Kearney v Carter, (03-531) 05/18/2004

Appeal by plaintiff from judgment entered 2 December 2002 by Judge Charles W. Wilkinson, Jr., in Warren County District Court. Heard in the Court of Appeals 29 March 2004.

Kilpatrick Stockton, L.L.P., by Theodore C. Edwards, II and J. Christopher Jackson, for plaintiff-appellant.

William T. Skinner, IV, for defendants-appellees.

    LEVINSON, Judge.

    Plaintiff appeals from a district court order denying his motion for relief from a default judgment entered in defendants' favor. We affirm.
    On 9 August 1999, plaintiff filed a complaint against defendants in the Small Claims Division of Warren County District Court alleging breach of contract against defendants. On 24 August 1999, a trial was held at which the defendants did not appear. The Small Claims Court awarded plaintiff a judgment in the amount of $3,000 plus costs.    On 31 August 1999, defendants appealed to the Warren County District Court for a trial de novo. On 2 November 1999, defendants filed a motion seeking, inter alia, (1) an order requiring plaintiff to replead his claim, and (2) leave for defendants to file responsive pleadings. On 8 November 1999, this motion was granted, and defendants were given until 8 December 1999 to file appropriate pleadings. Plaintiff was present at the hearing and was aware that defendants' motion had been granted. On 8 December 1999, defendants filed a verified answer which also set forth counterclaims against plaintiff for breach of contract and unfair and deceptive trade practices. Plaintiff was served with process of the answer and counterclaims.
    As plaintiff had not yet filed a responsive pleading, on 20 January 2000, defendants filed a motion for entry of default against plaintiff on defendants' counterclaims. On the same day, the Clerk of Superior Court for Warren County entered default against plaintiff. On 20 January 2000, defendants filed a motion for default judgment, and attached a notice of hearing for 25 January 2000. Plaintiff received service of this motion. Because snow caused a cancellation of the 25 January 2000 term of court, the hearing on defendants' motion for default judgment was rescheduled for 13 March 2000.
    On 31 January 2000 plaintiff, acting pro se, filed a paper writing with the district court which purported to be a “Reply and/or Factual Representation Pertaining to Defendants Motions, Answer and Counterclaim [sic][.]” This writing failed to complywith N.C.G.S. § 1A-1, Rules 8 and 11 in that it did not specifically address all of the allegations in defendants' counterclaims in the form of an admission or denial, did not contain such facts or matters as would constitute a valid defense to defendants' counterclaims, and was not signed by the plaintiff. On 7 March 2000, defendants filed motions seeking to have the district court strike plaintiff's paper writing for noncompliance with the rules governing substance, content, and timing of pleadings, and sanction plaintiff pursuant to N.C.G.S. § 1A-1, Rule 11. Plaintiff responded to this motion by mailing a document styled “Reply to Motions to Strike for [sic] and for Solutions [sic] Against Plaintiff” to District Court Judge J. Henry Banks. In this document plaintiff stated that his “reply” was “intentionally vague and inarticulate” and sought “consideration” for his untimely “response” because he “was obligated to some ninety hours of military duty at Fort Bragg NC [sic] during the months of December [1999] and January [2000].”
    On 13 March 2000, a hearing on all of defendants' pending motions was held in Warren County District Court. An attorney represented defendants at the hearing; plaintiff represented himself, despite a suggestion from the presiding judge that he obtain counsel. The trial court found that plaintiff's paper writing failed to comply with the rules governing pleadings and that plaintiff had offered no valid excuse for his untimely response to defendants' counterclaims; accordingly, the trial court struck plaintiff's paper writing pursuant to N.C.G.S. § 1A-1, Rule12(f) and entered default judgment against plaintiff on defendants' breach of contract counterclaim pursuant to N.C.G.S. § 1A-1, Rule 55(b) in the amount of $15,911.40 plus interest.
    Plaintiff did not appeal from either the order striking his paper writing or the final default judgment against him. Instead, on 24 March 2000 plaintiff, acting through an attorney, filed a motion for relief from judgment pursuant to N.C.G.S. § 1A-1, Rule 60(b)(1) and (6). In this motion, plaintiff asserted that he did not understand that it was necessary to file an answer to defendants' counterclaims within thirty days or seek an extension; that he immediately filed a “reply” upon receiving the motion for default judgment; that he had a meritorious defense to defendants' counterclaims; and that he “inadvertently and mistakenly” believed that he would not need an attorney. Following a hearing, the district court made appropriate findings of fact and the following pertinent conclusion of law:
        Plaintiff has failed to show any surprise, mistake, inadvertence, excusable neglect or any other reason to thereby justify this Court granting Plaintiff any relief from this Court's default judgment of March 13, 2000, against Plaintiff and in favor of defendants. Plaintiff was given an ample and sufficient opportunity to secure counsel and avoid entry of the foregoing default judgment against him, but Plaintiff refused to do so.

