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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA06-1344


Filed: 4 September 2007



v .                         Richmond County
                            No. 04 CVS 312


    Appeal by defendant-appellants from order dated 26 June 2006 by Judge Michael E. Beale in Richmond County Superior Court. Heard in the Court of Appeals 23 May 2007.

    Etheridge, Moser, Garner, Bruner and Wansker, P.A., by Terry R. Garner, for plaintiff-appellee.

    Henry T. Drake, for defendant-appellants.

    ELMORE, Judge.

    Michael Dobbins (defendant Dobbins) appeals from an order dated 26 June 2006 in favor of Tyler & Associates, Inc. (plaintiff).
    Plaintiff, a Minnesota corporation, owns a parcel of land in Richmond County. In the summer of 2002, defendant Dobbins and Norman Barfield (defendant Barfield) entered plaintiff's property, destroyed a building located thereon, and removed the materials, including bricks and timbers. On 10 July 2002, both defendants had signed an agreement to purchase the parcel from plaintiff for $50,000.00. However, plaintiff never signed this agreement.     Plaintiff filed a civil action on 25 March 2004 to recover damages for the destruction of its building. The complaint set forth four separate causes of action, including breach of contract, conversion, trespass, and unfair and deceptive trade practices. Monetary damages were requested for trespass, conversion, and unfair and deceptive trade practices.
    Defendant Dobbins was served with the summons and complaint on 2 April 2004. Defendant Barfield was served on 18 August 2004. Neither defendant answered the complaint. Default was entered against defendant Dobbins on 6 May 2004, and against defendant Barfield on 24 September 2004.
    On 13 October 2004, plaintiff filed its motion for default judgment against both defendants and served a copy of the motion on both defendants. Neither defendant responded to the motion, and on 5 January 2005, plaintiff requested that the case be placed on the court calendar for the 31 January 2005 session of court. Copies of the calendar request were forwarded to both defendants.
    Defendants did not appear at the hearing on plaintiff's motion for default judgment, and judgment was entered against defendants on 1 February 2005. At the hearing for default judgment, plaintiff abandoned its contract theory cause of action. Relief was granted for plaintiff's unlawful trespass, conversion, and unfair and deceptive trade practices causes of action. Copies of the judgment were forwarded to both defendants at their last known addresses on 9 February 2005. Neither defendant ever filed any appeal from this judgment, and it became the final judgment of the court.    On 8 March 2005, defendant Dobbins filed a motion, pursuant to Rules 55 and 60 of the North Carolina Rules of Civil Procedure, to set aside the entry of default and the default judgment (the first motion).   (See footnote 1)  The first motion was filed by defendant Dobbins within the time period he could have appealed from the default judgment.
    The basis for this first motion was excusable neglect. Defendant Dobbins alleged that he first learned of the contract upon receipt of the summons and complaint. Defendant Dobbins further alleged that he was not a party to the contract referred to in plaintiff's complaint, which had never been signed by plaintiff, and that defendant Dobbins' signature on the contract was a forgery. Defendant Dobbins also alleged that when he received the summons and complaint he turned the suit papers over to defendant Barfield, and relied entirely on defendant Barfield to handle the matter on his behalf. Defendant Dobbins did nothing further until he was served with the default judgment.
    The first motion was heard before the Superior Court on 2 May 2005. The court found that defendant Dobbins had failed to prove and establish any excusable neglect so as to justify setting aside the entry of default and the entry of default judgment against him, and denied the first motion. Defendant Dobbins did not appeal from the denial of this first motion.
    Defendant Dobbins then retained a handwriting expert to defend the case on the merits and, on 28 February 2005, filed a new motion(the second motion) to set aside the original default judgment and the judgment on the first motion. In the second motion, Dobbins asked that the default judgment and the judgment on the first motion be set aside on the grounds of excusable neglect, fraud, and failure of the complaint to allege a deceptive trade practice.
    Plaintiff then filed a response to the second motion, asserting that the second motion was barred by the doctrine of res judicata, and further asserting a right to relief under Rule 11 of the North Carolina Rules of Civil Procedure. The second motion was heard by the Superior Court on 19 June 2006. On 26 June 2006, an order was entered denying the second motion and awarding counsel fees to plaintiff pursuant to Rule 11. Defendant Dobbins now appeals from the 26 June 2006 order.
    Defendant Dobbins first argues that the trial court erred in refusing to set aside the default judgment concerning unfair and deceptive trade practices. The applicable standard of review is set forth in Sink v. Easter, in which the North Carolina Supreme Court stated that “a motion for relief under Rule 60(b) is addressed to the sound discretion of the trial court and appellate review is limited to determining whether the court abused its discretion.” 288 N.C. 183, 198, 217 S.E.2d 532, 541 (1975). Thus, we must determine whether the trial court abused its discretion in refusing to set aside plaintiff's default judgment concerning unfair and deceptive trade practices. We hold that it did not.
