{ "id": 11197743, "name": "BRANCH BANKING & TRUST COMPANY, a North Carolina Corporation, Plaintiff v. GLENWOOD TUCKER and wife, SHARLETTE A. TUCKER, Defendants", "name_abbreviation": "Branch Banking & Trust Co. v. Tucker", "decision_date": "1998-10-06", "docket_number": "No. COA97-1121", "first_page": "132", "last_page": "138", "citations": [ { "type": "official", "cite": "131 N.C. App. 132" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "248 S.E.2d 460", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "461" } ], "opinion_index": 0 }, { "cite": "38 N.C. App. 610", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555400 ], "year": 1978, "pin_cites": [ { "page": "612" } ], "opinion_index": 0, "case_paths": [ "/nc-app/38/0610-01" ] }, { "cite": "222 S.E.2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "708", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "28 N.C. App. 709", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552149 ], "year": 1976, "pin_cites": [ { "page": "712", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/28/0709-01" ] }, { "cite": "223 S.E.2d 311", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "313" } ], "opinion_index": 0 }, { "cite": "289 N.C. 531", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571014 ], "year": 1976, "pin_cites": [ { "page": "535" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0531-01" ] }, { "cite": "346 S.E.2d 139", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 334", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4780326, 4777709, 4778478, 4779983, 4776954 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0334-03", "/nc/317/0334-02", "/nc/317/0334-05", "/nc/317/0334-01", "/nc/317/0334-04" ] }, { "cite": "341 S.E.2d 588", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "598" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521697 ], "year": 1986, "pin_cites": [ { "page": "18" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0001-01" ] }, { "cite": "224 S.E.2d 580", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "588" } ], "opinion_index": 0 }, { "cite": "289 N.C. 620", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572567 ], "year": 1976, "pin_cites": [ { "page": "631" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0620-01" ] } ], "analysis": { "cardinality": 542, "char_count": 14872, "ocr_confidence": 0.731, "pagerank": { "raw": 9.517099285292088e-08, "percentile": 0.5242541167458026 }, "sha256": "8fa9b955a6f96d95de1e0b4518eb0906f33e1a4a47aa5a589d98c70735bd218d", "simhash": "1:f6ae32c65f2b4cf5", "word_count": 2424 }, "last_updated": "2023-07-14T20:31:28.584435+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge EAGLES and Judge MARTIN, Mark D., concur." ], "parties": [ "BRANCH BANKING & TRUST COMPANY, a North Carolina Corporation, Plaintiff v. GLENWOOD TUCKER and wife, SHARLETTE A. TUCKER, Defendants" ], "opinions": [ { "text": "HORTON, Judge.\nOn 29 April 1988 and 23 April 1991, defendants Glenwood Tucker, and wife, Sharlette A. Tucker (the Tuckers), executed certain promissory notes to plaintiff Branch Banking & Trust Company for loaned money and executed deeds of trust on their real estate to secure those notes. The Tuckers also pledged certain equipment and personal property as security for the notes. The Tuckers defaulted in payment of the notes and plaintiff instituted a special proceeding on 23 April 1992 to foreclose the deeds of trust. On 7 May 1992, plaintiff filed a civil action to recover money from the promissory notes, possession of the pledged equipment and personal property by claim and delivery, and attorneys\u2019 fees.\nOn 12 January 1993, plaintiff became the last and highest bidder at the foreclosure sale of the Tuckers\u2019 real property. Plaintiff\u2019s bid was $210,001.00. On 22 January 1993, plaintiff assigned its bid to Shelton R. Adams and Suzette J. Stroud by a document entitled \u201cAssignment of Bid and Agreement\u201d (Assignment). The Assignment was prepared by plaintiff\u2019s attorney and was signed by plaintiff. In the Assignment, plaintiff agreed that it would not seek any further recovery from defendants and it would dismiss its pending civil action against them with prejudice. The terms of the sale were then complied with, final reports were filed, and the special proceeding was closed on 22 February 1993. On 23 February 1993, as agreed, plaintiff filed a voluntary dismissal with prejudice in its civil action against the Tuckers.