Opinion
No. COA12–1147.
2013-05-7
Robert W. THRUSH, Jr., Plaintiff–Appellant, v. Jesse W. JONES and Jesse Jones Law Firm, Defendants–Appellees.
The Brough Law Firm, by Robert E. Hornik, Jr., for Plaintiff–Appellant. Dickie, McCamey & Chilcote, P.C., by John T. Holden, for Defendants–Appellees.
Appeal by Plaintiff from order entered 18 April 2012 by Judge W. David Lee in Superior Court, Richmond County. Heard in the Court of Appeals 26 March 2013. The Brough Law Firm, by Robert E. Hornik, Jr., for Plaintiff–Appellant. Dickie, McCamey & Chilcote, P.C., by John T. Holden, for Defendants–Appellees.
McGEE, Judge.
Plaintiff filed a complaint against Defendants alleging, inter alia, breach of contract and malpractice. Defendants filed a motion to dismiss, which the trial court granted. Plaintiff appeals.
Plaintiff argues the trial court “never should have entertained Defendants' motion to dismiss because Defendants failed to comply with the order granting Defendants an extension of time to answer the complaint[.]” We address this argument first because it is preliminary to Plaintiff's remaining arguments.
Plaintiff fails to cite supporting authority for this argument. An argument “shall contain citations of the authorities upon which the appellant relies.” N.C.R.App. P. 28(b)(6). Noncompliance with this rule “does not ordinarily give rise to the harms associated with ... lack of jurisdiction.” Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 198, 657 S.E.2d 361, 365 (2008); see also Belk ex rel. Belk v. Belk, –––N.C.App. ––––, ––––, 728 S.E.2d 356, 372 (2012). A “party's failure to comply with nonjurisdictional rule requirements normally should not lead to dismissal of the appeal.” Dogwood, 362 N.C. at 198, 657 S.E.2d at 365. Therefore, we review the merits of Plaintiff's appeal.
The following procedures occurred in this matter:
7 October 2011 Plaintiff filed the complaint.
4 November 2011 Defendants filed motion for extension of time.
7 November 2011 Richmond County Assistant Clerk of Superior Court (clerk) granted Defendants' motion and ordered “the time by which Defendants ... must Answer or otherwise respond to Plaintiff's Complaint is enlarged, up to and including December 12, 2011.”
12 December 2011 Defendants served Plaintiff with a motion to dismiss, as the certificate of service indicates.
13 December 2011 The clerk entered default.
14 December 2011 Defendants filed motion to dismiss in Superior Court.
15 December 2011 The clerk entered order setting aside the “Default Judgment entered into December 13, 2011.”
18 April 2012 The trial court granted Defendants' motion to dismiss.
In an order on 15 December 2011, the clerk ordered the “Default Judgment entered into December 13, 2011 be set-aside.” The record does not contain a default judgment. Because the clerk filed the entry of default on 13 December 2011, we assume the clerk intended to set aside the 13 December 2011 entry of default.
At the hearing on Defendants' motion to dismiss, Plaintiff argued the clerk erroneously set aside the entry of default. The trial court stated the order was “not in front of me now.”
A void order “is a nullity and may be attacked either directly or collaterally [.]” Daniels v. Montgomery Mut. Ins. Co., 320 N .C. 669, 676, 360 S.E.2d 772, 777 (1987); see also In re Webber, 201 N.C.App. 212, 220, 689 S.E.2d 468, 474–75 (2009), cert. denied,364 N.C. 241, 699 S.E.2d 925 (2010). “A judgment is void only when the issuing court has no jurisdiction over the parties or subject matter in question or has no authority to render the judgment entered.” Burton v. Blanton, 107 N.C.App. 615, 616, 421 S.E.2d 381, 382 (1992) (citing In re Brown, 23 N.C.App. 109, 110, 208 S.E.2d 282, 283 (1974) (regarding orders)).
A “clerk may, in respect of judgments rendered by himself, exercise the same powers authorized in [Rule 60] sections (a) and (b).” N.C. Gen.Stat. § 1A–1, Rule 60(c) (2011). To determine whether the clerk had authority to set aside the entry of default, we analyze the 15 December 2011 order under N.C. Gen.Stat. § 1A–1, Rules 60(a) and (b).
Clerical mistakes “arising from oversight or omission may be corrected by the judge at any time on his own initiative or on the motion of any party [.]” N.C.G.S. § 1A–1, Rule 60(a). “A change in an order is considered substantive and outside the boundaries of Rule 60(a) when it alters the effect of the original order.” Ice v. Ice, 136 N.C.App. 787, 792, 525 S.E.2d 843, 846 (2000). Setting aside entry of default, in effect, overrules the entry of default. Global Furn., Inc. v. Proctor, 165 N.C.App. 229, 234, 598 S.E.2d 232, 236 (2004). N.C.G.S. § 1A–1, Rule 60(a) did not authorize the clerk to set aside the entry of default.
The trial court may relieve a party from “a final judgment, order, or proceeding” for enumerated reasons. N.C.G.S. § 1A–1, Rule 60(b). “Rule 60(b), by its express terms, applies only to final judgments. An entry of default may be set aside, not by motion pursuant to Rule 60(b), but by motion pursuant to Rule 55(d) and a showing of good cause.” Bailey v. Gooding, 60 N.C.App. 459, 461, 299 S.E.2d 267, 269 (1983). N.C.G.S. § 1A–1, Rule 60(b) did not authorize the clerk to set aside the entry of default.
In conclusion, the order setting aside the entry of default is void because the clerk had no authority to enter the order. The trial court erred in concluding the order was not before it because void orders may be attacked at any time. Daniels, 320 N.C. at 676, 360 S.E.2d at 777. The trial court's ruling on Defendants' motion to dismiss was erroneous. Seely v. Borum & Assoc., Inc., 127 N.C.App. 193, 196, 488 S.E.2d 282, 284 (1997) (an erroneous judgment is “rendered according to the course and practice of the court, but contrary to law, or upon a mistaken view of the law, or upon an erroneous application of legal principles”).
The trial court's order dismissing Plaintiff's causes of action is reversed. The case is remanded to the trial court for further proceedings, including entry of an order vacating the 15 December 2011 order setting aside the entry of default.
Reversed and remanded. Judges GEER and DAVIS concur.
Report per Rule 30(e).