    Defendant Dobbins argues that his actions of delivering the initial complaint and summons to defendant Barfield constituteexcusable neglect. However, defendant Dobbins does not indicate that he ever made any further inquiry about the suit until after he had received the default judgment. The North Carolina Supreme Court has held that turning suit papers over to another person, without making any further inquiry or investigation into the suit, does not constitute excusable neglect. “What constitutes excusable neglect depends upon what, under all the surrounding circumstances, may be reasonably expected of a party in paying proper attention to his case.” Trivette v. Trivette, 162 N.C. App. 55, 62, 590 S.E.2d 298, 304 (2004) (citations, quotations, and alteration omitted). “[P]arties who have been duly served with summons are required to give their defense that attention which a man of ordinary prudence usually gives his important business, and failure to do so is not excusable.” Id. at 63, S.E.2d at 304 (quoting Jones v. Fuel Co., 259 N.C. 206, 209, 130 S.E.2d 23, 326 (1963)) (quotations omitted). Our Supreme Court has found excusable neglect when a party turns over a legal matter to an errant attorney, who neglects the case despite efforts by the party to stay abreast of the matter. Brown v. Hale, 259 N.C. 480, 484-85, 130 S.E.2d 868, 871 (1963) (citations omitted).
    This is not such a case. Brown distinguished itself from those cases in which a party turns over a legal matter to a non- attorney and then neglects it, stating that in such cases, “ordinarily the inexcusable neglect of a responsible agent will be imputed to the principal in a proceeding to set aside a judgment by default.” Id. at 484, 130 S.E.2d at 871 (quotations and citationsomitted). We apply that rule to defendant Dobbins, who had knowledge of the summons and complaint, but nevertheless relinquished the matter to defendant Barfield without giving it any further attention. Accordingly, we impute defendant Barfield's inexcusable neglect to defendant Dobbins.
    Moreover, the argument of defendant Dobbins, in the second motion, addresses the merits of plaintiff's cause of action for unfair and deceptive trade practices. In his brief to this Court, defendant Dobbins cite to numerous cases dealing with unfair and deceptive trade practices and the propriety of the award of treble damages in this case for violation of N.C. Gen. Stat. § 75-1.1. However, this entire argument sets forth matters that defendant Dobbins should have asserted through a direct appeal, and not by way of a motion under Rule 60. “Rule 60(b) provides no specific relief for 'errors of law' and our courts have long held that even the broad general language of Rule 60(b)(6) does not include relief for 'errors of law.'” Hagwood v. Odom, 88 N.C. App. 513, 519, 364 S.E.2d 190, 193 (1988) (citation omitted).
    Having failed to appeal from the entry of default judgment, and having failed to appeal from the trial court's order denying the first motion, defendant Dobbins is not permitted to assert in this appeal, for the first time, errors of law; that is not the purpose of Rule 60.
     Defendant Dobbins next argues that the trial court erred by not setting aside the default and the default judgment. “A motion to set aside an entry of default is addressed to the sounddiscretion of the trial judge and the order of the trial court ruling on such a motion will not be disturbed on appeal absent a showing of abuse of that discretion.” Emick v. Sunset Beach & Twin Lakes, ___ N.C. App. ___, ___, 638 S.E.2d 490, 496 (2006) (citations omitted).
    Defendant Dobbins' second argument relies on a handwriting expert to substantiate his claim that his signature on the contract was a forgery. Any allegations of forgery in the contract go to the issue of whether defendant Dobbins had a meritorious defense to the complaint. “[I]n the absence of a showing of excusable neglect, the question of meritorious defense becomes immaterial” on a motion to vacate or set aside a default judgment; therefore, defendant Dobbins' second assignment of error is without merit. Boyd v. Marsh, 47 N.C. App. 491, 492-93, 267 S.E.2d 394, 395 (1980) (citation omitted).
    Defendant Dobbins' third assignment of error is that the trial court should not have granted Rule 11 sanctions. The proper standard of review of Rule 11 sanctions is whether the trial court abused its discretion. This Court conducts a de novo review to “determine (1) whether the trial court's conclusions of law support its judgment or determination, (2) whether the trial court's conclusions of law are supported by its findings of fact, and (3) whether the findings of fact are supported by a sufficiency of the evidence.” Central Carolina Nissan, Inc. v. Sturgis, 98 N.C. App. 253, 259, 390 S.E.2d 730, 734 (1990).    At the hearing on the second motion, the trial judge held that the second motion was: (1) not well founded in fact; (2) not supported by existing law; (3) not a good faith argument for the extension, modification, or reversal of existing law; (4) interposed to cause unnecessary delay in the enforcement of a valid judgment; and (5) interposed to increase the cost of litigation. We agree.
    The second motion is substantially identical to the first motion, though the allegations are couched in somewhat different terms. Defendant Dobbins, in his second motion, relied on excusable neglect. However, the issue of excusable neglect was addressed by the trial judge in the first motion. Thus, the question of whether defendant Dobbins had properly alleged and shown any excusable neglect had been adjudicated, and re- adjudication of that finding is barred by the doctrine of res judicata. “Under the doctrine of res judicata, when a court of competent jurisdiction has reached a decision on facts in issue, neither of the parties are allowed to call that decision into question and have it tried again.” Culler v. Hamlett, 148 N.C. App 389, 392, 559 S.E.2d 192, 194 (2002) (citations omitted).
    A thorough review of the trial court's order reveals that all findings of fact are supported by the record, the findings of fact support the conclusions of law, and the conclusions of law support the mandate. Therefore, in light of the trial judge's previous ruling upon substantially the same motion, the granting of Rule 11sanctions was justified, and there was no abuse of discretion by the trial court.
    Judges HUNTER and GEER concur.
    Report per Rule 30(e).

Footnote: 1
     Defendant Barfield died on 5 April 2005, and he was not a party to the first motion or the second motion.

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