{ "id": 8238783, "name": "RUDOLPH LEONARD BAXLEY, JR., Plaintiff v. TIMOTHY O. JACKSON, LEISA S. JACKSON and ROSEWOOD INVESTMENTS, L.L.C., Defendants", "name_abbreviation": "Baxley v. Jackson", "decision_date": "2006-10-03", "docket_number": "No. COA05-1428", "first_page": "635", "last_page": "641", "citations": [ { "type": "official", "cite": "179 N.C. App. 635" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "400 S.E.2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "98", "parenthetical": "holding that the trial court had the inherent authority to strike the defendants' answer for failure to execute a consent judgment" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 560", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527979 ], "year": 1991, "pin_cites": [ { "page": "563", "parenthetical": "holding that the trial court had the inherent authority to strike the defendants' answer for failure to execute a consent judgment" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0560-01" ] }, { "cite": "511 S.E.2d 665", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "670" }, { "page": "670" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 291", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11237604 ], "year": 1999, "pin_cites": [ { "page": "298" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0291-01" ] }, { "cite": "407 S.E.2d 269", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "276", "parenthetical": "declining to extend cases awarding attorneys' fees in contempt actions beyond ones originating in child support or equitable distribution" }, { "page": "276" } ], "opinion_index": 0 }, { "cite": "103 N.C. App. 697", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523197 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "707", "parenthetical": "declining to extend cases awarding attorneys' fees in contempt actions beyond ones originating in child support or equitable distribution" }, { "page": "707" } ], "opinion_index": 0, "case_paths": [ "/nc-app/103/0697-01" ] }, { "cite": "393 S.E.2d 570", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "awarding attorneys' fees in a contempt action to enforce equitable distribution award" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 380", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523187 ], "year": 1990, "pin_cites": [ { "parenthetical": "awarding attorneys' fees in a contempt action to enforce equitable distribution award" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0380-01" ] }, { "cite": "173 S.E.2d 513", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "parenthetical": "awarding attorneys' fees in a contempt action to enforce child support" } ], "opinion_index": 0 }, { "cite": "8 N.C. App. 61", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548943 ], "year": 1970, "pin_cites": [ { "parenthetical": "awarding attorneys' fees in a contempt action to enforce child support" } ], "opinion_index": 0, "case_paths": [ "/nc-app/8/0061-01" ] }, { "cite": "370 S.E.2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "434" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 98", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524539 ], "year": 1988, "pin_cites": [ { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/nc-app/91/0098-01" ] }, { "cite": "461 S.E.2d 10", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1995, "pin_cites": [ { "page": "12", "parenthetical": "\"[a]bsent express statutory authority for doing so, attorney fees are not recoverable as an item of damages or costs\"" }, { "page": "12" }, { "page": "12" }, { "page": "12" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 188", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11914648 ], "weight": 4, "year": 1995, "pin_cites": [ { "page": "191", "parenthetical": "\"[a]bsent express statutory authority for doing so, attorney fees are not recoverable as an item of damages or costs\"" }, { "page": "191-92" }, { "page": "191-92" }, { "page": "191-92" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0188-01" ] }, { "cite": "196 S.E.2d 598", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1973, "pin_cites": [ { "page": "602" }, { "page": "601-02" }, { "page": "602" } ], "opinion_index": 0 }, { "cite": "18 N.C. App. 183", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548013 ], "weight": 3, "year": 1973, "pin_cites": [ { "page": "187" }, { "page": "187" }, { "page": "187" } ], "opinion_index": 0, "case_paths": [ "/nc-app/18/0183-01" ] }, { "cite": "572 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "102" } ], "opinion_index": 0 }, { "cite": "356 N.C. 415", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511250 ], "year": 2002, "pin_cites": [ { "page": "416" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0415-01" ] }, { "cite": "493 S.E.2d 793", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "797", "parenthetical": "noting that a settlement agreement may be enforced by filing a new action or by filing a motion in the cause" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 130", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11652619 ], "year": 