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[T] Elliott v. Birth2/3/2004
App. 446, 449-50, 477 S.E.2d 225, 227 (1996) (quoting West v. Tilley, 120 N.C. App. 145, 151, 461 S.E.2d 1, 4 (1995) (citations omitted)). The trial court made the appropriate findings which were adequately supported by the evidence. The trial court relied on an affidavit by plaintiffs' attorney regarding the time expended on the cases. Further, the trial court referenced affidavits of practicing attorneys who asserted that $200.00 was a reasonable hourly rate. The trial court also noted plaintiffs' attorney's experience of forty years and his "A" rating in Martindale Hubbell. In light of the broad discretion of the trial court, we hold the trial court did not err in its finding of the number of hours worked by plaintiffs'attorney and its finding of an appropriate hourly rate based on these facts. Accordingly, we overrule these assignments of error.
Defendant also argues in assignments of error numbers three, twenty, and twenty-one, that the trial court erred in summarily denying defendant's motion for reconsideration and rehearing without considering the affidavit of Ms. Gibbens. We first note defendant did not cite any relevant authority in her brief to this Court in support of her argument, and pursuant to N.C.R. App. P. 28(b)(6), has waived appellate review of this issue. However, in our discretion, we elect to review this argument. N.C.R. App. P. 2.
Defendant moved for reconsideration and rehearing pursuant to N.C. Gen. Stat. ยง 1A-1, Rules 59 and 60. "A Rule 59(e) motion to amend the trial court's judgment or order is, of course, made subsequent to the judgment and is, itself, a matter within the trial court's discretion." Strickland v. Jacobs, 88 N.C. App. 397, 399, 363 S.E.2d 229, 230 (1988). A trial court's ruling on the motion is not reviewable on appeal in the absence of abuse of discretion. Hamlin v. Austin, 49 N.C. App. 196, 270 S.E.2d 558 (1980).
In its 4 September 2002 order, the trial court made the following findings of fact:
2. The motion for attorney's fees and costs was pending for more than 30 days prior to the time that the matter was heard by the Court.
3. The Defendant had ample opportunity to file counter affidavits in connection with the motion for fees and costs.
5. The Court considered the affidavits and oral arguments of the Defendants' counsel, and the Court is of the opinion that the Defendants' motion for reconsideration and rehearing should be denied.
Upon these facts, defendant has failed to show the trial court abused its discretion in denying the motion for reconsideration under Rule 59.
Rule 60 of the North Carolina Rules of Civil Procedure permits relief from judgment for specified reasons. In the case before us, none of the specific reasons is asserted. Rather, defendant relies on Rule 60(b)(6), which is " ny other reason justifying relief from the operation of the judgment."
The rule empowers the court to set aside or modify a final judgment, order or proceeding whenever such action is necessary to do justice under the circumstances. The test for whether a judgment, order or proceeding should be modified or set aside under Rule 60(b)(6) is two pronged: (1) extraordinary circumstances must exist, and (2) there must be a showing that justice demands that relief be granted.
Howell v. Howell, 321 N.C. 87, 91, 361 S.E.2d 585, 588 (1987) (citations omitted). In this case, defendant has failed to meet this threshold test. Accordingly, we find these assignments of error to be without merit.
Affirmed.
Judges HUNTER and CALABRIA concur.
Report per Rule 30(e).
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