Opinion
No. COA00-462
Filed 17 April 2001
Judgments — default — appearance — letter by counsel
The trial court erred by failing to set aside an entry of default and default judgment where plaintiff filed a complaint against defendant for unpaid legal fees on 10 November 1999; summons was issued but returned unserved; defendant's attorney submitted a letter to plaintiff regarding the fee dispute on 17 November; an alias and pluries summons was issued and defendant received service on 30 November; and the clerk entered default and default judgment on 4 January. Defendant's letter constituted an appearance for purposes of N.C.G.S. § 1A-1, Rule 55(b)(2)(a) which entitled him to 3 days' notice before entry of default judgment. There is no requirement that defendant be aware of the complaint or the action, only that the appearance be made after the complaint is filed.
Judge TIMMONS-GOODSON dissenting.
Appeal by defendant from order filed 2 March 2000 by Judge Paul G. Gessner in Wake County District Court. Heard in the Court of Appeals 30 January 2001.
Howard, Stallings, From Hutson, P.A., by E. Cader Howard and Christopher K. Behm, for plaintiff-appellee.
Rudolf Maher Widenhouse Fialko, by Thomas K. Maher, for defendant-appellant.
Frank Douglas (Defendant) appeals a 2 March 2000 order in favor of Howard, Stallings, From Hutson, P.A. (Plaintiff) denying Defendant's motion to set aside entry of default and entry of default judgment.
Plaintiff filed a complaint against Defendant on 10 November 1999 alleging Defendant owed Plaintiff $51,274.26 for unpaid legal services and expenses. On 10 November 1999, a summons was issued informing Defendant a suit had been initiated against him, however, the summons was returned unserved. On 17 November 1999, Thomas K. Maher (Maher), Defendant's attorney, submitted a letter (the letter) to Plaintiff regarding the fee disputes between Plaintiff and Defendant. The letter stated that "the most equitable resolution is that both parties consider the matter closed, and that neither side initiate litigation or pursue claims for damages or fees." On 29 November 1999, "an Alias and Pluries Summons was issued, and Defendant received and accepted the Alias and Pluries Summons and Complaint via Certified Mail" on 30 November 1999.
In December 1999, Defendant met with Maher and presented him with Plaintiff's complaint, but failed to inform Maher of the date upon which he was served with the complaint. On 4 January 2000, the period for Defendant to respond to Plaintiff's complaint expired. Defendant had neither sought nor obtained an extension of time to file an answer. Pursuant to N.C. Gen. Stat. § 1A-1, Rule 55, Plaintiff moved for an entry of default and an entry of default judgment against Defendant. On 4 January 2000, the Clerk of Wake County Superior Court granted Plaintiff's motion and entered default and default judgment against Defendant. Defendant filed his answer and counterclaim to Plaintiff's complaint on 10 January 2000.
On 7 January 2000, Defendant filed a motion to set aside entry of default and entry of default judgment. In his motion, Defendant argued:
1. [Maher] received a copy of the complaint in December 1999. [Maher] prepared an answer and counterclaim and filed same by mail on January 7, 2000. Prior to filing an answer, but after the suit was filed, [D]efendant communicated with . . . [Plaintiff] by letter. Such communication constitutes an appearance and requires that [P]laintiff provide notice to [D]efendant before default is entered. Notice was not provided. . . .
After a hearing on Defendant's motion, the trial court denied Defendant's motion and concluded:
The . . . letter from Defendant's counsel was not responsive to . . . Plaintiff's Complaint, because Defendant was not served with . . . Plaintiff's Complaint and Alias and Pluries Summons until November 30, 1999. Because the . . . letter was not written in response to . . . Plaintiff's Complaint, it cannot constitute an "appearance" sufficient to trigger the notice requirement of Rule 55(b) (2) of the North Carolina Rules of Civil Procedure. Since there is no other evidence of an "appearance" by Defendant's counsel, Defendant was not entitled to three (3) days notice under North Carolina Rule of Civil Procedure Rule 55(b) (2) prior to the clerk's entry of default and entry of default judgment.
