An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1225 NORTH CAROLINA COURT OF APPEALS Filed: 1 July 2014 ARTHUR O. ARMSTRONG, Plaintiff
Guilford County v. No. 00 CVS 3986
H. TERRY HUTCHENS, Defendant
Appeal by plaintiff from order entered 3 September 2013 by
Judge Lindsay R. Davis, Jr., in Guilford County Superior Court.
Heard in the Court of Appeals 4 February 2014.
Arthur O. Armstrong, pro se.
Hutchens Law Firm, by J. Scott Flowers and Natasha M. Barone, for Defendant.
ERVIN, Judge.
Plaintiff Arthur O. Armstrong appeals from an order denying
a motion for relief from judgment that Plaintiff submitted on or
about 20 August 2013. On appeal, Plaintiff contends that the
trial court erred by denying his motion for relief from judgment
on the grounds that Defendant H. Terry Hutchens failed to
conduct an adequate investigation sufficient to determine that
Plaintiff did not owe a debt to United Companies Lending -2- Corporation, that Defendant had defamed Plaintiff by filing and
publishing a notice of foreclosure hearing that falsely asserted
that Plaintiff owed a debt to United, that Defendant had
assisted in the making of false loan reports, and that Defendant
had improperly obtained a writ of possession that deprived
Plaintiff of the right to occupy a tract of real property.
After careful consideration of Plaintiff’s challenges to the
trial court’s order in light of the record and the applicable
law, we conclude that the trial court’s order should be
affirmed.
I. Factual Background
A. Foreclosure Proceeding
On 19 June 1998, Defendant, acting as substitute trustee
under a deed of trust applicable to a tract of property located
at 309 Leland Drive in Greensboro, North Carolina, executed by
Plaintiff and Marcia H. Armstrong on 6 December 1995 for the
purpose of securing a note in favor of United, filed a notice of
hearing indicating that the Armstrongs were in default under the
note and that Defendant would attempt to foreclose under the
deed of trust. After receiving this notice, Plaintiff notified
Defendant that Plaintiff had filed a “petition” against United
in the Guilford County Superior Court “alleging fraud and
misrepresentation”; that, since the notice of foreclosure was -3- based upon the false and fraudulent representation that he owed
a debt to United, the publication of the notice would constitute
an act of defamation; and that Defendant should read the
“petition” before acting in an “irresponsibl[e]” manner. On 21
July 1998, the Clerk of Superior Court of Guilford County
entered an order allowing the foreclosure to proceed. On the
same date, Defendant transmitted a notice of foreclosure sale to
the Greensboro News & Record with a request that the notice be
published during the weeks of 28 July 1998 and 4 August 1998.
On 24 September 1998, a foreclosure sale under the deed of trust
was held. On 16 October 1998, Defendant filed a final report
describing the disposition of the sale proceeds. On the same
date, Defendant executed a trustee’s deed transferring the
property secured by the deed of trust to United. On 13 April
1999, Defendant requested the issuance of a writ of possession
directing the Sheriff of Guilford County to remove the
Armstrongs from the property.
