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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
J&M AIRCRAFT MOBILE T-HANGAR, INC., DERYL PERRY, and JUDY PERRY,
Plaintiffs, v. JOHNSTON COUNTY AIRPORT AUTHORITY, NORMAN B.
GRANTHAM, and ROYAL H. DICKSON, JR., Defendants
Filed: 19 October 2004
1. Injunctions--preliminary-_failure to demonstrate irreparable harm
The trial court did not abuse its discretion by denying plaintiff company's motion for a
preliminary injunction barring execution of a North Carolina default judgment based on alleged
insufficiency of service because, even if plaintiff can prove that it had no actual notice of the first
complaint in a prior action thus giving it a reasonable chance of prevailing on the merits of its
Rule 60 motion to set aside the default judgment, defendant did not demonstrate irreparable harm
since the Georgia action to collect on the original North Carolina default judgment was stayed
pending the outcome of this action.
2. Process and Service--sufficiency of service of process--Rule 60 motion
The trial court erred by granting defendant airport authority's motion to dismiss plaintiff
company's complaint seeking to set aside a prior default judgment based on plaintiff's alleged
failure to file this action within a reasonable time as required by N.C.G.S. § 1A-1, Rule 60(b)(4)
because, construing the complaint liberally and taking all the facts as alleged, the complaint does
assert a valid Rule 60 claim in that the judgment would be void if plaintiff was never properly
Judge GEER concurring in part and dissenting in part.
Appeal by plaintiff from order entered 11 July 2003 by Judge
Knox V. Jenkins, Jr., in Johnston County Superior Court. Heard in
the Court of Appeals 19 May 2004.
James T. Johnson, P.A., by James T. Johnson for plaintiffs-
J. Mark Payne for the defendant-appellees.
The first civil action in this case was filed 5 September 2001
in Johnston County, North Carolina. The action concerned airplane
J&M Aircraft Mobile T-Hangar, Inc.
at the Johnston County Airport, but were never paid for. TheAirport Authority was responsible for making sure each of the
airlines paid J&M for their individual hangars, and in return the
Airport Authority was to earn a commission. The commission agreed
upon was $1,000.00 for each of 40 hangars. J&M apparently never
received full payment for the hangars and, in return, J&M never
paid the Airport Authority their commission. The Airport Authority
sued for the commission.
The plaintiff therein (the Airport Authority) attempted
service on the defendant (J&M), a Georgia corporation, at its
office in Georgia. J&M claimed it never received service, and that
someone who works in the building where its office is located but
does not work for J&M signed the receipt. The signature is
apparently indecipherable. J&M was not aware of that action until
well after the default judgment was entered against it. The
default judgment awarded plaintiffs $37,000.00 plus 8% interest
from 15 February 1999 until paid.
J&M learned of the default judgment when it was served with a
complaint filed in Georgia attempting to enforce collection of the
North Carolina default judgment. J&M and the Perrys, owners and
employees of J&M, attempted to attack the North Carolina judgment
in the Georgia court, claiming North Carolina had no jurisdiction.
J&M's attorney requested a protective order and an injunction,
which was denied by the Georgia trial court. The Georgia trial
court then stayed the action in Georgia to allow J&M to attack the
North Carolina judgment in North Carolina. J&M attempted to obtain counsel in North Carolina but
eventually filed a pro se complaint which was later amended when it
retained counsel. The complaint included a Rule 60 motion to set
aside the prior North Carolina default judgment. The complaint
also moved the trial court for temporary, preliminary, and
permanent injunctive relief to stay the enforcement of the
The North Carolina court ordered a temporary restraining order
against the Airport Authority in June of 2003. Later that month,
the trial court heard the motion for an injunction. The trial
court denied the motion and granted the defendant's motion to
dismiss, concluding as a matter of law that the service in the
original action was sufficient under N.C. Gen. Stat. § 1A-1, Rule
4(j)(6)c. The trial court said that J&M failed to bring evidence
to overcome the presumption of valid service. The trial court
found the default judgment valid, and found no grounds for
continuing the stay of the Georgia action.
