An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA02-1132


Filed: 20 May 2003


         v.                             Wake County
                                  No. 01 CVD 007305

    Appeal by defendant Michael Riccardi from an order entered 29 April 2002 by Judge Craig Croom in Wake County District Court. Heard in the Court of Appeals 5 May 2003.

    Howard, Stallings, From & Hutson, P.A., by Peggy S. Vincent, for plaintiff appellee.

    Brett A. Hubbard for Michael Riccardi defendant appellant.

    McCULLOUGH, Judge.

    On 29 June 1999, defendant Carlos Kutza, on behalf of defendant Homeshield Remodeling, Inc., applied for and established a credit account with plaintiff Wake Supply Company for the purchase and delivery of goods. Plaintiff sold defendants goods for use in their business, resulting in indebtedness in the amount of $8,875.75. Defendants later failed to repay the debt.
    On 15 June 2001, plaintiff filed a complaint against defendants seeking repayment of the debt, plus 18% interest and attorney's fees. The complaint alleged that Michael Riccardi and Kutza did business as Homeshield Remodeling, Inc. A summons wasissued against Riccardi on the same day. However, the summons and complaint were returned when service was unable to be accomplished before the expiration date. An alias and pluries summons was issued against Riccardi on 7 August 2001. Once again, it was returned after unsuccessful attempts were made to personally serve Riccardi. Another alias and pluries summons was issued against Riccardi on 24 September 2001. Defendant was finally served on 2 October 2001.
    On 6 November 2001, entry of default was entered against Riccardi after he failed to respond to the complaint. A default judgment was thereafter entered awarding plaintiff $8,875.75 plus 18% interest, as well as $1,130.00 in attorney's fees and for the costs of the action. On 26 February 2002, Riccardi moved to set aside the default judgment pursuant to Rule 60(b). The motion was denied on 29 April 2002. The trial court found that Riccardi
        took no actions to defend or otherwise give his attention to this litigation despite personal service of the Summons and Complaint and numerous attempts by the sheriff's department and had further failed or refused to accept certified mail from Plaintiff's counsel in regard to this matter. It appearing to the Court that the failure of the Defendant to file an Answer or otherwise plead or appear in this action was not due to mistake, inadvertence, surprise, excusable neglect, or any other good cause.

Defendant Riccardi appeals.
    Defendant argues that the trial court abused its discretion by refusing to set aside the default judgment. Defendant contends that on the basis of the complaint, he could not be held personallyliable. Defendant argues that the purchases were made by the defendant corporation and without his personal knowledge. Furthermore, there was no allegation in the complaint of a partnership, or a defect in the corporation supporting personal liability. Defendant contends that he did not respond to the complaint, because upon reading it, he believed that he could not be personally held liable, and thus did not need to answer the allegations. Accordingly, defendant argues there was compelling grounds to give defendant relief from the judgment.
    After careful review of the record, briefs and contentions of the parties, we affirm. This Court has stated:
        To set aside a judgment under Rule 60(b)(1), the moving party must show excusable neglect and a meritorious defense. “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.” However, “what constitutes 'excusable neglect' is a question of law which is fully reviewable on appeal.”

Creasman v. Creasman
, 152 N.C. App. 119, 124, 566 S.E.2d 725, 728- 29 (2002) (citations omitted). Here, defendant claims excusable neglect in failing to answer the complaint because he did not think the complaint had merit, nor did he think he could be held personally liable. However,
        [t]his court has found that a party served with a summons must give it the “attention which a person of ordinary prudence gives to his important business, and failure to do so is not excusable neglect under G.S. 1A-1, Rule 60(b)(1).” . . . Total disregard of a summons and complaint which were personally served is not the action of a person of ordinary prudence and thus is not excusable neglect, nomatter what that person's belief is concerning the propriety of the summons and complaint.

State v. Mitchell, 64 N.C. App. 202, 204, 306 S.E.2d 857, 858-59 (1983). Thus, we conclude that the trial court did not err in determining that defendant's failure to respond was not due to excusable neglect.
    Defendant further argues that the default judgment should have been set aside for “good cause shown.” A motion to set aside a judgment of default for good cause is addressed to the sound discretion of the trial court, and will not be disturbed absent a clear abuse of discretion. First Citizens Bank & Trust Co. v. Cannon, 138 N.C. App. 153, 157, 530 S.E.2d 581, 583 (2000). Defendant was not diligent in pursuing this matter, and avoided service of process on multiple occasions. Thus, the trial court's decision to refuse to set aside the default for good cause shown was not “unsupported by reason.” Id. at 157-58, 530 S.E.2d at 584. Accordingly, we affirm.
    Judges MARTIN and STEELMAN concur.
    Report per Rule 30(e).

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