\nOn 26 March 1993, plaintiff instituted a second civil action against the Tuckers, seeking to recover the deficient balance due on the promissory notes. Each defendant was served with a summons and unverified complaint in the action, and each defendant moved for an extension of time within which to file an answer. Defendant Sharlette A. Tucker\u2019s pro se motion for extension of time was granted, and the time for answering was extended through 18 June 1993. No order granting defendant Glenwood Tucker\u2019s motion for extension of time appears in the record.\nOn 20 May 1993, plaintiff\u2019s attorney executed and filed an affidavit with the trial court stating that defendant Glenwood Tucker was served with summons and complaint, the time to answer had expired, and Glenwood Tucker was \u201cindebted to the plaintiff in the amount of $203,783.23 with interest thereon from date[.]\u201d An assistant clerk entered default against Glenwood Tucker on 21 May 1993.\nSharlette A. Tucker never filed an answer, and her default was entered on 8 July 1993. Plaintiff\u2019s attorney signed and filed an affidavit against Sharlette A. Tucker on 8 July 1993, alleging that she was indebted to plaintiff in the \u201camount of $203,783.23 with interest thereon from date.\u201d On 8 July 1993, plaintiff\u2019s attorney also filed a motion for summary judgment and a notice that the motion would be heard at the term of Johnston County Superior Court beginning on Monday, 26 July 1993, at 10:00 a.m. The certificate of service on the notice of hearing and the motion for summary judgment was signed by plaintiff\u2019s attorney and stated that copies of the notice and motion were mailed to each defendant at \u201cRoute 4 Box 171A, Benson, NC 27504.\u201d Defendants deny receipt of the documents.\nThe Honorable Henry Y. Barnette, Jr., presided over the 26 July 1993 Session of Johnston County Superior Court. Judge Barnette is and was then a Resident Superior Court Judge of Wake County. Apparently there were some proceedings in the case before Judge Barnette at the July 1993 Session. Neither defendant was present. More than a year later, on 10 October 1994, Judge Barnette granted summary judgment and ordered that \u201cplaintiff have and recover of the defendants the sum of $203,783.23 with interest thereon as allowed by law; together with the costs of this action, and attorneys\u2019 fees as allowed by the laws of the State of North Carolina.\u201d\nOther than the brief affidavits filed by plaintiff\u2019s attorney to secure entries of default against defendants, it does not appear that other affidavits or testimony in support of the motion for summary judgment were presented to Judge Barnette. Additionally, there is no explanation given for the delay in signing the motion for summary judgment. Further, there is nothing in the record to show that the motion for summary judgment was ever served on either defendant.\nOn 14 September 1995, the Tuckers moved, pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 60(b) (1990), for relief from summary judgment. The matter was heard by the Honorable Knox V. Jenkins at the 6 January 1997 Session of Johnston County Superior Court. Judge Jenkins entered an order setting aside summary judgment under the provisions of N.C. Gen. Stat. \u00a7 1A-1, Rule 60(b)(4) and (6).\nJudge Jenkins also ordered that the entries of default be set aside and that plaintiff\u2019s complaint be dismissed with prejudice. Plaintiff then moved pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rules 59 and 60 (1990) that the trial court alter or amend its judgment insofar as it provided for a dismissal of plaintiff\u2019s complaint. Judge Jenkins denied the motion to alter or amend on 11 February 1997, and plaintiff appealed both from that denial and from the order setting aside summary judgment.\nOn appeal, plaintiff argues Judge Jenkins erred in concluding that summary judgment was void, defendants did not act within a reasonable time in seeking relief from summary judgment, and plaintiff\u2019s complaint should be dismissed.\nBefore we address the merits of this case, we note that appellate review is confined to those exceptions which pertain to the argument presented. Crockett v. First Fed. Sav. & Loan Assoc. of Charlotte, 289 N.C. 620, 631, 224 S.E.2d 580, 588 (1976). To obtain appellate review, a question raised by an assignment of error must be presented and argued in the brief. In re Appeal from Environmental Management Comm., 80 N.C. App. 1, 18, 341 S.E.2d 588, 598, disc. review denied, 317 N.C. 334, 346 S.E.2d 139 (1986). Questions raised by assignments of error which are not presented in a party\u2019s brief are deemed abandoned. State v. Wilson, 289 N.C. 531, 535, 223 S.E.2d 311, 313 (1976). In the instant case, plaintiff notes seven assignments of error in the record on appeal but does not set any of them out in its brief in support of any question therein presented. Notwithstanding the errors, in deference to the litigants and for reasons of judicial economy, we nevertheless address the general thrust of plaintiff\u2019s argument pursuant to N.C.R. App. P. 2.