The dispositive issue is whether the letter, sent after Plaintiff filed its complaint but prior to service of the complaint, constitutes an appearance.
Defendant argues the letter constitutes an appearance for purposes of N.C. Gen. Stat. § 1A-1, Rule 55(b) (2), thus, entitling him to notice prior to entry of default judgment. We agree.
In his brief to this court, Defendant argues the trial court erred in finding Defendant was not entitled to notice prior to entry of default. Rule 55(a), providing for entry of default, however, does not require notice be given to the non-moving party prior to the entry of default.
A party, against whom default judgment is sought, is entitled to "be served with written notice of the application for judgment at least three days prior to the hearing on such application" if that party has appeared in the action. N.C.G.S. § 1A-1, Rule 55(b) (2) (a) (1999). An appearance "need not be a direct response to the complaint; there may be an appearance whenever a defendant `takes, seeks or agrees to some step in the proceedings that is beneficial to himself or detrimental to the plaintiff.'" Williams v. Jennette, 77 N.C. App. 283, 289, 335 S.E.2d 191, 195 (1985) (quoting Roland v. W L Motor Lines, Inc., 32 N.C. App. 288, 289, 231 S.E.2d 685, 687 (1977)). "Additionally, it has been held that negotiations for settlements or continuances[,] whether by letter or by meeting, after the complaint is filed, constitute appearances within the meaning of Rule 55(b) (2)." Stanaland v. Stanaland, 89 N.C. App. 111, 113, 365 S.E.2d 170, 171 (1988) (citing N.C.N.B. v. McKee, 63 N.C. App. 58, 303 S.E.2d 842 (1983); Webb v. James, 46 N.C. App. 551, 265 S.E.2d 642 (1980); Taylor v. Triangle Porsche-Audi, Inc., 27 N.C. App. 711, 220 S.E.2d 806 (1975), disc. review denied, 289 N.C. 619, 223 S.E.2d 396 (1976)). An appearance in an action, however, cannot be made "prior to" the filing of a complaint. See Highfill v. Williamson, 19 N.C. App. 523, 532, 199 S.E.2d 469, 474 (1973) (appearance cannot be made "prior to the institution of [an] action").
An action is instituted or commenced "by filing a complaint with the [trial] court." N.C.G.S. § 1A-1, Rule 3(a) (1999).
In this case, Defendant failed to file an answer within 30 days from the date of service; however, Defendant sent his letter to Plaintiff after Plaintiff's complaint had been filed, but prior to service of the complaint. Defendant was seeking to prevent Plaintiff from pursuing its claims for damages and fees, and instead, consider the matter closed. In this regard, Defendant's letter constituted a "step" in the proceedings (negotiations with Plaintiff not to pursue its claim) which would have been beneficial to Defendant. Although the complaint had not been served on Defendant, there is no requirement that Defendant be aware of either the complaint or of Plaintiff's action against him, only that the appearance be made after the complaint is filed. Accordingly, once Defendant sent his letter to Plaintiff, he made an appearance for purposes of N.C. Gen. Stat. § 1A-1, Rule 55(b) (2) (a), and, thus, was entitled to three days notice before entry of default judgment. The trial court, therefore, erred in failing to set aside the order of the clerk of Wake County Superior Court entering default judgment against Defendant without the proper notice to Defendant.
In order to set aside an entry of default a party must show "good cause." N.C.G.S. § 1A-1, Rule 55(d) (1999). In his brief to this Court, Defendant, however, presents no argument in support of "good cause" to set aside the entry of default. Defendant's assignment of error concerning the trial court's denial to set aside entry of default is, therefore, deemed abandoned and we do not address this issue. See N.C.R. App. P. Rule 28(b) (5).
Reversed and remanded.
Judge TYSON concurs.
Judge TIMMONS-GOODSON dissents.