ROGER D. BELANGER,
Plaintiff
v
.
Wake County
No. 99-CVS-02431
W. SYLVESTER WARREN,
Defendant
Roger D. Belanger, plaintiff-appellee, pro se.
Troutman Sanders, LLP, by Patricia P. Kerner, for defendant-
appellant.
HUNTER, Judge.
Roger D. Belanger (“plaintiff”), the appellee, filed a
complaint against W. Sylvester Warren (“defendant”) on 4 March
1999. The complaint alleged that defendant had failed to pay for
legal services provided by plaintiff. A summons purports to have
been served on a “Carroll Warren (daughter)” on 17 March 1999.
After defendant failed to respond, a default judgment in the amount
of $123,566.50 was entered against defendant on 17 May 1999.
On 18 June 2004, defendant's counsel filed a motion for relief
from judgment, supported by two affidavits. The first was from
defendant's daughter, Tonessie Caroline Warren. She testified that
she had not in fact been served with the summons and complaint, andthat the signature on the return was not hers. The second
affidavit was from defendant, in which he testified that he had
never received the summons and complaint or any other notice of the
suit until he received a letter on 3 May 2004 from plaintiff's
counsel.
On 24 August 2004, defense counsel served a notice of hearing,
setting the motion for relief from judgment for hearing on 29
November 2004. On the day of the scheduled hearing, defendant's
counsel moved to withdraw the notice of hearing for his Rule 60
motion to set aside the default judgment. Defense counsel withdrew
from representation of defendant six days later.
On 15 July 2005, defendant, signing pro se, filed a second
motion for relief from judgment. Defendant stated that he did not
have a daughter named “Carroll Warren,” but does have a daughter
named “Tonessie Caroline Warren.” Defendant then retained new
counsel to represent him in the hearing on the motion for relief
from judgment.
Before the hearing, plaintiff filed an affidavit of Deputy
Sheriff Raymond Parker which stated in relevant part that he had
served the summons and complaint on “Carol Warren, the daughter of
the defendant,” and that at the time of service she lived with
defendant. On 5 January 2006, the superior court entered an order
denying the motion for relief from judgment.
Appellant raises the following issues on appeal: Whether the
trial court erred in not separating its findings of fact from
conclusions of law, whether defendant was properly served withnotice of process before the trial court entered a default
judgment; and whether defendant's Rule 60 motion to set aside the
default judgment was properly denied. After careful consideration,
we affirm the ruling of the trial court.
Defendant first argues that the trial court erred in failing
to make separate findings of fact and conclusions of law. We
disagree. “Findings of fact and conclusions of law are necessary
on decisions of any motion . . . only when requested by a party[.]”
N.C. Gen. Stat. § 1A-1, Rule 52(a)(2) (2005) (emphasis added). The
record does not indicate that either party requested findings and
conclusions to be made by the trial judge. Although not required
to do so, the trial judge made “ MIXED FINDINGS OF FACT AND
CONCLUSIONS OF LAW.” Where a court is not required to make
findings of fact or conclusions of law it has discretion to do so.
Epps v. Duke University, 116 N.C. App. 305, 308, 447 S.E.2d 444,
446 (1994).
Defendant argues that the trial court erred by not stating
the findings of fact and conclusions of law separately and relies
on Pineda-Lopez v. N.C. Growers Ass'n, 151 N.C. App. 587, 566
S.E.2d 162 (2002), for this proposition. In Pineda-Lopez, where
this Court overturned a trial court order that mixed findings of
fact and conclusions of law, we were interpreting N.C.R. Civ. P.
52(a)(1). Id. at 589, 566 S.E.2d at 164. The language of that
statute is clear in that it does not allow a trial court to state
mixed questions of law and fact in an order after a non-jury trial.
N.C.R. Civ. P. 52(a)(1). The instant case, however, does not involve a non-jury trial
but a Rule 60(b) motion. As to a trial court's ruling on motions,
findings of fact and conclusions of law are set out in accordance
with Rule 52(a)(2), not Rule 52(a)(1). Thus, defendant's reliance
on Pineda-Lopez is misplaced. Contrary to defendant's arguments,
Gibson v. Mena, 144 N.C. App. 125, 548 S.E.2d 745 (2001), is
controlling authority.
In Gibson, the trial court made a conclusion of law but no
findings of fact when ruling on a motion to set aside a default
judgment. Id. at 128, 548 S.E.2d at 747. This Court held that so
long as there is evidence in the record supporting the legal
conclusion then the trial court's decision will not be reversed.
Id. at 128-29, 548 S.E.2d at 747. In this case, defendant
challenged the default judgment on the ground that service of
process was ineffective, and as such, the trial court did not have
personal jurisdiction over defendant and the default judgment was
void. Thus we review the trial court's findings of fact and the
record on appeal to determine whether there is evidence to support
the conclusion that service of process was proper. After careful
consideration, we affirm the ruling of the trial court.
Defendant argues that plaintiff did not use the proper
substituted service provisions of N.C.R. Civ. P. 4(j). We
disagree. Those provisions require the papers to be served: (1)
at the dwelling house or usual place of abode of the person to be
served; (2) with a person of suitable age and discretion; (3) who
resides with the person to be served. Hassell v. Wilson, 301 N.C.307, 312, 272 S.E.2d 77, 80-81 (1980). “The papers, in other
words, must be left at a place which constitutes the dwelling of
both the person to be served and the person with whom the papers
are left.” Id. at 312, 272 S.E.2d at 81 (citing Guthrie v. Ray,
293 N.C. 67, 235 S.E.2d 146 (1977)).
When service is challenged, N.C. Gen. Stat. § 1-75.10
“prescribes how proof of service of process shall be made[.]” Id.
