Appeal by defendants from judgment entered 7 September 2005 by
Judge W. Russell Duke, Jr. in Pitt County Superior Court. Heard in
the Court of Appeals
16 April 2007.
Steven M. Fisher for plaintiffs-appellees.
Mills & Economos, L.L.P., by Larry C. Economos, for
Defendants Phillip Paul Latham and AAA Moving & Storage appeal
from the superior court's entry of default judgment in favor of
plaintiffs Glenn K. Golmon and Inge K. Golmon. Because defendants
failed to first seek relief from the default judgment at the trial
level, they are precluded from attacking it on appeal.
Accordingly, we affirm.
On 25 October 2004, plaintiffs filed a complaint alleging,
among other things, that they entered into a contract with
defendants for the storage and moving of various household
furnishings. Plaintiffs alleged that when the items were returned
to plaintiffs several weeks later, numerous items were eithermissing or damaged. Plaintiffs' complaint sought damages for
negligence, breach of contract, and unfair and deceptive trade
Defendants did not answer the complaint or otherwise defend
the lawsuit. Plaintiffs moved for entry of default on 26 July
2005, and the Pitt County Clerk of Superior Court entered default
pursuant to Rule 55(a) of the Rules of Civil Procedure on the same
day. On 7 September 2005, Judge W. Russell Duke, Jr. entered a
default judgment against defendants in the amount of $13,606.84,
nunc pro tunc
22 August 2005. Defendants appealed from that
judgment to this Court.
Defendants argue on appeal that the entry of default by the
Clerk of Court and the default judgment entered by the trial court
violated defendants' due process rights because defendants were not
served with the motion for entry of default, the motion for default
judgment, or notice of the hearings on the respective motions. The
record, however, indicates that defendants did not move in the
trial court to set aside the default judgment pursuant to Rule
55(d) or Rule 60(b) of the North Carolina Rules of Civil Procedure.
This Court has previously held, with respect to a default
judgment, that "[f]ailure to attack the judgment at the trial court
level precludes such an attack on appeal." Univ. of N.C. v.
, 113 N.C. App. 205, 216, 437 S.E.2d 892, 898, disc. review
, 336 N.C. 615, 447 S.E.2d 413 (1994). See also Gibby v.
, 149 N.C. App. 470, 472 n.1, 560 S.E.2d 589, 591 n.1 (2002)(holding that because defendant did not move to set aside entry of
default in trial court, "we do not review whether entry of default
was proper"). The requirement that a party first seek relief from
a default judgment in the trial is in accord with the rule followed
in the majority of jurisdictions. See, e.g., Consorzio Del
Prosciutto Di Parma v. Domain Name Clearing Co.
, 346 F.3d 1193,
1195 (9th Cir. 2003) (holding that party may not appeal after entry
of default judgment and raise issue of sufficiency of service
without having first moved in district court under either Rule
55(c) or Rule 60(b) of Federal Rules of Civil Procedure); Maust v.
Estate of Bair
, 859 N.E.2d 779, 783 (Ind. Ct. App. 2007) ("[The
defendant's] attempt to appeal the grant of the Plaintiffs' motions
for default judgment is improperly before us because he failed to
first file a motion to set aside the default judgment under Indiana
Trial Rule 60(B) following the trial court's order granting the
Plaintiffs' motions for default judgment."); Levy v. Blue Cross &
Blue Shield of Greater N.Y.
, 124 A.D.2d 900, 901, 508 N.Y.S.2d 660,
661 (1986) ("Initially, we note that a party against whom a default
judgment has been entered cannot take an immediate appeal to this
court. The proper procedure is to first move to vacate the default
judgment." (internal citations omitted)); Winesett v. Winesett
287 S.C. 332, 334, 338 S.E.2d 340, 341 (1985) ("[A] default
judgment may not be appealed to this Court. The proper procedure
for challenging a default judgment is to move the trial court to
set aside the judgment pursuant to Rule 60(b), SCRCP. An appeal
may then be taken from the denial of this motion."). Defendants should have first filed a motion pursuant to N.C.R.
Civ. P. 55(d) or 60(b). They would then have been able to appeal
to this Court from any denial of that motion. Because defendants
failed to follow this procedure, we are precluded from reviewing
the issues they raise.
Judges WYNN and ELMORE concur.
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