Civil Practice – New Trial Motion – Motion for Relief – Five-Year Delay – Landlord/Tenant

Swofford, Inc. v. Fisher (Lawyers Weekly No. 012-226-16, 10 pp.) (Chris Dillon, J.) Appealed from Rockingham County District Court (Frederick Wilkins Jr., & Christin Strader, JJ.) N.C. App. Unpub.

Holding: Although the defendant-tenant filed his Rule 59 and 60 motions shortly after the trial court granted summary judgment for the plaintiff-landlord in 2010, the tenant waited until 2015 to bring his motions on for hearing. The tenant argues under Rule 59(a)(1) that the 2010 order was allegedly incorrect “under the law”; however, the proper vehicle to make this challenge would have been a direct appeal from the 2010 order.

We affirm the trial court’s denial of the tenant’s motions under N.C. R. Civ. P. 59 and 60. We dismiss the tenant’s attempt to appeal the 2010 order.

Where the landlord submitted a sworn affidavit in support of the summary judgment motion which evidences that the tenant breached two commercial leases by failing to make rental, utility, and equipment payments, and where the tenant failed to submit affidavits contradicting the landlord’s evidence, the trial court did not err in rejecting the tenant’s motion for a new trial on the basis of insufficient evidence under Rule 59(a)(7).

In support of his motion under Rule 60(b)(3), the tenant asserts that he had a meritorious defense based on allegedly fraudulent acts committed by the landlord during the course of his tenancy. However, the tenant makes no argument that he was unaware at the time of the summary judgment hearing of the landlord’s allegedly fraudulent acts. The tenant also makes no argument that he was prevented from presenting his defense at the summary judgment hearing because of the landlord’s fraudulent acts. The tenant conflates his fraud allegations against the landlord with his burden of establishing that the landlord’s fraud prevented him from presenting his defense at the summary judgment hearing. The trial court did not abuse its discretion in denying the tenant’s Rule 60(b) motion.

Affirmed in part; dismissed in part.