The trial court denied plaintiff's motion for relief from judgment. From this order, plaintiff appeals, contending that the trial court abused its discretion in denying his motion to set aside the default judgment.

    We first address plaintiff's argument that the trial court abused its discretion in denying his motion for relief from judgment under G.S. § 1A-1, Rule 60(b)(1) because plaintiff's “reply” was late due to excusable neglect in that (1) military service prevented him from being timely, and (2) plaintiff mistakenly believed that he did not need an attorney and did not understand that an answer needed to be filed. We discern no abuse of discretion.
    N.C.G.S. § 1A-1, Rule 60(b)(1) (2003) provides that “[o]n motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order, or proceeding for . . . [m]istake, inadvertence, surprise, or excusable neglect. . . .” When relief is sought under Rule 60(b)(1), “the trial court first determines if there has been a mistake, inadvertence, surprise, or excusable neglect. Whether the facts found constitute excusable neglect or not is a matter of law. . . .” In the Matter of Oxford Plastics v. Goodson, 74 N.C. App. 256, 259, 328 S.E.2d 7, 9 (1985) (citations omitted). This Court reviews a trial court's determination regarding mistake, inadvertence, surprise, or excusable neglect to determine whether the trial court's findings are made under a misapprehension of the law, and whether the findings are sufficient to support the trial court's conclusion of law. Id. Though the test for mistake, inadvertence, surprise, or excusable neglect is a legal one, the decision whether to grant relief from judgment on one of these grounds “is within the sound discretion of the trial court and the trial court's decision willnot be disturbed absent an abuse of that discretion[.]” Id. (citation omitted).
    With respect to plaintiff's argument that the trial court should have set aside the default judgment due to excusable neglect because military service prevented plaintiff from acting to avoid default, the record on appeal submitted by plaintiff is insufficient to support this argument. “This Court's review on appeal is limited to what is in the record or in the designated verbatim transcript of proceedings. An appellate court cannot assume or speculate that there was prejudicial error when none appears on the record before it.” State v. Moore, 75 N.C. App. 543, 548, 331 S.E.2d 251, 254 (1985) (citing N.C.R. App. P. 9). In addition, “[c]ontentions not raised at trial may not be raised for the first time on appeal.” Travis v. Knob Creek, Inc., 94 N.C. App. 374, 376, 380 S.E.2d 380, 382 (1989).
    In the present case, the record's only reference to military service by the plaintiff is the letter plaintiff wrote to Judge Banks in which he contends that his untimely “reply” should not be stricken because, inter alia, he was obligated to perform ninety hours of military duty at Fort Bragg over the course of two months. In addition, plaintiff's motion for relief from judgment makes no reference to military service. Thus, the effect of plaintiff's military service on his ability to defend against defendants' counterclaims is not established in the record, and in any event, it is unclear whether plaintiff even presented his military service as a ground for relief from judgment to the district court judgewho ruled on the motion. Accordingly, we reject plaintiff's argument that military service provides a basis for setting aside the default judgment due to excusable neglect.
    With respect to plaintiff's argument that the trial court erred in concluding that plaintiff's negligent failure to plead was not excusable because he did not obtain counsel and did not himself understand the rules of civil procedure, we find no error in the trial court's ruling. “'Parties who have been duly served with summons are required to give their defense that attention which a man of ordinary prudence usually gives his important business, and failure to do so is not excusable.'” Gregg v. Steele, 24 N.C. App. 310, 311, 210 S.E. 2d 434, 435 (1974) (quoting 5 Strong, N.C. Index 2d, Judgments, § 25, p. 46-47). Where a party is able to read and write and is not under a mental disability, she “may not show excusable neglect by merely establishing that she failed to obtain an attorney and was ignorant of the judicial process.” In re Hall, 89 N.C. App. 685, 688, 366 S.E.2d 882, 885 (1988). This Court has held that ignorance that the law requires a party to file an answer to a claim is not excusable neglect which will justify setting aside a default judgment under G.S. § 1A-1, Rule 60(b)(1). Boyd v. Marsh, 47 N.C. App. 491, 492, 267 S.E.2d 394, 395 (1980). This assignment of error is overruled.