From that denial of the Rule 60 motion and motion for
injunction, and the granting of the motion to dismiss, J&M appeals.
 J&M first assigns error to the trial court's denial of the
motion for preliminary injunction, arguing that the appellants are
reasonably likely to have prevailed on the merits and that
appellants will suffer irreparable harm if the injunction is not
issued. The scope of appellate review in the granting or denying of a
preliminary injunction is essentially de novo. An appellate court
is not bound by the findings, but may review and weigh the evidence
and find facts for itself. Robins & Weill, Inc. v. Mason, 70 N.C.
App. 537, 320 S.E.2d 693, disc. review denied, 312 N.C. 495, 322
S.E.2d 559 (1984).
As a general rule, a preliminary injunction is an
extraordinary measure taken by a court to preserve the status quo
of the parties during litigation:
It will be issued only (1) if a plaintiff is able to show
likelihood of success on the merits of his case and (2)
if a plaintiff is likely to sustain irreparable loss
unless the injunction is issued, or if, in the opinion of
the Court, issuance is necessary for the protection of a
plaintiff's rights during the course of litigation.
A.E.P. Industries, Inc. v. McClure, 308 N.C. 393, 401, 302 S.E.2d
754, 759-60 (1983).
The order denying the injunction contains findings of fact
which tend to focus on the sufficiency of service. The trial court
concluded as a matter of law that regardless of the sufficiency or
insufficiency of process that the defendant did not file his Rule
60 motion within a reasonable time pursuant to N.C. Gen. Stat. §
1A-1, Rule 60(b)(4) (2003). The record shows that J&M was aware
and in possession of the complaint and default judgment in February
2002, and did not file the current action until 15 months later_19
months after the filing of the default judgment. The trial court
concluded as a matter of law that 15 months is not a reasonable
time for filing this action, particularly in light of the fact that
the delay may materially affect the Airport's ability to pursue itsclaim were the Default Judgment to be set aside, citing Howard v.
Williams, 40 N.C. App. 575, 253 S.E.2d 571 (1979).
A motion for relief under Rule 60(b) is addressed to the sound
discretion of the trial court and appellate review is limited to
determining whether the court abused its discretion. Sink v.
Easter, 288 N.C. 183, 217 S.E.2d 532 (1975); Hilton v. Howington,
63 N.C. App. 717, 306 S.E.2d 196 (1983), disc. review denied, 310
N.C. 152, 311 S.E.2d 291 (1984).
While motions pursuant to subsections (b)(1), (b)(2), and
(b)(3) of this rule must be made not more than one year after the
judgment, order, or proceeding was entered or taken, as well as
within a reasonable time, motions pursuant to subsections (b)(4),
(b)(5), and (b)(6) of this rule must simply be made within a
reasonable time, and what constitutes a reasonable time depends
upon the circumstances of the individual case. Nickels v. Nickels,
51 N.C. App. 690, 277 S.E.2d 577, disc. review denied, 303 N.C.
545, 281 S.E.2d 392-93 (1981).
We note that J&M immediately retained counsel, tried to attack
the judgment in Georgia, obtained a stay in Georgia in order to
attack the judgment in North Carolina, and filed the Rule 60 motion
within 15 months of having notice for the first time that there was
a $37,000.00 judgment against it. If J&M can prove that it had no
actual notice of the first complaint, then it has a reasonable
chance of prevailing on the merits of the Rule 60 motion.
However, reasonable time notwithstanding, a party is also
required to demonstrate irreparable harm. Here, defendant did notdemonstrate irreparable harm since the Georgia action to collect on
the original North Carolina default judgment was stayed pending the
outcome of this action. The trial court did not err in denying the
motion for injunctive relief, because irreparable harm was not
 J&M also assigns error to the trial court's decision to
grant the motion to dismiss, arguing that its amended complaint
stated a claim upon which relief could be granted.
The essential question on a motion for Rule 12(b)(6) is
whether the complaint, when liberally construed, states a claim
upon which relief can be granted on any theory. Barnaby v.
