{ "id": 4343239, "name": "BODIE ISLAND BEACH CLUB ASSOCIATION, INC., et al., Plaintiffs v. DON WRAY, PENNY WRAY, JESSICA SMITH, DAVID R. DIXON, STEPHEN R. SMITH, TOM FEIST, SEA WRAY, LLC, CROC, LLC, and SRS NORTH CAROLINA PROPERTIES, LLC, Defendants", "name_abbreviation": "Bodie Island Beach Club Ass'n v. Wray", "decision_date": "2011-09-06", "docket_number": "No. COA10-1569", "first_page": "283", "last_page": "295", "citations": [ { "type": "official", "cite": "215 N.C. App. 283" } ], "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": "652 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639683 ], "year": 2007, "pin_cites": [ { "page": "282" } ], "opinion_index": 0, "case_paths": [ "/se2d/652/0277-01" ] }, { "cite": "668 S.E.2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642229 ], "year": 2008, "pin_cites": [ { "page": "601", "parenthetical": "citing Greene v. Royster, 187 N.C. App. 71, 77-78, 652 S.E.2d 277, 282 (2007)" } ], "opinion_index": 0, "case_paths": [ "/se2d/668/0594-01" ] }, { "cite": "673 S.E.2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642965 ], "year": 2009, "pin_cites": [ { "page": "709" } ], "opinion_index": 0, "case_paths": [ "/se2d/673/0706-01" ] }, { "cite": "649 S.E.2d 453", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639195 ], "year": 2007, "pin_cites": [ { "page": "456", "parenthetical": "internal citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/649/0453-01" ] }, { "cite": "657 S.E.2d 432", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640481 ], "year": 2008, "pin_cites": [ { "page": "434", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/657/0432-01" ] }, { "cite": "631 S.E.2d 839", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636209 ], "year": 2006, "pin_cites": [ { "page": "840-41" } ], "opinion_index": 0, "case_paths": [ "/se2d/631/0839-01" ] }, { "cite": "643 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638095 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "568", "parenthetical": "citation omitted" }, { "page": "568-69", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/643/0566-01" ] }, { "cite": "681 S.E.2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2009, "pin_cites": [ { "page": "799" }, { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "198 N.C. App. 407", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4168874 ], "year": 2009, "pin_cites": [ { "page": "423" } ], "opinion_index": 0, "case_paths": [ "/nc-app/198/0407-01" ] }, { "cite": "187 N.C. App. 71", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8371895 ], "year": 2007, "pin_cites": [ { "page": "77-78" } ], "opinion_index": 0, "case_paths": [ "/nc-app/187/0071-01" ] }, { "cite": "193 N.C. App. 644", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4161815 ], "year": 2008, "pin_cites": [ { "page": "654", "parenthetical": "citing Greene v. Royster, 187 N.C. App. 71, 77-78, 652 S.E.2d 277, 282 (2007)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/193/0644-01" ] }, { "cite": "610 S.E.2d 469", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "470", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "169 N.C. App. 619", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8472171 ], "year": 2005, "pin_cites": [ { "page": "621", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0619-01" ] }, { "cite": "531 S.E.2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "891", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 700", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11081419 ], "year": 2000, "pin_cites": [ { "page": "702", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0700-01" ] }, { "cite": "183 S.E.2d 417", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "418-19" } ], "opinion_index": 0 }, { "cite": "12 N.C. App. 348", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549451 ], "year": 1971, "pin_cites": [ { "page": "350" } ], "opinion_index": 0, "case_paths": [ "/nc-app/12/0348-01" ] }, { "cite": "239 S.E.2d 415", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "427" } ], "opinion_index": 0 }, { "cite": "293 N.C. 594", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566678 ], "year": 1977, "pin_cites": [ { "page": "612" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0594-01" ] }, { "cite": "561 S.E.2d 534", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "536" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 625", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9130787 ], "year": 2002, "pin_cites": [ { "page": "628" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0625-01" ] }, { "cite": "195 N.C. App. 678", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4164871 ], "year": 2009, "pin_cites": [ { "page": "682" } ], "opinion_index": 0, "case_paths": [ "/nc-app/195/0678-01" ] }, { "cite": "275 