1997, "pin_cites": [ { "page": "136", "parenthetical": "noting that a settlement agreement may be enforced by filing a new action or by filing a motion in the cause" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0130-01" ] }, { "cite": "336 S.E.2d 134", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "136" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 808", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525512 ], "year": 1985, "pin_cites": [ { "page": "810" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0808-01" ] }, { "cite": "573 S.E.2d 226", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "229", "parenthetical": "quoting McMiller v. McMiller, 77 N.C. App. 808, 810, 336 S.E.2d 134, 136 (1985)" }, { "page": "228", "parenthetical": "stating that \"[t]he parties' consent judgment was, in essence, a decree of specific performance and legally enforceable through contempt proceedings if it was adopted by the court\"" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 672", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251662 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "677", "parenthetical": "quoting McMiller v. McMiller, 77 N.C. App. 808, 810, 336 S.E.2d 134, 136 (1985)" }, { "page": "676" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0672-01" ] }, { "cite": "364 S.E.2d 190", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "193" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 513", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358534 ], "year": 1988, "pin_cites": [ { "page": "519" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0513-01" ] }, { "cite": "450 S.E.2d 554", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "557" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 206", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524775 ], "year": 1994, "pin_cites": [ { "page": "210" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0206-01" ] }, { "cite": "564 S.E.2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "283" } ], "opinion_index": 0 }, { "cite": "150 N.C. App. 573", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9082140 ], "year": 2002, "pin_cites": [ { "page": "575" } ], "opinion_index": 0, "case_paths": [ "/nc-app/150/0573-01" ] } ], "analysis": { "cardinality": 738, "char_count": 16806, "ocr_confidence": 0.757, "pagerank": { "raw": 2.131142048252787e-07, "percentile": 0.7658936872381362 }, "sha256": "6f223c111049491d9f0c47092683cc2b2ce19ddfd9759894f331532d27470316", "simhash": "1:4fad5424577d3e7a", "word_count": 2773 }, "last_updated": "2023-07-14T22:27:33.869735+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge McCULLOUGH concur." ], "parties": [ "RUDOLPH LEONARD BAXLEY, JR., Plaintiff v. TIMOTHY O. JACKSON, LEISA S. JACKSON and ROSEWOOD INVESTMENTS, L.L.C., Defendants" ], "opinions": [ { "text": "HUNTER, Judge.\nTimothy O. Jackson, Leisa S. Jackson, and Rosewood Investments, L.L.C. (collectively \u201cdefendants\u201d) appeal from orders of the trial court finding them in civil contempt and awarding plaintiff attorneys\u2019 fees. We affirm in part the order of the trial court finding defendants in civil contempt but vacate that portion of the order awarding attorneys\u2019 fees, as well as the order entered 14 June 2005 awarding attorneys\u2019 fees.\nThe procedural history of the instant case is a long and complicated one. On 21 December 2000, Rudolph Leonard Baxley, Jr. (\u201cplaintiff\u2019) filed a complaint against defendants in Cumberland County Superior Court setting forth claims of breach of contract, breach of fiduciary duty, fraud, unfair and deceptive trade practices, and quantum meruit, arising from the construction and sale of a residential home. During trial of the case, defendants agreed to settle the matter for the sum of $87,500.00, and the trial court approved the settlement. The trial court noted that the settlement agreement was \u201cenforceable by order of the Court.\u201d\nWhen defendants subsequently failed to pay plaintiff the agreed-upon sum, the trial court issued an order on 10 January 2003 for defendants to appear and show cause for failure to comply with the consent order. Following the show cause hearing, the trial court issued an order of specific performance, dated 16 June 2003, requiring defendants to comply with the terms of the settlement agreement. Defendants gave notice of appeal to this Court. Pending appeal of the order, a dispute arose over the issue of an appropriate security deposit to stay the lower court proceedings. Plaintiff filed yet another motion to show cause. On 26 August 2003, the trial court issued a second order for defendants to appear and show cause for failure to comply with the order and to address \u201cother possible sanctions[.]\u201d Upon consideration of the motion, however, the trial court determined it did not have jurisdiction to hear the contempt matter, as the earlier 16 June 2003 order was still pending appeal, and accordingly dismissed the show cause order. This Court subsequently dismissed defendants\u2019 appeal due to their failure to properly assign error to the order from which they appealed. Our Supreme Court denied discretionary review of the dismissal 6 April 2005.