WALL STREET LIMITED
PARTNERSHIP, A North Carolina
Limited Partnership, and
WSLP COLLEGE WALL CONDOMINIUM
ASSOCIATION, INC.,
A North Carolina Corporation
Plaintiffs,
v
.
Buncombe County
No. 98 CVD 02799
GRACE ELIZABETH DAUGHTRIDGE,
Defendant.
Appeal by defendant from order entered 31 January 2001 by
Judge Peter L. Roda in Buncombe County District Court. Heard in
the Court of Appeals 23 April 2002.
Westall, Gray, Connolly & Davis, P.A., by Jack W. Westall,
Jr., for plaintiff-appellees.
J. Elizabeth Spradlin, P.A., for defendant-appellant.
TIMMONS-GOODSON, Judge.
Grace Elizabeth Daughtridge (hereinafter “defendant”) appeals
from an order of the trial court denying her motion seeking relief
from judgment granting Wall Street Limited Partnership (“Wall
Street”) and WSLP College Wall Condominium Association, Inc.
(“Association”) (hereinafter collectively, “plaintiffs”) a lien
against certain real property owned by defendant. For the reasons
stated herein, we affirm the order of the trial court.
On 22 June 1998, plaintiffs filed a complaint againstdefendant seeking a lien against defendant's property for unpaid
condominium assessments. According to the complaint, Wall Street
conveyed ownership of a condominium unit to defendant by a deed
recorded in Buncombe County on 14 October 1992. By incorporation,
this deed was subject to terms and conditions contained in Wall
Street's “Declaration of Condominium” (“Declaration”), which was
recorded in Buncombe County on 18 November 1991. Pursuant to the
Declaration, plaintiffs regularly assessed condominium fees and
mailed notices regarding amounts due to all condominium owners. On
or about 21 July 1993, plaintiffs filed a lien against defendant's
property for unpaid condominium assessments, totaling $468.09
including attorneys fees. Thereafter, plaintiffs continued to
assess and mail notices of condominium dues to all condominium
owners, including the defendant. The complaint alleged that,
despite continued use and occupation of the condominium unit for
business operations, defendant never paid any condominium dues.
Plaintiffs calculated that, as of 10 June 1998, defendant owed
$3,426 in condominium assessments. Plaintiffs requested (1) that
judgment be granted against defendant in the amount of $3,426,(2)
that the judgment be declared a lien against defendant's
condominium unit and (3) that the unit be sold pursuant to law and
proceeds applied to the satisfaction of the judgment.
On 22 June 1998, the Buncombe County clerk's office issued a
civil summons against defendant. The sheriff left a copy of the
summons and complaint at 14 Wall Street in Asheville, North
Carolina, and noted that Betty Daughtridge (hereinafter“Daughtridge”), defendant's mother, received the service.
Thereafter, on 30 June 1998, plaintiffs caused an alias and pluries
summons to be issued against defendant at 890 McKinnish Cove Road
in Asheville, North Carolina. Again, the sheriff left a copy of
this summons and complaint with Daughtridge and noted on said
summons that defendant was served at her dwelling house or usual
place of abode with a person of suitable age and discretion then
residing therein. On 15 October 1998, a Buncombe County deputy
clerk issued a second alias and pluries summons against defendant
to be served at 238 Brookberry Circle in Chapel Hill, North
Carolina. Subsequently, this summons was sent to Orange County and
the signing deputy sheriff noted that defendant was not served
because the address on the summons was located in Durham County.
On 20 October 1998, plaintiffs filed a Motion for Entry of Default
against defendant. On 11 November 1998, plaintiffs deposed
Daughtridge. On 15 February 1999, a third alias and pluries
summons was issued, upon which defendant's address was listed as
unknown. Thereafter, plaintiffs filed an Affidavit of Publication
which indicated that a Notice of Service of Process was published
in Black Mountain News once a week for three consecutive weeks,
beginning on 25 February 1999.
