Opinion
No. COA12–1416.
2013-05-7
CAROLINA BUILDERS, INC., Plaintiff v. BIBLE WAY COMMUNITY DEVELOPMENT CORPORATION, Defendant.
Downing, Downing & Burns, PLLC, by Harold D. Downing, for plaintiff-appellee. Kennedy, Kennedy, Kennedy and Kennedy, LLP, by Harold L. Kennedy, III and Harvey L. Kennedy, for defendant-appellant.
Appeal by defendant from order entered 31 July 2012 by Judge Douglas B. Sasser in Cumberland County Superior Court. Heard in the Court of Appeals 27 March 2013. Downing, Downing & Burns, PLLC, by Harold D. Downing, for plaintiff-appellee. Kennedy, Kennedy, Kennedy and Kennedy, LLP, by Harold L. Kennedy, III and Harvey L. Kennedy, for defendant-appellant.
HUNTER, JR., ROBERT N., Judge.
Bible Way Community Development Corporation (“Defendant”) appeals from an order of the superior court denying its Motion for Relief from Judgment seeking to set aside a default judgment entered by the Clerk in favor of Carolina Builders, Inc. (“Plaintiff”). On appeal, Defendant argues that the trial court erred in denying its motion to set aside the judgment because the Clerk lacked jurisdiction to enter a default judgment, therefore making the judgment void ab initio. We disagree, and thus affirm.
I. Procedural History
Plaintiff commenced this suit on 8 September 2011 by filing a verified Complaint in Cumberland County Superior Court. In its Complaint, Plaintiff alleged that it had contracted with Defendant to replace, repair, and improve the roof of a church in Fayetteville, and that Defendant had failed to pay for some of the work performed. Plaintiff alleged that Defendant owed Plaintiff $34,289. In support of its contention, Plaintiff attached invoices to its Complaint detailing the work performed, the cost of that work, the partial payment it had already received, and the outstanding balance.
Defendant's registered agent, Arthur Conyers (“Mr.Conyers”), was duly served with a summons and a copy of the Complaint on 19 September 2011. Defendant failed to file any responsive pleading, and Plaintiff filed a Motion for Entry of Default on 2 November 2011 . On 8 November 2011, the Clerk ordered a default judgment for Plaintiff in the amount prayed for in the Complaint, $34,289, and noted that “it appear[s] ... that this is an action on a claim for a sum certain.”
Mr. Conyers acknowledged that he received the summons and Complaint, but said that he “misplaced the papers and forgot about them until [he] received a copy of the Default Judgment.”
After Plaintiff levied execution on the judgment, Defendant filed a Motion for Relief from Judgment pursuant to N.C. R. Civ. P. 60(b), seeking to set aside the judgment. In its motion, Defendant argued that the default judgment should be set aside on the grounds of “mistake/misrepresentation” and “fundamental fairness.” Following a hearing, the trial court denied Defendant's motion. Defendant filed timely notice of appeal.
II. Jurisdiction
As the trial court's denial of Defendant's motion to set aside the default judgment makes that judgment final, Defendant has an appeal of right pursuant to N.C. Gen.Stat. § 7A–27(b) (2011).
III. Analysis
Defendant argues on appeal that the trial court erred in denying its Rule 60(b) motion for relief because the default judgment entered by the Clerk was void ab initio. Specifically, Defendant asserts that the Clerk lacked jurisdiction to enter a default judgment because Plaintiff's claim was not “for a sum certain or for a sum which can by computation be made certain.” N.C. R. Civ. P. 55(b)(1) (2011). We disagree.
We first note that Defendant did not raise the issue of the Clerk's jurisdiction to enter a default judgment in its rule 60(b) motion, the denial of which it now appeals. Ordinarily, “a contention not made in the court below may not be raised for the first time on appeal,” Higgins v. Simmons, 324 N.C. 100, 103, 376 S.E.2d 449, 452 (1989), as an appellant is not entitled to “swap horses between courts in order to get a better mount in the appellate courts.” State v. Holliman, 155 N.C.App. 120, 123, 573 S.E.2d 682, 685 (2002) (citations and quotation marks omitted). However, “[i]t is well-established that the issue of a court's jurisdiction over a matter may be raised at any time, even for the first time on appeal or by a court sua sponte.” New Bar P'ship v. Martin, ––– N.C.App. ––––, ––––, 729 S.E.2d 675, 681 (2012) (quotation marks and citation omitted). Accordingly, we address the merits of Defendant's jurisdictional argument.