\nFollowing dismissal of defendants\u2019 appeal, plaintiff renewed his motion for a show cause order. On 27 April 2005, the trial court once again issued an order for defendants to appear and show cause for failure to comply with the earlier 16 June 2003 order requiring specific performance. On 10 May 2005, defendants filed a \u201cMotion to Reconsider Pursuant to N.C.R.C.P. 60(b)\u201d requesting the trial court to vacate the 16 June 2003 order on the grounds that it was contrary to established law. The trial court heard the motions the same day. Upon consideration of the matter, the trial court rejected defendants\u2019 legal arguments, finding instead that the 16 June 2003 order of specific performance remained in effect, that defendants had the means to comply with the order, and that defendants\u2019 failure to comply with the order was willful. Accordingly, in an order entitled \u201cMemorandum Decision\u201d dated 14 June 2005, the trial court denied defendants\u2019 motion for appropriate relief and found defendants to be in civil contempt of the 16 June 2003 order. The trial court ordered defendants into the custody of the sheriff\u2019s department unless they chose to purge the contempt through appropriate payment to plaintiff. The trial court entered a separate order ordering defendants to pay attorneys\u2019 fees to plaintiff\u2019s counsel as a sanction for delaying the trial court in the administration of justice through the use of their dilatory acts. Defendants now appeal from the trial court\u2019s orders finding them in civil contempt and ordering them to pay attorneys\u2019 fees.\nDefendants first argue the trial court erred by denying their motion for relief pursuant to Rule 60(b)(6) from the 16 June 2003 order of specific performance. This argument has no merit.\nUnder section 1A-1, Rule 60(b)(6) of our Rules of Civil Procedure, a judgment may be set aside for any reason \u201cjustifying relief from the operation of the judgment.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 60(b)(6) (2005). \u201cRule 60(b)(6) is equitable in nature and permits a trial judge to exercise his discretion in granting or withholding the desired relief.\u201d Piedmont Rebar, Inc. v. Sun Constr., Inc., 150 N.C. App. 573, 575, 564 S.E.2d 281, 283 (2002). Accordingly, the trial court\u2019s ruling \u201cmay be reversed on appeal only upon a showing that the decision results in a substantial miscarriage of justice.\u201d Id. Moreover, it is well settled that Rule 60(b)(6) does not include relief from errors of law or erroneous judgments. Garrison ex rel. Chavis v. Barnes, 117 N.C. App. 206, 210, 450 S.E.2d 554, 557 (1994). \u201c \u2018The appropriate remedy for errors of law committed by the court is either appeal or a timely motion for relief under N.C.G.S. Sec. 1A-1, Rule 59(a)(8).\u2019 \u201d Id. (quoting Hagwood v. Odom, 88 N.C. App. 513, 519, 364 S.E.2d 190, 193 (1988)).\nIn the present case, defendants based their Rule 60(b)(6) motion for relief on alleged errors of law. Rule 60(b)(6) may not be used as an alternative to appellate review, however. See id. Although defendants properly appealed the 16 June 2003 order to this Court, they failed to perfect such appeal, leading to dismissal. Our Supreme Court denied defendants\u2019 petition for discretionary review. Defendants may not now seek a \u201csecond bite at the apple\u201d through Rule 60(b)(6). As such, the trial court properly denied defendants\u2019 Rule 60 motion for relief.\nBy their second assignment of error, defendants argue the trial court erred in finding them in contempt of the 16 June 2003 order of specific performance. \u201cThis Court\u2019s review of a trial court\u2019s finding of contempt is limited to a consideration of \u2018whether the findings of fact by the trial judge are supported by competent evidence and whether those factual findings are sufficient to support the judgment.\u2019 \u201d General Motors Acceptance Corp. v. Wright, 154 N.C. App. 672, 677, 573 S.E.2d 226, 229 (2002) (quoting McMiller v. McMiller, 77 N.C. App. 808, 810, 336 S.E.2d 134, 136 (1985)). Defendants argue that breach of a settlement agreement is not subject to the contempt power of the court. Defendants further argue the 16 June 2003 order is unconstitutional and that their failure to comply with the order cannot properly support a finding of contempt. We do not agree.\nThe trial court did not hold defendants in contempt for breach of the parties\u2019 settlement agreement. It held them in contempt for failure to comply with the order of specific performance issued by the court. It is well established that a party seeking enforcement of a settlement agreement may petition the court for an order of specific performance. See State ex rel. Howes v. Ormond Oil & Gas Co., 128 N.C. App. 130, 136, 493 S.E.2d 793, 797 (1997) (noting that a settlement agreement may be enforced by filing a new action or by filing a motion in the cause). An order of specific performance, in turn, is enforceable through the contempt powers of the court. See N.C. Gen. Stat. \u00a7 5A-21 (2005); General Motors Acceptance Corp., 154 N.C. App. at 676, 573 S.E.2d at 228 (stating that \u201c[t]he parties\u2019 consent judgment was, in essence, a decree of specific performance and legally enforceable through contempt proceedings if it was adopted by the court\u201d). Defendants\u2019 argument to the contrary is without merit.