WAKE SUPPLY COMPANY,
Plaintiff,
v. Wake County
No. 01 CVD 007305
MICHAEL RICCARDI and
CARLOS KUTZA, d/b/a
HOMESHIELD REMODELING, INC.,
Defendants.
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.
Affirmed.
Judges MARTIN and STEELMAN concur.
Report per Rule 30(e).
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