Thompson v. Gutierrez

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA13-59 NORTH CAROLINA COURT OF APPEALS Filed: 5 November 2013 BRYAN THOMPSON, as Public Administrator of the ESTATE OF CHELSEY POWERS, Plaintiff v. Forsyth County No. 09 CVS 4187 JAMES GUTIERREZ, GERARDO GARCIA and FRANCISCO RAMOS, Defendants Appeal by defendant James Gutierrez from order entered 2 August 2012 by Superior Court. Judge Anderson D. Cromer in Forsyth County Heard in the Court of Appeals 15 August 2013. Law Offices of Jonathan S. Dills, P.A., by Jonathan S. Dills, for plaintiff-appellee. William E. West, Jr., for defendant-appellant. CALABRIA, Judge. James court s Gutierrez order denying ( Gutierrez ) his motion appeals to set default and an entry of default judgment. I. Background from aside the an We affirm. trial entry of -2On 28 May 2007, Gutierrez, Gerardo Garcia, and Francisco Ramos (collectively defendants ) were driving together in a green sport utility vehicle when they stopped in front of a home on Charles Street in Winston-Salem, North Carolina. Fifteen- year-old Chelsey Powers ( Chelsey ), her twin sister Ciera, and their neighbor (collectively the children ) were sitting in the front yard of the home. Defendants briefly children and asked to purchase marijuana. spoke to the One of the defendants then began firing a gun from the back seat of the vehicle. Although Chelsey attempted to flee, she was struck in the head by a bullet. life-saving Chelsey was taken to the hospital and treated with measures, but ultimately died from the gunshot wound. On 28 May 2009, Bryan Thompson, as Public Administrator of the Estate of Chelsey Powers ( plaintiff ), initiated a wrongful death action against defendants. Plaintiff served the summons and complaint upon Gutierrez by certified mail. On 20 July 2009, Gutierrez filed a motion for an extension of time within which to answer plaintiff s complaint. and Gutierrez plaintiff s was given complaint. until 31 However, filed a responsive pleading. The motion was granted August 2009 Gutierrez to respond ultimately to never -3On 4 June 2010, plaintiff filed a motion for entry of default against all defendants, and default was entered by the clerk that same day. The case was then regularly calendared for trial during the 20 September 2010 civil session of Forsyth County Superior Court. Defendants failed to appear at the trial. On 17 November 2010, the trial court entered a judgment which included a finding which stated that [b]y operation of the Entry of Default, the Court finds all allegations against Defendants in the Complaint are true and deemed admitted by Defendants. The court concluded that defendants were jointly and severally liable for Chelsey s death and awarded plaintiff $2,000,000.00 in compensatory damages and $6,000,000.00 in punitive damages. On 12 November 2010, Gutierrez filed a Motion to Set Aside Entry of Default, but that motion was never set for hearing. On 8 February 2011, Gutierrez filed another motion, entitled Motion to Set Aside Entry of Default Judgment, Entry of Default, and to Enlarge Time for Filing of Answer ( motion to set aside ). In his motion to set aside, Gutierrez argued, inter alia, that the trial court s 17 November 2010 judgment should be set aside on the basis of excusable neglect because that judgment constituted a default judgment that required written -4notice to Gutierrez three days prior to any hearing, which he did not receive. He also asserted that he could establish a meritorious defense to plaintiff s claims. After a hearing, the trial on court denied Gutierrez s motion 2 August 2012. Gutierrez appeals. II. As an initial Motion to Dismiss matter, dismiss Gutierrez s appeal. violated N.C.R. App. P. we address plaintiff s motion to Plaintiff contends that Gutierrez 7(a)(1) by failing to include a transcript of the hearing for the motion to set aside as part of the record on appeal. days after filing the Pursuant to that rule, [w]ithin fourteen notice of appeal the appellant shall contract for the transcription of the proceedings or of such parts of the proceedings not already on file, as the appellant deems necessary, in accordance with these rules[.] P. 7(a)(1) (2013)(emphasis added). N.C.R. App. The rule also specifically provides that [i]f the appellant intends to urge on appeal that a finding or conclusion of the trial court is unsupported by the evidence or is contrary to the evidence, the appellant shall cite