1. Civil Procedure_Rule 12 motion to dismiss_after default judgment_Rule 60 motion
as remedy
The trial court did not err by denying defendant's motion to dismiss under N.C.G.S. §
1A-1, Rule 12(b) on the ground that plaintiff did not comply with all of the requirements for
service by publication. As defendant never submitted an answer nor made any motion before
entry of default and default judgment, the defenses of lack of jurisdiction over the person,
insufficiency of process, and insufficiency of service are deemed waived. Defendant can seek
relief under Rule 60, but an appeal from Rule 12(b) decision is not interchangeable with that of a
Rule 60(b) decision because different standards of review apply.
2. Appeal and Error_standard of review--appeals from Rule 12 and Rule 60
Appeals under Rule 12(b)(2), (4), and (5) are reviewed de novo, except that findings are
binding on appeal if supported by competent evidence. A ruling under Rule 60(b) is left to the
sound discretion of the trial court.
Caudle & Spears, P.A., by C. Grainger Pierce, Jr. and
Christopher J. Loebsack for defendant-appellant.
Eisele, Ashburn, Greene & Chapman, P.A., by John D. Greene for
plaintiff-appellee.
WYNN, Judge.
Under Rule 12 of the North Carolina Rules of Civil Procedure,
a party waives the defense of lack of jurisdiction over the person,
insufficiency of process, or insufficiency of service of process if
it is neither made by motion nor included in a responsive pleading.
N.C. Gen. Stat. § 1A-1, Rule 12(h)(1) (2004). In this appeal,
Defendant contends the trial court erred by denying its Rule 12(b)motions made after the entry of default judgment. Since the proper
method of attacking a final judgment is under Rule 60(b) of the
North Carolina Rules of Civil Procedure (which the Defendant does
not raise on appeal), we affirm the trial court's denial of
Defendant's motion to dismiss under Rule 12(b).
Plaintiff, Autec, Inc., filed the Complaint in this action on
12 August 2003 against Defendant, Southlake Holdings, Inc., for the
collection of a balance due for the sale and installation of car
wash equipment. Summons was issued on the same date to Southlake's
registered agent at its registered address.
The car wash at issue is located in Mecklenburg County, North
Carolina. Southlake's registered agent was Kimberly E. Fox and the
registered address was in Huntersville, North Carolina in
Mecklenburg County.
On 13 August 2002, service was attempted by certified mail at
the registered address but was returned with the notations “Not
Deliverable as Addressed” and “Forwarding Order Expired.” On 9
September 2002, Alias and Pluries summons were issued for two
additional addresses obtained by Autec and mailed via certified
mail. But those two service attempts were returned with the
notation “Unclaimed.” Service was also attempted by the Sheriff of
Mecklenburg County but that attempt was unsuccessful.
Autec published a notice of service by publication on 17, 24,
and 31 January 2003 in the Mooresville Tribune which has a
circulation throughout southern Iredell County and around the Lake
Norman shoreline. On 19 March 2003, Autec filed an affidavit of publication
along with a motion for entry of default and motion for default
judgment. That same day, a default judgment was entered against
Southlake.
On 10 December 2003, Southlake filed a motion to dismiss and
motion to set aside the default judgment and entry of default.
Following a hearing, the trial court denied Southlake's motions.
Southlake appealed.
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[1] On appeal, Southlake argues that the trial court erred in
denying its motion to dismiss pursuant to Rules 12(b)(2), (4), and
(5) of the North Carolina Rules of Civil Procedure as Autec did not
comply with all requirements for service by publication. We
disagree.
Rule 12(b) of the North Carolina Rules of Civil Procedure
provides that,
Every defense, in law or fact, to a claim for
relief in any pleading, whether a claim,
counterclaim, crossclaim, or third-party
claim, shall be asserted in the responsive
pleading thereto if one is required, except
that the following defenses may at the option
of the pleader be made by motion:
. . .
(2) Lack of jurisdiction over the person,
. . .
(4) Insufficiency of process,
(5) Insufficiency of service of process,
. . .
A motion making any of these defenses shall be
made before pleading if a further pleading is
permitted.
