Ruiz v. Mecklenburg Utilities, Inc.

657 S.E.2d 432, 189 N.C. App. 123, 2008 N.C. App. LEXIS 418
CourtCourt of Appeals of North Carolina
DecidedMarch 4, 2008
DocketCOA07-804
StatusPublished
Cited by4 cases

This text of 657 S.E.2d 432 (Ruiz v. Mecklenburg Utilities, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ruiz v. Mecklenburg Utilities, Inc., 657 S.E.2d 432, 189 N.C. App. 123, 2008 N.C. App. LEXIS 418 (N.C. Ct. App. 2008).

Opinions

McCullough,

Judge.

Defendant appeals from an order denying motion to set aside a default judgment entered against defendant.

FACTS

On 30 December 2005, Juan Ruiz (“plaintiff’), an employee of Virginia-Carolina Paving and Grading Company, filed a complaint against Mecklenburg Utilities, Inc. (“defendant”). According to the complaint, defendant’s negligence caused plaintiff to be injured while working on a water line. On 13 November 2006, plaintiff filed a motion for default judgment against defendant pursuant to Rule 55(b) of the North Carolina Rules of Civil Procedure and simultaneously sent notice of this motion to defendant, although he was not required to do so. N.C. R. Civ. P. 55(b). On 2 January 2007, plaintiff’s motion for a default judgment was heard in Forsyth County Superior Court. The trial judge allowed plaintiff’s motion and entered a default judgment against defendant on 2 January 2007. Defendant filed a motion in Forsyth County Superior Court to set aside the default judgment pursuant to Rule 60(b) of the North Carolina Rules of Civil Procedure on 1 February 2007. On 21 February 2007, the Honorable Catherine C. Eagles denied defendant’s motion to set aside the entry of default or the default judgment. Defendant filed notice of appeal on 22 March 2007.

[125]*125I.

Defendant argues the trial court erred by entering a default judgment against defendant. Specifically, defendant contends the trial court erred by entering a default judgment without a prior entry of default. We disagree.

Normally, “[d]efault under Rule 55 of the North Carolina Rules of Civil Procedure is a two-step process requiring (1) the entry of default and (2) the subsequent entry of a default judgment.” McIlwaine v. Williams, 155 N.C. App. 426, 428, 573 S.E.2d 262, 264 (2002); N.C. Gen. Stat. § 1A-1, Rule 55 (2007).1 If a plaintiff seeks a default judgment under Rule 55, he must abide by these procedural requirements. McIlwaine, 155 N.C. App. at 430, 573 S.E.2d at 264. “While entry of default may be set aside pursuant to Rule 55(d) and a showing of good cause, after judgment of default has been entered, the motion to vacate is governed by Rule 60(b)[.]” Estate of Teel v. Darby, 129 N.C. App. 604, 607, 500 S.E.2d 759, 762 (1998) (citations omitted). Rule 60(b) of the North Carolina Rules of Civil Procedure allows a party to seek relief from a final judgment of the trial court in cases of, inter alia, mistake, inadvertence, surprise, or excusable neglect. N.C. Gen. Stat. § 1A-1, Rule 60(b) (2007). “[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.” Sink v. Easter, 288 N.C. 183, 198, 217 S.E.2d 532, 541 (1975). On appeal, the trial court’s findings of fact are conclusive if supported by any competent evidence. Estate of Teel, 129 N.C. App. at 607, 500 S.E.2d at 762. However, the trial court’s conclusions of law are subject to appellate review. Id.

Upon review of the case sub judice, the record indicates that plaintiff failed to file a motion for entry of default pursuant to North Carolina Rule of Civil Procedure 55(a), and neither the trial court nor the clerk made an explicit entry of default prior to the entry of the default judgment. See N.C. Gen. Stat. § 1A-1, Rule 55(a). As we noted in Strauss v. Hunt, 140 N.C. App. 345, 348, 536 S.E.2d 636, 638 (2000), before a trial court rules on a motion for judgment by default, a plaintiff should file a motion for entry of default, and receive a ruling on that motion from either the clerk or trial court. Although the defendant in Strauss failed to raise this issue for appeal, we emphasized the [126]*126importance of following the correct procedure to obtain a default judgment. Id. at 348, 536 S.E.2d at 638-39.

Rule 55(a) states:

(a) Entry. — When a party against whom a judgment for affirmative relief is sought has failed to plead or is otherwise subject to default judgment as provided by these rules or by statute and that fact is made to appear by affidavit, motion of attorney for the plaintiff, or otherwise, the clerk shall enter his default.

Although the Rule provides that entry is to be made by the clerk, the judge has concurrent jurisdiction and can order entry of default. Hasty v. Carpenter, 51 N.C. App. 333, 336-37, 276 S.E.2d 513, 516-17 (1981); Highfill v. Williamson, 19 N.C. App. 523, 532, 199 S.E.2d 469, 474 (1973).

Entry of default has often been described as an interlocutory or ministerial act, Whaley v. Rhodes, 10 N.C. App. 109, 177 S.E.2d 735 (1970), and looks toward subsequent entry of a final judgment. Id.

While entry of default and default judgment are normally accomplished by separate motions and orders, nothing in the Rule prohibits both steps from being addressed in the same pleading.

In Highfill, the defendant objected to the fact that an entry of default was entered by the trial judge rather than the clerk. In holding that the judge had concurrent authority with the clerk, this Court noted that plaintiff had moved for “judgment against defendant by default.” Highfill, 19 N.C. App. at 532, 199 S.E.2d at 474.

In the case at bar, plaintiff’s motion uses virtually identical language in the prayer for relief. The order granting default judgment found that defendant had been properly served and had not answered or otherwise responded to the complaint. This finding is tantamount to entry of default. While the Court' in Highfill, Hasty and the other cases discussed herein considered damages in a subsequent hearing, Rule 55 does not prohibit the trial judge from immediately determining the amount of damages. Here, plaintiff filed an affidavit along with supporting documents which the trial court found to be adequate to allow the court to compute damages. We find no abuse of discretion in this instance.

In his brief, defendant argues that the failure to have a. separate entry of default prejudiced defendant by prohibiting the trial court [127]*127from setting aside the default under the more lenient standard of “for good cause shown” pursuant to Rule 55(d).

This argument ignores the fact that the judge denying the defendant’s motion to set aside the default judgment determined that there were no grounds under Rule 55(d) warranting relief. In its order the court stated: “IT FURTHER APPEARING THAT there has been no showing of good cause for setting aside default pursuant to Rule 55(d)[.]”

In summary, while obtaining a default judgment is normally a two-step process with entry of default before the clerk preceding the judgment, Rule 55 does not prohibit both motions from being made in the same pleading.

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Ruiz v. Mecklenburg Utilities, Inc.
657 S.E.2d 432 (Court of Appeals of North Carolina, 2008)

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Bluebook (online)
657 S.E.2d 432, 189 N.C. App. 123, 2008 N.C. App. LEXIS 418, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ruiz-v-mecklenburg-utilities-inc-ncctapp-2008.