VERNA F. CREASMAN,
Plaintiff/Appellee,
v
.
CLINTON J. CREASMAN,
Defendant/Appellant.
Gum & Hillier, P.A., by David R. Hillier, for plaintiff-
appellee.
Smathers & Norwood, by Patrick U. Smathers, for defendant-
appellant.
EAGLES, Chief Judge.
Defendant appeals from judgment denying his motion to set
aside default judgment. After careful consideration of the briefs
and record, we affirm.
Verna Creasman (“plaintiff”) is the mother of Tommy Creasman
(“Tommy”). Tommy was married to the mother of Clinton Creasman
(“defendant”). Tommy is not the natural father of defendant.
While not blood relatives, plaintiff and defendant shared a
grandmother-grandson relationship.
Plaintiff's husband died in September 1999. On 5 November
1999, plaintiff, a 75 year old woman, executed a durable power of
attorney appointing defendant as her attorney-in-fact. On the same
day, plaintiff conveyed her interest in certain real property inBuncombe County to defendant. Plaintiff revoked the power of
attorney on 21 December 1999 and executed a new power of attorney
naming her son, Lawrence Creasman, as attorney-in-fact.
Plaintiff commenced this action on 7 January 2000. In her
complaint, plaintiff alleged that: defendant liquidated plaintiff's
bank account in the amount of $22,000.00; defendant converted
plaintiff's social security checks; defendant coerced plaintiff
into executing the deed transferring her Buncombe County property
to him; defendant relocated plaintiff four times and failed to
communicate her location to family members; defendant failed to
provide for plaintiff's ordinary and usual needs; defendant removed
all plaintiff's personal property from her former home; and
defendant has attempted to sell plaintiff's former home. Plaintiff
alleged that the defendant's actions were “without the willing
consent of Plaintiff and have been to [the] detriment of
Plaintiff.”
The summons and complaint were returned unserved by the
Haywood County Sheriff's Department on 11 February 2000. The
summons indicated that the Sheriff's Department attempted service
three times but was unable to locate defendant and that defendant
did not live at the address listed on the summons. Plaintiff had
an alias and pluries summons issued on 22 May 2000 with the same
address for defendant. The alias and pluries summons was returned
unserved on 24 June 2000. The summons indicated that after a
“thorough and diligent search” the Sheriff's Department was “unable
to locate anyone on Pennant Drive with [defendant's] name.” Plaintiff then commenced service of process by publication on
23 June 2000. The notice appeared in “The Enterprise Mountaineer”
newspaper on 28 June, 5, 12 and 19 July 2000. Defendant found a
Notice of Lis Pendens filed on 7 January 2000 which was posted at
the property by plaintiff. Defendant obtained a copy of the
complaint from the Buncombe County Clerk of Court's office.
Defendant spoke with Terry Reep (“Reep”), his “church pastor,
friend and advisor” about the complaint. They agreed that
defendant would have to be personally served before he needed to
appear in court.
After defendant neither appeared nor pled in the matter,
plaintiff moved for entry of default and for default judgment on 13
September 2000. The Clerk of Superior Court for Buncombe County
entered an entry of default against defendant on 14 September 2000.
A hearing for the default judgment was scheduled for 4 October
2000. Defendant received in the mail a “Notice of Hearing” for the
motion for default judgment.
The default judgment hearing was held in Buncombe County
Superior Court before Judge James C. Baker on 4 October 2000.
Defendant personally appeared at the hearing without counsel. The
trial court entered judgment against defendant for $22,000.00 and
ordered that title to the Buncombe County “real property” be vested
in the plaintiff.
Defendant moved on 8 January 2001 to set aside the judgment.
Defendant alleged excusable neglect and alternatively, that the
judgment was void due to the plaintiff's failure to exercise duediligence prior to utilizing service by publication. The matter
was heard in Buncombe County Superior Court before Judge Zoro J.
Guice, Jr. The trial court denied defendant's motion to set aside
the judgment. Defendant appeals.
Defendant raises two issues on appeal. Defendant contends
that the trial court erred by denying defendant's motion to set
aside judgment based on: (1) lack of jurisdiction due to improper
service and (2) excusable neglect. After careful consideration, we
affirm.
Defendant first contends that the trial court erred by denying
his motion to set aside the default judgment due to lack of
jurisdiction causing the judgment to be void. Defendant argues
that plaintiff did not exercise due diligence before utilizing
service by publication. Defendant argues that plaintiff only
attempted service by the Sheriff and that plaintiff made no attempt
to find an accurate address after the first summons was returned.