, 70 N.C. App. 299, 318 S.E.2d 907 (1984), rev'd on other
, 313 N.C. 565, 330 S.E.2d 600 (1985). The test on a motion
to dismiss for failure to state a claim upon which relief can be
granted is whether the pleadings, when taken as true, are legally
sufficient to satisfy the elements of at least some legally
recognized claim. Arroyo v. Scottie's Professional Window
Cleaning, 120 N.C. App. 154, 461 S.E.2d 13 (1995), disc. review
, 343 N.C. 118, 468 S.E.2d 58 (1996).
Our standard of review is whether, construing the complaint
liberally, the allegations of the complaint, treated as true, are
sufficient to state a claim upon which relief may be granted under
some legal theory. Country Club of Johnston Cty., Inc. v. U.S.
Fidelity & Guar. Co.
, 150 N.C. App. 231, 563 S.E.2d 269 (2002).
In this case, the trial court concluded as a matter of law:
Finding that plaintiff [J&M] failed to
file this action within a reasonable time
as required by N.C. Gen. Stat. § 1A-1,
Rule 60(b)(4), the Court finds that
Plaintiff J&M has failed to state any
grounds upon which a claim may be based
and, therefore, Defendant Airport's
Motion to Dismiss should be granted.
The Court further finds that the proper
action to set aside a Judgment pursuant
to N.C. Gen. Stat. § 1A-1, Rule 60(b)(4)
is a motion in the cause and that a
separate action has been filed in this
matter is unsupported in law and may be
dismissed on those grounds in addition to
those other grounds set out above.
The verified amended complaint stated:
This is a civil action pursuant to Rule
60 of the North Carolina Rules of Civil
Procedure to set aside that particular
judgment obtained by Defendant... on
November 2, 2001 in a previously filed
Johnston County civil action, file number
01 CVS 2306 (this prior action is
hereinafter referred to as the prior
civil action and the November 2, 2001
judgment obtained therein is herinafter
referred to as the prior judgment...).
J&M was never served with the summons and
complaint in the prior civil action, yet
the Airport Authority represented to the
Court that the summons and complaint had
been served. Therefore the prior
judgment should be set aside as void and
as a result of a fraud upon the Court.
If the prior judgment is set aside, J&M
will defend the prior action on its
Construing the complaint liberally, and taking all the facts
as alleged, the complaint does assert a valid Rule 60 claim in that
the judgment would be void if the defendant were never properly
served. If the Rule 60 motion was made within a reasonable time,
which we hold that it was, then the trial court erred in dismissingthe action for failure to state a claim upon which relief may be
We reverse the trial court and remand for further proceedings.
Reversed and remanded.
Judge BRYANT concurs.
Judge GEER concurs in the result in part and dissents in part
by separate opinion.
GEER, Judge, concurring in the result in part and dissenting
I differ from the majority because I believe that plaintiff
J&M Aircraft Mobile T-Hangar, Inc. ("J&M") could only seek to set
aside the default judgment by a motion in the original action
brought by Johnston County Airport Authority (the "Airport
Authority") and not through an independent action. Nevertheless,
the trial court could, as it did, treat the action as a Rule 60(b)
motion. Since, however, a motion to dismiss can only be filed as
to a complaint, a counterclaim, or a cross-claim, principles
governing motions to dismiss are not applicable to a motion under
Rule 60(b) and, for that reason, I cannot fully concur in the
majority opinion. I do agree, however, that the trial court's
order granting the motion to dismiss should be reversed and the
matter remanded for further proceedings.
