Loftis v. Reynolds , 105 N.C. App. 697 ( 1992 )

WELLS, Judge.

In their motion for relief from judgment, plaintiffs argued the forecast of evidence with respect to the payment by plaintiffs’ insurance company to defendant Deborah Fulp, and then concluded their motion with the following two paragraphs and prayer:

VI.

That the plaintiffs thereby submit that the defendant should have been estopped from asserting that Counterclaim as there would be no facts to support the jury awarding any more compensation to the defendant than she had already received. That the only purpose for filing the counterclaim would be to unduly confuse the jury and the defendant Fulp should have been estopped from presenting said claim.

VII.

That the Judgment filed May 14, 1990 was contrary to law in that the plaintiffs were asserting the defense of estoppel and not compromise and settlement as contended by the defendants.

WHEREFORE, the plaintiffs pray this Court that the Order entered on May 14, 1990 hereby be vacated and that the defendant be estopped from asserting the counterclaim and that the plaintiff and the defendant have a trial as to what amount, if any, the plaintiffs are entitled to recover as a result of the negligence of the defendant.

Plaintiffs’ pertinent assignments of error are as follows:

1. The Trial Court erred in its Finding of Fact and Conclusion of Law that there was no genuine issue of material fact and that the defendants were entitled to Summary Judgment as a matter of law.

2. The Trial Court erred in entering its Order which was signed on [sic] dated May 9, 1990 and entered on May 14, 1990 as it is contrary to existing law.

3. The Trial Court erred in denying plaintiff’s Motion for Relief from the Judgment entered by the Honorable Joseph R. John, Sr. on May 14, 1990 in an Order entered January 4, 1991 as said Order is contrary to existing law.

In their brief, plaintiffs present the following question:

I. Did the trial court err in denying plaintiffs’ Rule 60(b) MOTION BASED UPON EXCUSABLE NEGLECT?

The foregoing question references plaintiffs’ assignments of error numbers 1 and 3.

Plaintiffs’ argument relating to the foregoing question attempts to persuade this Court that the entry of summary judgment against them was due to their attorneys’ excusable neglect, which should not be attributed to them, and that they were for that reason entitled to relief pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b) of the Rules of Civil Procedure. Plaintiffs cite and argue excusable neglect case law precedent interpreting entitlement to relief for the excusable neglect of a party’s attorney.

Of course, that is not what is at issue here. In their motion for relief and in their assignments of error, plaintiffs have asserted that the entry of summary judgment against them was erroneous as a matter of law because the trial court misunderstood or misconstrued their position as to defendants’ counterclaim and defendant Fulp’s subsequent acceptance of payment and settlement by plaintiffs’ insurance carrier. As our appellate courts have consistently held, Rule 60(b) motions for relief from judgment cannot be used as a substitute for appeal and erroneous judgments may be corrected only by appeal. Town of Sylva v. Gibson, 51 N.C. App. 545, 277 S.E.2d 115, appeal dismissed and cert. denied, 303 N.C. 319, 281 S.E.2d 659 (1981). See also Chicopee, Inc. v. Sims Metal Works, Inc., 98 N.C. App. 423, 391 S.E.2d 211 (1990); J.D. Dawson Co. v. Robertson Marketing, Inc., 93 N.C. App. 62, 376 S.E.2d 254 (1989).

For the reasons stated, the trial court’s order of 4 January 1991 must be and is

Affirmed.

Chief Judge HEDRICK and Judge JOHNSON concur.