S.E.2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "836" } ], "opinion_index": 0 }, { "cite": "302 N.C. 351", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565589 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0351-01" ] }, { "cite": "185 N.C. App. 659", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8212103 ], "year": 2007, "pin_cites": [ { "page": "665", "parenthetical": "internal citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/185/0659-01" ] }, { "cite": "189 N.C. App. 123", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4157167 ], "year": 2008, "pin_cites": [ { "page": "126", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/189/0123-01" ] }, { "cite": "68 N.C. App. 52", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526656 ], "year": 1984, "pin_cites": [ { "page": "54-56" } ], "opinion_index": 0, "case_paths": [ "/nc-app/68/0052-01" ] }, { "cite": "573 S.E.2d 547", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2002, "pin_cites": [ { "page": "549" }, { "page": "549", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 205", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249637 ], "weight": 3, "year": 2002, "pin_cites": [ { "page": "209" }, { "page": "208" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0205-01" ] }, { "cite": "381 S.E.2d 467", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "471" } ], "opinion_index": 0 }, { "cite": "94 N.C. App. 717", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527808 ], "year": 1989, "pin_cites": [ { "page": "722" } ], "opinion_index": 0, "case_paths": [ "/nc-app/94/0717-01" ] }, { "cite": "447 S.E.2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "815", "parenthetical": "quoting Coffey v. Coffey, 94 N.C. App. 717, 722, 381 S.E.2d 467, 471 (1989)" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 263", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523406 ], "year": 1994, "pin_cites": [ { "page": "268", "parenthetical": "quoting Coffey v. Coffey, 94 N.C. App. 717, 722, 381 S.E.2d 467, 471 (1989)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0263-01" ] }, { "cite": "437 S.E.2d 383", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "385", "parenthetical": "internal citation omitted" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 783", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523989 ], "year": 1993, "pin_cites": [ { "page": "785-86", "parenthetical": "internal citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0783-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 60", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(b)(6)" } ], "opinion_index": 0 }, { "cite": "178 N.C. App. 552", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8378874 ], "year": 2006, "pin_cites": [ { "page": "554" } ], "opinion_index": 0, "case_paths": [ "/nc-app/178/0552-01" ] }, { "cite": "678 S.E.2d 602", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "605", "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0 }, { "cite": "363 N.C. 70", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151536 ], "year": 2009, "pin_cites": [ { "page": "75", "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0070-01" ] }, { "cite": "361 N.C. 265", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3738344 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "269", "parenthetical": "citation omitted" }, { "page": "269" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0265-01" ] }, { "cite": "511 S.E.2d 2", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "4", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "350 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132249 ], "year": 1999, "pin_cites": [ { "page": "73", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0071-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-11", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 } ], "analysis": { "cardinality": 978, "char_count": 29154, "ocr_confidence": 0.737, "pagerank": { "raw": 1.2989563147948177e-07, "percentile": 0.6217547818424936 }, "sha256": "1b0c0c6116d38157e838d9e44f1ae0d1b7ad1b90ce0bb297e4d2ecb966f88e0b", "simhash": "1:0ffff226556d8c65", "word_count": 4990 }, "last_updated": "2023-07-14T18:49:09.394868+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER, Robert C., and McCULLOUGH concur." ], "parties": [ "BODIE ISLAND BEACH CLUB ASSOCIATION, INC., et al., Plaintiffs v. DON WRAY, PENNY WRAY, JESSICA SMITH, DAVID R. DIXON, STEPHEN R. SMITH, TOM FEIST, SEA WRAY, LLC, CROC, LLC, and SRS NORTH CAROLINA PROPERTIES, LLC, Defendants" ], "opinions": [ { "text": "BRYANT, Judge.\nWhere the trial court properly found that SRS failed to answer the complaint, there was no error in denying SRS\u2019s Motion for Leave to Amend Answer, entering default against SRS, granting plaintiff\u2019s motion for summary judgment against SRS, and denying SRS\u2019s Motion to Set Aside Default and Summary Judgment.