In Hassell v. Wilson, 301 N.C. 307, 272 S.E.2d 77 (1980), the
Supreme Court explained when an independent action is permissible
and when a challenge must be by motion:
Rule 60 provides for an attack on a judgment
void because of lack of personal jurisdiction
by way of motion in the cause or independent
action. But which method must be used depends
upon whether the jurisdictional defect appears
on the face of the record. If the officer's
return of process shows that service was duly
made upon the party over which personal
jurisdiction was required, then that party may
attack the proceeding only by a motion in the
cause; but if a defect in the service of
process appears on the face of the return
itself, the prior proceeding may be attacked
either by motion in the cause or by an
Id. at 311-12, 272 S.E.2d at 80. Here, no defect of service
appears on the face of the record; J&M could not establish a lack
of service without filing affidavits. Accordingly, under Hassell,
J&M was required to proceed by filing a Rule 60(b)(4) motion in the
The fact that J&M filed instead an independent action is not
necessarily fatal. The Supreme Court has also recognized that a
trial court may treat an independent action as if it were a motion
in the cause:
Plaintiffs, in their second cause of action,
seek to attack the former judgment by
independent action rather than by a motion in
the original cause. On the facts alleged[,]
their remedy, if any, is by motion in the
cause. The court below, rather than dismiss,
treated it as such. This was permissible.
Coker v. Coker, 224 N.C. 450, 451-52, 31 S.E.2d 364, 365 (1944)
(internal citations omitted). The trial court below properly stated, under the circumstances
of this case, "that the proper action to set aside a Judgment
pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b)(4) is a motion in
the cause and that a separate action has been filed in this matter
is unsupported in law and may be dismissed on those grounds in
addition to those other grounds set out above." Despite this
conclusion, the court resolved the merits of the Rule 60(b)(4)
claim; it thus necessarily treated the complaint as a motion in the
cause. I believe that it would serve no purpose to affirm the
trial court's dismissal based on the fact that this is an improper
independent challenge to the judgment when J&M would still be
entitled to file a motion in the cause and the issues would all
have to be addressed in any event. As explained below, the Airport
Authority would not be able to argue that the passage of time
barred the motion.
I would, however, dismiss the claims brought by plaintiffs
Deryl Perry and Judy Perry and the claims asserted against
defendants Norman B. Grantham and Royal H. Dickens, Jr. Plaintiffs
only seek to set aside the default judgment in the Airport
Authority action and to obtain an injunction barring execution on
that judgment. The only parties to the default judgment are the
Airport Authority and J&M. Since I would deem this action to be a
motion in the cause, the parties would again be limited to the
Airport Authority and J&M. I believe the claims of Deryl Perry and
Judy Perry and the claims against Grantham and Dickens should be
dismissed. To this extent, I would affirm the trial court.
Timeliness of Claim
The trial court's conclusion that a Rule 60(b)(4) motion must
be made within a reasonable time and that the motion to dismiss
should be granted because J&M was dilatory in filing its action is
contrary to the law. "Service of process, unless waived, is a
jurisdictional requirement. If the summons and complaint were not
served on defendant, the default judgment . . . is void . . . ."
Blair Auto Co. v. McLain
, 7 N.C. App. 567, 568, 173 S.E.2d 45, 46
(1970). If J&M is correct that it was not served with the Airport
Authority's summons and complaint, then the trial court in that
action lacked jurisdiction over J&M and the default judgment is
void. Our courts have repeatedly held that "because a void
judgment is a legal nullity, it may be attacked at any time."
Freeman v. Freeman
, 155 N.C. App. 603, 606, 573 S.E.2d 708, 711
(2002), disc. review denied
, 357 N.C. 250, 582 S.E.2d 32 (2003).
See also Van Engen v. Que Scientific, Inc.
, 151 N.C. App. 683, 689,
567 S.E.2d 179, 184 (2002) (when orders were entered without
personal jurisdiction over defendants, they were void and could be
attacked at any time). J&M was, therefore, entitled to move under
Rule 60(b)(4) "at any time" to set aside the default judgment on
the grounds of lack of service. The trial court erred in
concluding that J&M was dilatory and the Rule 60(b)(4) claim
Rebuttal of the Presumption of Service
The trial court also concluded that dismissal was justified
because "[t]he record demonstrates no evidence other than a denial
of service by the entity subject to the Default Judgment.
