Melvin Finance v Artis, (02-868) 05/20/2003

Appeal by defendant Anthony Van Artis from order entered 4 March 2002 by Judge Kimbrell Kelly Tucker in Cumberland County District Court. Heard in the Court of Appeals 19 May 2003.

David J. Pikul Law Office, P.A., by David J. Pikul, for plaintiff-appellee.

Wilkins & Wellons, by Brian R. Knott, for defendant-appellant.

CALABRIA, Judge.

    Defendant Anthony Van Artis (Mr. Artis) appeals from an order denying his N.C.R. Civ. P. 60(b) motion to set aside judgment. The evidence tends to show that on or about 23 August 1991, plaintiff loaned defendants $3,351.07 to purchase a motor vehicle, whereupon the corporation took a purchase money security interest and placed a lien on the vehicle's title as security on the loan. A Vehicle Purchase Money Security Agreement was executed by defendants Marilyn Washington Artis (Ms. Artis) and Eric Vincent Mojica. Ms. Artis was, at the time of execution of the security agreement, thewife of defendant Mr. Artis, and had acquired a Health Care Power of Attorney. Utilizing that power of attorney, Ms. Artis also signed Mr. Artis' name to the security agreement.
    At some time subsequent, defendants defaulted on the loan. Plaintiff then repossessed the vehicle and sold it at auction. After the payment of various fees and costs of the sale, there remained a deficiency of $1,903.99. In an attempt to recover this deficiency, plaintiff filed this action against defendants on 14 February 2001. Mr. Artis, who had not been aware of the existence of Ms. Artis' use of the power of attorney to execute the 23 August 1991 security agreement, retained counsel. Counsel filed a notice of limited appearance and filed a motion for extension of time. Thereafter, counsel contacted plaintiff's attorney, notifying him of her status as Mr. Artis' attorney and asserting the defense of lack of knowledge of the purchase or financing of the vehicle in question.
    The matter was subsequently set for arbitration, and an “Arbitration Notice of Case Selection” (Selection Notice) was thereafter served on Mr. Artis personally. Mr. Artis then forwarded the Selection Notice to counsel. While a “Notice of Arbitration Hearing and Trial Notice” (Arbitration Hearing and Trial Notice) dated 31 May 2001 indicates that the Trial Court Administrator served Mr. Artis and retained counsel, Mr. Artis contends that neither he nor counsel received the Arbitration Hearing and Trial Notice. Neither Mr. Artis nor retained counsel appeared at the arbitration hearing. An “Arbitration Award andJudgment” was entered in favor of plaintiff on 22 June 2001. Either Mr. Artis or counsel filed a “Request for Trial De Novo” on 17 July 2001.
    Mr. Artis contends there is nothing in the record to show that he or his attorney received notice of a trial date after requesting a trial de novo. The trial de novo was held in the district court on or about 6 August 2001, and in the absence of Mr. Artis and his attorney, judgment was issued in the amount of $1,903.99 plus interest. Mr. Artis allegedly did not become aware of the judgment until he was served with a “Notice of Right to Have Exemptions Designated” on or about 2 November 2001.
    In response, Mr. Artis retained another attorney, who then filed a N.C.R. Civ. P. 60 motion to set aside judgment. Therein, defendant alleged:
        1.    That the Defendant hired an attorney, Garistine Davis, who made an appearance in this matter but was not notified of further proceedings including the notice of arbitration.

