Barton v. Sutton
Barton v. Sutton
Opinion of the Court
Nationwide Mutual Insurance Company (defendant) appeals from the denial of its motion to set aside a default judgment entered against co-defendant Billy Joe Sutton. For the reasons that follow, we affirm the trial court.
This appeal arises from a 22 March 1997 motor vehicle accident between plaintiff and Sutton. Plaintiff filed a negligence action against Sutton, in Cabarrus County, on 15 March 2000, seeking compensation for injuries suffered in the accident. Service was effected upon Sutton on 31 March 2000, but he failed to respond. On 7 September 2000, plaintiff applied for a default judgment against Sutton. Her application was accompanied by an affidavit attesting to Sutton’s failure to respond despite being properly served, and setting out the amount of her damages and attorney’s fees. On 4 December 2000, the trial court entered a default judgment against Sutton in the amount of $50,000.
On 29 March 2001, defendant filed two motions. The first sought leave to intervene in the lawsuit pursuant to N.C.G.S. § 1A-1, Rule 24,
I.
Defendant argues first that the trial court erred in denying its motion to set aside the default judgment pursuant to N.C.G.S. § 1A-1, Rule 60(b)(4). Defendant contends that plaintiff’s failure to notify it of the pending lawsuit, as required by N.C.G.S. § 20-279.21, rendered the default judgment against Sutton void. We disagree.
Pursuant to N.C.G.S. § 1A-1, Rule 60(b)(4) (2001), “[a] defendant may be relieved from a final judgment, including a default judgment, if the judgment is void.” Gibby v. Lindsey, 149 N.C. App. 470, 473, 560 S.E.2d 589, 591 (2002). However, “a Rule 60(b)(4) motion is only proper where a judgment is ‘void’ as that term is defined by the law.” Burton v. Blanton, 107 N.C. App. 615, 616, 421 S.E.2d 381, 382 (1992). Thus, a judgment is not void “merely for an error in law, fact, or procedure^] . . . [but] 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.” Id. See also Allred v. Tucci, 85 N.C. App. 138, 142, 354 S.E.2d 291, 294, disc. review denied, 320 N.C. 166, 358 S.E.2d 47 (1987) (judgment not void unless court lacked jurisdiction over parties or subject matter, or lacked authority or power to grant relief in judgment).
In the instant case, defendant has not alleged any defect in the trial court’s jurisdiction over the parties or subject matter, and does not dispute that the court had authority to enter a default judgment. However, defendant argues that the judgment is nonetheless void, because of plaintiff’s failure to provide it with notice of the lawsuit pursuant to N.C.G.S. § 20-279.21. Under N.C.G.S. § 20-279.21(b)(3)a., an insurer is bound by a final judgment entered against an uninsured motorist only if “the insurer has been served with copy of summons,
II.
Defendant argues next that the trial court erred by failing to set aside the default judgment pursuant to N.C.G.S. § 1A-1, Rule 60(b)(6) (2001).
Under N.C.G.S. § 1A-1, Rule 60(b), the trial court may “relieve a party or his legal representative from a final judgment, order, or proceeding” for reasons enumerated in the statute. In addition, Rule 60(b)(6) permits the court to grant relief for any other reason “justifying relief from the operation of the judgment.” This provision, which has often been described as “a grand reservoir of equitable power to do justice in a particular case,” Branch Banking & Trust Co. v. Tucker, 131 N.C. App. 132, 137, 505 S.E.2d 179, 182 (1998), “authorizes the trial judge to exercise his discretion in granting or withholding the relief sought.” (citations omitted). Kennedy v. Starr, 62 N.C. App. 182, 186, 302 S.E.2d 497, 499-500, disc. review denied, 309 N.C. 321, 307 S.E.2d 164 (1983).
On appeal, this Court’s review of the trial court’s Rule 60(b) ruling “is limited to determining whether the trial court abused its discretion.” Moss v. Improved B.P.O.E., 139 N.C. App. 172, 176, 532
In the present case, defendant has not alleged the existence of “extraordinary circumstances,” nor established that it has a “meritorious defense.” Further, the defendant has not argued that the trial court abused its discretion, nor cited any cases in which an abuse of discretion was found in similar circumstances. We conclude that defendant failed to establish that the trial court abused its discretion in its denial of defendant’s motion to set aside the default judgment against Sutton. This assignment of error is overruled.
For the reasons discussed above the judgment of the trial court is
Affirmed.
Dissenting Opinion
dissenting.
As I disagree with the majority that the trial court had the authority to render a default judgment in this case, I respectfully dissent.
According to N.C. Gen. Stat. § 20-279.21(b)(3)a., an “insurer shall be bound by a final judgment taken by the insured against an uninsured motorist if the insurer has been served with copy of summons, complaint or other process in the action against the uninsured motorist.” N.C.G.S. § 20-279.21(b)(3)a. (2001). Furthermore, “[n]o default judgment shall be entered when the insurer has timely filed an
Reference
- Full Case Name
- FRANCES D. BARTON, Plaintiff-Appellee v. BILLY JOE SUTTON, Defendant-Appellant
- Cited By
- 13 cases
- Status
- Published