PHILLIP THOMAS BEDDARD,
Plaintiff,
v
.
Beaufort County
No. 04 CVS 1190
JOHN ALBRITTON,
Defendant.,
Gaskins & Gaskins, P.A., by Herman E. Gaskins, Jr., for
plaintiff-appellee.
William H. Dowdy, for defendant-appellant.
JACKSON, Judge.
On 27 October 2004, Phillip Thomas Beddard (“plaintiff”)
commenced a civil action against John Albritton (“defendant”). The
action arose out of an automobile accident on 29 November 2003, in
which plaintiff was passenger in a vehicle which struck a horse
owned by defendant. The summons in the case listed two addresses
for defendant: 430 West Fourth Street, Washington, North Carolina
(“430 W. 4th Street”); and 1018 East Fifth Street, Washington,
North Carolina (“1018 E. 5th Street”). The record is unclear at
which address plaintiff obtained service upon defendant of thesummons and complaint on 4 November 2004. On 1 December 2004,
defendant filed a Motion and Order for Extension of Time to answer.
In his motion, defendant listed the address of 1018 East Fifth
Street, Washington, North Carolina 27889, as his address. On 3
January 2005, defendant filed pro se a letter with the Beaufort
County Clerk of Court generally denying any liability and
specifically denying that the horse involved in the accident was
his.
On 22 February 2005, the trial court mediator assigned to the
case sent a letter to defendant at the 430 W. 4th Street address.
Defendant then contacted the mediator's secretary and informed her
that Post Office Box 2102, Washington, North Carolina 27889 (“P.O.
Box 2102”) should be used as the address at which to contact him.
On 6 July 2005, plaintiff attempted to serve defendant with
plaintiff's First Set of Interrogatories and Request for Production
of Documents, via certified mail to the P.O. Box 2102 address.
Defendant was given several notices of the mailing by the Post
Office, however it went unclaimed, and was returned to plaintiff on
22 July 2005. Plaintiff made a second attempt to serve defendant
with the discovery request on 28 July 2005, also via certified mail
but to the 430 W. 4th Street address. Defendant again was given
several notices of this mailing, and it too went unclaimed and
eventually was returned to plaintiff on 17 August 2005.
Plaintiff filed a Motion to Compel Answers to Plaintiff's
First Set of Interrogatories and Request for Production of
Documents on 8 September 2005, which was served on defendant viathe 430 W. 4th Street address. The Notice of Hearing for
plaintiff's motion was served via mail on defendant on this same
date, and also to the 430 W. 4th Street address. Defendant failed
to appear at the hearing on plaintiff's motion, and an Order
compelling defendant to answer plaintiff's interrogatories was
entered 20 September 2005, giving defendant until 10 October 2005
to comply with plaintiff's request for discovery. Defendant failed
to comply with discovery as ordered.
A second Order compelling defendant to comply with plaintiff's
request for discovery was signed on 17 October 2005, giving
defendant until 17 November 2005 to answer plaintiff's First Set of
Interrogatories and Request for Production of Documents. Defendant
was served personally with this order on 4 November 2005 at his
farm located at 6307 Highway 17 South, Chocowinity, North Carolina.
Following service of the Order, defendant contacted plaintiff's
counsel, went to counsel's office, and received a copy of
plaintiff's discovery request. Defendant never responded to
plaintiff's interrogatories.
On 18 November 2005, plaintiff filed a Motion to Strike
Defendant's Pleadings, based upon defendant's failure to respond to
plaintiff's First Set of Interrogatories and Request for Production
of Documents. The motion, along with a Notice of Hearing on the
motion, was served on defendant via mail at the 430 W. 4th Street
address. The hearing on plaintiff's motion to strike defendant's
pleadings was held 28 November 2005. Defendant failed to appear.
The trial court ordered defendant's pleadings stricken, due todefendant's failure to comply with plaintiff's discovery requests
and the trial court's orders to comply. The trial court then
entered default against defendant.