\nFacts and Procedural History\nOn 10 July 2009, Bodie Island Beach Club Association, Inc., et al. (plaintiffs) filed a complaint against Don Wray, Penny Wray, Jessica Smith, David R. Dixon, Stephen R. Smith (Dr. Smith), Tom Feist, Sea Wray, LLC, CROC, LLC, and SRS North Carolina Properties, LLC (SRS). The complaint alleged legal malpractice, conversion, constructive fraud, civil conspiracy, breach of fiduciary duty, and an action to set aside a de\u00e9d due to fraud and undue influence. Plaintiffs also filed a Notice of Designation of Mandatory Complex Business Case. On 20 July 2009, Chief Justice Sarah Parker of the Supreme Court of North Carolina designated this case as a mandatory complex business case and ordered the case to be assigned to a business court judge.\nOn 13 August 2009, David R. Dixon filed an answer. Dr. Smith was served with process in his individual capacity as well as in his capacity as the registered agent of SRS on 24 August 2009. On 17 September 2009, in lieu of a formal answer, Dr. Smith sent a letter to plaintiffs\u2019 counsel, denying the allegations. The letter, printed on his personal letterhead, was signed by \u201cStephen R. Smith, MD.\u201d On the same date, the trial court issued an Order to Show Cause. The Order to Show Cause stated that on 14 August 2009, Donald Wray purported to file answers to plaintiffs\u2019 complaint on behalf of himself, Penny Wray, Sea Wray, LLC and Croc, LLC. In its Order to Show Cause, the trial court stated the following, in pertinent part:\n2. On August 14, 2009, Defendant Donald Wray purported to file Answers to Plaintiffs\u2019 Complaint [o]n behalf of himself, Defendant Penny Wray, Defendant Sea Wray, LLC and Defendant Croc, LLC.\n4. Pursuant to N.C. Gen. Stat. \u00a7 1-11, a party may appear either in person or by a licensed attorney in actions or proceedings in which the party is interested.\n5. Defendant Donald Wray does not appear to be licensed to practice law by the North Carolina State Bar.\n6. It is inappropriate for Defendant Donald Wray to propound pleadings in this matter on behalf of Defendants Penny Wray, Sea Wray, LLC or Croc, LLC.\n7. Defendant Penny Wray may appear and propound pleadings in this matter while acting pro se, in her own behalf.\n8. Defendants Sea Wray, LLC and Croc, LLC may not appear or propound pleadings in this matter pro se, and may appear only through duly licensed legal counsel.\nNOW THEREFORE, it is ORDERED that Defendants Penny Wray, Sea Wray, LLC and Croc, LLC shall appear ... to SHOW CAUSE why the Answers lodged in their behalf by Defendant Don Wray should not be stricken.\nHowever, on 15 October 2009, plaintiffs took a voluntary dismissal with prejudice as to their claims against Don Wray, Penny Wray, Jessica L. Smith, and Sea Wray, LLC, and dismissed Tom Feist as well in December 2009.\nIn an order filed 22 October 2009 following a hearing upon the court\u2019s 17 September 2009 Order to Show Cause, the trial court allowed Kathryn Fagan to appear as counsel for Croc, LLC, and to file an amended answer in November 2009. On 23 November 2009, Dr. Smith sent a letter to Fagan listing his responses to the amended answer filed on behalf of Croc, LLC.\nOn 30 November 2009, plaintiffs filed a motion for summary judgment as to SRS which stated, in pertinent part, that SRS had not filed a response to plaintiffs complaint within thirty days of service of the summons and complaint and had not made a request to extend the time to answer. In response, Dr. Smith sent a letter to plaintiffs\u2019 counsel, opposing summary judgment. Thereafter, SRS retained counsel who on 7 March 2010 filed a Motion for Leave to Amend Answer on behalf of Dr. Smith and SRS.\nOn 14 June 2010, the trial court granted the Motion for Leave to Amend Answer as to Dr. Smith but denied the Motion for Leave to Amend as to SRS. Further, \u201c[u]pon the court\u2019s own motion, default... [was] entered against [SRS].\u201d The trial court scheduled a 22 June 2010 hearing for plaintiffs\u2019 motion for summary judgment. Dr. Smith filed an amended answer on 21 July 2010.\nOn 20 July 2010, counsel for SRS sent a letter to the trial court apologizing for having missed the 22 June 2010 hearing for plaintiffs\u2019 summary judgment motion, asking the court to reconsider the entry of default against SRS, and requesting that should the trial court enter summary judgment against SRS, that the order be certified final and, therefore, immediately appealable. On 30 July 2010, the trial court entered an order granting plaintiffs\u2019 motion for summary judgment as to SRS. The trial court also entered an order that stated the following, in pertinent part:\nTHE COURT, having considered the [20 July 2010] Letter, observes that in submitting the Letter, Counsel has made no effort to comply in either form or substance with numerous provisions of the North Carolina Rules of Civil Procedure ... or the General Rules of Practice and Procedure for the North Carolina Business Court[.] . . .