\nPlaintiff first contends Judge Jenkins erred in finding that summary judgment was \u201cvoid\u201d pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 60(b)(4) and in setting aside the judgment. We note that Judge Jenkins also set aside summary judgment in his discretion pursuant to the provisions of N.C. Gen. Stat. \u00a7 1A-1, Rule 60(b)(6), which provides that:\nOn motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order, or proceeding for the following reasons:\n(6) Any other reason justifying relief from the operation of the judgment.\nJudge Jenkins found that plaintiff was attempting to collect from defendants on the same promissory notes involved in the earlier action against defendants, which was voluntarily dismissed with prejudice. In its discretion, the trial court then set aside summary judgment.\n\u201cRule 60(b) has been described as \u2018. . . a grand reservoir of equitable power to do justice in a particular case. . . .\u2019 \u201d Jim Walter Homes, Inc. v. Peartree, 28 N.C. App. 709, 712, 222 S.E.2d 706, 708 (1976) (citation omitted). Relief afforded under N.C. Gen. Stat. \u00a7 1A-1, Rule 60(b) \u201cis within the discretion of the trial court, and such a decision will be disturbed only for an abuse of discretion.\u201d Harrington v. Harrington, 38 N.C. App. 610, 612, 248 S.E.2d 460, 461 (1978). Plaintiff does not set out any argument, or make any contention, that Judge Jenkins abused his discretion in setting aside the order for summary judgment. Thus, no abuse of discretion has been shown on the facts of this case.\nSecond, it does not appear from the record that defendants did not act within a reasonable time in moving for relief from summary judgment. For reasons which do not appear from the record, plaintiff did not present the order for summary judgment to Judge Barnette for more than a year after a hearing on its motion for summary judgment. Summary judgment was filed on 10 October 1994 and defendants filed their motion for relief from the order on 14 September 1995, less than a year later. There is nothing in the record to indicate any notice to defendants that summary judgment had been entered. Defendants filed their motion for relief from summary judgment in less time than plaintiff consumed in preparing the order, having it signed, and filed. Certainly we cannot say that the trial court erred in concluding that defendants\u2019 motion for relief was filed within a reasonable time.\nFinally, while it appears the trial court acted within its discretion in setting aside the entries of default against defendants, it appears the trial court erred in dismissing plaintiffs complaint with prejudice. The trial court understandably concluded that plaintiff is seeking to relitigate matters finally disposed of by the voluntary dismissal with prejudice entered by plaintiff in its first civil action against these defendants. While defendants are entitled to the opportunity to plead the disposition of the prior civil action in bar of the instant claim against them, plaintiff contends the dismissal with prejudice was only intended to dismiss its claim for foreclosure and not any claim for deficiency arising from the foreclosure sale. Whether that argument will ultimately prevail we cannot say, but plaintiff is entitled to make it. We further note that neither responsive pleadings nor a motion for summary judgment were filed by defendants in the trial court.\nIn conclusion, the actions of the trial court in setting aside summary judgment and the entries of default are affirmed, but its action in dismissing plaintiffs complaint with prejudice is reversed. This matter is remanded to the trial court with directions to enter an order setting a time within which defendants may file an answer or otherwise defend the complaint.\nAffirmed in part, reversed in part, and remanded.