Opinion
No. COA15-781
05-03-2016
B & B CRANE SERVICE, LLC, Plaintiff, v. DEVERE CONSTRUCTION COMPANY, INC., Defendant.
Ward and Smith, P.A., by Alexander C. Dale and Kimberly Elizabeth Lee, for plaintiff-appellee. Elmore Goldsmith, PA, by Bryan P. Kelley and Mason A. Goldsmith, Jr., for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Brunswick County, No. 14 CVS 1717 Appeal by defendant from order entered 4 March 2015 by Judge Ola M. Lewis in Brunswick County Superior Court. Heard in the Court of Appeals 1 December 2015. Ward and Smith, P.A., by Alexander C. Dale and Kimberly Elizabeth Lee, for plaintiff-appellee. Elmore Goldsmith, PA, by Bryan P. Kelley and Mason A. Goldsmith, Jr., for defendant-appellant. GEER, Judge.
Defendant DeVere Construction Company, Inc. appeals from an order denying its Rule 60 motion to set aside a default judgment, arguing that the trial court erred in concluding that defendant had not shown that its failure to respond to the action resulting in the default judgment was due to excusable neglect. Because on appeal defendant cites no authority supporting its appeal and points to no facts establishing that the trial court abused its discretion, we affirm.
Facts
On 15 September 2014, plaintiff B & B Crane Service, LLC filed a complaint to collect money owed by defendant for a lease of plaintiff's equipment. Plaintiff served a summons and complaint on defendant by certified mail addressed to defendant's registered agent in North Carolina on 1 October 2014 and again by certified mail addressed to defendant's chief operating officer, Fred Gagnier, at defendant's home office in Alpena, Michigan on 3 October 2014. The trial court entered a default judgment in the amount of $75,470.96, plus interest and attorney's fees, on 20 November 2014 after defendant failed to respond to the complaint.
Defendant filed a motion to set aside the default judgment pursuant to Rule 60(b) of the Rules of Civil Procedure on 29 December 2014. Along with the motion, defendant filed two affidavits, one from Mr. Gagnier and a second from Joseph Coleman, a former vice president of defendant who was in charge of defendant's North Carolina operations. Gagnier and Coleman both asserted that defendant's North Carolina office had not been served with the summons and complaint, although plaintiff's Affidavit of Service showed that defendant's North Carolina registered agent had been served. Mr. Gagnier also claimed in his affidavit that he did not answer the complaint because he assumed someone in the North Carolina office would. Upon hearing defendant's motion to set aside the default judgment, the trial court denied the motion on the basis that defendant failed to "show[] any excusable neglect." Defendant timely appealed the order to this Court.
Discussion
Defendant's sole argument on appeal is that the trial court erred in denying its Rule 60(b) motion to set aside the 20 November 2014 default judgment on the basis that defendant failed to show excusable neglect in not responding to the summons and complaint. "[T]he standard of review of a trial court's denial of a Rule 60(b) motion is abuse of discretion." Davis v. Davis, 360 N.C. 518, 523, 631 S.E.2d 114, 118 (2006). "A trial court is not required to make written findings of fact when ruling on a Rule 60(b) motion, unless requested to do so by a party." Creasman v. Creasman, 152 N.C. App. 119, 124, 566 S.E.2d 725, 729 (2002). When, as here, " 'the trial court does not make findings of fact in its order denying the motion to set aside the judgment, the question on appeal is whether, on the evidence before it, the court could have made findings of fact sufficient to support its legal conclusion[.]' " Id. (quoting Grant v. Cox, 106 N.C. App. 122, 125, 415 S.E.2d 378, 380 (1992)).
" 'To set aside a judgment on the grounds of excusable neglect under Rule 60(b), the moving party must show that the judgment rendered against him was due to his excusable neglect and that he has a meritorious defense.' " Higgins v. Michael Powell Builders, 132 N.C. App. 720, 726, 515 S.E.2d 17, 21 (1999) (quoting Thomas M. McInnis & Assocs. v. Hall, 318 N.C. 421, 424, 349 S.E.2d 552, 554 (1986)). "The settled rule in North Carolina is that a party served with a summons must give the matter the attention a person of ordinary prudence would give to important business, and failure to do so is not excusable neglect." Anderson Trucking Serv., Inc. v. Key Way Transp., Inc., 94 N.C. App. 36, 41, 379 S.E.2d 665, 668 (1989). Furthermore, "a corporation which fails to pay due attention to the possibility that it could be involved in litigation . . . by failing to take steps to ensure that it is notified of claims pending against it, is guilty of inexcusable neglect." Id. For example, this Court upheld a trial court's determination that the corporation in Anderson Trucking was guilty of inexcusable neglect for failing to maintain a registered agent in North Carolina and for using its former president, who no longer had an interest in the company, as the only registered agent. Id. at 42, 379 S.E.2d at 668-69.
Defendant's only attempt to challenge the ruling of the trial court in its appellate brief is to argue that the facts of this case are distinguishable from those in Anderson Trucking, and therefore the facts at issue are sufficient to demonstrate excusable neglect. Specifically, defendant argues that because it maintained a registered agent in North Carolina and reasonably assumed that its North Carolina office would receive and answer the complaint, its failure to respond to the complaint amounts to excusable neglect. We disagree.
Defendant's chief operating officer, Mr. Gagnier, admitted in an affidavit that he was served with a copy of the summons and complaint at the very latest on 3 October 2014 at its corporate headquarters in Alpena, Michigan. Mr. Gagnier also implied he did not make any effort to ensure the complaint was answered because he "assumed that the plaintiff would serve the complaint on [defendant's] North Carolina office, and that it would be answered from North Carolina."
Although defendant claims its North Carolina office was never served with the complaint, plaintiff filed an affidavit of service indicating it served defendant's registered agent by certified mail on 1 October 2014. In addition, the record contains evidence that the summons and complaint were in fact received by the registered agent and forwarded by Federal Express two-day delivery to Mr. Gagnier, with email notifications to Mr. Gagnier and a second employee, Cynthia Gabara.
The facts of this case -- in which the evidence is undisputed that defendant's chief operating officer actually received the summons and complaint both through service by the plaintiff and by having the documents forwarded to him by the company's North Carolina registered agent -- are even less compelling than those of Anderson Trucking in which the company never received the complaint. The fact that the chief operating officer of a corporation simply assumed, without inquiring, that another agent or employee of the corporation would answer a lawsuit, amounts to inexcusable neglect. Even if defendant's registered agent in North Carolina failed to notify defendant's North Carolina office of the lawsuit, defendant has not shown that this failure is excusable neglect especially since the record suggests that the registered agent was directed to notify the chief operating officer and another officer rather than the North Carolina office. See Morris v. Liverpool, London & Globe Ins. Co., 131 N.C. 212, 215, 42 S.E. 577, 578 (1902) ("The duty of the agent was to have informed his company of the fact, which he knew, that the summons had been served on him . . . ."). Accordingly, we affirm the trial court's order denying defendant's motion to set aside the default judgment.
AFFIRMED.
Judges BRYANT and McCULLOUGH concur.
Report per Rule 30(e).