Cureton v Helms, 163 NC App 610 (03-478) 04/06/2004

Appeal by defendant from judgment entered 31 December 2002 by Judge Sanford L. Steelman, Jr. in Union County Superior Court. Heard in the Court of Appeals 29 January 2004.

PRICE SMITH HARGETT PETHO and ANDERSON, by Richard L. Anderson for plaintiff.

MORRIS YORK WILLIAMS SURLES & BARRINGER, L.L.P., by Kimberly A. Gossage for defendant.

    TIMMONS-GOODSON, Judge.

    Clinton Helms (“defendant”) appeals the trial court's order denying defendant's motion to set aside an entry of default and a default judgment in favor of Esther Cureton (“plaintiff”). For the reasons stated herein, we affirm the trial court's decision.
    The facts and procedural history of this case tend to show the following: Plaintiff and defendant were involved in an automobile accident on 20 April 2000   (See footnote 1) whereupon plaintiff suffered injuries toher head, back, chest and legs. The police officer investigating the accident recorded defendant's address on the police report as Waterplant Road.   (See footnote 2)
    Plaintiff filed a civil complaint against defendant on 3 July 2001 for damages incurred as a result of the accident. Accordingly, the Union County Clerk of Superior Court issued a civil summons on 21 September 2001 to be served on defendant at the Waterplant Road address by the Union County Sheriff's Office. The sheriff returned the summons on 24 September 2001 unserved with a note stating “house empty no forwarding.”
    A second summons was issued to defendant at an address on Old Camden Road on 8 November 2001. The sheriff returned the summons on 19 November 2001 with a note stating that defendant was not served because he “could not locate address and I checked [with] neighbors and they don't know him.”
    A third summons was issued to defendant again at the Old Camden Road address on 7 February 2002. This attempt at service was also unsuccessful.
    On 6 February 2002, plaintiff filed a notice of service of process by publication. This notice was published in The Enquirer- Journal newspaper on 15 February, 22 February and 1 March 2002. Defendant did not respond to this notice.
    On 2 May 2002, the Assistant Clerk of Superior Court for Union County filed an entry of default against defendant. Plaintiffsubsequently filed a motion for judgment by default, which the trial court granted on 15 July 2002.
    On 18 September 2002, defendant filed a motion to set aside the entry of default and the default judgment, citing N.C. R. Civ. P. 55(d) and 60(b)(6) as grounds. Defendant argued that plaintiff was obligated to notify defendant's insurance carrier of the lawsuit or obtain defendant's address from the insurance carrier. The trial court denied defendant's motion. It is from this judgment that defendant appeals.