in the record on appeal the volume number, page number, and line number of all evidence relevant to such finding or conclusion. -5Id. In the instant case, Gutierrez s arguments do not include any arguments contending that any of the trial court s findings of fact or conclusions of law are unsupported by the evidence. Instead, Gutierrez raises legal issues that this resolve by examining the trial court s judgment. Court can This Court has previously explained that [u]nder . . . limited circumstances, a narrative necessary of to evidence understand or a verbatim defendant s transcript [issues on is not appeal]. Napowsa v. Langston, 95 N.C. App. 14, 20, 381 S.E.2d 882, 885 (1989). After reviewing Gutierrez s arguments, we believe that that neither a narrative of evidence nor a verbatim transcript is necessary for our review of the instant case. Therefore, we deny plaintiff s motion to dismiss. III. Motion to Set Aside Default Judgment Gutierrez argues that the trial court erred by denying his Rule 60(b) motion to set aside the entry of default judgment. We disagree. [I]f a judgment by default has been entered, the judge may set it aside in accordance with Rule 60(b). N.C. Gen. Stat. § 1A-1, Rule 55(d) (2011). [A] motion for relief under Rule 60(b) is addressed to the sound discretion of the trial court and appellate review is limited to determining whether the court -6abused its discretion. Sink v. Easter, 288 N.C. 183, 198, 217 S.E.2d 532, 541 (1975). In the instant case, defendant moved to have the trial court s default judgment set aside on the basis of excusable neglect pursuant to Rule 60(b)(1). N.C. Gen. Stat. § 1A-1, Rule 60(b)(1) (2011) of the North Carolina Rules of Civil Procedure permits a court to set aside a default judgment on the grounds of [m]istake, inadvertence, surprise, or excusable neglect[.] Determining what constitutes excusable neglect is a factspecific determination in which the Court must consider all the surrounding circumstances to decide what may be reasonably expected of a party in paying proper attention to his case. The party claiming excusable neglect must also show that he had a meritorious defense. Grier v. Guy, ___ N.C. App. ___, ___, 741 S.E.2d (2012)(internal quotations and citations omitted). 338, 341 Gutierrez contends that the trial court was required to find excusable neglect because he presented evidence that he did not receive three days notice of the default judgment hearing as required by N.C. Gen. Stat. § 1A-1, Rule 55(b)(2) (2011). Even assuming, arguendo, that Gutierrez is correct about his lack of notice constituting excusable neglect, he still must demonstrate a meritorious defense. Grier, ___ N.C. App. at ___, 741 S.E.2d at 341. In his brief, however, Gutierrez has only -7challenged the entry of the default judgment claim that his lack of notice demonstrated excusable neglect. prior to based upon that his judgment He does not argue anywhere in his brief that the entry of default by the clerk was improper after he failed to timely file his responsive pleading. Therefore, that entry of default remains undisturbed. The results deemed unchallenged in all entry of allegations of admitted against that default against plaintiff s defendant, Gutierrez complaint and being thereafter, defendant is prohibited from defending on the merits of the case. Estate of Teel v. Darby, 129 N.C. App. 604, 607, 500 S.E.2d 759, 762 (1998). Thus, by operation of the entry of default, plaintiff s allegations against admitted and Gutierrez is merits of the case. Id. cannot show that he has prohibited Gutierrez from are deemed defending on the As a result, Gutierrez necessarily a meritorious defense against plaintiff s claims and has therefore failed to demonstrate he is entitled to relief pursuant to Rule 60(b)(1). This argument is overruled. IV. Gutierrez s Rule 60(b) Conclusion motion to set aside the trial court s judgment required Gutierrez to establish both excusable -8neglect and a meritorious defense. did not challenge the entry of Since, on appeal, Gutierrez default against him, he is prohibited by that entry of default from defending against the merits of plaintiff s claims. Consequently, he has failed to establish a meritorious defense and is not entitled to relief pursuant to Rule 60(b)(1). Accordingly, the trial court s order is affirmed. Affirmed. Judges STROUD and DAVIS concur. Report per Rule 30(e).

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