B. Present Civil Action
On 3 February 2000, Plaintiff filed a complaint against
Defendant in which he alleged that Defendant had failed to
conduct a proper investigation before initiating the foreclosure
proceeding, that he did not owe any debt to United, and that
Defendant had defamed him by filing and publishing a notice of -4- foreclosure that falsely alleged that he was indebted to United.1
On 13 March 2000, Defendant filed an answer in which he denied
the material allegations set forth in Plaintiff’s complaint and
asserted a number of affirmative defenses, including collateral
estoppel and res judicata. On 6 April 2000, Plaintiff filed a
motion seeking summary judgment in his favor. On 27 April 2000,
Defendant filed a response to Plaintiff’s summary judgment
motion and a request for the entry of summary judgment in
Defendant’s favor. On 18 May 2000, Judge Judson D. DeRamus,
Jr., entered an order determining that Plaintiff was
collaterally estopped from asserting the claims set forth in his
complaint on the grounds that the fact of Plaintiff’s
indebtedness had been established in the foreclosure proceeding,
that the claims asserted in Plaintiff’s complaint were not well-
grounded in either law or fact, that Plaintiff’s complaint
should be dismissed with prejudice, and that Plaintiff should
pay Defendant’s attorneys’ fees.2
1 On 1 December 1997, Plaintiff filed a complaint against multiple defendants, including United, in which he sought relief on the basis of fraud and misrepresentation. Judge Howard R. Greeson, Jr., dismissed Plaintiff’s action in May of 1998. Despite the dismissal, Plaintiff filed another complaint a week later, which Judge Russell G. Walker, Jr., dismissed as “not well grounded in fact or warranted by existing law” and “redundant, irrelevant, immaterial and impertinent.” 2 A similar set of sanctions had been imposed upon Plaintiff by means of an order entered by Judge Walker on 15 July 1998 in -5- On 9 April 2002, Plaintiff filed a request for leave to
file a motion seeking relief from Judge DeRamus’ order pursuant
to N.C. Gen. Stat. § 1A-1, Rule 60(b), in which Plaintiff
contended that Defendant had defamed him by filing and
publishing a notice of foreclosure alleging that he owed a debt
to United, with this motion having been accompanied by various
documents, some of which named United as a party defendant in
addition to Defendant, which spelled out Plaintiff’s contentions
in more detail. On 6 March 2002, Judge W. Douglas Albright
entered an order denying Plaintiff’s motion for relief from
judgment, imposing monetary sanctions upon Plaintiff, and
prohibiting Plaintiff from making any further filings against
United.
On 4 December 2008,3 Plaintiff filed a motion seeking leave
to file an amended complaint in this action that named
a related case in which Plaintiff had asserted fraud and misrepresentation claims against United and other defendants. 3 On 23 September 2008, Judge Carl R. Fox entered an order in a civil action that Plaintiff brought in the Wake County Superior Court against a number of former state and local officials finding that “Plaintiff has a long history of filing suit against state judicial and elected officials for monetary claims arising out of prior criminal prosecutions,” finding that the complaint that Plaintiff had filed in the action in question and certain other actions were “frivolous and [had] no basis in law,” and prohibiting Plaintiff “from filing any paper writing” in any North Carolina court “without first obtaining leave to file from the Senior Resident Superior Court Judge of the county in which [Plaintiff] proposes to file a paper writing.” -6- Defendant’s law firm as a party defendant and that alleged that
Defendant’s law firm had violated Plaintiff’s rights under the
federal constitution by filing and publishing a notice of
foreclosure hearing that contained false and defamatory matter,
rendering Defendant’s law firm liable to Plaintiff pursuant to
42 U.S.C. § 1983. Four days later, Plaintiff filed a motion
seeking the entry of summary judgment in his favor. On 30
January 2009, Defendant and his law firm filed a motion seeking
to have Plaintiff’s proposed amended complaint dismissed and to
have appropriate sanctions imposed upon Plaintiff. On 4 August
2009, Judge Catherine Eagles entered an order noting that the
“case was dismissed on the merits years ago,” determining that
Plaintiff’s amended complaint was “barred by res judicata and is
frivolous,” and dismissing Plaintiff’s amended complaint. The
Supreme Court denied Plaintiff’s subsequent mandamus petition on
18 December 2009.
On 15 March 2011, Plaintiff filed a motion seeking leave to
“reopen” this case and to file an amended complaint that
restated Plaintiff’s assertion that Defendant and his law firm
had defamed him by filing and publishing a notice of foreclosure
hearing that contained false and defamatory material, thereby
rendering them liable to him pursuant to 42 U.S.C. § 1983. On
13 June 2011, Judge John O. Craig, III, entered an order denying -7- Plaintiff’s request for leave to “reopen” the case and file an
amended complaint as “totally without merit,” directing the
Clerk of Superior Court to refuse to accept any further filings
from Plaintiff, and warning Plaintiff that he would be subject
to being held in contempt in the event that he filed any further
motions in this or two other specifically enumerated cases.
