An unpublished opinion of the North Carolina Court of Appeals does not constitute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

United.

       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.

     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.