\nDefendants contend that the earlier 16 June 2003 order was unconstitutional and may not properly form the basis for a contempt charge. Defendants never made this argument to the trial court, however, and may not raise it for the first time on appeal. Anderson v. Assimos, 356 N.C. 415, 416, 572 S.E.2d 101, 102 (2002). We therefore dismiss this argument, and' overrule defendants\u2019 second assignment of error.\nFinally, defendants argue the trial court erred in awarding attorneys\u2019 fees as a sanction in its orders. We agree.\n\u201cIt is settled law in North Carolina that ordinarily attorneys fees' are not recoverable either as an item of damages or of costs, absent express statutory authority for fixing and awarding them.\u201d Records v. Tape Corp. and Broadcasting System v. Tape Corp., 18 N.C. App. 183, 187, 196 S.E.2d 598, 602 (1973); see also Nohejl v. First Homes of Craven County, Inc., 120 N.C. App. 188, 191, 461 S.E.2d 10, 12 (1995) (\u201c[a]bsent express statutory authority for doing so, attorney fees are not recoverable as an item of damages or costs\u201d). Because contempt is considered an offense against the State, rather than an individual party, \u201cdamages may not be awarded to a private party because of any contempt[.]\u201d M. G. Newell Co. v. Wyrick, 91 N.C. App. 98, 102, 370 S.E.2d 431, 434 (1988); see also Records, 18 N.C. App. at 187, 196 S.E.2d at 601-02 (holding that \u201cby virtue of the criminal nature of contempt proceedings and the statutory provisions for enforcement of the contempt power by punishment only, a trial judge in North Carolina has no authority to award indemnifying fines or other compensation to a private plaintiff in a contempt proceeding\u201d).\nIn Nohejl, the defendant appealed from an order of civil contempt entered by the trial court after the defendant failed to comply with a consent order agreed to by the parties. Upon review, this Court determined that the trial court had no authority to award attorneys\u2019 fees to the plaintiffs\u2019 attorney in connection with the contempt order. Nohejl, 120 N.C. App. at 191-92, 461 S.E.2d at 12. The Court acknowledged that attorneys\u2019 fees had been awarded in limited types of civil contempt actions; specifically, those involving child support and equitable distribution. Id. (citing Blair v. Blair, 8 N.C. App. 61, 173 S.E.2d 513 (1970) (awarding attorneys\u2019 fees in a contempt action to enforce child support); see also Hartsell v. Hartsell, 99 N.C. App. 380, 393 S.E.2d 570 (1990) (awarding attorneys\u2019 fees in a contempt action to enforce equitable distribution award). However, as the plaintiffs\u2019 action did not arise in the context of enforcement of a child support or equitable distribution proceeding, and as there was \u201cno express contractual provision or statutory authority permitting plaintiffs to recover attorney fees,\u201d the trial court was without authority to award such. Nohejl, 120 N.C. App. at 191-92, 461 S.E.2d at 12; see also Powers v. Powers, 103 N.C. App. 697, 707, 407 S.E.2d 269, 276 (1991) (declining to extend cases awarding attorneys\u2019 fees in contempt actions beyond ones originating in child support or equitable distribution).\nPlaintiff cites Few v. Hammack Enter., Inc., 132 N.C. App. 291, 298, 511 S.E.2d 665, 670 (1999), for the proposition that \u201c[e]ven absent an express grant of authority . . . trial courts have inherent authority to impose sanctions for wilful failure to comply with the rules of court.\u201d However, Few concerned the authority of the court to sanction a party by striking their answer and counterclaim, not the imposition of attorneys\u2019 fees. Id. at 298-99, 511 S.E.2d at 670; see also Lomax v. Shaw, 101 N.C. App. 560, 563, 400 S.E.2d 97, 98 (1991) (holding that the trial court had the inherent authority to strike the defendants\u2019 answer for failure to execute a consent judgment). We have found no cases approving an award of attorneys\u2019 fees in a civil contempt proceeding outside those arising in the context of enforcement of a child support or equitable distribution action. The orders entered by the trial court in the instant case contain no reference to any contractual agreement or statutory authority authorizing the imposition of attorneys\u2019 fees. Rather, the 14 June 2005 order states that \u201c[t]he dilatory acts of the Defendants ha[ve] hindered and delayed the Court in the administration of justice\u201d and that \u201c[a]s a sanction, the Defendants are ordered to pay to The Yarborough Law Firm the sum of $10,557.00 within 10 (ten) days from [the] date of this Order.