N.C. Gen. Stat. § 1A-1, Rule 12(b) (2004). Rule 12 goes on to
state that a defense of lack of jurisdiction over the person,
insufficiency of process, or insufficiency of service of process is
waived if it is neither made by motion under this rule nor included
in a responsive pleading or an amendment thereof. N.C. Gen. Stat.
§ 1A-1, Rule 12(h)(1) (2004).
As Southlake never submitted an answer nor made any motion
before entry of default and default judgment, the defenses of lack
of jurisdiction over the person, insufficiency of process, and
insufficiency of service of process pursuant to Rule 12(b) are
deemed waived. N.C. Gen. Stat. § 1A-1, Rule 12(h)(1). See In re
Howell, 161 N.C. App. 650, 655, 589 S.E.2d 157, 160 (2003). We
recognize that a defendant that is not properly served may not have
notice to answer or move for dismissal under Rule 12(b). However,
under our rules, Rule 12(b) does not provide a means for dismissing
a judgment. But the fact that a defendant is deemed to have waived
12(b) defenses does not leave him without relief as he can seek
relief under Rule 60. Thus, since a default judgment had already
been entered, the trial court did not err in denying Southlake's
motion to dismiss as this was deemed waived after the pleading
stage.
Indeed, the result desired by Southlake is a reversal of the
default judgment on the basis of lack of personal jurisdiction,
insufficiency of process, and insufficiency of service of process. The proper method of attacking a final judgment is by a motion
under Rule 60(b) of the North Carolina Rules of Civil Procedure.
Sink v. Easter, 288 N.C. 183, 196, 217 S.E.2d 532, 540 (1975).
However, Southlake did not assign as error the trial court's denial
of its motion to set aside judgment under Rule 60(b) of the North
Carolina Rules of Civil Procedure. Nor does Southlake cite or
argue Rule 60(b) in its brief.
Rule 60(b)(4) of the North Carolina Rules of Civil Procedure
allows the trial court to “relieve a party . . . from a final . .
. order” if “[t]he judgment is void.” N.C. Gen. Stat. § 1A-1, Rule
60(b)(4) (2004). “'[A] judgment or order . . . rendered without an
essential element such as jurisdiction or proper service of process
. . . is void.'” Van Engen v. Que Scientific, Inc., 151 N.C. App.
683, 689, 567 S.E.2d 179, 184 (2002) (quoting County of Wayne ex
rel. Williams v. Whitley, 72 N.C. App. 155, 157, 323 S.E.2d 458,
461 (1984)). “If a judgment is void, it is a nullity and may be
attacked at any time. Rule 60(b)(4) is an appropriate method of
challenging such a judgment.” Burton v. Blanton, 107 N.C. App.
615, 616-17, 421 S.E.2d 381, 383 (1992) (internal citations
omitted).
[2] Moreover, an appeal under Rule 12(b)(2), (4), and (5)
cannot be treated the same as an appeal under Rule 60(b)(4), as the
standards of review are different. This court reviews a trial
court's ruling under Rule 12(b)(2), (4), and (5) de novo, except
that if the trial court made findings of fact, those findings are
binding on appeal if supported by competent evidence. Harper v.City of Asheville, 160 N.C. App. 209, 215, 585 S.E.2d 240, 244
(2003). Whereas, a motion under Rule 60(b) is left to the sound
discretion of the trial court, and the trial court's ruling will
not be disturbed on appeal without a showing that the court abused
its discretion. Harris v. Harris, 307 N.C. 684, 687, 300 S.E.2d
369, 372 (1983). As a motion under Rule 60(b) has a much higher
burden to overturn a decision on appeal than Rule 12(b), an appeal
from a Rule 12(b) motion is not interchangeable with that of a Rule
60(b) motion.
In sum, Rule 60(b) would have been the proper rule to include
in the assignments of error and brief, however, as Southlake
neither raised nor addressed this issue, the motion pursuant to
Rule 60(b) is not before this Court. Accordingly, we affirm the
trial court's denial of Defendant's motions under Rule 12(b).
Affirmed.
Judges HUDSON and STEELMAN concur.
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