Civil Practice — Clerical Error – Consent Judgment – Singular for Plural – Rule 11 – Improper Purpose

Macon Bank, Inc. v. Cornblum (Lawyers Weekly No. 15-16-0129, 14 pp.) (Linda Stephens, J.) Appealed from Swain County Superior Court (Gary Gavenus, J.) N.C. App. Unpub.

Holding: The evidence clearly showed that the parties intended to bind both defendants in their consent judgment. Plaintiff’s use of the singular “defendant” in the body of the consent judgment was merely a clerical error; accordingly, the superior court properly granted plaintiff’s Rule 60 motion to correct the clerical error and denied defendants’ motion to recall the writ of execution.

Affirmed. We also grant plaintiff’s motion for sanctions and remand for a determination of plaintiff’s costs and expenses in defending this appeal.

Defendant Michael Cornblum explained to the superior court that he was contesting the consent judgment because, he alleged, plaintiff had reneged on an oral promise not contained in the consent judgment. Thus, defendants’ motion to recall the writ of execution was interposed for improper purposes within the meaning of N.C. R. Civ. P. 11.

Finally, in light of the utter lack of evidence that the use of the term “Defendant” in the consent judgment was anything other than a clerical error and the long-settled precedent that such errors are to be disregarded at every stage of the litigation, we also conclude that this appeal was frivolous and taken for an “improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation….” N.C.R. App. P. 34(a)(2). Therefore, sanctions are warranted. We order that defendants and their appellate counsel pay the costs and reasonable expenses, including reasonable attorney’s fees, incurred by plaintiff because of this appeal.

Affirmed and remanded.