Defendant did not respond to plaintiffs' complaint and the
matter was placed on the 28 September 1999 trial calendar. On 29
September 1999, the trial court entered a judgment against
defendant, which awarded plaintiffs a judgment lien (“September
1999 judgment”) against defendant's condominium unit. In addition,the trial court ordered defendant to reimburse plaintiffs for
certain costs of the action, including deposition fees, service by
publication costs, and attorneys fees. On 2 August 2000, defendant
filed a motion for relief from judgment pursuant to Rules 60 and 62
of the North Carolina Rules of Civil Procedure. On 8 September
2000, the trial court stayed the enforcement of the September 1999
judgment, pending disposition of defendant's Rule 60 motion, and
ordered defendant to pay a $7,000 security bond. The trial court
heard defendant's Rule 60 motion on 17 January 2001. Upon hearing
defendant's evidence, the trial court determined that service of
process upon defendant was proper and denied defendant's Rule 60
motion. The trial court's written order was entered on 31 January
2001 and, on 15 February 2001, defendant filed a timely notice of
appeal to this Court.
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 the following reasons:
(1) Mistake, inadvertence, surprise, or
excusable neglect;
(2) Newly discovered evidence which by due
diligence could not have been discovered in
time to move for a new trial under Rule 59(b);
(3) Fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation, or
other misconduct of an adverse party; . . . .
N.C. Gen. Stat. § 1A-1, Rule 60(b) (2001).
In ruling on a Rule 60(b) motion, this Court has held that the
trial court should “make findings of fact and determine from such
facts whether the movant is entitled to relief from such judgment
or order.” York v. Taylor, 79 N.C. App. 653, 655, 339 S.E.2d 830,
832 (1986). However, the law has evolved in such a fashion as to
make the entering of findings, although still considered to be the
better practice, optional unless requested by a party. See Nations
v. Nations, 111 N.C. App. 211, 214, 431 S.E.2d 852, 855 (1993),
disc. review denied, 329 N.C. 789, 408 S.E.2d 524 (1991).
Moreover, the trial court's findings of fact made upon a Rule 60(b)
motion are binding on appeal if supported by any competent evidence
in the record. See Williamson v. Savage, 104 N.C. App. 188, 193,
408 S.E.2d 754, 757 (1991). It is well settled that “a motion for
relief under 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). We note, as discussed during the Rule 60(b) hearing and in
plaintiffs' brief, that defendant's motion for relief from
judgment, filed 2 August 2000, made no reference to sufficiency of
service as grounds for defendant's relief. Instead, defendant's
Rule 60(b) motion alleged that she had “new evidence which by due
diligence could not have been discovered in time to move for a new
trial” and, “in the alternative that the judgment [was] . . . void”
because of plaintiffs' misconduct in not giving proper notice to
Daughtridge's attorney before deposing Daughtridge even though
plaintiffs believed that defendant and Daughtridge “were one in the
same person.”
During the Rule 60(b) hearing, however, defendant elected to
raise the issue of sufficiency of service and argued that the trial
court lacked jurisdiction to enter judgment against her. Although
plaintiffs correctly noted that defendant failed to allege
insufficient service in her Rule 60(b) motion, this failure did not
waive defendant's right to assert this defense at the Rule 60(b)
hearing. In Leasing, Inc. v. Brown, we declared that:
[T]he right to assert the defense of lack of
jurisdiction over the person is . . . waived
under two circumstances . . . . The objection
is waived if omitted from the first motion
made [under Rule 12] or if it is not “included
in a responsive pleading or an amendment
thereof permitted by Rule 15(a) to be made as
a matter of course.”
Leasing, Inc. v. Brown, 14 N.C. App. 383, 385, 188 S.E.2d 574, 575
(1972)(citation omitted). In Leasing, defendant's Rule 60(b)
motion was neither a motion made under Rule 12 nor a responsive
pleading. Therefore, no waiver to assert the objection occurred. Id. at 386, 188 S.E.2d at 575. Moreover, because Rule 60(b) serves
as “'a grand reservoir of equitable power to do justice in a
particular case,'” it was within the trial court's discretion to
hear all issues “'appropriate to accomplish justice.'” Jim Walter
Homes, Inc. v. Peartree, 28 N.C. App 709, 712, 222 S.E.2d 706, 708
(1976) (citations omitted). Thus, the service of process issue
became part of defendant's Rule 60(b) motion. “It was then
incumbent upon the trial court to hear the evidence, find the facts
and determine the validity of the service.” In re Phillips, 18
N.C. App. 65, 69, 196 S.E.2d 59, 61 (1973).
