State v. Mitchell

64 N.C. App. 202 | N.C. Ct. App. | 1983

EAGLES, Judge.

The defendant assigns as error the trial court’s denial of his motion to set aside entry of default and default judgment. To prevail on a Rule 60(b) motion, the burden is on the movant to show that his neglect in failing to answer or otherwise appear was excusable and that he has a meritorious defense to the action of the plaintiff. Menache v. Atlantic Coast Management Corp., 43 N.C. App. 733, 260 S.E. 2d 100 (1979), cert. denied 299 N.C. 331, 265 S.E. 2d 396 (1980). We find no error in the trial judge’s determination that the defendant did not show excusable neglect or a meritorious defense.

The facts support the trial judge’s conclusion that there was no excusable neglect in the instant case. It is clear from the record that the summons and complaint were personally served on defendant. The trial judge found that defendant was under no disability and, in fact, had retained counsel to represent him in other matters. The fact that defendant believed that the 1980 dismissal of criminal charges in the bastardy action meant that “the matter was over with” does not excuse his failure to respond to the subsequent summons and complaint. This court has found that a party served with a summons must give it the “attention which a person of ordinary prudence gives to his important business, and failure to do so is not excusable neglect under G.S. 1A-1, Rule 60(b)(1).” Boyd v. Marsh, 47 N.C. App. 491, 492, 267 S.E. 2d 394, 395 (1980). This defendant failed to show that he gave the summons and complaint the attention that an important business matter deserves and failed to show why he could not do so. Total disregard of a summons and complaint which were personally served is not the action of a person of ordinary prudence and thus is not excusable neglect, no matter what that person’s belief is concerning the propriety of the summons and complaint.

Where there is excusable neglect, there must then be a showing of prima facie meritorious defense to the complaint in order for the movant to prevail in a motion to set aside entry of default and default judgment. Wynnewood v. Soderquist, 27 N.C. App. 611, 615, 219 S.E. 2d 787, 790 (1975). The trial court, while concluding that defendant failed to make a showing of excusable neglect, also made a finding that defendant did not present a meritorious defense. Defendant’s motion to set aside entry of default and default judgment presents the 1980 dismissal of the criminal charges and the statute of limitations in G.S. 49-14 as defenses. Defendant’s belief that dismissal of the criminal charges meant that “the matter was over with” is not a basis on which to excuse a defendant for ignoring a summons and complaint. The statute of limitations defense must also fail. This court has held G.S. 49-14 unconstitutional when applied to civil paternity actions. Cogdell v. Johnson, 46 N.C. App. 182, 264 S.E. 2d 816 (1980). Thus, there was no meritorious defense presented.

The trial court’s order denying defendant’s motion to set aside entry of default and default judgment is

Affirmed.

Judges Arnold and Wells concur.