Opinion
No. 07-1013.
Filed March 4, 2008.
Union County No. 06CVS02454.
Appeal by defendants from order entered 28 March 2007 by Judge Mark E. Klauss in Union County Superior Court. Heard in the Court of Appeals 7 February 2008.
Vann Law Firm, P.A., by Christopher M. Vann, for plaintiff-appellees. Leslie C. Rawls, for defendant-appellants.
Sepideh and Ramin Amini (collectively, "defendants") appeal from order entered denying their motion to set aside default judgment in favor of Bruce Sisk and Carter Management Services, Inc. (collectively, "plaintiffs"). We affirm.
I. Background
Defendants entered into a contract with plaintiffs to construct a pool, pool house, and cabana on defendants' property in Waxhaw, North Carolina. Defendants failed to pay plaintiffs the amount due for the construction. On 7 September 2006, plaintiffs filed a Claim of Lien on Real Property by General Contractor against defendants for "labor performed or materials furnished" in the amount of $314,620.00. The claim of lien was served upon defendants at their address in Charlotte, North Carolina. The record shows defendants filed a complaint against plaintiffs. The record is devoid of any evidence that defendants properly served their complaint upon plaintiffs pursuant to N.C. Gen. Stat. § 1A-1, Rule 4. On 27 October 2006, plaintiffs filed a complaint against defendants alleging: (1) breach of contract and (2) unjust enrichment. Plaintiffs also asserted they were "entitled to an order of sale directing the sale of property subject to the lien pursuant to N.C. Gen. Stat. § 44A-14. . . ."
Plaintiff served the summons and complaint upon defendants by United States Express Mail. The envelope was addressed to defendants' residence in Charlotte. The post office forwarded the summons and complaint to defendants' address in Waxhaw where it was delivered, received, and signed for on 25 November 2006. On 9 January 2007, plaintiffs filed a motion for entry of default based on defendants' failure to answer or otherwise respond to their complaint. Plaintiffs sent a copy of the motion for entry of default to defendants' address in Waxhaw.
On 5 February 2007, plaintiffs filed a motion for default judgment and notice of hearing. Plaintiffs mailed a copy of the motion and notice to defendants' address in Charlotte. On 23 February 2007, the trial court entered a default judgment against defendants. Defendants' motion for relief of judgment stated:
2. That the Defendants have never been served with a Summons or Complaint regarding the subject matter of any lawsuit in which default may have been entered.
3. Additionally, Defendants have never received any pleadings or notices by the Plaintiffs which established that said pleadings have been filed with the Court.
4. That the Defendants are entitled for any Default Judgment to be set aside as Defendants have not been served with Summons and Complaint or any filed documents.
The trial court held an evidentiary hearing on 5 March 2007. On 28 March 2007, the trial court entered an order denying defendants' motion for relief from judgment. Defendants appeal.
II. Issue
Defendants argue the trial court erred by denying their motion to set aside plaintiffs' default judgment pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b).
III. Standard of Review
This Court has stated:
[t]he granting of a Rule 60(b) motion is within the trial court's sound discretion and is reviewable only for abuse of discretion. Abuse of discretion is shown only when the challenged actions are manifestly unsupported by reason. If there is competent evidence of record on both sides of the Rule 60(b) motion, it is the duty of the trial court to evaluate such evidence, and the trial court's findings supported by competent evidence are conclusive on appeal.
Blankenship v. Town Country Ford, Inc., 155 N.C. App. 161, 165, 574 S.E.2d 132, 135 (2002) (internal citations and quotations omitted), disc. rev. denied, 357 N.C. 61, 579 S.E.2d 384 (2003).
IV. Motion for Relief from Judgment
Defendants argue the trial court erred by denying their motion to set aside plaintiffs' default judgment because they presented sufficient evidence to rebut the presumption of proper service of process. We disagree.
A. Findings of Fact
Rule 52(a)(2) states, "[f]indings of fact and conclusions of law are necessary on decisions of any motion . . . only when requested by a party. . . ." N.C. Gen. Stat. § 1A-1, Rule 52(a)(2) (2005). The trial court possesses discretion to decide "whether to make a finding of fact if a party does not choose to compel a finding through the simple mechanism of so requesting." Watkins v. Hellings, 321 N.C. 78, 82, 361 S.E.2d 568, 571 (1987). "[W]hen the trial court is not required to find facts and make conclusions of law and does not do so, it is presumed that the court on proper evidence found facts to support its judgment." Id. (citation omitted) (emphasis supplied).
