Opinion
No. COA12–1390.
2013-07-2
Theodore CONNOR, III, d/b/a/ War–Con Construction Company, Plaintiff, v. JESCO CONSTRUCTION CORPORATION, Defendant.
William F. Ward, III, P.A., by William F. Ward, III, for plaintiff-appellee. Howard, Stallings, From & Hutson, P.A., by Richard P. Leissner, Jr., for defendant-appellant.
Appeal by defendant from orders entered 26 April 2012 and 13 August 2012 by Judges Charles H. Henry and Kenneth F. Crow in Craven County Superior Court. Heard in the Court of Appeals 25 March 2013. William F. Ward, III, P.A., by William F. Ward, III, for plaintiff-appellee. Howard, Stallings, From & Hutson, P.A., by Richard P. Leissner, Jr., for defendant-appellant.
MARTIN, Chief Judge.
Defendant appeals from the orders denying its motion to set aside judgment, denying its motion to dismiss, and granting plaintiff's motion for summary judgment. We affirm.
On 20 May 2002, plaintiff commenced civil action 02–CVS–960 against defendant, asserting claims for breach of contract, quantum meruit, fraud, negligent misrepresentation, and unfair and deceptive trade practices. In a letter dated 25 June 2002, plaintiff mailed an original and a copy of the summons and complaint along with a check for $25.00 to the Harrison County Sheriff's Department in Gulfport, Mississippi, requesting service upon John E. Shavers, president of defendant Jesco Construction Corporation. On 19 August 2002, plaintiff filed an affidavit of service by Deputy Larry Haley. In his affidavit, Deputy Haley averred that he personally served John E. Shavers on 17 July 2002 at 10:30 a.m. in the Gulfport courthouse.
On 9 October 2002, a default judgment was entered against defendant in the amount of $1,102,571.80, representing actual and treble damages. Additionally, plaintiff was awarded $6,210.00 in costs and attorney's fees.
In 2008, plaintiff sought to register the judgment in Louisiana and Mississippi. Defendant contested both recordation proceedings, but did not raise any issues as to the validity of the underlying North Carolina judgment in either proceeding.
On 4 January 2012, plaintiff instituted a separate civil action to renew the unpaid judgment in North Carolina. Upon being served with the 2012 action, defendant moved, on 1 March 2012, to set aside the 2002 default judgment, averring that defendant was never actually served with the 2002 summons and complaint, and thus, the judgment was void. Defendant also filed a motion to dismiss the 2012 action seeking to renew the judgment on the grounds that the underlying judgment was void. Following a hearing on the issues, the trial court denied both of defendant's motions on 26 April 2012. Plaintiff then moved for summary judgment, which was granted by the trial court on 13 August 2012. Defendant appeals.
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Defendant's sole argument on appeal is that the trial court erred by denying its Rule 60(b) motion. Specifically, defendant argues it “was not served with a summons and complaint in 02–CVS–960, as purported in the court file.”
“[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). “Findings of fact made by the trial court upon a motion to set aside a judgment by default are binding on appeal if supported by any competent evidence.” Norton v. Sawyer, 30 N.C.App. 420, 422, 227 S.E.2d 148, 151 (citing Moore v. Deal, 239 N.C. 224, 228, 79 S.E.2d 507, 510 (1954)), disc. review denied, 291 N.C. 176, 229 S.E.2d 689 (1976). N.C.G.S. § 1A–1, Rule 60(b)(4) provides: “On 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 [when, inter alia,] [t]he judgment is void.” N.C. Gen.Stat. § 1A–1, Rule 60(b)(4) (2011). “A judgment entered contrary to the statutes and Rules of Civil Procedure is void. A judgment by default is void if the court is without jurisdiction.” Hill v. Hill, 11 N.C.App. 1, 6, 180 S.E.2d 424, 428,cert. denied, 279 N.C. 348, 182 S.E.2d 580 (1971). “The issuance and service of process is the means by which the court obtains jurisdiction.” In re Mitchell, 126 N.C.App. 432, 433, 485 S.E .2d 623, 624 (1997) (citing Latham v. Cherry, 111 N.C.App. 871, 873, 433 S.E.2d 478, 480 (1993)). Filing an affidavit of service that complies with N.C.G.S. § 1–75.10 creates a presumption of valid service. See Goins v. Puleo, 350 N.C. 277, 280–81, 512 S.E.2d 748, 750–51 (1999); Williams v. Burroughs Wellcome Co., 46 N.C.App. 459, 462, 265 S.E.2d 633, 635 (1980). “Service of process, and the return thereof, are serious matters; and the return of a sworn authorized officer should not be lightly set aside.” Harrington v.. Rice, 245 N.C. 640, 642, 97 S.E.2d 239, 241 (1957) (internal quotation marks omitted).
In this case, plaintiff filed the affidavit of Deputy Haley, in which he averred that he personally served defendant's president and registered agent, John E. Shavers, on 17 July 2002 at 10:30 a.m. in the Gulfport, Mississippi courthouse. This raised the presumption that service was proper. See Goins, 350 N.C. at 280–81, 512 S.E.2d at 750–51;Williams, 46 N.C.App. at 462, 265 S.E.2d at 635. Defendant, in an effort to rebut the presumption, provided affidavits from Shavers and Shavers's former attorney, indicating Shavers was not served. Defendant also provided two additional affidavits from persons in Mississippi stating the Harrison County Sheriff's Department had failed to serve them in unrelated matters. Such a showing can overcome the presumption of service. See Harrington, 245 N.C. at 642, 97 S.E.2d at 241 (noting “this Court has consistently held that an officer's return or a judgment based thereon may not be set aside unless the evidence consists of more than a single contradictory affidavit”). However, issues of weight and credibility of the evidence are the province of the trial court. See id. at 644, 97 S.E.2d at 242;Sellers v. Morton, 191 N.C.App. 75, 79, 661 S.E.2d 915, 920 (2008). Deputy Haley's affidavit provided sufficient competent evidence to support the trial court's finding that defendant “was properly served with process by the personal delivery of the Complaint and Summons to John E. Shavers, the Registered Agent of the defendant Corporation.” See Norton, 30 N.C.App. at 422, 227 S.E.2d at 151. Therefore, we cannot say the trial court abused its discretion when it denied defendant's motion to set aside the judgment. See Sink, 288 N.C. at 198, 217 S.E.2d at 541. This argument is without merit.
Affirmed. Judges HUNTER and STEPHENS concur.
Report per Rule 30(e).