    We next address plaintiff's argument that the present case involves extraordinary circumstances, which merit relief under N.C.G.S. § 1A-1, Rule 60(b)(6) (2003). This argument lacks merit.    G.S. § 1A-1, Rule 60(b)(6) provides that “[o]n motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order, or proceeding for [any other reason not enumerated in the first five subsections] justifying relief from the operation of the judgment.” Rule 60(b)(6) provides equitable power pursuant to which a trial court may grant relief from a judgment where such relief is not available pursuant to the first five subsections of Rule 60(b). Oxford Plastics, 74 N.C. App. at 259, 328 S.E.2d at 9. The test for whether relief may be given under Rule 60(b)(6) “is whether '(1) extraordinary circumstances exist and (2) there is a showing that justice demands it.'” Id. (quoting Baylor v. Brown, 46 N.C. App. 664, 670, 266 S.E.2d 9, 13 (1980)). In determining whether to grant relief under Rule 60(b)(6), courts should consider:
        “(1) the general desirability that a final judgment not be lightly disturbed, (2) where relief is sought from a judgment of dismissal or default, the relative interest of deciding cases on the merits and the interest in orderly procedure, (3) the opportunity the movant had to present his claim or defense, and (4) any intervening equities.”

Baylor, 46 N.C. App. at 670, 266 S.E.2d at 13. (quoting Equipment Co. v. Albertson, 35 N.C. App. 144, 147, 240 S.E.2d 499, 501-02 (1978)). The decision whether to grant relief from judgment pursuant to Rule 60(b)(6) “is within the sound discretion of the trial court and the trial court's decision will not be disturbed absent an abuse of that discretion[.]” Oxford Plastics, 74 N.C. App. at 259, 328 S.E.2d at 9.    After carefully reviewing the record and the arguments in plaintiff's brief, we are unpersuaded that the instant case involves any extraordinary circumstances such that the trial court was compelled to grant relief from judgment. Accordingly, we conclude that the trial court did not abuse its discretion in denying plaintiff's motion for relief. This assignment of error is overruled.

    We next address plaintiff's argument that the trial court erred in denying his motion for relief from judgment because the court committed legal error in entering default judgment in the first place. We conclude that the trial court lacked the authority to grant relief from judgment on this ground.
    “Rule 60(b) provides no specific relief for 'errors of law' and our courts have long held that even the broad general language of Rule 60(b)(6) does not include relief for 'errors of law.'” Hagwood v. Odom, 88 N.C. App. 513, 519, 364 S.E.2d 190, 193 (1988). “The appropriate remedy for errors of law committed by the [trial] court is either appeal or [where appropriate] a timely motion for relief under N.C.G.S. Sec. 1A-1, Rule 59(a)(8) [2003].” Id. “Motions pursuant to Rule 60(b) may not be used as a substitute for appeal.” Jenkins v. Richmond County, 118 N.C. App. 166, 170, 454 S.E.2d 290, 293 (1995).
    In the present case, plaintiff contends that entry of the default judgment was error because he “filed a reply to the counterclaim prior to entry of judgment.” However, plaintiff hasnot properly contested this alleged error of law by appealing from the default judgment itself. Rather, plaintiff has sought to have the alleged error of law corrected via relief from judgment under Rule 60(b). As this course of action is impermissible, the trial court properly rejected it. This assignment of error is overruled.