Plaintiff filed a Motion for Default Judgment on 1 December
2005, and the motion, along with a notice of hearing, was served on
defendant via mail to the 430 W. 4th Street address. At a hearing
held on 15 December 2005, the trial court found that defendant had
been served properly with plaintiff's complaint, default properly
had been entered against defendant, and the sole remaining issue
for the court's determination was the amount of damages due
plaintiff. The trial court entered default judgment against
defendant in the amount of $100,000.00.
On 17 April 2006, defendant filed a Motion for Preliminary
Injunction and a Motion to Set Aside Entry of Default and Default
Judgment, in hopes of stopping the upcoming 28 April 2006 auction
and public sale of his property to satisfy the judgment against
him. The basis of defendant's motions centered around the argument
that he was never properly served with notice of the hearings on
plaintiff's motion for default and default judgment. Defendant
contended that plaintiff violated Rules 4 and 5 of our Rules of
Civil Procedure, and he therefore was entitled to an injunction and
to have the entry of default and default judgment set aside.
Following a hearing on defendant's motions, and in an Order filed
27 April 2006, the trial court denied defendant's motions, and
found that “defendant was given proper notice of the proceedings
against him, that he intentionally refused to receive notices thatwere sent to him, and that he knowingly refused to respond to
interrogatories after being ordered to do so by this Court.” The
trial court found that defendant's pleadings properly were
stricken, default properly was entered against him, and default
judgment properly was entered against him. Defendant now appeals
from this order.
On appeal, the primary basis of defendant's argument is that
the trial court erred in denying his motion to set aside entry of
default and default judgment, pursuant to Rule 60(b) of the North
Carolina Rules of Civil Procedure. Rule 60(b) provides in
pertinent part, that:
(b) Mistakes; inadvertence; excusable neglect;
newly discovered evidence; fraud, etc. -- On
motion and upon such terms as are just, the
court may relieve a party or his legal
representative from a final judgment, order,
or proceeding for the following reasons:
. . .
(3) Fraud (whether heretofore
denominated intrinsic or extrinsic),
misrepresentation, or other
misconduct of an adverse party;
(4) The judgment is void;
. . . or
(6) Any other reason justifying
relief from the operation of the
judgment.
N.C. Gen. Stat. § 1A-1, Rule 60(b) (2005). Our courts have long
held that “'[a] Rule 60(b) motion is addressed to the sound
discretion of the trial court and its ruling will not be disturbed
absent an abuse of that discretion.'” Creasman v. Creasman, 152N.C. App. 119, 124, 566 S.E.2d 725, 729 (2002) (quoting Gibson v.
Mena, 144 N.C. App. 125, 128, 548 S.E.2d 745, 747 (2001)). “An
abuse of discretion is a decision manifestly unsupported by reason
or one so arbitrary that it could not have been the result of a
reasoned decision.” Briley v. Farabow, 348 N.C. 537, 547, 501
S.E.2d 649, 656 (1998).
Defendant first contends the trial court erred in denying his
motion to set aside the entry of default and default judgment
pursuant to Civil Procedure Rule 60(b)(3), on the ground that the
entry of default and default judgment were obtained through
plaintiff's counsel's “misrepresentation or other misconduct.”
Defendant argues that plaintiff's counsel's representation to the
trial court that plaintiff had satisfied the service requirements
of Civil Procedure Rules 4 and 5 was improper, in that counsel knew
he had not properly served defendant with the pretrial discovery
request, motion to compel discovery, motion to strike appellant's
pleadings, motion for entry of default and subsequent default
judgment, and notices of hearings for those motions.
Rule 4 of our Rules of Civil Procedure sets forth the
procedure by which service may be achieved upon an individual
person. N.C. Gen. Stat. § 1A-1, Rule 4(j)(1) (2005). Pursuant to
Rule 4, service upon an individual may be achieved by means of
sending the subject document by way of “registered or certified
mail, return receipt requested, addressed to the party to be
served, and delivering to the addressee.” N.C. Gen. Stat. § 1A-1,
Rule 4(j)(1)(c) (2005). Rule 5 of our Rules of Civil Proceduresets forth the manner in which service of orders, subsequent
pleadings, discovery, and other notices and papers should be
achieved. N.C. Gen. Stat. § 1A-1, Rule 5 (2005). Rule 5(b)
specifically provides that service may be made in the manner
provided for by Rule 4, and that
With respect to such other pleadings and
papers, service upon the attorney or upon a
party may also be made by delivering a copy to
the party or by mailing it to the party at the
party's last known address or, if no address
is known, by filing it with the clerk of
court.