After thorough review of the record, we find no indication either party requested the trial court to make findings of fact or conclusions of law. The court did not enter findings in its discretion. The issue on appeal now becomes "whether the [trial] court could have made findings of fact sufficient to support its conclusion that the motion to set aside the entry of default should have been denied." Grant v. Cox, 106 N.C. App. 122, 125, 415 S.E.2d 378, 381 (1992) (citation and quotation omitted).
B. Service of Process
Defendants argue the trial court erred by denying their motion to set aside plaintiffs' default judgment pursuant to Rule 60(b)(1) and (6). Defendants assert the trial court lacked authority to exercise personal jurisdiction over defendants because they did not receive proper service of process. We disagree.
1. Complaint and Summons
"Jurisdiction of the court over the person of a defendant is obtained by service of process, voluntary appearance, or consent." Grimsley v. Nelson, 342 N.C. 542, 545, 467 S.E.2d 92, 94 (1996). Rule 4(j)(1)e provides for service of process:
[b]y mailing a copy of the summons and of the complaint by signature confirmation as provided by the United States Postal Service, addressed to the party to be served, and delivering to the addressee. Nothing in this sub-subdivision authorizes the use of electronic mailing for service on the party to be served.
N.C. Gen. Stat. § 1A-1, Rule 4(j)(1)e (2005). A rebuttable presumption of valid service is created by filing an affidavit of service with the trial court that complies with N.C. Gen. Stat. § 1-75.10(5) (2005). See N.C. Gen. Stat. § 1A-1, Rule 4(j2)(2) (2005) (filing an affidavit showing proof of service pursuant to N.C. Gen. Stat. § 1-75.10(5) along with the delivery receipt provided by the United States Postal Service signed by the person who received the mail raises a presumption of valid service); Goins v. Puleo, 350 N.C. 277, 280, 512 S.E.2d 748, 750 (1999); Carpenter v. Agee, 171 N.C. App. 98, 100, 613 S.E.2d 735, 736 (2005); Granville Med. Ctr. v. Tipton, 160 N.C. App. 484, 491, 586 S.E.2d 791, 796 (2003). N.C. Gen. Stat. § 1-75.10(5) states proof of service shall be as follows:
(5) Service by Designated Delivery Service. — In the case of service by designated delivery service, by affidavit of the serving party averring:
a. That a copy of the summons and complaint was deposited with a designated delivery service as authorized under G.S. 1A-1, Rule 4, delivery receipt requested;
b. That it was in fact received as evidenced by the attached delivery receipt or other evidence satisfactory to the court of delivery to the addressee; and
c. That the genuine receipt or other evidence of delivery is attached.
Here, plaintiffs presented a notarized affidavit of service to the trial court. Several documents were attached to the affidavit including plaintiffs': (1) mailing receipt; (2) tracking and confirmation document; and (3) delivery confirmation receipt containing an illegible signature with the name "Amini" printed below. The delivery confirmation receipt also indicated that the "Address of Recipient" was defendants' address in Waxhaw. Based upon this evidence, plaintiffs complied with Rule 4(j)(1)e and N.C. Gen. Stat. § 1-75.10(5), which created a rebuttable presumption of valid service.
To rebut the presumption of valid service, defendants must provide evidence "of more than one person showing unequivocally that proper service was not made upon the person of the defendant." Grimsley, 342 N.C. at 545, 467 S.E.2d at 94 (citations omitted). Here, the trial court held an evidentiary hearing on 5 March 2007pursuant to defendants' motion for relief from judgment. At the hearing, both defendants denied receiving and signing for the package that was delivered to their residence in Waxhaw on 25 November 2006. After hearing testimony from both defendants, the trial court denied defendants' motion for relief from judgment.
When the trial judge sits as the fact finder:
it is his duty to consider and weigh all the competent evidence before him. He passes upon the credibility of the witnesses and the weight to be given their testimony and the reasonable inferences to be drawn therefrom. If different inferences may be drawn from the evidence, he determines which inferences shall be drawn and which shall be rejected.
Knutton v. Cofield, 273 N.C. 355, 359, 160 S.E.2d 29, 33 (1968) (internal citations and quotations omitted). The role of an appellate court "is not to substitute its judgment in place of the decision maker. Rather, [it] sits only to insure that the decision could, in light of the factual context in which it is made, be the product of reason." Little v. Penn Ventilator Co., 317 N.C. 206, 218, 345 S.E.2d 204, 212 (1986).
