Terry Lynn McGINNIS, by his Guardian ad litem, Lois McGinnis
v.
John ROBINSON and Elam Torrence Robinson, Sr.
No. 7826SC1055.
Court of Appeals of North Carolina.
September 18, 1979.*87 Walker, Palmer & Miller by James E. Walker and Raymond E. Owens, Jr., Charlotte, for plaintiff-appellee.
*88 Womble, Carlyle, Sandridge & Rice by H. Grady Barnhill, Jr., and W. G. Champion Mitchell, Winston-Salem, for defendants-appellants.
VAUGHN, Judge.
The trial judge was of the opinion that the proceeding was under Rule 60(b)(3) and (6). The pertinent parts of Rule 60(b) provide:
"On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: . . . (3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; . . . or (6) Any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken.. . . This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. The procedure for obtaining any relief from a judgment, order, or proceeding shall be by motion as prescribed in these rules or by an independent action."
The trial judge properly proceeded pursuant to Rule 60(b)(3) and (6). If a party is unsure under which of subsections (1), (2) and (3) or (6) of Rule 60(b) to proceed, "he need not specify if his `motion is timely and the reason justifies relief.'" Brady v. Town of Chapel Hill, 277 N.C. 720, 723, 178 S.E.2d 446, 448 (1971).
The evidence would have permitted a finding that Robinson, Sr., encouraged King to give false testimony but the judge did not so find. In the absence of a finding of fraud, misrepresentation or other misconduct on the part of an adverse party, Rule 60(b)(3) would not apply.
The next to the last sentence of Rule 60(b) provides that "This rule does not limit the power of a court to entertain an independent action . . . to set aside a judgment for a fraud upon the court." Generally, however, perjured testimony is not usually recognized as a "fraud upon the court" within the meaning of the quoted sentence. Serzysko v. Chase Manhattan Bank, 461 F.2d 699 (2d Cir.), cert. den., 409 U.S. 883, 93 S. Ct. 173, 34 L. Ed. 2d 139, reh. den., 409 U.S. 1029, 93 S. Ct. 1029, 34 L. Ed. 2d 324 (1972); Keys v. Dunbar, 405 F.2d 955 (9th Cir.), cert. den., 396 U.S. 880, 90 S. Ct. 158, 24 L. Ed. 2d 138 (1969); Dowdy v. Hawfield, 88 U.S.App.D.C. 241, 189 F.2d 637 (D.C.Cir.), cert. den., 342 U.S. 830, 72 S. Ct. 54, 96 L. Ed. 628 (1951); contra: Toscano v. Commissioner, 441 F.2d 930 (9th Cir. 1971); see Annot. 19 A.L.R.Fed. 761 (1974).
The question now is whether plaintiff was properly granted relief under Rule 60(b)(6) for "Any other reason justifying relief from the operation of the judgment." We first consider defendants' procedural objection. They question the timeliness of the motions and the alleged failure to state grounds or rules for the motions.
Timing under Rule 60(b)(6) requires the motion to be made within a reasonable time. What constitutes a reasonable time depends on the circumstances of the individual case. 7 Moore's Federal Practice, ¶ 60.27[3] at 383 (2d ed. 1979). Rule 60(b)(3) motions in their timing must not only be reasonable but also within one year. Defendants contend plaintiff did not meet the laches-type limitation on a Rule 60(b)(6) motion or the express statute of limitation on a Rule 60(b)(3) motion. Plaintiff made a new trial motion on 23 February 1977, eight days after the jury verdict. The motion specified no particular rule but the wording made out the grounds provided by subsections (7) and (8) of Rule 59(a). These grounds of insufficiency of the evidence, verdict contrary to rule of law and error in law in admitting certain evidence had nothing to do with perjury. While this motion was pending, plaintiff, on 2 May 1977, filed another motion requesting a new trial because of materially harmful perjury on the part of defendants' witness, King. Defendants maintain the motions were not *89 properly made until the 24 April 1978 hearing because it was not until then that plaintiff amended his motion to reflect the rule under which he was proceeding. Plaintiff's 2 May 1977 motion was within a year of judgment while a motion for new trial filed within ten days was pending. It was made within a short time of plaintiff's learning of the perjured testimony. It was all done within a year of judgment. We hold plaintiff acted within a reasonable time on the facts of the case.