N.C. Gen. Stat. § 1A-1, Rule 5(b) (2005).
At trial, the court record and evidence presented showed that
service was attempted on defendant at four separate addresses: 430
W. 4th Street, 1018 E. 5th Street, P.O. Box 2102, and 6307 Highway
17 South. Defendant was personally served at 6307 Highway 17
South. Evidence presented also indicated that defendant owned the
business Albritton Trucking Industry, Inc., which had listed as its
principal mailing address and registered office with the Secretary
of State's Office the address of 430 W. 4th Street. In his Motion
and Order for an Extension of Time to File an Answer, defendant
listed the address of 1018 E. 5th Street; however, defendant
admitted that he did not reside at this address, nor had he lived
there in more than three years. In February 2005, defendant
contacted the mediator assigned to this case, apparently in
response to a letter which the mediator had sent to defendant at
the 430 W. 4th Street address. Additional evidence indicated that
defendant provided the post office box address to the mediatorassigned to this case; however, when service was attempted at this
address, it was returned to plaintiff unclaimed by defendant. In
November 2005, defendant was personally served with the trial
court's Order compelling him to answer plaintiff's first set of
interrogatories, and defendant subsequently visited plaintiff's
counsel's office and obtained a copy of the discovery request.
However, defendant still failed to comply with the trial court's
order and never submitted any answer to plaintiff's request for
interrogatories.
This Court has held that
Where a defendant, especially one acting pro
se, provides a mailing address in a document
filed in response to a complaint and serves a
copy of that filing on opposing counsel, he or
she should be able to rely on receiving later
service at that address; by the same token,
opposing counsel (or a pro se party) may also
rely on that address for service of all
subsequent process and other communications
until a new address is furnished.
Barnett v. King, 134 N.C. App. 348, 351, 517 S.E.2d 397, 400
(1999). However, the instant case is distinguishable from Barnett.
In Barnett, the evidence indicated that plaintiff attempted service
upon defendant at one address, and that in a responsive pleading
defendant provided another address. The trial court held that
plaintiff's failure to mail notice of the hearing to the address
provided by defendant caused the notice to be ineffective. Id. In
the instant case, the evidence indicated that defendant personally
used four separate addresses at a variety of times during the
pendency of this litigation. Defendant personally provided both
the addresses of P.O. Box 2102 and 1018 E. 5th Street inconjunction with this matter, and his business registration with
the Office of the Secretary of State lists 430 W. 4th Street. In
addition, defendant was personally served with trial court's 7
November 2005 Order at the address of 6307 Highway 17 South in
Chocowinity, North Carolina. Plaintiff attempted to serve
defendant at three of the four addresses obtained for defendant,
including the post office address he provided, however service
could not be achieved. Also, at no time during the pendency of
this action was any mail that was sent to the 430 W. 4th Street
address ever returned to plaintiff. Moreover, the address listed
in defendant's initial Motion for Extension of Time, 1018 E. 5th
Street, was not defendant's actual physical home address, and in
fact he had not resided at that address in more than three years.
Thus, although typically a plaintiff should attempt service to an
address that has been provided by a defendant, we hold that in the
instant case, defendant purposefully sought to evade service, and
plaintiff attempted service properly according to our statutory
requirements.
Given that defendant had a multitude of addresses that he
provided to plaintiff and others involved, and that the information
available to plaintiff made the addresses appear to be proper, we
hold plaintiff complied with the statutory requirements of Rules 4
and 5 in attempting to serve defendant with the various pleadings,
discovery, notice of hearings, and orders. While defendant
provided the address of 1018 E. 5th Street as his address, this was
not the exclusive place at which service could be attained,moreover, it was not entirely proper that defendant be served here,
as this was not his “last known address” given that he had not
lived there in more than three years. Thus, there was not a
“misrepresentation or other misconduct” as alleged by defendant,
and the trial court properly denied defendant's motion to set aside
the entry of default and default judgment.
