Appeal by defendant from order entered 21 March 2006 by Judge
William C. Gore in Johnston County Superior Court. Heard in the
Court of Appeals 14 December 2006.
Mast, Schulz, Mast, Mills, Johnson & Wells, P.A., by David F.
Mills, for defendant-appellant David L. Lane.
Levinson Law Firm, P.A., by James R. Levinson, for defendant-
appellee Robert E. Creech, Jr.
Defendant David L. Lane appeals from an order of the superior
court denying Lane's motion pursuant to Rule 60(b)(1) and (b)(6) to
set aside a default judgment in favor of defendant Robert E.
Creech, Jr. We hold that the trial court properly concluded that
Lane had not established excusable neglect and that Lane has failed
to demonstrate an abuse of discretion with respect to the trial
court's refusal to set aside the judgment under Rule 60(b)(6).
Accordingly, we affirm the order of the trial court.
Sometime prior to January 2004, defendants J. Anthony Penry
and his wife, Karen Moriarty Penry, entered into a contract with
defendant Lane, a general contractor, to remodel their home. In
early January 2004, defendants Lane and Creech entered into a
subcontract, under which Creech agreed to provide certain labor and
materials at the Penry remodeling site.
Creech had a contract with plaintiff Benson Building Supply,
Inc., pursuant to which Benson agreed to supply Creech with
equipment, materials, goods, supplies, and repairs on an open
account. According to Creech, he permitted Lane to use this
account to obtain materials for the Penry remodeling project
following representations by Lane that his poor credit precluded
him from buying materials on credit.
The relationship between Creech and Lane deteriorated over the
course of the remodeling job, and Creech ceased working on the
project before its completion. On 23 September 2004, Benson _ who
is not a party to this appeal _ filed suit against all defendants,
alleging it had not been paid for items and services it provided
for the Penry remodeling project on Creech's open account. Lane
and Creech asserted cross-claims against each other. Benson
subsequently voluntarily dismissed its claims against Lane without
Following a breakdown in settlement negotiations between
Creech and Lane with respect to the cross-claims, the trial court
permitted Lane's trial counsel to withdraw at a hearing on 2November 2005. Lane was present at that hearing. The order
allowing the withdrawal _ entered on the morning of the hearing _
noted that the case was "currently scheduled for trial in January
of 2006 and will be tried at that time."
Lane's and Creech's cross-claims ultimately were calendared
for trial during the 3 January 2006 civil session of Johnston
County Superior Court before Judge Knox V. Jenkins, Jr. Lane did
not appear for trial, and on 4 January 2006, Judge Jenkins entered
judgment in favor of Creech against Lane, awarding Creech $7,308.95
for labor, $28,903.77 for materials, $2,000.00 in attorney's fees,
plus interest from the date of Creech's cross-claim. The trial
court also denied Lane's cross-claims against Creech as unsupported
On 22 February 2006, Lane, through a new attorney, filed a
verified motion to set aside the judgment pursuant to N.C.R. Civ.
P. 60(b)(1) and (b)(6). Lane contended that he was not notified of
the trial date, that the trial calendar was mailed to "David L.
Land" rather than "David L. Lane," and that he did not receive the
calendar until 17 January 2006 although the envelope was postmarked
6 December 2005. Creech filed a responsive affidavit, asserting
that Lane was aware that the case would be heard in January and any
delay in the receipt of the calendar was due to Lane's failure to
notify the court of his change of address.
Lane's Rule 60 motion was heard by Judge William C. Gore
during the 6 March 2006 term of the Johnston County Superior Court.
On 21 March 2006, Judge Gore entered an order denying Lane's motionon the grounds that he had failed to show excusable neglect and a
meritorious defense. Lane timely appealed to this Court.
Lane first argues that the trial court erred by failing to
conclude he had established excusable neglect. Under N.C.R. Civ.
P. 60(b)(1), a judgment may be set aside if the movant shows that
the judgment rendered was due to the movant's excusable neglect and
the movant has a meritorious defense. Higgins v. Michael Powell
, 132 N.C. App. 720, 726, 515 S.E.2d 17, 21 (1999).
Whether neglect is "excusable" is a question of law that depends
upon what may be reasonably expected, under the circumstances, of
a party to litigation. JMM Plumbing & Utils., Inc. v. Basnight
, 169 N.C. App. 199, 202, 609 S.E.2d 487, 490 (2005).
A trial judge's determination as to whether neglect was excusable
will be upheld on appeal if competent evidence supports the judge's
findings, and those findings, in turn, support the judge's
Here, Lane does not contest the following findings of fact:
(1) that the case was properly calendared for trial on 3 January
2006; (2) that prior to that time, Lane had furnished all parties
with the mailing address of P.O. Box 1672, Garner, NC 27529; (3)
that the motion to withdraw filed by Lane's attorney informed Lane
that his case was set for trial in January 2006; (4) that Lane was
present at the 2 November 2005 hearing on his attorney's motion to
withdraw; and (5) that the order entered at that hearing
specifically stated that the case would be tried at the Januaryterm. Because Lane has not assigned error to these findings of
fact, they are binding on appeal. Thelen v. Thelen
, 53 N.C. App.
684, 690, 281 S.E.2d 737, 741 (1981).
In addition, the trial court found that Lane later changed his
mailing address to 4415 Parkwood Drive, Raleigh, NC, but did not
inform the trial court or any of the other attorneys of the change
of address. Although Lane assigned error to this finding, he
presented no argument on it in his brief. Accordingly, that
finding is also binding on appeal. See
N.C.R. App. P. 28(b)(6)
("Assignments of error not set out in the appellant's brief, or in
support of which no reason or argument is stated or authority
cited, will be taken as abandoned").
