendant contends it was error for the trial court to deny her motion to set aside the default judgment. Defendant’s argument is two-fold: first, that the trial court was required under Rule 60(b) to find as fact certain uncontroverted assertions contained in the affidavits offered in support of the motion and, second, that the facts which the trial court should have found established defendant’s right to have the default judgment set aside.

Defendant’s argument is apparently offered in support of her position with respect to both subsections of Rule 60(b) under *186which her motion was made. While motions made under these subsections, if meritorious, result in the same relief, the difference between them is more that semantic. Rule 60(b)(1) requires that a judgment be set aside when it is shown to the court that the judgment from which relief is prayed was the result of “mistake, inadvertence, surprise, or excusable neglect.” N.C. Gen. Stat. § 1A-1, Rule 60(b)(1). Whether the facts justify relief under 60(b)(1) is a matter of law. On the other hand, Rule 60(b)(6) allows a trial court to set a judgment aside for “[a]ny other reason justifying relief from the operation of the judgment.” N.C. Gen. Stat. § 1A-1, Rule 60(b)(6). This provision is equitable in nature and authorizes the trial judge to exercise his discretion in granting or withholding the relief sought. Defendant fails to recognize this distinction. We are thus required to consider her argument as it relates to subsections (1) and (6) of Rule 60(b).

No construction of the evidence given in support of the motion will support a finding or conclusion that the default judgment was entered as a result of “mistake, inadvertence, surprise, or excusable neglect.” The defendant did not allege in her motion facts which would entitle her to relief under Rule 60(b)(1). Moreover, since there was no finding of “mistake, inadvertence, surprise, or excusable neglect,” the finding with respect to a meritorious defense was mere surplusage, and whether such finding was supported by the evidence is of no legal significance. Thus, the trial court did not err in denying the defendant relief from the judgment pursuant to Rule 60(b)(1).

With respect to motions made under Rule 60(b)(6), the Supreme Court has said, “The broad language of clause (6) ‘gives the court ample power to vacate judgments whenever such action is appropriate to accomplish justice.’ ” Brady v. Town of Chapel Hill, 277 N.C. 720, 723, 178 S.E. 2d 446, 448 (1971) (citation omitted). Rule 60(b)(6) is an equitable provision and motions thereunder are addressed to the discretion of the trial judge. Id.; Sides v. Reid, 35 N.C. App. 235, 241 S.E. 2d 110 (1978).

While the trial judge did not make findings of fact with respect to all of the uncontroverted evidence in defendant’s several affidavits, he was not required to do so since none of the facts would require him to set the judgment aside as a matter of law although such findings might have justified his exercising his *187discretion to set the judgment aside. Fountain v. Patrick, 44 N.C. App. 584, 261 S.E. 2d 514 (1980). In any event, the facts found clearly support the trial court’s order denying defendant’s motion and defendant has failed to show any abuse of discretion in the ruling of the trial judge.

Affirmed.

Judges WHICHARD and BRASWELL concur.