We now examine the first issue: whether the trial court
abused its discretion in denying defendant's Rule 60(b) motion
based on its finding “that Service of Process upon the Defendant
was proper.” Under North Carolina law, service of process is
governed by § 1A-1, Rule 4. Because defendant's condominium unit,
which is the subject of this action, is located in North Carolina
and defendant is known, § 1A-1, Rule 4(k)(1) of the North Carolina
General Statutes governs. Rule 4(k)(1) states that:
In any action commenced in a court of this
State having jurisdiction of the subject
matter and grounds for the exercise of
jurisdiction in rem or quasi in rem . . . the
manner of service of process shall be as
follows:
(1) Defendant Known. -- If the defendant is
known, he may be served in the appropriate
manner prescribed for service of process in
section (j), or, if otherwise appropriate
section (j1); except that the requirement for
service by publication in (j1) shall be
satisfied if made in the county where the
action is pending and proof of service is made
in accordance with section (j2).
N.C. Gen. Stat. § 1A-1, Rule 4(k)(1) (2001). Therefore, sections
(j), (j1) and (j2) of Rule 4 also apply in this case. According to
§ 1A-1, Rule 4(j), service of process upon a natural person shall
be as follows:
a. By delivering a copy of the summons and of
the complaint to him or by leaving copies
thereof at the defendant's dwelling house or
usual place of abode with some person of
suitable age and discretion then residing
therein.
b. By delivering a copy of the summons and of
the complaint to an agent authorized by
appointment or by law to be served or to
accept service of process or by serving
process upon such agent or the party in a
manner specified by any statute.
c. By mailing a copy of the summons and of the
complaint, registered or certified mail,
return receipt requested, addressed to the
party to be served, and delivering to the
addressee.
d. By depositing with a designated delivery
service authorized pursuant to 26 U.S.C. §
7502(f)(2) a copy of the summons and
complaint, addressed to the party to be
served, delivering to the addressee, and
obtaining a delivery receipt.
N.C. Gen. Stat. § 1A-1, Rule 4(j)(1) (2001).
Alternatively, § 1A-1, Rule 4(j1), in pertinent part, states
that:
A party that cannot with due diligence be
served by personal delivery, registered or
certified mail, or by a designated service
authorized pursuant to 26 U.S.C. § 7502(f)(2)
may be served by publication . . . . [S]ervice
of process by publication shall consist of
publishing a notice of service of process by
publication once a week for three successive
weeks in a newspaper that is qualified for
legal advertising . . . . Upon completion of
such service there shall be filed with the
court an affidavit showing the publication and
mailing in accordance with the requirements of
G.S. 1-75.10(2), the circumstances warrantingthe use of service by publication, and
information, if any, regarding the location of
the party served.
N.C. Gen. Stat. § 1A-1, Rule 4(j1) (2001). And Rule 4(j2)
subsection (3) states:
Before judgment by default may be had on
service by publication, the serving party
shall file an affidavit with the court showing
the circumstances warranting the use of
service by publication, information, if any,
regarding the location of the party served
which was used in determining the area in
which service by publication was printed and
proof of service in accordance with G.S. 1-
75.10(2).
N.C. Gen. Stat. § 1A-1, Rule 4(j2)(3) (2001).
As discussed previously, on four separate occasions,
plaintiffs caused a civil summons to be issued against defendant
and, in addition, attempted service by publication in Black
Mountain News. Although the trial court failed to specify which of
these attempts constituted proper service, if one of the attempts
was consistent with the preceding statutes then the trial court's
finding is correct. See Shiloh Methodist Church v. Keever Heating
& Cooling Co., 127 N.C. App. 619, 492 S.E.2d 380 (1997).