Therefore, the evidence presented by J & M fails to overcome the
presumption of valid service by failure to provide any independent
evidence that service was not made." I believe that this assertion
_ a mixed statement of fact and law _ is neither supported by
competent evidence nor a correct application of the law.
The trial court correctly noted that the affidavit of the
Airport Authority's counsel in the original action was sufficient
to raise a presumption of valid service:
Under N.C.G.S. § 1A-1, Rule 4(j2)(2) (2001), a
party who seeks a default judgment "shall file
an affidavit with the court showing proof of
such service in accordance with the
requirements of G.S. [§] 1-75.10(4)[.]" Rule
4(j2)(2) further provides that the affidavit,
when accompanied by the postal delivery
receipt signed by the person who received the
summons, "raises a presumption that the person
who received the mail . . . and signed the
receipt was an agent of the addressee
authorized by appointment or by law to be
served or to accept service of process[.]"
Regarding this provision, this Court has long
held that the provision in [Rule 4(j2)] . . .
contemplates merely that the registered or
certified mail be delivered to the address of
the party to be served and that a person of
reasonable age and discretion receive the mail
and sign the return receipt on behalf of the
addressee. A showing on the face of the
record of compliance with the statute
providing for service of process raises a
rebuttable presumption of valid service.
Granville Med. Ctr. v. Tipton
, 160 N.C. App. 484, 490-91, 586
S.E.2d 791, 796 (2003) (emphasis added; internal quotation marks
omitted). Here, the Airport Authority attempted to serve J&M bycertified mail, return receipt requested, and its counsel filed an
affidavit including the information required by N.C. Gen. Stat. §
1-75.10(4) (2003) (setting forth the method for proof of service)
and attaching the return receipt indicating delivery to J&M's
address. This evidence was sufficient to raise a rebuttable
presumption of valid service.
The question before the trial court was whether J&M produced
evidence to rebut that presumption. In Granville
, cited by the
Airport Authority, this Court held that
a defendant who seeks to rebut the presumption
of regular service generally must present
evidence that service of process failed to
accomplish its goal of providing defendant
with notice of the suit, rather than simply
questioning the identity, role, or authority
of the person who signed for delivery of the
160 N.C. App. at 493, 586 S.E.2d at 797. The Court found the
defendant's affidavit inadequate because it only alleged that the
defendant had not employed a person with the same name as the
person who signed the receipt, and "[c]onspicuously absent
defendant's affidavit is any allegation that he did not receive the
summons, or did not receive notice of the suit." Id.
586 S.E.2d at 798.
In this case, the trial court inexplicably stated that the
record contained no evidence other than a denial of service. In
fact, J&M produced substantial evidence that it was not served.
Its complaint was verified and asserts that the Airport Authority's
"summons and complaint was never received by Judy Perry, Deryl
Perry, or any agent or employee of J&M." In addition, J&Msubmitted the affidavits of each of its employees at the time of
the purported service, including Deryl Perry (the president and
sole shareholder of J&M), Judy Perry (the secretary and registered
agent for J&M), employee David Perry, employee James Lane, and
employee Robert Perry. Deryl Perry's affidavit establishes that
J&M had no other employees during the pertinent time frame.
Each of the employees states that he or she did not receive
the summons and complaint that was supposedly served. According to
the affidavits, only Deryl and Judy Perry were allowed to sign for
delivery of papers on behalf of J&M, and, in October 2001, the
other employees would not have been working in the office and,
therefore, would not have been available to sign for the delivery
of any papers. Each affiant also states that he or she does not
recognize the signature of the person who signed the return receipt
and cannot identify the name on the receipt. Deryl Perry also
filed a second affidavit that stated: "I did not receive a copy of
the summons and complaint in the Johnston County lawsuit filed by
the Johnston County Airport Authority . . . against J&M of which I
am now aware the file number is 01 CVS 2306 . . . at any time in
September, October or November 2001. No other employee or agent of
J&M received a copy of the summons and complaint filed in the prior
North Carolina action during this time."
