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Civil Practice – ‘Consent Judgment’ – Trial Court’s Order – Landlord/Tenant – Commercial Lease – Referee’s Report

Although the parties announced in open court that they had reached a settlement agreement, they were unable to agree on the terms of a consent order. After a hearing on both parties’ motions to enforce the “settlement agreement,” the trial court adopted the plaintiff-lessees’ proposed agreement but added two other paragraphs. Moreover, only the trial court – and not the parties – signed the April 30, 2014, order. Therefore, the April 30, 2014, order was not a consent order, and we reject defendants’ argument that N.C. R. Civ. P. 60(b) provided no authority to modify the April 30, 2014, order.

We affirm the trial court’s order adopting the referee’s report, but we remand to the trial court with instructions to enter a judgment as required by N.C. R. Civ. P. 53(g)(2).

Pursuant to Rule 60(b), the trial court relieved the plaintiff-lessees of a provision of its April 30, 2014, order, which modified the parties’ lease so as to require plaintiffs to remove from the defendant-lessors’ lake three large grain bin anchors which the lessees had installed in the lake to support the cable system required for plaintiffs’ waterskiing enterprise. Because the parties’ lease expired on the next day after the filing of the referee’s report, the doctrine of impossibility excused plaintiffs from further performing this provision of the modified lease.

Furthermore, the trial court’s unchallenged findings of fact establish that defendants had effectively prevented plaintiffs from removing the anchors “upon termination of the lease” by refusing to lower the lake’s water level as they had done in prior years.

The trial court did not abuse its discretion in determining that plaintiffs are entitled to relief under Rule 60(b)(6).

Affirmed and remanded.

Bullock v. Tucker (Lawyers Weekly No. 011-357-18, 24 pp.) (Rick Elmore, J.) Appealed from Johnston County Superior Court (Thomas Lock, J.) F. Bryan Brice for plaintiffs; Luther Starling and W. Joel Starling for defendants. N.C. App.

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