Staples v. Woman's Clinic

WHICHARD, Judge. Under G.S. 1A-1, Rule 60(b)(2), the court has discretion to relieve a party from a final judgment upon a showing of newly discovered evidence “which by due diligence could not have been discovered in time to move for a new trial” within ten days after entry of the original judgment as required by G.S. 1A-1, Rule 59. Conrad Industries v. Sonderegger, 69 N.C. App. 159, 161, 316 S.E. 2d 327, 328 (1984). Plaintiffs contend that the court gave no reason for its ruling and “did not even exercise discretion in denying [619] Plaintiffs’ motion.” They contend, alternatively, that the court abused its discretion. When no reason is assigned by the court for a ruling which may be made as a matter of discretion for the promotion of justice or because of a mistaken view of the law, the presumption on appeal is that the court made the ruling in the exercise of its discretion. Brittain v. Aviation, Inc., 254 N.C. 697, 703, 120 S.E. 2d 72, 76 (1961). Nothing in this record rebuts the presumption that the court here ruled in the exercise of its discretion. Further, the court couched its ruling in the following language: “the [c]ourt being of the opinion, based upon the evidence before it, that the summary judgment in favor of defendant should not be rescinded” (emphasis added) renews the order as to defendant. Absent evidence to the contrary, this language appears affirmatively to suggest that the court was acting in its discretion. We therefore do not believe the court acted under the misapprehension that it was bound by the parties’ stipulation and was powerless to set aside the summary judgment. Appellate review thus 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). Where as here parties have stipulated that by a specific date they will “file full and complete response to [an] interrogatory answering with particularity each and every request” as to the identity of expert witnesses, and they fail to comply with said stipulation, we find no basis for holding that the court abused its discretion in denying their motion for relief from the judgment entered as a consequence of their failure to comply. Affirmed. Judges Wells and Becton concur.