\nHowever, notwithstanding Counsel\u2019s unexplained failure to abide by [the rules], the court has reviewed the substance of the requests for relief reflected in the Letter and CONCLUDES that SRS has made no showing of good cause for any such relief. Accordingly, to the extent the Letter constitutes a request in behalf of SRS for (a) relief from prior rulings of this court, (b) leave to file an Answer in this action [on] behalf of SRS or (c) certification by the court of the finality of any ruling it has made or might make in the future, the request is DENIED.\nOn 6 August 2010, SRS filed a Motion to Set Aside Default and Summary Judgment which the trial court denied in a 24 September 2010 order. SRS appeals the following orders: 14 June 2010 Order on Motion for Leave to Amend Answer; 30 July 2010 Order on Motion for Summary Judgment as to Defendant SRS; and 24 September 2010 Order denying Motion to Set Aside Default and Summary Judgment.\nAt the outset, we note that this appeal is interlocutory in nature. \u201cInterlocutory orders are those made during the pendency of an action which do not dispose of the case, but instead leave it for further action by the trial court in order to settle and determine the entire controversy.\u201d Carriker v. Carriker, 350 N.C. 71, 73, 511 S.E.2d 2, 4 (1999) (citation omitted). \u201cGenerally, there is no right of immediate appeal from interlocutory orders and judgments.\u201d Harris v. Matthews, 361 N.C. 265, 269, 643 S.E.2d 566, 568 (2007) (citation omitted).\nAn interlocutory order may be immediately appealable if the court certifies that the order represents a final judgment as to one or more claims in a multi-claim lawsuit or one or more parties in a multiparty lawsuit and certifies that there is no just reason for delay. N.C. Gen. Stat. \u00a7 1A-1, Rule 54(b) (2009). \u201c[I]nterlocutory orders are [also] immediately appealable if they: (1) affect a substantial right and (2) [will] work injury if not corrected before final judgment.\u201d Harris, 361 N.C. at 269, 643 S.E.2d at 568-69 (internal quotation marks omitted). \u201cA substantial right is a legal right affecting or involving a matter of substance as distinguished from matters of form: a right materially affecting those interests which [one] is entitled to have preserved and protected by law: a material right.\u201d Gilbert v. N. C. State Bar, 363 N.C. 70, 75, 678 S.E.2d 602, 605 (2009) (internal quotation marks and citation omitted).\nSRS contends that the 30 July 2010 Order on Motion for Summary Judgment as to Defendant SRS, although interlocutory, affects a substantial right allowing review. SRS also argues that because the 30 July 2010 Order affects a substantial right, the 24 September 2010 Order Denying the Motion to Set Aside Default and Summary Judgment is likewise immediately appealable.\nOn 6 August 2010, SRS filed a Motion to Set Aside Default and Summary Judgment pursuant to Rule 55(d), 59(a)(8) and (9), and 60(b) of the North Carolina Rules of Civil Procedure. SRS argues that the Rule 59 Motion to Set Aside Default and Summary Judgment tolled the appeal from 6 August 2010, filed within ten days of the 30 July 2010 order, making its appeal timely. We disagree. Because both Rule 59(a)(8) and (9) are properly made after a trial, and the case sub judice concluded at the summary judgment stage, SRS\u2019 6 August 2010 motion did not toll the appeal, permitting us to dismiss the appeal as to the 30 July 2010 Order and the 24 September 2010 Order. However, \u201c[we note that] interlocutory orders concerning title . . . must be immediately appealed as vital preliminary issues involving substantial rights adversely affected.\u201d Watson v. Millers Creek Lumber Co., 178 N.C. App. 552, 554, 631 S.E.2d 839, 840-41 (2006). Therefore, we will address the appeal of these two orders.\nIn regards to the 14 June 2010 Order on Motion for Leave to Amend Answer, SRS concedes that this order was not timely appealed, leaving us without jurisdiction to review this order on appeal. However, we exercise our authority under Rule 21 to consider SRS\u2019 appeal of the 14 July 2010 order as a petition for writ of certiorari, and we grant certiorari to review this order. N.C. R. App. R, Rule 21 (2009). Accordingly, we will address the merits of this appeal.