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