On 14 April 2012, Plaintiff filed a motion seeking leave to
file a complaint that alleged that he was entitled to recover
damages from Defendant and his law firm pursuant to 42 U.S.C. §
1983, with this request based on an allegation that Defendant
and his law firm had defamed Plaintiff by filing and publishing
a notice of foreclosure hearing that falsely alleged that
Plaintiff owed a debt to United. On 8 June 2012, 26 July 2012,
and 11 August 2012, Plaintiff filed motions for relief from
Judge DeRamus’ order pursuant to N.C. Gen. Stat. § 1A-1, Rule
60(b)(6), with all three motions resting on the assertion that
Defendant had defamed him and with at least two of these filings
being accompanied by either a draft amended complaint identical
to ones that Plaintiff had filed on other occasions or an
affidavit containing similar assertions. On 20 August 2012, the
trial court entered an order that noted the filing of
Plaintiff’s motions and the fact that, by virtue of Judge Fox’s
earlier order, Plaintiff was barred “from filing motions and -8- pleadings without leave to do so” “because [Plaintiff] has filed
numerous motions and pleadings that lack factual or legal merit,
or both, and that are vexatious and wasteful of [the] limited
resources of the courts of this state and one or more other
jurisdictions”; that “the motion and proposed complaint lack any
merit as a matter of law”; and that “[t]he motion for leave to
file these paper-writings is denied, in the exercise of the
court’s discretion.”
On 20 August 2013, Plaintiff submitted a motion for relief
from Judge DeRamus’ order; an affidavit in which he alleged that
Defendant and his law firm had defamed him by filing a notice of
foreclosure sale that falsely asserted that he owed a debt to
United and that he was entitled to damages pursuant to 42 U.S.C.
§ 1983; and a motion seeking leave to file a “motion package”
consisting of his motion for relief from judgment, his
affidavit, and a notice of hearing. On 3 September 2013, the
trial court entered an order concluding that Plaintiff’s filings
“lack[] any merit as a matter of law” and were “denied, in the
exercise of the court’s discretion.” Plaintiff filed a notice
of appeal to this Court from the trial court’s order.
II. Substantive Legal Analysis
A. Appellate Rule Violations -9- As an initial matter, we note that Plaintiff has violated
numerous provisions of the North Carolina Rules of Appellate
Procedure. More particularly, Plaintiff has failed, to a
considerable extent, to put the documents contained in the
record on appeal in chronological order as required by N.C.R.
App. P. 9(b)(1); failed to include a procedural history of the
case as required by N.C.R. App. P. 28(b)(3); failed to state the
grounds authorizing this Court to review Plaintiff’s challenge
to the trial court’s orders as required by N.C.R. App. P.
28(b)(4); failed to provide a non-argumentative statement of the
facts supported by citations to the appropriate portions of the
record or transcripts as required by N.C.R. App. P. 28(b)(5);
failed to discuss the applicable standard of review as required
by N.C.R. App. P. 28(b)(6); failed to cite any legal authorities
in support of his argument in violation of N.C.R. App. P.
28(b)(6); and failed to advance any substantive legal arguments
explaining Plaintiff’s belief that the trial court erred by
denying his motion for relief from judgment in violation of
N.C.R. App. P. 28(b)(6).4 Although Plaintiff’s numerous
4 Admittedly, some of the omitted material described in the text of this opinion was contained in Plaintiff’s reply brief, such as a statement of the basis upon which we had jurisdiction to hear Plaintiff’s appeal and a statement of the applicable standard of review. Aside from the fact that Plaintiff failed to correct other deficiencies in his initial brief in his reply brief, the applicable provisions of the North Carolina Rules of -10- violations of the relevant provisions of the North Carolina
Rules of Appellate Procedure made our review of his challenges
to the trial court’s order unnecessarily difficult, we decline
to dismiss Plaintiff’s appeal given our strong preference for
deciding cases on the merits rather than on procedural grounds.
See Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co., 362 N.C.
191, 199-200, 657 S.E.2d 361, 366-67 (2008). However, Plaintiff
is admonished that, in the event that he makes any further
filings in this Court that fail to comply with the provisions of
the North Carolina Rules of Appellate Procedure, we will not
hesitate to impose appropriate sanctions upon him.
B. Denial of Plaintiff’s Motion for Relief From Judgment
On appeal, Plaintiff contends that the trial court erred by
denying his motion for relief from judgment and urges us to
reverse the trial court’s order and remand this case to the
Guilford County Superior Court for trial. More specifically,
Plaintiff contends that the trial court should have allowed his
motion for relief from judgment on the grounds that the
Defendant, by failing to adequately investigate the facts of the
underlying foreclosure proceeding, proceeded to foreclose upon
Plaintiff’s property despite the fact that he did not owe any
Appellate Procedure clearly require that the items that Plaintiff omitted be set forth in his initial brief. For that reason, we do not believe that Plaintiff cured the rule violations present in his initial brief in his reply brief. -11- debt to United; that Defendant had filed and published a notice
of foreclosure sale that falsely alleged that he owed a debt to
United; that Defendant had “connived” in the preparation of
loan-related documents that falsely reflected that he owed a
debt to United; and that Defendant had unlawfully obtained the
issuance of a writ of possession removing Plaintiff from his
property. Plaintiff is not entitled to relief from the trial
court’s order on the basis of these contentions.
According to N.C. Gen. Stat. 1A-1, Rule 60(b)(6), a party
may be relieved from the effect of a final judgment for “any
other reason justifying relief from the operation of the
judgment.” Relief from a judgment is available pursuant to N.C.
Gen. Stat. § 1A-1, Rule 60(b)(6) in the event that the moving
party shows that “(1) extraordinary circumstances exist, (2)
there is a showing that justice demands it, and (3) the movant
shows a meritorious defense.” Purcell Int’l Textile Grp., Inc.
v. Algemene AFW N.V., 185 N.C. App. 135, 138, 647 S.E.2d 667,
670, disc. review denied, 362 N.C. 88, 655 S.E.2d 840 (2007).
As a result of the fact that a motion for relief from judgment
“‘are not to be used as a substitute for appeal,’” “‘an
erroneous judgment cannot be attacked under’” N.C. Gen. Stat. §
1A-1, Rule 60(b)(6). Concrete Supply Co. v. Ramseur Baptist
Church, 95 N.C. App. 658, 660, 383 S.E.2d 222, 223 (1989) -12- (quoting Waters v. Qualified Pers., Inc., 32 N.C. App. 548, 551,
233 S.E.2d 76, 78 (1977), reversed on other grounds, 294 N.C.
200, 240 S.E.2d 328 (1978)). “[A] motion for relief [from
judgment] under [N.C. Gen. Stat. § 1A-1,] Rule 60(b) is
addressed to the sound discretion of the trial court and
appellate review is limited to determining whether the court
abused its discretion.” Sink v. Easter, 288 N.C. 183, 198, 217
S.E.2d 532, 541 (1975). An “[a]buse of discretion results where
the court’s ruling is so manifestly unsupported by reason or is
[so] arbitrary that it could not have been the result of a
reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372
S.E.2d 523, 527 (1988).
