Realiscape, Inc. v Burr, (02-1377) 09/16/2003

Appeal by defendants from an order entered 22 May 2002 by Judge A. Leon Stanback, Jr., in Wake County Superior Court. Heard in the Court of Appeals 19 August 2003.

Vann & Sheridan, L.L.P., by James R. Vann and Nan E. Hannah, for plaintiff-appellee.

Poyner & Spruill, L.L.P., by Terri L. Gardner and Jeffrey B. Welty, for defendants-appellants.

    CALABRIA, Judge.

    Robert H. Burr and Tricia M. Burr (“defendants” or, individually, “Mr. Burr” and “Mrs. Burr”) appeal the denial of their motion to set aside the entry of default and default judgment. For the reasons stated herein, we affirm the judgment as to Mrs. Burr and reverse the judgment as to Mr. Burr.
    On 13 October 2000, Realiscape, Inc., (“plaintiff”) filed a complaint against defendants seeking payment for landscaping services performed on defendants' home. Realiscape filed a lien against the property, and moved for entry of default. Entry of default was filed on 22 November 2000. Plaintiff moved for defaultjudgment, and a motion hearing was held on 12 February 2001. The only evidence of the hearing in the record is the “courtroom procedure sheet,” which states a motion for summary judgment was denied with prejudice and a motion of a third party to intervene was allowed. Thereafter, on 26 November 2001, a hearing was held on intervenor's motion to dismiss. At the hearing, plaintiff orally moved for a default judgment against defendants. Plaintiff's motion was granted, and default judgment was entered 10 December 2001. On 8 March 2002, defendants moved to set aside the entry of default and default judgment under North Carolina Rules of Civil Procedure 55(d) and 60(b). On 22 May 2002, the trial court denied the motions. Defendants appeal.
    Defendants appeal asserting the trial court erred by denying their motion to set aside the entry of default and default judgment because plaintiff did not serve defendants with notice of the motion, and the motion had already been dismissed with prejudice.
    An entry of default and a default judgment may be set aside “[f]or good cause shown. . . in accordance with Rule 60(b).” N.C. Gen. Stat. § 1A-1, Rule 55(d) (2001). North Carolina Rule of Civil Procedure 60(b) provides the trial court may set aside a judgment for one of 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;
        (4).The judgment is void;        (5).The judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
        (6).Any other reason justifying relief from the operation of the judgment.

N.C. Gen. Stat. § 1A-1, Rule 60(b) (2001). The trial court is vested with discretion to determine whether to set aside an entry of default or a default judgment pursuant to Rule 60(b); on appeal, the trial court's decision will be disturbed only upon a showing of abuse of discretion. See Briley v. Farabow, 348 N.C. 537, 547, 501 S.E.2d 649, 655 (1998) (regarding setting aside a default judgment); Vares v. Vares, 154 N.C. App. 83, 90-91, 571 S.E.2d 612, 617 (2002), disc. rev. denied, 357 N.C. 67, 579 S.E.2d 576 (2003) (regarding setting aside an entry of default). “An abuse of discretion is a decision manifestly unsupported by reason or one so arbitrary that it could not have been the result of a reasoned decision.” Briley, 348 N.C. at 547, 501 S.E.2d at 656.
    Defendants assert the trial court abused its discretion by denying their motion to set aside the default judgment because defendants received no notice of the motion. The North Carolina Rules of Civil Procedure provide: “[i]f the party against whom judgment by default is sought has appeared in the action, that party (or, if appearing by representative, the representative) shall be served with written notice of the application for judgment at least three days prior to the hearing on such application.” N.C. Gen. Stat. § 1A-1, Rule 55(b)(2)a (2001). “Our courts have applied a very liberal interpretation to the question of a generalappearance and almost anything other than a challenge to personal jurisdiction or a request for an extension of time will be considered a general appearance.” Bullard v. Bader, 117 N.C. App. 299, 301, 450 S.E.2d 757, 759 (1994). Mr. Burr's appearance in court on 12 February 2001, at which time he contested plaintiff's motion for default judgment, constituted a general appearance for himself. Although Mr. Burr stated he attended the February 2001 hearing to represent both himself and his wife's interests, Mr. Burr's efforts to protect his wife's interests do not constitute an appearance for Mrs. Burr, since North Carolina law provides for representation of other persons only by licensed attorneys. N.C. Gen. Stat. § 84-4 (2001). Nothing in the record indicates that Mrs. Burr ever made an appearance. Therefore, although plaintiff erred in failing to serve Mr. Burr with notice of the 26 November 2001 motion for default judgment in accordance with Rule 55, plaintiff did not err in failing to serve Mrs. Burr.   (See footnote 1)
    “The failure to provide the notice of hearing [pursuant to Rule 55] requires that the default judgment be vacated.” Taylor v. Triangle Porsche-Audi, Inc., 27 N.C. App. 711, 715, 220 S.E.2d 806, 810 (1975). Accordingly, since Mr. Burr was entitled to “written notice of the application for judgment” and received none, we hold the trial court abused its discretion in failing to grant Mr.Burr's motion to set aside the default judgment.   (See footnote 2) On the other hand, since Mrs. Burr was not entitled to notice, we cannot find the trial court abused its discretion in failing to grant Mrs. Burr's motion to set aside the default judgment on this basis.
    Mrs. Burr next asserts the trial court abused its discretion by denying her motion to set aside default judgment because the trial court previously denied plaintiff's motion with prejudice. The record does not reveal this ruling was ever entered. See generally Abels v. Renfro Corp., 126 N.C. App. 800, 803, 486 S.E.2d 735, 737 (1997) (the announcement of judgment in open court is merely the rendering of the judgment and does not constitute the entry of a judgment, which requires it be “reduced to writing, signed by the judge and filed with the clerk of court.”); N.C. Gen. Stat. § 1A-1, Rule 58 (2001). The only evidence in the record to support Mrs. Burr's assertion is Mr. Burr's affidavit, and the courtroom procedure sheet which reveals a motion for summary judgment was denied with prejudice. Based on this evidence, we cannot find the trial court's refusal to set aside the default judgment in this case was “so arbitrary that it could not have been the result of a reasoned decision.”
    Accordingly, we affirm the order of the trial court as to Mrs. Burr, and reverse and remand the order as to Mr. Burr.
    Affirmed in part, reversed and remanded in part.    Judges WYNN and HUDSON concur.
    Report per Rule 30(e).

Footnote: 1