\u201d Because there is no statutory authority allowing the trial court to impose attorneys\u2019 fees as a sanction for defendants\u2019 failure to comply with the order of specific performance, the trial court was without authority to award attorneys\u2019 fees. Nohejl, 120 N.C. App. at 191-92, 461 S.E.2d at 12; Powers, 103 N.C. App. at 707, 407 S.E.2d at 276; Records, 18 N.C. App. at 187, 196 S.E.2d at 602. We therefore vacate the 14 June 2005 .order of the trial court imposing attorneys\u2019 fees, as well as that portion of the trial court\u2019s 14 June 2005 memorandum decision awarding attorneys\u2019 fees.\nWe affirm in part the memorandum decision of the trial court finding defendants in civil contempt but vacate that portion of the order awarding attorneys\u2019 fees. We also vacate the order entered 14 June 2005 awarding attorneys\u2019 fees.\nAffirmed in part, vacated in part.\nChief Judge MARTIN and Judge McCULLOUGH concur.\n. We note that in the statement of the facts presented in defendants\u2019 brief, defendants pose various explanations for their failure to honor the settlement agreement. For example, defendants state that they \u201cwere concerned about the propriety of the settlement agreement, which, upon reflection, appeared to run afoul of Rule 1.8(i) of the Revised Rules of Professional Conduct[.]\u201d Defendants cite to nothing in the record to support these assertions, and we have found none. There is no evidence in the record as to the reasons behind defendants\u2019 failure to pay. Indeed, defendants\u2019 attorney at the later contempt hearing stated that\nI do not . . . sanction [their actions] and say that the actions of Tim and Leisa Jackson and Rosewood w[ere] appropriate. I make no statement to that effect. And [I] don\u2019t know for what reason that this matter has gotten to the place that it is. But for some reason, whatever that reason was, they changed their mind. Did not \u2014 decided they did not want to proceed along the lines of paying that money as had been agreed to in that \u2014 in the settlement discussions.\nThe trial court found that defendants presented no evidence at the contempt hearing regarding their reasons or inability to pay plaintiff.\nRule 28(b)(5) of the Appellate Rules of Procedure requires the statement of the facts to be a \u201cnon-argumentative summary of all material facts underlying the matter in controversy which are necessary to understand all questions presented for review, supported by references to pages in the transcript of proceedings, the record on appeal, or exhibits, as the case may be.\u201d N.C.R. App. P. 28(b)(5) (emphasis added). Defendants\u2019 inclusion of \u201cfacts\u201d not supported by the record is inappropriate and we therefore give them no heed.", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "The Yarborough Law Firm, by Garris Neil Yarborough, for plaintiff-appellee.", "McCoy Weaver Wiggins Cleveland, Rose Ray, PLLC, by Richard M. Wiggins and James A. McLean, III, for defendant-appellants." ], "corrections": "", "head_matter": "RUDOLPH LEONARD BAXLEY, JR., Plaintiff v. TIMOTHY O. JACKSON, LEISA S. JACKSON and ROSEWOOD INVESTMENTS, L.L.C., Defendants\nNo. COA05-1428\n(Filed 3 October 2006)\n1. Civil Procedure\u2014 Rule 60 \u2014 not an alternative to appellate review\nRule 60(b)(6) may not be used as an alternative to appellate review. The trial court here properly denied defendants\u2019 Rule 60 motion for relief where defendants had not perfected a prior appeal; they may not now seek a second bite at the apple through Rule 60.\n2. Contempt\u2014 settlement agreement \u2014 specific performance order\nThe trial court did hot err by finding defendants in contempt in an action arising from the settlement of a dispute from the construction and sale of a house. The court was not holding defendants in contempt for breach of the settlement agreement as defendants contended, but for failure to comply with an order of specific performance.\n3. Appeal and Error\u2014 preservation of issues \u2014 constitutional argument \u2014 failure to raise at trial\nA constitutional argument not raised at trial could not be raised on appeal.\n4. Costs; Contempt\u2014 attorney fees \u2014 contempt proceeding\u2014 incorrectly allowed as sanction\nThe trial court erred by awarding attorney fees in a civil contempt proceeding arising from a settlement agreement and an order of specific performance in a dispute over the construction of a house. There are no cases approving attorney fees in civil contempt proceedings that do not involve child support or equitable distribution, the court\u2019s orders do not refer to any contractual agreement authorizing attorney fees, and there is no statutory authority allowing the trial court to award attorney fees as a sanction in this case.\nAppeal by defendants from a memorandum decision and an order entered 14 June 2005 by Judge E. Lynn Johnson in Cumberland County Superior Court. Heard in the Court of Appeals 14 August 2006.\nThe Yarborough Law Firm, by Garris Neil Yarborough, for plaintiff-appellee.\nMcCoy Weaver Wiggins Cleveland, Rose Ray, PLLC, by Richard M. Wiggins and James A. McLean, III, for defendant-appellants." }, "file_name": "0635-01", "first_page_order": 667, "last_page_order": 673 }