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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 3 July 2007
BARBARA MICHELLE COLEMAN and
SCOTT JOSEPH FISH,
FIRST STAR, INC. and
Appeal by defendants from judgment entered 29 July 2005 and
orders entered 30 June 2006 and 31 July 2006 by Judge Timothy L.
Patti in Mecklenburg County Superior Court. Heard in the Court of
Appeals 10 May 2007.
Legal Services of Southern Piedmont, Inc., by Kenneth L.
Schorr, for plaintiff appellees.
Miller & Miller, by J. Jerome Miller, for defendant
Defendant appeals from a default judgment and two orders of
the trial court denying defendants' motion for new hearing on
plaintiffs' motion for default judgment, or, in the alternative,
motion to set aside the default judgment. We affirm.
On 24 June 2004, Barbara Michelle Coleman and Scott Joseph
Fish (plaintiffs) filed a complaint against First Star, Inc., and
Nikolai Stassenko (defendants) alleging violations of the Truthin Lending Act, the Retail Installment Sales Act, and the Uniform
Commercial Code. In addition, the complaint included causes of
action based on fraud, conversion, breach of the duty of good faith
and fair dealing, and unfair and deceptive trade practices. All of
the allegations were related to the purchase of a used vehicle from
First Star, Inc. Defendants did not make a timely response to the
complaint, and default was entered by the clerk on 10 September
Plaintiffs filed a motion for entry of default judgment and a
notice of hearing for 19 January 2005. Defendants filed an
untimely answer on 18 January 2005. Then, the trial court entered
a default judgment on 29 July 2005.
On 26 August 2005, defendants filed a motion entitled Motion
for New Hearing on Plaintiffs' Motion for Default Judgment, Or, In
the Alternative, Motion to Set Aside Default Judgment. The trial
court issued an order on 30 June 2006 denying defendants' motion
and instructing plaintiffs' attorney to prepare an order and submit
it for signature. On 31 July 2006, the trial court entered a more
detailed order denying defendants' motion.
Defendants appeal the default judgment and both orders denying
defendants' 26 August 2005 motion. By order dated 4 December 2006,
this Court dismissed the appeal of the default judgment.
Defendants contend the trial court abused its discretion in
not permitting the case to go forward on its merits. Specifically,
defendants assert the trial court erred by not ruling that thedefault judgment was void under Rule 60(b)(4) of the North Carolina
Rules of Civil Procedure. Defendants argue the exhibits attached
to the complaint clearly show that the federal and state consumer
protection laws were not violated by defendants. We disagree.
The North Carolina Rules of Civil Procedure provide [o]n
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 [because] . . . [t]he judgment is void[.] N.C. Gen.
Stat. § 1A-1, Rule 60(b)(4) (2005). A Rule 60(b)(4) motion is
only proper where a judgment is 'void' as that term is defined by
the law. Burton v. Blanton
, 107 N.C. App. 615, 616, 421 S.E.2d
381, 382 (1992). A judgment will not be deemed void merely for an
error in law, fact, or procedure. Id.
A judgment is void only
when the issuing court has no jurisdiction over the parties or
subject matter in question or has no authority to render the
judgment entered. Id.
An erroneous judgment, by contrast, is
one entered according to proper court procedures and practices but
is contrary to the law or involves a misapplication of the law.
at 617, 421 S.E.2d at 383. Whether plaintiff is able to assert
a meritorious defense is irrelevant when determining whether a
judgment is void.
An entry of default may be set aside for good cause. Peebles
, 48 N.C. App. 497, 504, 269 S.E.2d 694, 698 (1980),
modified and affirmed,
302 N.C. 351, 275 S.E.2d 833 (1981)
(Inadvertence . . . may constitute good cause; N.C.R. Civ. P.
55(d). However, the mere fact that defendant has a meritoriousdefense does not justify setting aside an entry of default if no
good cause for the default is shown. Peebles
, 48 N.C. App. at 504,
269 S.E.2d at 698. Similarly, simply having a meritorious defense
is not sufficient to set aside a default judgment. Id.
at 504, 269
S.E.2d at 698. The law requires something else, such as excusable
neglect, to set aside a default judgment on appeal. Id
Here, the record on appeal contains a stipulation which states
that process was duly served and that the court had jurisdiction
over the parties. Therefore, the judgment is not void for want
of jurisdiction by the trial court. In addition, defendants' brief
contains no detail in its argument supporting their assertion that
the consumer protection laws were not violated. In reviewing
defendants' motion to set aside the entry of default, absent a
showing of good cause for default, we need not consider whether or
not defendant has a meritorious defense. Similarly, in reviewing
defendants' motion to set aside the default judgment, absent a
showing of excusable neglect, we need not consider whether
defendants have a meritorious defense. Lack of good cause for the
former, and lack of excusable neglect for the latter, are fatal to
defendants' appeal as to those issues. Therefore, we disagree with
Defendants included three other assignments of error in the
record on appeal, but we decline to reach these issues. The North
Carolina Rules of Appellate Procedure clearly state [t]he body of
the argument . . . shall contain citations of the authorities upon
which the appellant relies. N.C. R. App. P. 28(b)(6). Here, thearguments corresponding to these assignments of error were
extremely short and no authorities were cited. Accordingly, they
Judges BRYANT and STROUD concur.
Report per Rule 30(e).
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