North Carolina Lawyers Weekly
E.B. Harris, Inc. v. Wiggins. (Lawyers Weekly No. 10-16-0405, 13 pp.) (Linda M. McGee, J.) Appealed from Warren County District Court (Randolph Baskerville, J.). N.C. App. Unpub.
Holding: Where the defendant timely filed a motion for an extension of time to file an answer to the complaint, the defendant made an “appearance” for the purposes of civil procedure Rule 55(b). Therefore, the clerk of superior court lacked authority to enter a default judgment against the defendant, and the judgment is void as a matter of law.
However, it is unclear from the record whether the trial court granted the defendant’s motion to set aside the default judgment and entered a new judgment, denied the motion and modified the prior order or denied the motion and entered a new judgment in addition to the prior judgment.
Therefore, the trial court’s order is remanded for the trial court to specifically rule on the defendant’s motion or to amend its order to clearly state its action taken to the judgment.
Facts
The plaintiff sued the defendant for money owed. After being served the summons and complaint, the defendant filed a motion for extension to serve an answer, which the clerk of superior court granted through May 4, 2007.
On May 10, 2007, the clerk filed an entry of default and default judgment, finding that no answer, motion or pleading of any kind had been filed by the defendant.
The defendant filed a motion to set aside the entry of default and default judgment as well as a motion to stay execution on the judgment.
The trial court found, in relevant part, that: (1) the defendant had not filed an answer, affidavit or other responsive pleading; and (2) the plaintiff’s attorney had advised that the plaintiff had resold the equipment that was the subject of the litigation for $21,699.
The court denied the defendant’s motion to set aside the entry of default and the motion to stay execution of the judgment and ordered that the plaintiff was entitled to $11,302 together with costs and interest from May 10, 2007.
The defendant appealed both the trial court’s ruling and the clerk’s entry of default and default judgment.
Discussion
First, under G.S. § 1-301.1, an appeal from a judgment of the clerk of superior court is to the appropriate division of the trial court. Thus, this court has no jurisdiction to consider the defendant’s appeal from the May 10, 2007, clerk’s judgment. That appeal is dismissed.
Second, an entry of default may be set aside for “good cause shown.”
Under N.C. R. Civ. P. 55(a), “When a party against whom a judgment for affirmative relief is sought has failed to plead or is otherwise subject to default judgment as provided by these rules or by statute … the clerk shall enter his default.”
The entry of default is distinguishable from a default judgment and is merely a ministerial duty.
An entry of default by a clerk requires only that the clerk ascertain that the party against whom a judgment for affirmative relief is sought has failed to plead.
Here, the defendant was served with the summons and complaint, and the defendant moved for, and received, an extension of time until May 4, 2007 in which to file an answer. The plaintiff filed a motion and affidavit for default on May 7, 2007.
From the time the defendant filed his motion for an extension of time until October 2007, when he moved to set aside the entry of default and default judgment, the defendant took no action in this proceeding. The defendant failed to participate in this action for over eight months.
The defendant’s motion to set aside entry of default fails to state a reason for the defendant’s inattention to the process.
Thus, the trial court’s order denying the defendant’s motion to set aside the entry of default was not manifestly unsupported by reason, and it is affirmed.
However, the clerk of superior court lacked authority to enter a default judgment against the defendant.
Under Rule 55(b)(1), a judgment by default may be entered by the clerk when the plaintiff’s claim against a defendant is for a sum certain or for a sum which can by computation be made certain if the defendant has been defaulted for failure to appear and if the defendant is not an infant or incompetent person.
This rule is clearly intended to allow a clerk to enter default judgment against a defendant only if he has never made an appearance.
Here, the defendant’s only appearance in this action, prior to the clerk’s entering default judgment, was his March 2007 motion for extension of time.
The plaintiff focuses on G.S. § 1-75.7, which excluded from the definition of a “general appearance” an appearance solely for the purposes of obtaining an extension of time.
However, the plaintiff conflates the meaning of “general appearance” as used in G.S. § 1-75.7 and that of “appearance” as used in Rule 55(b).
A motion for an extension of time is an appearance for the purpose of Rule 55(b). 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.
G.S. § 1-75.7 was amended to exclude from “general appearance” the grant of an extension of time within which to answer. This amendment simply allows a party to move for an extension of time without waiving the defenses of lack of personal jurisdiction or service of process.
It is not applicable to the meaning of “appearance” in Rule 55(b)(1), except perhaps by way of contrast: Since Rule 55 was not similarly amended in 1975, it is still possible to “appear” within Rule 55 by moving for an extension of time.
Thus, it is clear that, while a motion for an extension of time is not a “general appearance” for the purposes of G.S. § 1-75.7, such a motion is an appearance for the purposes of Rule 55(b).
Here, the defendant timely filed a motion for extension of time and then failed to take any other action. Thus, the defendant appeared for the purposes of Rule 55(b) by filing his motion for extension of time.
The clerk of superior court was without authority to enter a default judgment against the defendant, and the judgment so entered was void as a matter of law.
Alternatively, the defendant argues that the trial court erred in entering a new judgment for $11,302 when the trial court was without authority to consider matters other than whether the default judgment should be set aside.
In reviewing the record and the trial court’s order, this court is unable to determine what action the trial court actually took in this matter as to the defendant’s motion to set aside the default judgment. The order entered by the trial court does not, in fact, address the defendant’s motion to set aside the default judgment at all.
A trial court must leave a sufficiently clear record of its actions for appellate review.
Because this court is unable to determine the action of the trial court as to the defendant’s motion to set aside the default judgment, this case is remanded for the trial court to specifically rule on the defendant’s motion to set aside default judgment or to amend its order to clearly state its action taken as to the default judgment.
Dismissed in part, remanded in part.