\nSRS raises the following six issues on appeal: Whether the trial court (I) abused its discretion in denying SRS\u2019s Motion for Leave to Amend Answer; (II) erred in its entry of default against SRS; (III) erred in entering summary judgment against SRS; (IV) abused its discretion in denying SRS\u2019 motion to set aside the entry of default pursuant to N.C. Gen. Stat. \u00a7 60(b)(6); (V) erred in denying SRS\u2019 motion to set aside summary judgment under N.C. Gen. Stat. \u00a7 1A-1, Rule 59(a)(8); and (VI) erred in denying SRS\u2019 motion to set aside summary judgment pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 59(a)(9).\n/\nSRS first argues that the trial court erred in its 14 June 2010 order denying their Motion for Leave to Amend Answer. SRS contends that the \u201crecord overwhelmingly discloses that the letter was meant as a response on behalf of SRS as well as Dr. Smith.\u201d SRS also argues that the trial court erred by denying their leave to amend based on the misapprehension of law that \u201cwhere a corporation attempts to appear through a non-attorney, the corporation is in default.\u201d We disagree.\n\u201cLeave to amend should be granted when \u2018justice so requires,\u2019 or by written consent of the adverse party[.] . . . The granting or denial of a motion to amend is within the sound discretion of the trial judge, whose decision is reviewed under an abuse of discretion standard.\u201d House Healers Restorations, Inc. v. Ball, 112 N.C. App. 783, 785-86, 437 S.E.2d 383, 385 (1993) (internal citation omitted). \u201cIf the trial court articulates a clear reason for denying the motion to amend, then our review ends. Acceptable reasons for which a motion to amend may be denied are \u2018undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies, undue prejudice, and futility of the amendment.\u2019\u201d Nationsbank of N.C., N.A. v. Baines, 116 N.C. App. 263, 268, 447 S.E.2d 812, 815 (1994) (quoting Coffey v. Coffey, 94 N.C. App. 717, 722, 381 S.E.2d 467, 471 (1989)).\nSRS argues that the trial court\u2019s denial of their motion for leave to amend was based on a \u201cmistaken assumption of fact lacking any basis in the record\u201d in regards to finding that Dr. Smith\u2019s letter was not filed on behalf of SRS. Alternatively, SRS argues that the trial court\u2019s denial of SRS\u2019 motion for leave to amend was based on a misapprehension of the law, specifically the trial court\u2019s incomplete understanding and reliance on Lexis-Nexis v. Travishan Corp., 155 N.C. App. 205, 573 S.E.2d 547 (2002). SRS asserts that the trial court erred by concluding that \u201cwhere a corporation attempts to appear through a non-attorney, the corporation is in default.\u201d SRS contends that the question before this Court is whether \u201cbecause of the technical insufficiency of a response through a non-attorney, a corporation should be denied the opportunity to file a proper answer through counsel.\u201d\nIn the case sub judice, the trial court denied SRS\u2019 motion for leave to amend answer, articulating the following pertinent findings:\n13. In the Motion [for Leave to Amend Answer], [Dr.] Smith states that he believed that the Answer was an answer filed on behalf of himself and SRS.\n14. [Dr.] Smith is not an attorney. [Dr.] Smith is a medical doctor[.]\n15. Smith wholly owns and is the sole managing member of SRS.\n16. [Dr.] Smith\u2019s answer was written on personal letterhead. Moreover, [Dr.] Smith signed the letter on his own behalf and did not purport to respond on behalf of SRS.\n17. \u201cA corporation must be represented by a duly admitted and licensed attorney-at-law and cannot proceed pro se.\u201d Lexis-Nexis v. Travishan Corp., 155 N.C. App. 205, 209 (2002). The exceptions to this general rule are not satisfied here. See Lexis-Nexis, 155 N.C. App. at 208; Beard v. Pembaur, 68 N.C. App. 52, 54-56 (1984).\n18. Because SRS did not answer the Complaint pursuant to Rule 12(a)(1) (see also Rule 4(b)), relief pursuant to Rule 15(a), which allows for amendment of pleadings, is not appropriate.\nOur Court in Lexis-Nexis held that \u201cin North Carolina a corporation must be represented by a duly admitted and licensed attorney-at-law and cannot proceed pro se unless doing so in accordance with the exceptions set forth in this opinion.\u201d Id. at 209, 573 S.E.2d at 549. The exceptions noted by our Court in Lexis-Nexis were as follows: \u201ca corporate employee, who was not an attorney, could prepare legal documents]/,]\u201d \u201ca corporation need not be represented by an attorney in the Small Claims Division];]\u201d and \u201ca corporation may make an appearance in court through its vice-president and thereby avoid default.\u201d Id. at 208, 573 S.E.2d at 549 (citations omitted).