Given the illegibility of the signature on the receipt, it is
difficult to conceive of what additional evidence J&M could have
produced to rebut the presumption. Through affidavits, it
identified all of its employees, established that none of themsigned the receipt or received the summons and complaint, and
confirmed that J&M could not identify who signed the receipt.
Since a court could reasonably conclude based on J&M's evidence
that it was not served with the summons and complaint, that
evidence was sufficient to rebut the presumption of service. See
N.C. Gen. Stat. § 8C-1, Rule 301 (2003) (a party rebuts a
presumption "by the introduction of evidence sufficient to permit
reasonable minds to conclude that the presumed fact does not
exist"). See also In re Williams
, 149 N.C. App. 951, 959, 563
S.E.2d 202, 206 (2002) ("Respondent did not rebut this presumption
by showing he never received the summons and complaint."); Poole v.
Hanover Brook, Inc.
, 34 N.C. App. 550, 555, 239 S.E.2d 479, 482
(1977) ("Defendant did not attempt to rebut this presumption by
showing that he did not receive copies of the summons and
complaint."), disc. review denied
, 294 N.C. 183, 241 S.E.2d 518
The trial court, however, found that J&M in fact admitted
receiving the complaint:
The Brief [in the Georgia action]
included an admission that the Complaint was
delivered but not delivered to the registered
agent nor served by personal service. The
Brief contained the following language:
"Sometime in 2000 a person other than the
agent for service as the Defendant received a
certified letter at his residence. This
letter was not addressed to the proper
corporate agent and was not received by the
corporate agent for service, merely the letter
. [Emphasis added.] At no
time did the Sheriff or Marshall or a
certified recognized server deliver said
service and process upon the Defendant."
(Emphasis original in trial court's order) Although it is unclear
what J&M's Georgia counsel meant in the brief, this statement could
not be an admission that J&M received the filed complaint. As the
trial court's order acknowledges, the Airport Authority's complaint
was filed on 1 September 2001. The summons would have been issued
at the same time. The "letter" referenced in the brief was
received "[s]ometime in 2000." That "letter" could not, therefore,
have been the filed complaint and could not have included the
summons as signed by the Clerk of Court. Whatever was included in
"the letter" cannot support a finding of service. Thomas & Howard
Co. v. Trimark Catastrophe Servs., Inc.
, 151 N.C. App. 88, 91, 564
S.E.2d 569, 572 (2002) (mailing of summons and complaint prior to
documents having been filed or signed by the Clerk of Court was not
effective service). The trial court's finding that J&M in fact
received the complaint is not supported by evidence.
In support of its conclusion that J&M has failed to rebut the
presumption of valid service, the trial court relied upon Steffey
v. Mazza Constr. Group, Inc.
, 113 N.C. App. 538, 439 S.E.2d 241
(1994), disc. review improvidently allowed
, 339 N.C. 734, 455
S.E.2d 155 (1995). Steffey
did not, however, address the question
before either the trial court or this Court. It considered only
whether the plaintiff had met the requirements of Rule 4
sufficiently to give rise to the presumption of service in the
first place. In Steffey
, 113 N.C. App. at 540-41, 439 S.E.2d at
243, this Court rejected the City of Burlington's argument that
service on a city is not valid under Rule 4 unless the mayor orcity manager personally signs the return receipt. There was no
contention in Steffey
that the City had not received the summons
and complaint; the City in fact timely moved to dismiss for
insufficient service of process.
I would, therefore, hold that the trial court erred in
concluding that J&M failed to rebut the presumption of service.
Upon J&M's rebutting the presumption, the trial court was required
to determine, based on all the evidence, whether J&M was in fact
served with the Airport Authority's summons and complaint. Cf.
N.C. Gen. Stat. § 8C-1, Rule 301 ("When the burden of producing
evidence to meet a presumption is satisfied, the court must
instruct the jury that it may, but is not required to, infer the
existence of the presumed fact from the proved fact.").