Defendants also object to the failure of plaintiff to state any rules or procedural grounds for his motions of 23 February and 2 May 1977 as originally filed. The substantive grounds and relief desired are manifest on the face of the motions as required by Rule 7(b)(1) of the North Carolina Rules of Civil Procedure. Rule 6 of the General Rules of Practice for the Superior and District Courts, which supplement the Rules of Civil Procedure as provided by G.S. 7A-34, provides, in part: "All motions, written or oral, shall state the rule number under which the movant is proceeding." Rule 1 of the same General Rules of Practice provides: "These rules . . . shall at all times be construed and enforced in such a manner as to avoid technical delay and to permit just and prompt consideration and determination of all the business before them." Where there is an awareness by the trial judge of the grounds, the motion is adequately stated for the purposes of General Practice Rule 6. Wood v. Wood, 297 N.C. 1, 252 S.E.2d 799 (1979); Taylor v. Triangle Porsche-Audi, Inc., 27 N.C.App. 711, 220 S.E.2d 806 (1975), cert. den., 289 N.C. 619, 223 S.E.2d 396 (1976). Failure to state the rule is not fatal in this case where the trial judge expressed his opinion that he was proceeding under Rule 60(b)(3) and (6) and then granted plaintiff's motion to amend his original motion to reflect that opinion. This case is distinguishable from Sherman v. Myers, 29 N.C.App. 29, 222 S.E.2d 749, cert. den., 290 N.C. 309, 225 S.E.2d 830 (1976), where neither the rule number nor any grounds for relief found in Rule 60 was set forth in the motion. In this case, the grounds for relief were presented.
Defendants cannot complain of the amendment of plaintiff's motion at the hearing to reflect the procedural rule followed. Defendants in their response to the motion for a new trial had raised the failure to state the rule number as a ground for opposition. It was in response to this that the amendment was made. Liberal amendment of pleadings is encouraged by the Rules of Civil Procedure. N.C.R.Civ.P. 15; Roberts v. Memorial Park, 281 N.C. 48, 187 S.E.2d 721 (1972). The philosophy of Rule 15 has been applied to Rule 60 motions. Taylor v. Triangle Porsche-Audi, Inc., supra. In the words of that case,
"the trial judge averted a decision on the basis of a mere technicality in allowing the defendant to amend his motion to set out the rule number under which it [sic] was proceeding and his action in so doing was in keeping with the spirit of the rules and was not an abuse of his discretion." 27 N.C.App. at 714, 220 S.E.2d at 809.
On the substantive issue of the granting of a new trial, we first note that "a motion for relief under 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). The trial judge found that Floyd Anthony King, a nonparty witness for defendants "with intent to ingratiate himself" to Robinson, Sr., committed perjury; that Robinson, Sr., should have been suspicious of the testimony and that it resulted in an injustice to plaintiff. Rule 60(b)(6), that "grand reservoir of equitable power to do justice in a particular case," 7 Moore's Federal Practice, supra, ¶ 60.27[2] at 375, has been held to permit relief from this nonadverse third party intrinsic fraud of perjury. See, e. g., McKinney v. Boyle, 404 F.2d 632 (9th Cir. 1968), cert. den., 394 U.S. 992, 89 S. Ct. 1481, 22 L. Ed. 2d 767 (1969).
As we have previously noted, there are no exceptions to the court's findings of fact. They are, consequently, conclusive on appeal. *90 A trial judge on hearing Rule 60(b) motions should consider such factors as
"(1) the general desirability that a final judgment not be lightly disturbed, (2) where relief is sought from a judgment of dismissal or default, the relative interest of deciding cases on the merits and the interest in orderly procedure, (3) the opportunity the movant had to present his claim or defense, and (4) any intervening equities." Standard Equipment Co. v. Albertson, 35 N.C.App. 144, 147, 240 S.E.2d 499, 501-502 (1978).
The able judge who allowed the motion for a new trial is the same judge who presided over the first trial. He is in a far better position to decide whether there is a "reason justifying relief from the operation of the judgment" than the appellate courts. There is nothing in this record to indicate that the judge did other than balance the desire for finality in judgments with fairness and equity in the individual case. No abuse of discretion has been shown. His order, therefore, must be affirmed.
Affirmed.
ROBERT M. MARTIN and WEBB, JJ., concur.