\nBased on the trial court\u2019s findings, the court articulated a clear reason for denying SRS\u2019 motion for leave to amend the answer: SRS failed to answer the complaint and Dr. Smith\u2019s response did not constitute an answer on behalf of SRS. Dr. Smith\u2019s letter of response filed on 17 September 2009 failed to indicate that he was responding on behalf of any other person or entity other than himself, was written on his personal letterhead, and was signed solely by Dr. Smith in his individual capacity. Even assuming arguendo that Dr. Smith\u2019s letter of response could be considered to constitute an answer on behalf of SRS, Dr. Smith was not a licensed attorney. The case does not fit within the exceptions noted by our Court in Lexis-Nexis and SRS\u2019 argument must fail. Based on the foregoing, we hold that the trial court did not abuse its discretion. SRS\u2019 argument is overruled.\nII\nIn SRS\u2019 second argument, it asserts that the trial court erred in its entry of default against SRS. Specifically, SRS contends that the trial court lacked authority to enter default against SRS and, alternatively, that even if the trial court had the authority to enter default, it abused its discretion by doing so.\nWhen 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 and that fact is made to appear by affidavit, motion of attorney for the plaintiff, or otherwise, the clerk shall enter his default.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 55(a) (2009). \u201c[T]he [trial] judge has concurrent jurisdiction and can order entry of default.\u201d Ruiz v. Mecklenburg Utils., Inc., 189 N.C. App. 123, 126, 657 S.E.2d 432, 434 (2008) (citation omitted). \u201cA trial court\u2019s decision to enter a default judgment, like entry of default, is reviewable for abuse of discretion. As such, we only find abuse of discretion where the trial court\u2019s judgment is \u2018manifestly unsupported by reason\u2019 \u201d Lowery v. Campbell, 185 N.C. App. 659, 665, 649 S.E.2d 453, 456 (2007) (internal citation omitted).\nSRS relies on Peebles v. Moore, 302 N.C. 351, 275 S.E.2d 833 (1981) for its argument that \u201cit is error to enter a default against a defendant who files an untimely answer.\u201d SRS argues that the trial court was barred from entering default after SRS filed a motion for leave to amend answer with a proposed amended answer attached. Peebles does state that \u201cthe better reasoned and more equitable result [than entering default because an answer is filed late] may be reached by adhering to the principle that a default should not be entered, even though technical default is clear, if justice may be served otherwise.\u201d Id. at 356, 275 S.E.2d at 836. However, the trial court found the following in its Order on Motion for Leave to Amend Answer, entering default against SRS, in pertinent part:\n20. Pursuant to Rule 55(a) ... an entry of default can be made. The court has concluded, supra, that SRS has not filed an answer to the Complaint. Therefore, default may be entered.\n23. The court recognizes that SRS may contend that the Proposed Amended Answer submitted with the Motion is an answer and bars-entry of default pursuant to Peebles, 302 N.C. 351. The court does not find this argument convincing. \u201cThe rules which require responsive pleadings within a limited time serve important social goals, and a party should not be permitted to flout them with impunity.\u201d Moreover, the North Carolina Court of Appeals found that a defendant\u2019s failure to respond after service of summons for a period of several months was not a mere technical error, but rather dilatory. Thus, the court upheld an entry of default \u201cwhere the evidence show[ed] defendant simply neglected the matter at issue.\u201d In the case at bar, SRS neglected the matter at issue in failing timely to file a responsive pleading.\n(internal citations omitted).\nThe complaint was filed on 10 July 2009. Because SRS had failed to file a response to the complaint within thirty days and failed to make a request to extend time to answer, plaintiffs filed a motion for summary judgment on 30 November 2009. It was not until 7 March 2010 that SRS filed their Motion for Leave to Amend Answer. However, as the trial court properly found that no responsive pleading had been filed by SRS, there could be no abuse of discretion by the trial court in entering default against SRS. This argument is overruled.\nIII\nIn its third argument, SRS contends that the trial court erred in entering summary judgment against SRS. SRS asserts that because the trial court erred in entering default against SRS, summary judgment is void since it was based on that erroneous default judgment. We disagree.\nThe applicable standard of review of a ruling on a motion for summary judgment is de novo. Thrash Ltd. P\u2019ship v. County of Buncombe, 195 N.C. App. 678, 682, 673 S.E.2d 706, 709 (2009). \u201cSummary judgment is proper where \u2018the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d Joslyn v. Blanchard, 149 N.C. App. 625, 628, 561 S.E.2d 534, 536 (2002).