\nChief Judge EAGLES and Judge MARTIN, Mark D., concur.", "type": "majority", "author": "HORTON, Judge." } ], "attorneys": [ "W Robert Denning, III, for plaintiff appellant.", "Emery D. Ashley for defendant appellees." ], "corrections": "", "head_matter": "BRANCH BANKING & TRUST COMPANY, a North Carolina Corporation, Plaintiff v. GLENWOOD TUCKER and wife, SHARLETTE A. TUCKER, Defendants\nNo. COA97-1121\n(Filed 6 October 1998)\n1. Judgments\u2014 Rule 60 relief \u2014 no abuse of discretion\nThe trial court did not err by setting aside a summary judgment and entries of default where defendants Tucker executed promissory notes to plaintiff Branch Banking & Trust secured by deeds of trust on their real estate and by certain equipment and personal property; the Tuckers defaulted and plaintiff instituted foreclosure and an action on the notes; plaintiff purchased the real property at the foreclosure sale and assigned its bid; plaintiff agreed in the assignment that it would not seek further recovery and filed a voluntary dismissal with prejudice; plaintiff subsequently instituted a second civil action seeking the deficiency on the notes; defaults were entered against the Tuckers; plaintiffs attorney also filed a motion for summary judgment, which.was granted; the Tuckers moved for relief under N.C.G.S. \u00a7 1A-1, Rule 60(b); and that motion was granted, with the summary judgment and the entries of default set aside and plaintiffs complaint dismissed with prejudice. The trial court found that plaintiff was attempting to collect on the same promissory notes involved in the earlier action, which had been voluntarily dismissed with prejudice, and set aside the summary judgment in the exercise of its discretion. Plaintiff does not make any contention that the judge abused his discretion and no abuse of discretion was shown on the facts.\n2. Judgments\u2014 Rule 60 motion for relief \u2014 timeliness\nIt could not be said that the trial court erred by concluding that defendant\u2019s motion for relief was filed within a reasonable time where plaintiff began a foreclosure against defendant\u2019s property on 23 April 1992 and an action on promissory notes secured in part by equipment and personal property on 7 May 1992; plaintiff bought the real property at the foreclosure sale on 12 January 1993, assigning its bid and then taking a voluntary dismissal with prejudice of the civil action on 23 February 1993; plaintiff instituted a second civil action on the notes on 26 March 1993; defaults were entered against defendants on 21 May 1993 and 8 July 1993; plaintiff also filed a motion for summary judgment and a notice that a hearing would be held on 26 July 1993; a certificate of service by mail was signed by plaintiffs attorney but defendants deny receipt of the documents; a hearing was held on 26 July 1993 with neither defendant present; summary judgment was granted on 10 October 1994; and plaintiffs moved for relief on 14 September 1995. There is nothing in the record to indicate any notice to defendants that summary judgment had been entered, and defendants filed their motion for relief in less time than plaintiff consumed in preparing the order and having it signed and filed.\n3. Judgments\u2014 Rule 60 relief \u2014 complaint dismissed with prejudice\nThe trial court erred by dismissing a complaint with prejudice where defendants Tucker executed promissory notes to plaintiff Branch Banking & Trust secured by deeds of trust on their real estate and by certain equipment and personal property; the Tuckers defaulted and plaintiff instituted foreclosure and an action on the notes; plaintiff purchased the real property at the foreclosure sale and assigned its bid; plaintiff agreed in the assignment that it would not seek further recovery and filed a voluntary dismissal with prejudice of its civil action; plaintiff subsequently instituted a second civil action seeking the deficiency on the notes; defaults and a summary judgment were entered against the Tuckers; and the Tuckers moved for relief under Rule 60(b). While the trial court understandably concluded that plaintiff is seeking to relitagate matters finally disposed of by the voluntary dismissal with prejudice, plaintiffs are entitled to make their argument that the dismissal was only intended to dismiss its claim for foreclosure.\nAppeal by plaintiff from order entered 31 January 1997 by the Honorable Knox V. Jenkins in Johnston County Superior Court, setting aside summary judgment entered on 10 October 1994 by the Honorable Henry V. Barnette, Jr., and dismissing plaintiff\u2019s complaint. Heard in the Court of Appeals 17 August 1998.\nW Robert Denning, III, for plaintiff appellant.\nEmery D. Ashley for defendant appellees." }, "file_name": "0132-01", "first_page_order": 166, "last_page_order": 172 }