Therefore, we will examine each service attempt in chronological
order, stopping when, and if, one attempt validates the trial
court's finding.
The first attempt at service occurred on 22 June 1998. The
Buncombe County clerk's office issued a civil summons against
defendant. The sheriff left a copy of the summons and complaint at
14 Wall Street in Asheville, North Carolina, and noted that
Daughtridge received the service. Therefore, the service of 22June 1998 was an attempt at service by delivery.
Rule 4(j)(a) and Rule 4(j)(b) govern service by delivery.
Under Rule 4(j)(1)(a), a sheriff can serve a defendant, “[b]y
delivering a copy of the summons and of the complaint to him or by
leaving copies thereof at the defendant's dwelling house or usual
place of abode with some person of suitable age and discretion then
residing therein.” However, in this case, the sheriff did not
deliver the summons and complaint to defendant. Moreover,
defendant contends that she has lived in Colorado since May of 1993
and there is no comparable evidence to the contrary. Therefore,
because Daughtridge is not the defendant and 14 Wall Street,
Asheville, North Carolina, was not defendant's usual place of
abode, Rule 4(j)(1)(a) does not apply. Therefore, this service
attempt is effective only if it falls within Rule 4(j)(1)(b);
specifically, “by delivering a copy of the summons and of the
complaint to an agent authorized by appointment or by law to be
served or to accept service of process or by serving process upon
such agent or the party in a manner specified by any statute.”
Consequently, this service attempt is effective only if Daughtridge
was defendant's agent.
In Simms v. Stores, Inc., 18 N.C. App. 188, 196 S.E.2d 545
(1973), this Court stressed that “'[t]he agency for receipt of
process may be implied from the surrounding circumstances. But the
mere appointment of an agent, even with broad authority, is not
enough; it must be shown that the agent had specific authority,
express or implied, for the receipt of service of process.'” Id.at 193, 196 S.E.2d at 548 (citation omitted), overruled on other
grounds, 285 N.C. 145, 203 S.E.2d 769 (1974). Moreover, in Paper
Co. v. Bouchelle, 19 N.C. App. 697, 200 S.E.2d 203 (1973), this
Court held that “'in defining the term 'agent' it is not the
descriptive name employed, but the nature of the business and the
extent of the authority given and exercised which is
determinative[.]'” Id. at 699, 200 S.E.2d at 205 (quoting
Whitehurst v. Kerr, 153 N.C. 76, 79-80, 68 S.E. 913, 914 (1910)).
In Paper Co., a deputy sheriff left copies of a summons, an
attachment order, and notice of levy with defendant's employee.
Id. at 698, 200 S.E.2d at 203-04. Defendant argued that service of
process was not proper because the employee was not designated to
be defendant's agent. While acknowledging that the employee was
“not expressly designated to be an agent for service of process,”
the Court determined “that the surrounding circumstances” presented
in the case were “sufficient to imply that [the employee] was . .
. [defendant's] agent for the service of process.” Id. at 700, 200
S.E.2d at 205. The surrounding circumstances warranting this
conclusion included: the employee's age (38); his business
experience of 15 years; “his full-time employment status; his past
experience with garnishment papers and proceedings; the confidence
which was expressed in his abilities . . . and that . . . [the
employee] was . . . 'of sufficient character and rank as to afford
reasonable assurance that he [would] communicate to his company the
fact that service of process had been served upon him.'” Id. at
700, 200 S.E.2d at 205 (quoting Whitehurst, 153 N.C. at 79-80, 68S.E. at 914).