\nWhere a party fails to deny averments in a pleading to which a responsive pleading is required, those averments are duly considered admitted. N.C. Gen. Stat. \u00a7 1A-1, Rule 8(d) (2009). In the case before us, because SRS filed no answer in response to plaintiffs\u2019 complaint, SRS has judicially admitted that the averments in the complaint are true. See Student Bar Ass\u2019n Bd. of Governors v. Byrd, 293 N.C. 594, 612, 239 S.E.2d 415, 427 (1977). Accordingly, plaintiffs were entitled to summary judgment as there were no genuine issues of material fact. Also, because we have already discussed in issue II that the trial court\u2019s entry of default against SRS was not made in error, SRS\u2019 argument is meritless.\nNext, SRS contends that the complaint failed to state a claim against SRS, therefore, the summary judgment order against SRS was based on a deficient pleading. \u201cUnquestionably, a motion to dismiss for failure to state a claim upon which relief may be granted, under Rule 12(b)(6), can be made as late as trial upon the merits. However, we are of the opinion that, as a general rule, the motion comes too late on appeal.\u201d Dale v. Lattimore, 12 N.C. App. 348, 350, 183 S.E.2d 417, 418-19 (1971).\nSRS further argues that the trial court erred in entering summary judgment because not all defendants were in default. \u201cIn an action commenced against multiple defendants where some, but not all, of the defendants fail to plead or otherwise respond, a default judgment against the non-responding defendants does not bar the other defendants from asserting all defenses they might have to defeat plaintiff\u2019s claim.\u201d Little v. Barson Fin. Servs. Corp., 138 N.C. App. 700, 702, 531 S.E.2d 889, 891 (2000) (citation omitted). Plaintiffs filed a motion for summary judgment as to SRS only on 30 November 2009 \u201crequest[ing] relief based on the merits of the pleadings or lack of Defendant SRS pleadings.\u201d On 30 July 2010, the trial court granted plaintiffs\u2019 motion for summary judgment as to SRS. \u201c[I]t is equally clear that default final judgment against [SRS], d[oes] not adjudicate any rights between plaintiff[s] and the answering defendants.\u201d Id. Based on the foregoing, SRS\u2019 argument is overruled.\nLastly, SRS argues that the summary judgment against it was based on misapprehensions of law. This argument resembles those raised and discussed in I and II: that it was error for the trial court to find that SRS failed to file a response to plaintiffs\u2019 motion for summary judgment and that it was error for the trial court to base the granting of a summary judgment motion on SRS\u2019 failure to respond to plaintiffs\u2019 motion. Because we have already addressed these issues, we decline to do so here.\nIV\nIn its fourth argument, SRS asserts that the trial court abused its discretion in denying SRS\u2019 motion to set aside the entry of default. SRS contends that since error in the entry of default has already been established, it necessarily follows that the trial court\u2019s refusal to set aside the entry of default constituted error as well. SRS contends that it has several meritorious defenses to plaintiffs\u2019 allegations including: plaintiffs\u2019 failure to state a claim; denial of the allegations of fraud; statute of limitations defense; and that the trial court abused its discretion by unjustly ordering Dr. Smith to forfeit his $730,000.00 investment.\n\u201cA trial court\u2019s decision to grant or deny a motion to set aside an entry of default and default judgment is discretionary. Absent an abuse of that discretion, this Court will not reverse the trial court\u2019s ruling.\u201d Basnight Constr. Co. v. Peters & White Constr. Co., 169 N.C. App. 619, 621, 610 S.E.2d 469, 470 (2005) (citations omitted). Rule 60(b)(6) provides that, \u201c[o]n motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order, or proceeding for . . . [a]ny other reason justifying relief from the operation of the judgment.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 60(b)(6) (2009).\nAs previously discussed, we held that the trial court did not abuse its discretion in entering a default judgment against SRS. In the Order Denying the Motion to Set Aside Default and Summary Judgment, the trial court concluded that \u201cin its discretion, [it] finds no reason justifying Defendant SRS\u2019s request to set aside the entry of default judgment and summary judgment pursuant to Rule 60(b)(6).