N.C. R. Civ. P. 55(b)(1) provides two basic conditions which must be met before a clerk can enter a default judgment. First, “[t]he defendant must have been defaulted for failure to appear and he must not have been an infant or incompetent person.” Roland v. W & L Motor Lines, Inc., 32 N.C.App. 288, 291, 231 S.E.2d 685, 688 (1977) (emphasis omitted). Second, “the plaintiff's claim must be for a sum certain or for a sum that can by computation be made certain.” Id. “The mere demand for judgment of a specified dollar amount does not suffice to make [a] plaintiff's claim one for ‘a sum certain’ as contemplated by Rule 55(b)” as “[s]uch a demand is normally included in the prayer for relief in every complaint in which monetary damages are sought, including complaints alleging claims for damages for bodily injuries caused by a defendant's negligence.” Hecht Realty, Inc. v. Hastings, 45 N.C.App. 307, 309, 262 S.E.2d 858, 859 (1980). Thus, a clerk's ability to enter a default judgment “is ordinarily limited to contract claims or suits to collect a debt evidenced by a written instrument.” C. Gray Wilson, North Carolina Civil Procedure § 55–3 (3d ed.2007). Accordingly, “[t]he routine practice is to attach the account or instrument of indebtedness being sued upon to the complaint as an exhibit.” Id.
Plaintiff's claim is for unpaid construction work performed by Plaintiff on property owned by Defendant pursuant to an alleged contract. The Complaint sets out a claim on a construction account for the balance due in the amount of $34,289. Plaintiff attached to its Complaint a comprehensive set of invoices, as well as copies of cleared checks from Defendant which showed a balance due (i.e. the sum of all work contracted minus credit for all reductions and payments on the account). This is a “sum certain” as contemplated by Rule 55. Thus, the Clerk had jurisdiction to enter a default judgment against Defendant.
The cases upon which Defendant relies in its brief are easily distinguishable from the instant case. In Grant v. Cox, 106 N.C.App. 122, 415 S.E.2d 378 (1992), the complaint was for damages for the wrongful cutting of timber and alleged a fair market value of the timber cut at $25,000, without setting out any basis for the demanded figure. Here, the evidence before the Clerk consisted of the verified Complaint for the balance due to Plaintiff under the terms of an express contract between Plaintiff and Defendant, and attached to the Complaint was an explanation of the work performed and a statement of all charges, payments, and credits on the account. Plaintiff also submitted an affidavit attesting to the fact that the sum demanded in the Complaint was the balance due on the account of Defendant for work performed under the terms of the contract.
Defendant's reliance on Williams v. Moore, 95 N.C.App. 601, 383 S.E.2d 416 (1989), is similarly misplaced. In vacating the default judgment in Williams, a case in which a plaintiff sought damages from a breach of a lease of land, this Court noted:
Plaintiffs' claim is not for “a sum certain or a sum which can by computation be made certain.” First, in an effort to mitigate damages caused by defendant's alleged breach of the lease, plaintiffs re-leased the farm, although it is unclear how much acreage was re-leased, for $50 per acre. Although neither plaintiffs' affidavit nor complaint explicitly set out the calculations necessary to compute $306,046.92 in damages, plaintiffs presumably subtracted $23,996 in mitigation of damages to arrive at this figure. Plaintiffs' claim is not for a “sum certain ...” when their damages are mitigated by a sum dependent on plaintiffs' estimate of the “fair rental value” of some unspecified amount of land.
In addition, there is uncertainty about other elements of plaintiffs' damages. In paragraph 9 of the lease [ ... ] plaintiffs agreed to secure a loan to clear 160 acres of woods land so defendant could farm that additional land. Defendant agreed to “pay all expenses incurred by the Lessors in securing said loan, including the attorney's fees, origination fee at The Federal Land Bank Association, and the stock at The Federal Land Bank Association when due.” Defendant also agreed “to pay all payments on the loan on or before the due date ....“ In the complaint, plaintiffs allege expenses of $19,762.50 for each of the years 1986 and 1987 for land clearing. Given the uncertainty of how plaintiff arrived at this figure, it is not a “sum certain ...” subject to entry of default judgment by the clerk.
95 N.C.App. at 605–06, 383 S.E.2d at 418. These barriers to calculation are not present in the case sub judice, which involves a fairly straight forward contract for the provision of construction services. Indeed, the Court in Williams specifically noted that “action[s] to recover for personal services rendered for a sum fixed in an express contract” are by their nature actions for a “sum certain.” Id. at 605, 383 S.E.2d at 418 (citing McGuire v. Sammonds, 247 N.C. 396, 100 S.E.2d 829 (1957)). Despite Defendant's assertion to the contrary, the fact that the express contract at issue here was an oral contract does not render the claim one for an uncertain sum.
Lastly, we note that Defendant does not argue on appeal that the trial court abused its discretion in denying its motion on the basis of the substantive arguments presented by Defendant in the lower court. Accordingly, we decline to evaluate the merits of those arguments. SeeN.C. R.App. P. 28(a) (“Issues not presented and discussed in a party's brief are deemed abandoned.”).
IV. Conclusion
For the foregoing reasons, the order of the superior court is
AFFIRMED. Judges BRYANT and McCULLOUGH concur.
Report per Rule 30(e).