The first problem raised by Plaintiff’s challenges to the
trial court’s order is that three of his four arguments were
never advanced in the trial court. More specifically, Plaintiff
did not assert in his motion for relief from judgment or in the
materials that he submitted in support of that motion that
Defendant had failed to conduct an adequate investigation before
commencing the underlying foreclosure proceeding, that Defendant
“connived” in the preparation of false loan documents, or that
Defendant had wrongfully obtained the issuance of a writ of
possession authorizing the removal of the Armstrongs from their
property. As this Court has clearly stated, “issues and -13- theories of a case not raised below will not be considered on
appeal.” Westminster Homes, Inc. v. Town of Cary Zoning Bd. of
Adjustment, 354 N.C. 298, 309, 554 S.E.2d 634, 641 (2001); see
also N.C.R. App. P. 10(a)(1) (stating that, “[i]n order to
preserve an issue for appellate review, a party must have
presented to the trial court a timely request, objection, or
motion, stating the specific grounds for the ruling the party
desired the court to make if the specific grounds were not
apparent from the context” and “to obtain a ruling upon the
party’s request, objection, or motion”). As a result, the only
basis upon which Plaintiff is entitled to challenge the trial
court’s decision to deny his relief from judgment is his
contention that Defendant defamed him by publishing an allegedly
false notice of foreclosure sale, with this contention, like all
of the other contentions that Plaintiff has advanced, resting on
Plaintiff’s claim that he did not owe a debt of any sort to
Aside from his failure to properly preserve three of his
four arguments for appellate review, the fundamental problem
with Plaintiff’s challenge to the trial court’s order is that he
is barred from advancing all of the arguments set out in his
brief on the basis of collateral estoppel considerations. The
essential basis for each of the arguments that Plaintiff has -14- advanced in support of his challenge to the trial court’s order
is his contention that he did not owe a debt to United. “A
party seeking to go forward with [a] foreclosure under a power
of sale must establish, inter alia, by competent evidence, the
existence of a valid debt.” In re Foreclosure of Connolly v.
Potts, 63 N.C. App. 547, 550, 306 S.E.2d 123, 125 (1983) (citing
N.C. Gen. Stat. § 45-21.16(d); In re Foreclosure of Burgess, 47
N.C. App. 599, 604, 267 S.E.2d 915, 918 appeal dismissed, 301
N.C. 90, __ S.E.2d __ (1980)). As a result of the fact that the
Clerk of Superior Court of Guilford County allowed the
foreclosure to proceed and the fact that the order authorizing
the foreclosure to proceed was not overturned on appeal, the
fact that Plaintiff owed a valid debt to United was addressed
and decided adversely to Plaintiff’s position in the foreclosure
proceeding.
According to well-established North Carolina law, “‘a final
judgment on the merits prevents relitigation of issues actually
litigated and necessary to the outcome of the prior action in a
later suit involving a different cause of action between the
parties and their privies.’” State ex rel. Tucker v. Frinzi,
344 N.C. 411, 414, 474 S.E.2d 127, 128 (1996) (quoting Thomas M.
McInnis & Assocs. v. Hall, 318 N.C. 421, 428, 349 S.E.2d 552,
557 (1986)). Thus, since the Clerk of Superior Court decided -15- that Plaintiff owed a debt to United, Plaintiff is not entitled
to relitigate that issue in this or any other proceeding, Phil
Mech. Constr. Co. v. Haywood, 72 N.C. App. 318, 322, 325 S.E.2d
1, 3 (1985) (stating that “when a mortgagee or trustee elects to
proceed under [N.C. Gen. Stat. §] 45-21.1 et. seq., issues
decided thereunder as to the validity of the debt and the
trustee’s right to foreclose are res judicata and cannot be
relitigated in an action for strict judicial foreclosure”), a
determination that clearly establishes that the claim that
Plaintiff wishes to assert against Defendant is not a valid one.
As a result, the trial court did not abuse its discretion by
denying Plaintiff’s motion for relief from judgment.5
III. Conclusion
Thus, for the reasons set forth above, Plaintiff’s
challenge to the trial court’s order lacks merit. As a result,
the trial court’s order should be, and hereby is, affirmed.
Judges McGEE and STEELMAN concur.
Report per Rule 30(e).
5 Although this fact is not the basis for our decision in this case, we note that Plaintiff has advanced the same challenge to the result reached in Judge DeRamus’ order in numerous filings in the trial courts and urge him to recognize that, once a particular argument is rejected in the judicial system, he is not entitled to continue to reassert that same argument in the hope of obtaining a different outcome.