Next, defendant argues the trial court erred in denying his
motion to set aside entry of default and default judgment pursuant
to Rule 60(b)(4), on the ground that the entry of default and
default judgment were void, due to plaintiff's failure to comply
with the service requirements of Civil Procedure Rules 4 and 5.
As we have held that plaintiff's attempts at service complied
with Rules 4 and 5, we also hold that the orders granting entry of
default and default judgment were not void pursuant to Rule
60(b)(4).
Defendant next contends the trial court erred in denying his
motion to set aside the entry of default and default judgment
pursuant to Rule 60(b)(6), on the ground that plaintiff's failure
to comply with the service requirements of Civil Procedure Rules 4
and 5 justified defendant's relief from the judgments.
Rule 60(b)(6) allows a trial court to grant relief from an
order for “[a]ny other reason justifying relief from the operation
of the judgment.” N.C. Gen. Stat. § 1A-1, Rule 60(b)(6). “The
test for whether a judgment, order or proceeding should be modified
or set aside under Rule 60(b)(6) is two pronged: (1) extraordinary
circumstances must exist, and (2) there must be a showing thatjustice demands that relief be granted.” Howell v. Howell, 321
N.C. 87, 91, 361 S.E.2d 585, 588 (1987). This Court has held that:
When reviewing a trial court's equitable
discretion under Rule 60(b)(6), our Supreme
Court has indicated that this Court cannot
substitute what it considers to be its own
better judgment for a discretionary ruling of
a trial court, and that this Court should not
disturb a discretionary ruling unless it
probably amounted to a substantial miscarriage
of justice.
Surles v. Surles, 154 N.C. App. 170, 173 n.1, 571 S.E.2d 676, 678
(2002) (internal citations and quotations omitted). When a trial
court's findings of fact are supported by competent evidence in the
record, they are binding on appeal. Royal v. Hartle, 145 N.C. App.
181, 182, 551 S.E.2d 168, 170 (2001).
Defendant has failed to show that the order of the trial court
is “unsupported by reason or one so arbitrary that it could not
have been the result of a reasoned decision.” Briley, 348 N.C. at
547, 501 S.E.2d at 656. Based upon the evidence contained in the
record, we hold the trial court's finding that “defendant was given
proper notice of the proceedings against him, that he intentionally
refused to receive notices that were sent to him, and that he
knowingly refused to respond to interrogatories after being ordered
to do so by this Court” to be supported and thus binding on appeal.
Thus, the trial court acted properly in denying defendant's motion
to set aside the entry of default and default judgment, in that
there were not extraordinary circumstances warranting defendant's
relief from the judgments. Defendant also contends the trial court erred in denying his
motion to set aside the judgments based upon Rule 60(b)(3), (4),
and (5), in that plaintiff's counsel failed to notify defendant of
any of the proceedings up to and including the default proceedings,
he failed to serve defendant with pleadings in those proceedings,
and he failed to comply with the service requirements of Rules 4
and 5. Defendant argues that these actions violated his
constitutional rights to due process and notice of the proceedings
against him.
As we previously have held that plaintiff complied with the
service requirements of Rules 4 and 5, and that the trial court
acted properly in denying defendant's various motions to set aside
the judgments, we also now hold the trial court did not violate
defendant's rights to due process and notice. Defendant
purposefully used multiple addresses and left plaintiff not knowing
which address was his proper address. Based upon the evidence in
the record, there is sufficient evidence to support the trial
court's finding that defendant purposefully avoided service.
Defendant had actual notice of the action from the beginning, yet
he failed to take action beyond filing his motion for an extension
of time and his letter in which he denied liability. Even when the
evidence showed defendant was served with an order of the trial
court compelling him to comply with discovery, and provided a copy
of the discovery request, defendant still failed to take any
action. Each and every pleading, order, notice of hearing, and
discovery request was filed with the Clerk of Court and service wasproperly attempted upon defendant. Thus, the requirements of Rule
5(b) were met, and defendant's right to due process and notice of
the proceedings was not violated.