Because neither party requested that the trial court make findings of fact and conclusions of law, "it is presumed that the trial court on proper evidence found facts to support its judgment." Watkins, 321 N.C. at 82, 361 S.E.2d at 571. Plaintiffs' affidavit of service and its attachments created a rebuttable presumption of proper service of process. Based on its denial of defendants' motion for relief of judgment, the trial court did not find defendants' evidence to be sufficient to overcome the presumption of valid service. Plaintiffs properly served the complaint and summons upon defendants pursuant to Rule 4(j)(1)e.
2. Motion for Default Judgment and Notice of Hearing
Rule 55(b)(2)(a) states, "[i]f the party against whom judgment by default is sought has appeared in the action that party . . . shall be served with written notice of the application for judgment at least three days prior to the hearing on such application." N.C. Gen. Stat. § 1A-1, Rule 55(b)(2)(a) (2005) (emphasis supplied). An appearance has been defined as "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)).
Here, defendants wholly failed to "appear" before the trial court before its entry of default judgment. The record shows defendants filed a complaint against plaintiffs on 10 October 2006, prior to the date plaintiffs filed the present action. The record is devoid of any evidence that defendants properly served their complaint upon plaintiffs pursuant to Rule 4. Nevertheless, this Court has previously held that an appearance cannot be made prior to the filing of a complaint. Highfill v. Williamson, 19 N.C. App. 523, 532, 199 S.E.2d 469, 474 (1973).
"In order for a valid judgment to be entered in an action against a nonappearing defendant, there must be compliance with the provisions of [N.C. Gen. Stat.] § 1A-1, Rule 55, as well as [N.C.Gen. Stat.] § 1-75.11." Hill v. Hill, 11 N.C. App. 1, 6-7, 180 S.E.2d 424, 428, cert. denied, 279 N.C. 348, 182 S.E.2d 580 (1971). Rule 55(a) provides that the clerk of court shall enter default "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or is otherwise subject to default judgment." N.C. Gen. Stat. § 1A-1, Rule 55(a) (2005).
N.C. Gen. Stat. § 1-75.11 (2005) states:
Where a defendant fails to appear in the action within apt time the court shall, before entering a judgment against such defendant, require proof of service of the summons in the manner required by § 1-75.10 and, in addition, shall require further proof as follows:
(1) Where Personal Jurisdiction Is Claimed Over the Defendant. — Where a personal claim is made against the defendant, the court shall require proof by affidavit or other evidence, to be made and filed, of the existence of any fact not shown by verified complaint which is needed to establish grounds for personal jurisdiction over the defendant. The court may require such additional proof as the interests of justice require.
(Emphasis supplied).
This Court has held that a trial court obtains personal jurisdiction over a defendant pursuant to Rule 55 and N.C. Gen. Stat. § 1-75.11(1), when a plaintiff files a verified complaint alleging that defendant is a citizen and resident of North Carolina. General Foods Corp. v. Morris, 49 N.C. App. 541, 543, 272 S.E.2d 17, 18 (1980). Here, plaintiffs filed a verified complaint alleging defendants were citizens and residents of Mecklenburg County, North Carolina. We have already held that plaintiffs complied with N.C. Gen. Stat. § 1-75.10. The trial court properly exercised personal jurisdiction over defendants. This assignment of error is overruled.
Although we hold that plaintiffs properly served defendants with a copy of the complaint and summons, we express concern over plaintiffs' counsel's express disregard of defendants' forwarding address. Plaintiffs' counsel learned of defendants' new address, mailed a copy of the motion for entry of default to defendants' correct address in Waxhaw and then subsequently mailed copies of plaintiffs' motion for default judgment and notice of hearing to defendants' prior Charlotte address. Plaintiffs' counsel's should not have disregarded defendants' forwarding address.
V. Conclusion
Plaintiffs' properly served defendants with a copy of the complaint and summons pursuant to Rule 4(j)(1)e. The trial court acquired and exercised personal jurisdiction over defendants. Defendants have failed to show the trial court's denial of defendants' motion to set aside plaintiffs' default judgment was an abuse of discretion. The trial court's order is affirmed.
Affirmed.
Judges GEER and STROUD concur.
Report per Rule 30(e).