These binding findings, in turn, support the trial court's
conclusion that Lane failed to establish excusable neglect.
Although Lane knew that he was representing himself following his
attorney's withdrawal in November 2005 and that trial was scheduled
for January 2006, he nevertheless neglected to indicate to the
parties or the court that he had changed mailing addresses until
filing his motion to set aside the judgment. Our Court has
previously held that such conduct did not constitute excusable
neglect under Rule 60(b)(1). See, e.g.
, PYA/Monarch, Inc. v. Ray
Lackey Enters., Inc.
, 96 N.C. App. 225, 228, 385 S.E.2d 170, 172
(1989) ("Clearly , [the attorney's] failure to monitor the progress
of the proceedings and maintain a reasonable level of communication
with the court [including informing the court of a new address]
constitutes 'inexcusable neglect.'"); Standard Equip. Co. v.Albertson
, 35 N.C. App. 144, 146, 240 S.E.2d 499, 501 (1978)
(plaintiff's failure to keep himself informed and to notify court
of its current address, resulting in a failure to appear, was not
excusable neglect). See also Thompson v. Thompson
, 21 N.C. App.
215, 217, 203 S.E.2d 663, 665 ("A party to a legal action . . . is
bound to keep himself advised as to the time and date his cause is
calendared for trial for hearing; and when a case is listed on the
court calendar, he has notice of the time and date of the
), cert. denied
, 285 N.C. 596, 205 S.E.2d 727 (1974).
The trial court thus did not err in determining that Lane
failed to show excusable neglect. "'[I]n the absence of sufficient
showing of excusable neglect, the question of meritorious defense
becomes immaterial.'" Scoggins v. Jacobs
, 169 N.C. App. 411, 413,
610 S.E.2d 428, 431 (2005) (quoting Howard v. Williams
, 40 N.C.
App. 575, 580, 253 S.E.2d 571, 574 (1979)). We, therefore, do not
address Lane's arguments regarding his defense and hold that the
trial court did not err in denying Lane's motion under Rule
Alternatively, Lane contends that sufficient equitable grounds
existed to set aside the judgment under Rule 60(b)(6). Setting
aside a judgment pursuant to Rule 60(b)(6) should only occur when
(1) extraordinary circumstances exist, and (2) there is a showing
that justice demands it. Huggins v. Hallmark Enters., Inc.
N.C. App. 15, 24-25, 351 S.E.2d 779, 785 (1987). The determination
whether relief under Rule 60(b)(6) is warranted "'is equitable in
nature and authorizes the trial judge to exercise his discretion ingranting or withholding the relief sought.'" Id.
at 25, 351 S.E.2d
at 785 (quoting Kennedy v. Starr
, 62 N.C. App. 182, 186, 302 S.E.2d
497, 499-500, disc. review denied
, 309 N.C. 321, 307 S.E.2d 164
(1983)). Consequently, this Court may not substitute its own
judgment for that of the trial court unless the trial court's
ruling is "'manifestly unsupported by reason.'" Id.
, 301 N.C. 123, 129, 271 S.E.2d 58, 63 (1980)).
Lane's reliance on Oxford Plastics, Div. of Plastics Eng'g
Corp. v. Goodson
, 74 N.C. App. 256, 328 S.E.2d 7 (1985) _ for the
proposition that a party's failure to notify the court of an
address change, and resulting failure to attend trial, is alone an
extraordinary circumstance justifying the setting aside of the
judgment _ is misplaced. In Oxford Plastics
, it was the
_ not the defendants themselves
_ who failed to
provide the trial court with the new mailing address and who,
consequently, did not receive a copy of the trial calendar. Id.
260, 328 S.E.2d at 9. This Court concluded that, although neither
the defendants nor their counsel appeared for trial, "a reasonable
application of the provisions of Rule 60(b)(6) require that
defendants be excused from attendance . . . ." Id.
at 261, 328
S.E.2d at 10. See also Thacker v. Thacker
, 107 N.C. App. 479, 482,
420 S.E.2d 479, 481 ("[A] lack of counsel and/or an ignorance of
the law does not amount to 'extraordinary circumstances' without
some showing that the lack of counsel or ignorance was due to
reasons beyond control of the party seeking relief
added)), disc. review denied
, 332 N.C. 672, 424 S.E.2d 407 (1992). Oxford Plastics
stands in sharp contrast to this case, in
which it was not the neglect of Lane's attorney that caused his
failure to appear, but the neglect of Lane himself. This Court has
routinely held that a failure to take legal action based upon a
party's own neglect is not an extraordinary circumstance warranting
relief under Rule 60(b)(6). See, e.g.
, Baylor v. Brown
, 46 N.C.
App. 664, 671, 266 S.E.2d 9, 14 (1980) (relief under Rule 60(b)(6)
not justified when defendants failed to respond to plaintiff's
complaint despite knowledge that action was pending); Standard
, 35 N.C. App. at 147, 240 S.E.2d at 501-02 (relief under
Rule 60(b)(6) not justified when plaintiff failed to apprise trial
court of plaintiff's current address and therefore failed to appear
for calendared trial date).
Accordingly, we see no reason to conclude that the trial court
abused its discretion by declining to find the existence of
sufficient equitable grounds to set aside the judgment under Rule
60(b)(6). The trial court's order denying Lane's motion is,
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).
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