    The issues presented for appeal are whether the trial court abused its discretion by (I) denying defendant's motion to set aside the entry of default and (II) denying defendant's motion to set aside the default judgment.
    Defendant first argues that the trial court should have set aside the entry of default because plaintiff “failed to consult all reasonably available resources to accomplish personal service” before resorting to service by publication. We disagree.
    Rule 55(d) states in pertinent part that “[f]or good cause shown the court may set aside an entry of default judgment . . .” In Vares v. Vares, this Court held that “[w]hether or not 'good cause' exists depends on the circumstances in a particular case . . .” 154 N.C. App. 83, 90, 571 S.E.2d 612, 617 (2002). In determining whether there was good cause for the trial court to set aside the entry of default, we look to whether plaintiff performed due diligence in attempting to serve process on defendant.     “Due diligence dictates that plaintiff use all resources reasonably available to her [or him] in attempting to locate defendants. Where the information required for proper service of process is within plaintiff's knowledge, or with due diligence, can be ascertained, service of process by publication is not proper.” Fountain v. Patrick, 44 N.C. App. 584, 587, 261 S.E.2d 514, 516 (1980). In determining what constitutes due diligence for the purpose of permitting service by publication, this Court has declined to formulate a “restrictive mandatory checklist.” Rather, a case-by-case method of analysis has been adopted. Emanuel v. Fellows, 47 N.C. App. 340, 347, 267 S.E.2d 368, 372 (1980).
    The facts of this case closely resemble the facts in Winter v. Williams, 108 N.C. App. 739, 425 S.E.2d 458 (1993) and Emanuel v. Fellows where the plaintiffs attempted service at the given address, then attempted to locate the defendants' correct address in the local telephone directory, by checking the records of the Department of Motor Vehicles, and by contacting the defendants' insurers before resorting to service by publication. See Winter, 108 N.C. App. at 743-44, 425 S.E.2d at 460-61, and Emanuel, 47 N.C. App. at 346-47, 267 S.E.2d at 371-72. In both cases, this Court found that the plaintiff's efforts constituted due diligence in attempting to locate and serve process on the defendant. Id.
    The evidence presented in this case tends to show, and the trial court found as fact, that plaintiff made numerous efforts to obtain defendant's current address, including requesting a copy of defendant's driving record from the Division of Motor Vehicles,contacting the postmaster, checking the Marshville and Monroe city directories as well as various Internet directories. Defendant argues that because plaintiff's counsel did not send a copy of the summons and complaint to the insurance carrier as in Winter and Emanuel, due diligence was not shown. We hold that, consistent with the case-by-case analysis of what constitutes due diligence, plaintiff's evidence is sufficient for the trial court to find that plaintiff exercised due diligence in attempting to ascertain the address or whereabouts of defendant. Accordingly, we affirm the trial court's ruling denying defendant's motion to set aside the entry of default.
    Defendant also argues that the trial court erred by denying defendant's motion to set aside the default judgment in accordance with N.C. R. Civ. P. 60(b)(6). We disagree.
    Rule 60(b)(6) states that “[o]n motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for . . . [a]ny . . . reason justifying relief from the operation of the judgment.” “[F]or a defendant to succeed in setting aside a default judgment under Rule 60(b)(6), he must show: (1) extraordinary circumstances exist, (2) justice demands the setting aside of the judgment, and (3) the defendant has a meritorious defense.” Gibby v. Lindsey, 149 N.C. App. 470, 474, 560 S.E.2d 589, 592 (2002).
    In Blankenship v. Town & Country Ford, Inc., this Court held that a trial court's ruling on
        a Rule 60(b) motion is within the trial court's sound discretion and is reviewableonly for abuse of discretion. Abuse of discretion is shown only when “the challenged actions are manifestly unsupported by reason.” If 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, and the trial court's findings supported by competent evidence are conclusive on appeal.

155 N.C. App. 161, 165, 574 S.E.2d 132, 134-35 (2002) (citations omitted) appeal dismissed and review denied by Blankenship v. Town & Country Ford, Inc., 357 N.C. 61, 579 S.E.2d 384 (2003).
    In the present case, the trial court made the following finding of fact: “Neither the affidavit of the [defendant], nor the motion to set aside the default judgment make any allegation of a meritorious defense.” The trial court then concluded as a matter of law that “[t]he defendant has failed to show a meritorious defense, and the Court, in its discretion, should deny the motion to set aside the default judgment in this matter.” Defendant disputes this finding and conclusion on appeal, arguing that the following statement from his motion to set aside the default judgment constitutes a meritorious defense: “To allow the default judgment to stand given the facts set forth above would constitute an injustice against the Defendant and his liability carrier who were without notice or means to contest the Plaintiff's claim for damages and thus were denied due process and/or other equitable rights to protect his interest in this matter.”
    “[A] meritorious defense requires 'a proffer of evidence which would permit a finding for the defaulting party or which would establish a valid counterclaim.'” Baker v. Baker, 115 N.C. App.337, 340, 444 S.E.2d 478, 481 (1994) (emphasis omitted), quoting Augusta Fiberglass Coatings, Inc. v. Fodor Contracting Corp., 843 F.2d 808, 812 (4th Cir. 1988). "[T]he underlying concern is . . . whether there is some possibility that the outcome . . . after a full trial will be contrary to the result achieved by default." Id. In our opinion, defendant's statement does not fulfill the meritorious defense requirement as articulated in Baker. Defendant's statement does not proffer any evidence to support the notion that a subsequent trial would bring a different result. For this reason, we conclude that the trial court did not abuse its discretion in denying defendant's motion to set aside the default judgment.
    We affirm the trial court's ruling on the motion to set aside the entry of default and the default judgment.
    Affirmed.
    Judges BRYANT and ELMORE concur.
    Report per Rule 30(e).

Footnote: 1