Smith ex rel. Strickland v. Jones

645 S.E.2d 198, 183 N.C. App. 643, 2007 N.C. App. LEXIS 1157
CourtCourt of Appeals of North Carolina
DecidedJune 5, 2007
DocketNo. COA06-1268.
StatusPublished
Cited by3 cases

This text of 645 S.E.2d 198 (Smith ex rel. Strickland v. Jones) 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
Smith ex rel. Strickland v. Jones, 645 S.E.2d 198, 183 N.C. App. 643, 2007 N.C. App. LEXIS 1157 (N.C. Ct. App. 2007).

Opinion

BRYANT, Judge.

Boya Investments, LLC (defendant) appeals from an order entered 19 June 2006 denying their Rule 60 motion to set aside the default judgment entered against defendants on 29 August 2005. For the reasons stated below, we affirm.

Sawyer Smith is the minor child of Catherine E. Strickland. On 1 September 2004, a pit bull dog owned by Darryel Jones and his wife, Ida Jones, who occupied a residence owned by defendant, viciously attacked and injured both Sawyer Smith and her dog. Plaintiff brought this action to recover from defendants (including Darryel and Ida Jones), jointly and severally, for damages and injuries arising out of defendants' negligence.

Defendant's registered agent was Thommasina W. Boya, and the registered office was 949 Smith Road, Smithfield, North Carolina 27577, as designated by defendant in the records of the Secretary of State in accordance with N.C. Gen.Stat. § 55D-30. Defendant designated 949 Smith Road as its registered address as recently as April 2006. In March 2005, the Johnston County Sheriff attempted to serve the Summons and Complaint on Boya Investments by and through its registered agent at its registered office in accordance with N.C. Gen.Stat. § 1A-1, Rule 4(j). The occupants at the registered office on 949 Smith Road in Smithfield advised the deputy that Mrs. Boya, the registered agent, did not live at that address. As a result, the deputy returned the summons unserved.

In April 2005, plaintiffs attempted to serve defendant by certified mail at the registered office (949 Smith Road, Smithfield) and at 101 Stonebrook Drive, Clayton, North Carolina. The Stonebrook Drive address was listed as the current residential address for Thommasina Boya in the November 2004 telephone book and as defendant's mailing address in the Johnston County tax records. The certified mail to both of these addresses was returned unserved and marked "unclaimed."

Plaintiffs initiated this action by filing a complaint on 22 March 2005. The Clerk of Superior Court of Johnston County appointed Catherine E. Strickland as guardian ad litem for Sawyer Smith, a minor. After unsuccessful attempts of service on Boya Investment's registered agent, plaintiffs served defendant by service of process on the North Carolina Secretary of State, on 13 June 2005, pursuant to N.C. Gen.Stat. § 55D-33, Service on Entities:

(a) Service of process, notice or demand required or permitted by law to be served on an entity may be served on the registered agent required by G.S. 55D-30.

(b) When . . . [the entity's] registered agent cannot with due diligence be found at the registered office . . . the Secretary of State becomes an agent of the entity upon whom any such process, notice or demand may be served. Service on the Secretary of State of any such process, notice or demand is made by delivering to and leaving with the Secretary of State or any clerk authorized by the Secretary of State to accept service of process, duplicate *200copies of the process, notice or demand and the applicable fee.

N.C. Gen.Stat. § 55D-33 (2005). After a number of unsuccessful delivery attempts, the Postal Service returned the certified mail to the Secretary of State marked "unclaimed" on 20 July 2005. The Secretary of State issued a letter dated 26 July 2005, indicating that service was complete and effective.

Defendant failed to file an answer or otherwise respond to the Complaint. The Clerk of Superior Court entered default against defendant on 5 August 2005. Plaintiffs filed a Motion for Default Judgment on 16 August 2005, and attempted to serve defendant with Notice of Hearing at its registered office. The Notice of Hearing was returned undelivered and marked with a "UTF" notation (presumably meaning "unable to find" the intended recipient at that address). The Johnston County Superior Court entered a default judgment against defendant for $55,952.40 on 1 September 2005.

Defendant learned of the default judgment upon receiving the sheriff's execution papers at the 101 Stonebrook Drive address in early March 2006. On 30 March 2006, defendant filed a motion pursuant to N.C. Gen.Stat. § 1A-1, Rule 60 to set aside the Entry of Default and Default Judgment. The trial court denied defendant's motion. Defendant appeals.

The dispositive issue is whether the trial court abused its discretion by denying defendant's motion to set aside the default judgment. Defendant contends the substitute service used by plaintiffs was neither proper nor sufficient. Accordingly, defendant argues there exists excusable neglect for not having received actual notice of plaintiffs' civil action such that there is ample justification for the trial court to set aside the default judgment. We disagree.

Under Rule 60(b), the court may grant a party relief from a judgment for mistake, inadvertence, surprise, or excusable neglect, or for other reasons justifying relief from the operation of the judgment. N.C. Gen.Stat. § 1A-1, Rule 60 (2005); Partridge v. Associated Cleaning Consultants, 108 N.C.App. 625, 630, 424 S.E.2d 664, 667, disc. rev. denied, 333 N.C. 540, 429 S.E.2d 560 (1993). It is well-settled in North Carolina that motions for relief from judgments under Rule 60 are left to the sound discretion of the trial court, and the trial court's decision will not be disturbed absent an abuse of discretion. Sink v. Easter, 288 N.C. 183, 217 S.E.2d 532 (1975). The trial court may only be reversed upon a showing that its decision was "manifestly unsupported by reason" and the trial court is to be afforded great deference and will be upset only upon a showing that its decision was "so arbitrary that it could not have been the result of a reasoned decision." White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985).

When an entity required to maintain a registered office and registered agent under G.S. § 55D-30 fails to appoint or maintain a registered agent in this State, or when its registered agent cannot with due diligence be found at the registered office . . . the Secretary of State becomes an agent of the entity upon whom any such process, notice or demand may be served. Service . . . is made by delivering to and leaving with the Secretary of State or any clerk authorized by the Secretary of State to accept service of process . . . .

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Cite This Page — Counsel Stack

Bluebook (online)
645 S.E.2d 198, 183 N.C. App. 643, 2007 N.C. App. LEXIS 1157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-ex-rel-strickland-v-jones-ncctapp-2007.