Judgments_default_untimely answer
The trial court erred by striking defendant's motion for removal and defendant's answer
as untimely and then entering a default judgment for plaintiff. A default judgment may not be
entered after an answer has been filed, even if the answer is untimely.
Coward Hicks & Siler, P.A., by William H. Coward for the
plaintiff-appellee.
Philo & Spivey, P.A., by David C. Spivey for the
defendant-appellant.
ELMORE, Judge.
This case arose out of an oral contract for the installation
of a septic system and plumbing work on a cottage. The work was
done but never paid for. The company that performed the work sued
defendant cottage-owner William John Kovas for payment. Default
judgment was entered against the defendant in the sum of $8,809.66,
with interest at the legal rate of 8%. Defendant appeals from the
order of the trial court striking defendant's Motion for Removal
and defendant's Answer.
After the complaint was filed, defendant obtained a thirty-day
extension of time to answer. At the expiration of the thirty days,
the parties stipulated to another extension of time to file an
answer or other responsive pleading. On the date the extension wasset to expire, 8 November 2001, the defendant filed a motion to
remove the case. On 18 March 2002, plaintiff filed a motion to
strike the motion to remove and a motion for entry of default
judgment. Plaintiff served notice of hearing for 6 May 2002 on 21
March 2002. On 6 May 2002, defendant filed an answer and the
hearing was held. The trial court ordered that the motion to
remove and the answer be stricken as untimely filed, and entered a
default judgment for the plaintiff. Defendant appeals.
Defendant first assigns error to the trial court's granting of
a default judgment in light of the fact that defendant had filed an
answer prior to entry of default judgment. We agree.
This case directly parallels the case of Moore v. Sullivan,
123 N.C. App. 647, 473 S.E.2d 659 (1996), in which the defendants
filed a late answer on the very morning of the hearing on the
default judgment motion against them. The trial court in that
case, as in this one, struck their answer and filed an entry of
default against them, retaining jurisdiction to later determine
damages. In the case at bar, the trial court entered a default
judgment, a final order disposing of the case. Regardless of that
distinction, the outcome is the same. “After an answer has been
filed, even if the answer is untimely filed, a default may not be
entered.” Id. at 649, 473 S.E.2d at 660 (citations omitted). In
accord with that decision, we reverse.
Because this issue is dispositive, we do not reach the
defendant's other assignments of error.
Reversed and remanded.
Judges TIMMONS-GOODSON and HUNTER concur.
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