        2.    That the Defendant has a meritorious defense to the claim.
Plaintiff filed a response, contesting Mr. Artis' motion. This motion was heard in the district court on 26 November 2001. After hearing the evidence and arguments of counsel, the trial court denied the motion to set aside judgment.
    The sole issue on appeal is whether the trial court erred in denying Mr. Artis' motion to set aside judgment. Rule 60(b) provides,        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;
        . . .
        (6)    Any other reason justifying relief from the operation of the judgment.
To be entitled to relief under subsection (b)(1), the movant must show both excusable neglect and a meritorious defense. Higgins v. Michael Powell Builders, 132 N.C. App. 720, 726, 515 S.E.2d 17, 21 (1999). “[W]hat 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.” Id. (citation omitted). Relief under subsection (b)(6) is only appropriate upon a showing of (1) the existence of extraordinary circumstances, (2) that justice demands the setting aside of the judgment, and (3) the existence of a meritorious defense by the defendant. Gibby v. Lindsey, 149 N.C. App. 470, 474, 560 S.E.2d 589, 592 (2002).
    In reviewing the trial court's ruling on a Rule 60(b) motion to set aside judgment, the court's findings are binding on appeal, so long as they are supported by competent evidence. Royal v. Hartle, 145 N.C. App. 181, 182, 551 S.E.2d 168, 170, disc. rev. denied, 354 N.C. 365, 555 S.E.2d 922 (2001). “'The granting of a Rule 60 motion is within the sound discretion of the trial court,'” reviewable only for an abuse of that discretion. Id. (citation omitted). An “[a]buse of discretion is shown only when the court's decision 'is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.'”Barton v. Sutton, 152 N.C. App. 706, 710, 568 S.E.2d 264, 266 (2002) (quoting State v. McDonald, 130 N.C. App. 263, 267, 502 S.E.2d 409, 413 (1998)).
    In the instant case, Mr. Artis failed to specify the provision of Rule 60(b) under which he was seeking relief in the motion. While he argues here that his argument during the hearing on his Rule 60(b) motion was pursuant to subsection (b)(6), after a review of the motion and the transcript of the hearing thereon, we believe that defendant's motion was properly addressed under Rule 60(b)(1). However, regardless of whether Mr. Artis was proceeding under subsection (b)(1) or (b)(6), the trial court properly denied his motion to set aside judgment.
    The evidence tends to show that notice was, indeed, mailed by the Trial Court Administrator to Mr. Artis and/or counsel of record. In fact, Mr. Artis admits that he received the initial Arbitration Notice of Case Selection, but insists that such notice was sent on to his attorney of record. Significantly, Mr. Artis' attorney filed a notice of limited appearance, and was only representing him in filing responsive pleadings and negotiating a settlement agreement. In addition, while Mr. Artis denied having received the Arbitration Hearing and Trial Notice, he has done little to rebut the presumption that service was properly made on him and his attorney by the Trial Court Administrator.
    As we understand it, Mr. Artis' argument seems to be of the nature that his act of relying on counsel, who was making a limited appearance, was excusable neglect. Notably, however, this Courthas previously rejected similar arguments. This Court held that neither deliberate or willful conduct, nor inadvertent conduct which does not demonstrate diligence, constitutes “excusable neglect” within the meaning of subsection (b)(1). Couch v. Private Diagnostic Clinic, 133 N.C. App. 93, 103, 515 S.E.2d 30, 38, aff'd, 351 N.C. 92, 520 S.E.2d 785 (1999). Moreover, the Court stated, “[i]gnorance, inexcusable negligence, or carelessness on the part of an attorney will not provide grounds for relief under Rule 60(b)(1).” Clark v. Penland, 146 N.C. App. 288, 292, 552 S.E.2d 243, 245 (2001). As Mr. Artis cannot show excusable neglect on this record, we conclude that the trial court did not err in denying his motion to set aside judgment under subsection (b)(1). Similarly, we conclude that Mr. Artis has failed to allege and/or show any “extraordinary circumstances,” that justice demands the setting aside of the subject judgment, or a meritorious defense within the meaning of subsection (b)(6).
    As Mr. Artis failed to show entitlement to relief under either N.C.R. Civ. P. 60(b)(1) or (6), we hold that the trial court did not abuse its discretion in denying defendant's motion to set aside judgment. Having so concluded, we affirm the order of the trial court.
    Affirmed.
    Judges MARTIN and McCULLOUGH concur.
    Report per Rule 30(e).

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