Defendant further contends that even if plaintiff exercised due
diligence, the use of an expired summons invalidated service by
publication. We are not persuaded.
A Rule 60(b)(4) motion “seeks relief from a final judgment or
order which is void. This motion is addressed to the sound
discretion of the court.” County of Wayne ex rel. Williams v.
Whitley, 72 N.C. App. 155, 157, 323 S.E.2d 458, 461 (1984). Our
review of the trial court's order is abuse of discretion. Id.
In its judgment, the trial court stated that defendant “is
barred from raising issues concerning validity of the DefaultJudgment based upon Affidavit and testimony of Defendant in light
of the provisions of North Carolina Rule of Civil Procedure 4(j4).”
Rule 4(j4) of the North Carolina Rules of Civil Procedure states
that “Process or judgment by default not to be attacked on certain
grounds. -_ . . . No party that receives timely actual notice may
attack a judgment by default on the basis that the statutory
requirement of due diligence as a condition precedent to service by
publication was not met.” G.S. § 1A-1, Rule 4(j4) (2001).
Defendant stated in his affidavit in support of his motion to
set aside judgment that:
4. I saw the Lis Pendens filed on January 7,
2000 posted at the real property which is
the subject matter of the above-captioned
matter.
5. After seeing the Lis Pendens, I went to
the Buncombe County Clerk of Court and
obtained a copy of the Complaint from the
court file.
6. I then conferred with Terry Reep, who is
my church pastor and a trusted friend and
advisor. He and I agreed that I would
need to have the Sheriff's Department
serve me with the Complaint before I
would be required to go to court.
7. I did not seek any legal advice regarding
the Complaint based upon my belief that I
had not been served with the Complaint
and therefore did not need to take any
action.
(Emphasis added.) In defendant's motion to set aside judgment, he
alleges that he “did receive notice of the filing of a Lis Pendens
against the property . . . and upon inquiry at the Buncombe County
Clerk of Court Office, obtained a copy of the Complaint.” Defendant's own affidavit and motion unequivocally state that
he had actual notice of the pending action. The trial court
properly ruled that Rule 4(j4) precluded defendant from attacking
the default judgment. The trial court did not abuse its discretion
in denying defendant's motion.
Defendant further argues that the summons used for publication
was ineffective since more than 30 days had passed since its
issuance so it could not subject defendant to the jurisdiction of
the court. We note that defendant did not raise this issue in his
motion to set aside the judgment. The record does not reflect a
ruling on this issue by the trial court. “A contention not raised
in the trial court may not be raised for the first time on appeal.”
Town of Chapel Hill v. Burchette, 100 N.C. App. 157, 159-60, 394
S.E.2d 698, 700 (1990); see also N.C.R. App. P. 10(b)(1) (2001).
Were the issue properly before us, we would still conclude
that defendant's argument is without merit. In Whitley, a summons
was not served within 30 days and became dormant. Whitley, 72 N.C.
App. at 159, 323 S.E.2d at 462. The plaintiff commenced service by
publication 68 days after the issuance of the summons but did not
obtain an endorsement or an alias and pluries summons to revive the
dormant summons. Id. This Court stated “[s]ince it is clear that
the plaintiff's cause of action had not yet abated, we hold that
service by publication could be had by the plaintiff without first
having an alias or [sic] pluries summons issued.” Id.
Here, plaintiff's alias and pluries summons was issued on 22
May 2000. This summons was returned unserved on 24 June 2000 andplaintiff commenced service by publication on 23 June 2000. Since
the summons was not served within 30 days, it became dormant.
Plaintiff commenced service by publication 32 days after the
issuance of the summons. However, the plaintiff's action would not
be discontinued or abated until 90 days after the issuance of the
summons. As in Whitley, the plaintiff here commenced service by
publication after the summons became dormant but before the action
had been discontinued. Therefore, “service by publication could be
had by the plaintiff without first having an alias or [sic] pluries
summons issued.” Id.
Defendant next contends that the trial court erred by denying
his motion to set aside the default judgment due to excusable
neglect. Defendant argues that even though he was aware of the
lawsuit, he “reasonably believed that he did not need to seek any
legal guidance or worry about appearing in the matter” due to his
discussions with Reep. Defendant contends that he was “a twenty-
five year old man with a General Equivalency Diploma and no
experience with legal matters,” that he had never been involved in
a lawsuit and that he believed he had to be personally served by
the sheriff's department. We are not persuaded.