Next, defendant contends the trial court erred by denying his
motions to discharge the liens against his property on the ground
that those liens resulted from plaintiff's non-compliance with
Rules 4 and 5 of the North Carolina Rules of Civil Procedure, and
that the liens resulted from violations of defendant's
constitutional rights to due process, including the right to notice
of proceedings and a hearing. As stated previously, the trial
court properly found that default judgment had been entered against
defendant in a correct and proper manner. Thus, we hold there was
no basis for disturbing the resulting liens, and the trial court
did not err in denying defendant's motion to discharge the liens
against his property.
Finally, defendant argues the trial court erred (a) by
admitting, over his objection, a printout from the Secretary of
State's website, on the ground that the evidence was hearsay
evidence, not within any exception to the hearsay rule, and was
prejudicial, and (b) by admitting, over his objection, Kim Van
Nortwick's affidavit, on the ground that the affidavit constituted
hearsay evidence, not within any exception to the hearsay rule, and
was prejudicial.
At the hearing on defendant's motion to set aside the entry of
default and default judgment, plaintiff attempted to enter into
evidence a copy of a page from the Secretary of State's websiteshowing the business corporation information for defendant's
business, Albritton Trucking Industry, Inc. The printout from the
website is dated 16 December 2003, and lists the status of
defendant's corporation as “Current-Active.” The corporation's
registered office address and principal mailing address are 430 W.
4th Street, Washington, NC 27889, and the registered mailing
address is listed as 1018 E. 5th Street, Washington, NC 27889.
Defendant objected to this evidence on the basis of relevancy,
stating that the evidence showed the address of a corporation, not
necessarily the address of defendant. The trial court overruled
defendant's objection. On appeal, defendant contends the trial
court erred, in that the document was hearsay, in that it was being
offered for the truth of the matter asserted, in other words, to
prove that defendant used the 430 W. 4th Street address.
During the hearing, and before the introduction of this
information from the Secretary of State's website, defendant
testified to this precise information, and specifically that he had
provided this information to the Secretary of State. Defendant did
object to this information, but only on the basis of its relevancy,
not on hearsay grounds. “This Court has long held that issues and
theories of a case not raised below will not be considered on
appeal.” Westminster Homes, Inc. v. Town of Cary Zoning Bd. of
Adjust., 354 N.C. 298, 309, 554 S.E.2d 634, 641 (2001); see also
Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934) (where
theory argued on appeal was not raised before the trial court, “the
law does not permit parties to swap horses between courts in orderto get a better mount” before an appellate court). At trial
defendant argued that this information was not relevant to the
issue at hand, however we find the information to be entirely
relevant, in that it establishes defendant's use of the 430 W. 4th
Street address. On appeal defendant attempts to argue that this
information constitutes impermissible hearsay. We will not address
defendant's new argument on appeal. Also, it is the
well-established rule that the admission of evidence without
objection waives any prior or subsequent objection to the admission
of evidence of a similar character. State v. Campbell, 296 N.C.
394, 399, 250 S.E.2d 228, 231 (1979); Moore v. Reynolds, 63 N.C.
App. 160, 162, 303 S.E.2d 839, 840 (1983). Thus, we hold the trial
court properly denied defendant's later objection to this
information.
At the hearing, following all testimony, plaintiff also
attempted to enter into evidence an affidavit from the mediator's
secretary, in which she stated that she mailed a letter to
defendant's Fourth Street address, it was never returned to them,
and that defendant contacted her and provided her with the post
office box address. Defendant objected based upon relevancy and
hearsay grounds. However, as with the previous information,
defendant testified, without objection, that he spoke with the
mediator's secretary and that he gave her the post office box
address. Thus, defendant's objection to this information was also
waived, and the trial court properly denied defendant's objection. Therefore, we hold plaintiff properly complied with the
statutory requirements for service of process. As there is no
evidence that the trial court's discretionary denial of defendant's
motion is manifestly unsupported by reason, the trial court
committed no error in refusing to set aside the orders granting
entry of default and default judgment.
Affirmed.
Judges HUNTER and TYSON concur.
Report per Rule 30(e).
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