COA: Damages and Attorneys' Fees Cannot Be Obtained Through Rule 60 Motion or Tax Foreclosure Action
By Amanda Ray
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.
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.
1 Comments:
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
(1997).
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
acts.
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?
Post a Comment
<< Home