“On motion and upon such terms as are just, the court may
relieve a party or his legal representative from a final judgment,
order, or proceeding for . . . excusable neglect . . . .” G.S. §
1A-1, Rule 60(b)(1) (2001). To set aside a judgment under Rule
60(b)(1), the moving party must show excusable neglect and a
meritorious defense. Grant v. Cox, 106 N.C. App. 122, 125, 415S.E.2d 378, 380 (1992). “A Rule 60(b) motion is addressed to the
sound discretion of the trial court and its ruling will not be
disturbed absent an abuse of that discretion.” Gibson v. Mena, 144
N.C. App. 125, 128, 548 S.E.2d 745, 747 (2001). However, “what
constitutes 'excusable neglect' is a question of law which is fully
reviewable on appeal.” In re Hall, 89 N.C. App. 685, 687, 366
S.E.2d 882, 884, disc. review denied, 322 N.C. 835, 371 S.E.2d 277
(1988). A trial court is not required to make written findings of
fact when ruling on a Rule 60(b) motion, unless requested to do so
by a party. Gibson, 144 N.C. App. at 128, 548 S.E.2d at 747.
“Where the trial court does not make findings of fact in its order
denying the motion to set aside the judgment, the question on
appeal is 'whether, on the evidence before it, the court could have
made findings of fact sufficient to support its legal
conclusion[.]'” Grant, 106 N.C. App. at 125, 415 S.E.2d at 380
(quoting Financial Corp. v. Mann, 36 N.C. App. 346, 349, 243 S.E.2d
904, 907 (1978)).
While there is no clear dividing line as to
what falls within the confines of excusable
neglect as grounds for the setting aside of a
judgment, what constitutes excusable neglect
depends upon what, under all the surrounding
circumstances, may be reasonably expected of a
party in paying proper attention to his case.
Thomas M. McInnis & Assoc., Inc. v. Hall, 318 N.C. 421, 425, 349
S.E.2d 552, 554-55 (1986). “Deliberate or willful conduct cannot
constitute excusable neglect, nor does inadvertent conduct that
does not demonstrate diligence.” Couch v. Private DiagnosticClinic, 133 N.C. App. 93, 103, 515 S.E.2d 30, 38, aff'd, 351 N.C.
92, 520 S.E.2d 785 (1999) (citations omitted).
This Court has previously held that the failure of a party to
obtain an attorney is not excusable neglect. See Hall, 89 N.C.
App. at 688-89, 366 S.E.2d at 885; Moore v. City of Raleigh, 135
N.C. App. 332, 336-37, 520 S.E.2d 133, 137 (1999), disc. review
denied, 351 N.C. 358, 543 S.E.2d 131 (2000). In Hall, this Court
stated:
A party may not show excusable neglect by
merely establishing that she failed to obtain
an attorney and was ignorant of the judicial
process. Similarly, the fact that the movant
claims he did not understand the case, or did
not believe that the court would grant the
relief requested in the complaint, has been
held insufficient to show excusable neglect,
even where the movant is not well educated.
Hall, 89 N.C. App. at 688, 366 S.E.2d at 885 (citations omitted).
Further, “[e]xcusable neglect is not shown when a party fails to
hire an attorney, even if he has never been involved in a lawsuit
before and lacks knowledge of when his case will come up for
trial.” Moore, 135 N.C. App. at 336-37, 520 S.E.2d at 137.
Here, our review is complicated by the lack of a transcript
from the default judgment hearing and the Rule 60(b) motion
hearing. However, the record does show that defendant was a
twenty-five year old man with a General Equivalency Diploma.
Defendant saw the Lis Pendens posted at the property which caused
him to go to the Buncombe County Clerk of Court where he obtained
a copy of the complaint. Defendant stated in his affidavit that he
“did not seek any legal advice regarding the Complaint based upon[his] belief that [he] had not been served with the Complaint and
therefore did not need to take any action.” Based on defendant's
knowledge of the action pending against him, we hold that
defendant's failure to obtain an attorney or seek legal advice is
not excusable neglect. Due to defendant's inability to show
excusable neglect, the trial court did not abuse its discretion in
denying defendant's motion.
Whether defendant pled a meritorious defense is immaterial
absent a showing of excusable neglect. Hall, 89 N.C. App. at 689,
366 S.E.2d at 885.
Accordingly, the decision of the trial court is affirmed.
Affirmed.
Judges WALKER and BIGGS concur.
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