In the case at bar, the record establishes the following: (1)
when plaintiffs conveyed the condominium unit to defendant, it was
Daughtridge, not the defendant, who attended the closing; (2)
defendant, who resided in Washington, D.C., at the time, gave
Daughtridge the money to purchase the property; (3) at the closing,
Daughtridge listed defendant's address on the deed as 14 Wall
Street, Asheville, North Carolina; (4) Daughtridge, not the
defendant, wrote the checks paying the property taxes for the
condominium unit; (5) Daughtridge has eighteen years of business
experience; (6) Daughtridge was the previous owner of defendant's
property; (7) on 3 September 1993, a judgment was entered against
Daughtridge in favor of Wall Street regarding said property; (8)
Daughtridge is the only tenant at defendant's property; (9)
Daughtridge forwards defendant's mail to defendant's Colorado
address; and (10) during the Rule 60(b) hearing, Daughtridge
admitted that she was defendant's agent at the time of the closing.
As discussed herein, the trial court's findings of fact made
upon a Rule 60(b) motion are binding on appeal if supported by any
competent evidence in the record. See Williamson, 104 N.C. App. at
193, 408 S.E.2d at 757. The surrounding circumstances presented in
this case establish competent evidence in the record upon which the
trial court could find that Daughtridge was defendant's agent on 22
June 1998. Therefore, the trial court's finding “that Service of
process upon the Defendant was proper” is correct.
We now turn to the second issue: whether the trial courtabused its discretion in denying defendant's Rule 60(b) motion when
it failed to enter findings regarding defendant's new evidence.
While the better practice is for the trial court to make findings
of fact, the current state of the law imposes no duty to enter
findings. See Nations, 111 N.C. App. at 214, 431 S.E.2d at 855.
Accordingly, as defendant did not request findings of fact to be
made, the trial court was under no duty to enter any findings in
its order denying defendant's motion for relief from judgment.
Where the trial court does not enter findings in an order
denying a Rule 60(b) motion, “the question on appeal is 'whether,
on the evidence before it, the [trial] court could have made
findings of fact sufficient to support its legal conclusion[.]'”
Grant v. Cox, 106 N.C. App. 122, 125, 415 S.E.2d 378, 380 (1992)
(citation omitted). In the case at bar, in addition to defendant's
claim that service of process was deficient, defendant argued to
the trial court that relief from judgment should be granted because
(1) plaintiffs engaged in misconduct when they deposed Daughtridge
without notifying her attorney and (2) there was newly discovered
evidence. While N.C. Gen. Stat. § 1A-1, Rule 60(b)(3)(2001)
provides relief from judgment for misconduct of an adverse party,
the alleged misconduct in this case had no bearing on the entry of
the default judgment against defendant. For one, Daughtridge's
deposition was not presented in the default proceeding.
Furthermore, while defendant's attorney contends she would have
become aware of the need to contact defendant
(See footnote 1)
had she beennotified of plaintiffs' intent to depose Daughtridge and thus could
have avoided the entry of the default judgment against defendant;
the trial court correctly found defendant to have been served with
process. As defendant therefore had notice of the proceedings
against her, it is irrelevant that a potential, alternative avenue
of informal notice was prevented.
Defendant's Rule 60(b) motion also asserted that she had newly
discovered evidence which warranted relief from judgment. “[T]o
constitute 'newly discovered evidence' within the meaning of Rule
60(b)(2), the evidence must be such that it could not have been
obtained in time for the original proceeding through the exercise
of due diligence.” Waldrop v. Young, 104 N.C. App. 294, 297, 408
S.E.2d 883, 884 (1991). Defendant merely presented evidence at the
Rule 60(b)hearing that she did not receive notice of the
condominium charges she was to pay. This does not constitute
“newly discovered evidence” pursuant to Rule 60(b)(2) because at
the time of the default proceeding, defendant was aware of her lack
of notice as to the condominium charges. Accordingly, the evidence
in the record supports the trial court's conclusion that “the
[default] [j]udgment of the [trial] [c]ourt previously entered . .
. was properly rendered.”
We therefore conclude that the trial court did not abuse its
discretion in denying defendant's Rule 60(b) motion nor in failing
to enter findings regarding defendant's new evidence. The order of
the trial court is therefore
Affirmed. Judges GREENE and HUNTER concur.
Report per Rule 30(e).
Footnote: 1
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