Wednesday, March 04, 2009, 10:47 AM

COA: Damages and Attorneys' Fees Cannot Be Obtained Through Rule 60 Motion or Tax Foreclosure Action

Today the COA held that a Rule 60 motion for relief from a judgment cannot be used to assert claims for damages or attorneys' fees. The case is County of Durham v. Daye.

The Dayes owed back property taxes to the City and County of Durham. The Dayes died in the late 1990s, and Mr. Daye's brother took possession of the property. Plaintiffs attempted to collect the back taxes - but tried to contact the deceased Dayes instead of Mr. Daye's brother. Plaintiffs then obtained a default judgment and the property was sold. The Dayes' heirs, assignees, and devisees filed a Rule 60 motion for relief from the judgment. The trial court set aside the default judgment and awarded defendants damages and costs.

The COA held that a Rule 60 motion can only be used to have a judgment or order set aside, and not to assert a claim for damages. Thus, the trial court had no authority to award damages to defendants. The COA noted that the award of damages was also invalid because claims for damages cannot be asserted in tax foreclosure actions.

The COA further explained that the proper course of action for defendants would have been to file a Rule 60 motion in the cause to set aside the default judgment, and then file an independent action seeking damages resulting from plaintiffs' actions.


Anonymous Anonymous said...

What happened to the Appeal by plaintiff City of Durham from orders

entered 19 August 2004 and 14 December 2004 by Judge Wade Barber,

orders entered 1 August 2006, 2 February 2007, 14 May 2007, and 1

August 2007 by Judge Orlando F. Hudson, Jr., and judgment entered 1

June 2007 by Judge Orlando F. Hudson, Jr. in Durham County Superior

Court. Oral Arguements were Heard in the Court of Appeals 21 August

2008? The Opinion of this case was Written by Judge Geer, Judges STEELMAN and STEPHENS concur.

Is Judge Barber's order on the Rule 60 (b)(4) still in effect?

Why were oral arguments need in this case?

A Prior Case was was dismissed as interlocutory, COA08-1036, opinion Written by Judge Geer, Judges TYSON and STROUD concur.

The Opinion, in part stated: This lawsuit is predicated upon

constitutional violations." (Emphasis added.) The City has made no

argument thatit is entitled to sovereign immunity with respect to

claims under the state and federal constitutions.
Indeed, our Supreme Court has specifically held that sovereign

immunity cannot bar a state constitutional claim asserted against a

governmental entity: "[C]onstitutional rights are a part of the

supreme law of the State. On the other hand, the doctrine of

sovereign immunity is not a constitutional right; it is a common

law theory or defense established by this Court . . . . Thus, when

there is a clash between these constitutional rights and sovereign

immunity, the constitutional rights must prevail." Corum v. Univ.

of N.C., 330 N.C. 761, 786, 413 S.E.2d 276, 291-92, cert. denied

sub nom. Durham v. Corum, 506 U.S. 985, 121 L. Ed. 2d 431, 113 S.

Ct. 493 (1992). As a result, "[t]he doctrine of sovereign immunity

cannot stand as a barrier to North Carolina citizens who seek to

remedy violations of their rights guaranteed by the Declaration of

Rights." Id. at 785-86, 413 S.E.2d at 291.

Likewise, with respect to the federal constitution, it is well

established that a municipality such as the City is not entitled to

immunity from liability for damages. See Onslow County v. Phillips,

123 N.C. App. 317, 320, 473 S.E.2d 643, 646 (1996) ("A county, like

other units of local government, has no immunity for liability

under section 1983." (citing Owen v. City of Independence, 445 U.S.

622, 638, 63 L. Ed. 2d 673, 685-86, 100 S.Ct. 1398, 1409 (1980))),

rev'd in part on other grounds, 346 N.C. 265, 485 S.E.2d 618


What about the city and county going after Judge Huston for expenses incured since he had to jurisductuin to make such a 1 August 2007 order!!

some law that puts light on the issue:

Davis v. Burris, 51 Ariz. 220, 75 P.2d 689 (1938)

A judge must be acting within his jurisdiction as to subject matter

and person, to be entitled to immunity from civil action for his


Stump v. Sparkman, id., 435 U.S. 349

A judge is not immune for tortious acts committed in a purely

Administrative, non-judicial capacity.

U.S. Fidelity & Guaranty Co. (State use of), 217 Miss. 576, 64 So.

2d 697

When a judicial officer acts entirely without jurisdiction or

without compliance with jurisdiction requisites he may be held

civilly liable for abuse of process even though his act involved a

decision made in good faith, that he had jurisdiction.

Zeller v. Rankin, 101 S.Ct. 2020, 451 U.S. 939, 68 L.Ed 2d 326

When a judge knows that he lacks jurisdiction, or acts in the face

of clearly valid statutes expressly depriving him of jurisdiction,

judicial immunity is lost.

Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828)

Under federal Law, which is applicable to all states, the U.S.

Supreme Court stated that "if a court is without authority, its

judgments and orders are regarded as nullities. They are not

voidable, but simply void, and form no bar to a recovery sought,

even prior to a reversal in opposition to them. They constitute no

justification and all persons concerned in executing such judgments

or sentences are considered, in law, as trespassers."

Any thoughts?

4:15 PM  

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