Once proof of service is established, the serving party is entitled
to a rebuttable presumption that service was proper. Granville
Med. Ctr. v. Tipton, 160 N.C. App. 484, 489, 586 S.E.2d 791, 795
(2003). Thus, the issues are whether plaintiff established proof
of service and whether defendant can overcome that presumption.
The first two elements of Rule 4(j)(1)(a) are met by the
summons itself because it states: (1) that the papers were served
at the usual place of abode of the party named; and (2) that the
person actually served was of a suitable age. Defendant argues
that the third element, requiring that the person served must
“reside” with the defendant, was not met. Under section 1-
75.10(b), however, proof of service may be made via affidavit.
In the instant case, plaintiff met his burden when the serving
officer submitted an affidavit stating that “Carol Warren, the
daughter of the defendant, W. Sylvester Warren . . . resided at the
same usual place of abode as the defendant, W. Sylvester Warren.”
(Emphasis added.) This affidavit, taken with the summons, is
sufficient to entitle plaintiff to a rebuttable presumption that
service of process was proper. See Carpenter v. Agee, 171 N.C.App. 98, 99, 613 S.E.2d 735, 736 (2005) (serving party may make
proof of service by filing an affidavit).
Defendant also argues that a rebuttable presumption of service
would be inappropriate in this case because “there is no evidence
in the [r]ecord at all about the place where service was
accomplished.” The summons itself states defendant's address and
that it was served at defendant's abode. Defendant's argument is
without merit and plaintiff is entitled to a rebuttable presumption
of service.
Next, we must address whether defendant's two affidavits
contesting service of process are sufficient to overcome the
presumption of service. In Tipton, the defendant attempted to
rebut this presumption with two affidavits. Because the evidence
of the parties was contradictory, this Court held that “'“the
credibility of the witnesses and the weight of the evidence were
for determination by the court below in discharging its duty to
find the facts”'”; thus, the lower court's ruling of proper service
of process would not be disturbed on appeal. Tipton, 160 N.C. App.
at 489, 586 S.E.2d at 795 (citations omitted).
Defendant in this case, like the defendant in Tipton, also
provided two affidavits stating that process had not been properly
served. Plaintiff countered with an affidavit from the police
officer stating that service had in fact been served in conformity
with N.C.R. Civ. P. 4(j). As in Tipton, the evidence of the
parties was in conflict. Because the trial court is in the best
position to weigh the evidence it cannot be said that the trialcourt abused its discretion in denying defendant's motion to set
aside the entry of default due to lack of valid service, where
there was evidence to support the court's finding.
Defendant also argues that the trial court erred in finding
that “Carroll Warren” (the name on the summons) is the same person
as “Carol Warren” (the daughter of defendant). However, the
presumption of valid service “arises upon proof of delivery,
regardless of the identity of the signer[.]” Tipton, 160 N.C. App.
at 491, 586 S.E.2d at 796-97. This same argument was rejected in
Tipton and we reject it here as well. In summation, we hold that
the evidence in the record and the trial court's findings of fact
support the legal conclusion that service of process has been or
was properly served.
Defendant next argues that the trial court erred in concluding
that defendant's motion to set aside the default judgment was not
timely filed. The trial court denied defendant's motion because:
(1) it was not filed within a reasonable time; (2) service of
process was proper; and (3) the court had personal jurisdiction
over defendant. Because we find no error in the trial court's
conclusions regarding service of process and personal jurisdiction
we need not reach defendant's argument concerning timeliness.
A party may make a motion pursuant to N.C.R. Civ. P. 60(b)(4)
to obtain relief from a final judgment or order which is void.
County of Wayne ex rel. Williams v. Whitley, 72 N.C. App. 155, 157,
323 S.E.2d 458, 461 (1984). Judgments will only be considered void
“'when the issuing court has no jurisdiction over the parties orsubject matter in question or has no authority to render the
judgment entered.'” Barton v. Sutton, 152 N.C. App. 706, 708, 568
S.E.3d 264, 265-66 (2002) (citation omitted). Defendant carries
the burden to show that the judgment was void. Tipton, 160 N.C.
App. at 487, 586 S.E.2d at 794.
In the instant case, the trial court correctly determined
that service was proper and that it had jurisdiction over the
parties. Valid service of process confers personal jurisdiction on
the trial court. Glover v. Farmer, 127 N.C. App. 488, 490, 490
S.E.2d 576, 577 (1997). Thus, it cannot be said that the judgment
was void, and as such, the trial court did not abuse its discretion
by denying defendant's motion to set aside the judgment. We have
reviewed defendant's other arguments and find them to be without
merit.
In summary, the trial court's use of “mixed findings of fact
and conclusions of law” was not error, and the trial court
correctly determined that defendant had been properly served.
Thus, defendant's motion to set aside the default judgment was
appropriately denied and we therefore affirm the order of the trial
court.
Affirmed.
Chief Judge MARTIN and Judge STROUD concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***