In deciding that J&M had failed to rebut the presumption of
service, the trial court did not consider all of the evidence such
as the affidavits. On a Rule 60(b)(4) motion, "[i]f there is
'competent evidence of record on both sides' of the Rule 60(b)
motion, it is the duty of the trial court to evaluate such evidence
. . . ." Blankenship v. Town & Country Ford, Inc.
, 155 N.C. App.
161, 165, 574 S.E.2d 132, 134 (2002) (quoting Sawyer v. Goodman
N.C. App. 191, 193, 303 S.E.2d 632, 634, disc. review denied
N.C. 823, 310 S.E.2d 352 (1983)), disc. review denied
, 357 N.C. 61,
579 S.E.2d 384 (2003).
The Airport Authority's affidavit of service is not
conclusive, but rather must be weighed against J&M's affidavits and
any other evidence presented by the parties. We observe that theaffidavit of service asserts that J&M "was served through an agent
of its Registered Agent," but the record does not currently contain
any indication that the affiant has personal knowledge that the
person who signed the receipt was an agent of Judy Perry, J&M's
(See footnote 1)
Because, however, the Airport Authority filed
a motion to dismiss and relied upon only the presumption of
service, it has not had an opportunity to produce evidence that
service was valid. Upon remand, the trial court has the
responsibility of determining the credibility of the witnesses and
the weight of the evidence. Blair Auto Co.
, 7 N.C. App. at 569,
173 S.E.2d at 46 (with respect to a motion to set aside a default
judgment for lack of service, "[t]he credibility of the witnesses
and the weight of the evidence was for determination by the trial
judge in discharging his duty to find the facts").
With respect to the preliminary injunction, I agree with the
majority that J&M has failed to demonstrate irreparable injury, but
I reach this conclusion for different reasons. The majority
opinion concludes that J&M failed to demonstrate irreparable harm
because the Georgia execution proceedings were stayed pending the
outcome of this case. I read the Georgia order differently. The
order stays enforcement of the North Carolina judgment "until suchtime as all available appeals or actions in North Carolina are
concluded or until the stay is terminated by another provision of
this Order." A subsequent paragraph of the order provides
(emphasis added): "The stay provided herein shall terminate and
the other provisions hereof shall take effect upon the unsuccessful
conclusion of the appeal or action to set aside in North Carolina
or the expiration or vacation of the stay in the North Carolina
. . . ." The trial court's order in this case terminates the
temporary restraining order and "orders that any and all stays of
the Georgia action are hereby terminated and vacated."
Subsequently, the trial court denied J&M's motion for a stay
pending appeal and this Court denied the petition for writ of
supersedeas. Because the stay in Georgia was contingent on an
injunction here, I do not believe that the Georgia stay
demonstrates a lack of irreparable harm.
It is, however, well established that:
[t]he applicant for a preliminary injunction
has the burden of proving the probability of
substantial injury to the applicant if the
activity of which it complains continues to
the final determination of the action.
not enough that a plaintiff merely allege
irreparable injury. Rather, "[t]he applicant
is required to set out with particularity
facts supporting such statements so the court
can decide for itself if irreparable injury
Town of Knightdale v. Vaughn
, 95 N.C. App. 649, 651, 383 S.E.2d
460, 461 (1989) (internal citation omitted; quoting United Tel. Co.
of Carolina, Inc. v. Universal Plastics, Inc.
, 287 N.C. 232, 236,
214 S.E.2d 49, 52 (1975)). In this case, J&M bases its claim ofirreparable injury solely on an allegation in the verified
complaint that J&M would suffer "immediate and irreparable harm in
the form of loss of property, damage to credit ratings and damage
to the plaintiff's earning capacity." This allegation, even though
verified, does not provide the particularity necessary to support
a finding of irreparable injury. I, therefore, agree that the
trial court properly denied the motion for a preliminary
By way of comparison, in Lemon v. Combs
, __ N.C. App. __, 596
S.E.2d 344, 346 (2004), the plaintiff presented not only the deputy
sheriff's return of service (necessarily based on personal
knowledge) attesting that he had personally served Sean Combs, but
also submitted affidavits of the deputy sheriff and two other
witnesses to the service.
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