\u201d Because we have held that the trial court did not err by entering default against SRS because SRS failed to file a response to the complaint within thirty days and failed to make a request to extend time to answer, we also hold that the trial court did not abuse its discretion in denying SRS\u2019 motion to set aside an entry of default.\nV and VI\nIn its fifth and sixth arguments, SRS asserts that the trial court erred in denying SRS\u2019 Motion to Set Aside the Summary Judgment under N.C. Gen. Stat. \u00a7 1A-1, Rule 59(a)(8) and (9) when it found that \u201c[a] Rule 59(a) motion is not a proper ground for relief from an entry of summary judgment.\u201d\nRule 59(a)(8) provides that \u201c[a] new trial may be granted to all or any of the parties and on all or part of the issues for any . .. [ejrror in law occurring at the trial and objected to by the party making the motion[.]\u201d N.C.G.S. \u00a7 1A-1, Rule 59(a)(8) (2009).\nAccording to Rule 59, a new trial may be granted for the reasons enumerated in the Rule. By using the word may, Rule 59 expressly grants the trial court the discretion to determine whether a new trial should be granted. Generally, therefore, the trial court\u2019s decision on a motion for a new trial under Rule 59 will not be disturbed on appeal, absent an abuse of discretion. [This Court] recognize [s] a narrow exception to the general rule, applying a de novo standard of review to a motion for a new trial pursuant to Rule 59(a)(8), which is an error in law occurring at the trial and objected to by the party making the motion.\nXiong v. Marks, 193 N.C. App. 644, 654, 668 S.E.2d 594, 601 (2008) (citing Greene v. Royster, 187 N.C. App. 71, 77-78, 652 S.E.2d 277, 282 (2007)). Rule 59(a)(9) states that a new trial may be granted for \u201c[a]ny other reason heretofore recognized as grounds for new trial.\u201d N.C.G.S. \u00a7 1A-1, Rule 59(a)(9). \u201c[R]equests for relief under [N.C.G.S. \u00a7] 1A-1, Rule 59(a)(9) are reviewed for an abuse of discretion[.]\u201d Battle v. Sabates, 198 N.C. App. 407, 423, 681 S.E.2d 788, 799 (2009). \u201cHowever, where the [Rule 59] motion involves a question of law or legal inference, our standard of review is de novo. \u201d Id. (citation omitted).\nBecause both Rule 59(a)(8) and (9) are post-trial motions and because the instant case concluded at the summary judgment stage, the court did not err by concluding that \u201cit [was] not proper to set aside default against Defendant SRS and vacate the summary judgment pursuant to Rule 59(a)(8) and (9).\u201d This argument is overruled.\nBased on the foregoing, we affirm the following orders of the trial court: the 14 June 2010 order denying SRS\u2019 Motion for Leave to Amend Answer and entering default against SRS; the 30 July 2010 order granting plaintiff\u2019s motion for summary judgment against SRS; and the 24 September 2010 order denying SRS\u2019 Motion to Set Aside Default and Summary Judgment.\nAffirmed.\nJudges HUNTER, Robert C., and McCULLOUGH concur.", "type": "majority", "author": "BRYANT, Judge." } ], "attorneys": [ "Bradford J. Lingg for plaintiff-appellee.", "C. Everett Thompson, II, for defendant-appellant." ], "corrections": "", "head_matter": "BODIE ISLAND BEACH CLUB ASSOCIATION, INC., et al., Plaintiffs v. DON WRAY, PENNY WRAY, JESSICA SMITH, DAVID R. DIXON, STEPHEN R. SMITH, TOM FEIST, SEA WRAY, LLC, CROC, LLC, and SRS NORTH CAROLINA PROPERTIES, LLC, Defendants\nNo. COA10-1569\n(Filed 6 September 2011)\n1. Appeal and Error \u2014 interlocutory orders \u2014 concerning title \u2014 immediately appealable \u2014 petition for certiorari granted\nDefendant\u2019s appeal from the trial court\u2019s interlocutory orders granting summary judgment in favor of plaintiff and denying defendant\u2019s motion to set aside default and summary judgment were orders concerning title and were immediately appealable. The Court of Appeals treated defendant\u2019s appeal from the trial court\u2019s denial of defendant\u2019s motion for leave to amend answer as a petition for certiorari and addressed the merits.\n2. Deeds \u2014 action to set aside \u2014 plaintiffs failure to answer\u2014 motion for leave to amend answer properly denied\nThe trial court did not err in an action to set aside a deed by denying defendant SRS\u2019s motion for leave to amend answer. Defendant failed to answer the complaint and Dr. Smith\u2019s response did not constitute an answer on behalf of SRS.\n3. Deeds \u2014 action to set aside \u2014 entry of default \u2014 proper\nThe trial court did not err in an action to set aside a deed by entering an order of default against defendant SRS. As the trial court properly found that no responsive pleading had been filed by SRS, there was no abuse of discretion by the trial court in entering default against SRS.\n4. Deeds \u2014 action to set aside \u2014 summary judgment \u2014 proper\nThe trial court did not err in an action to set aside a deed by entering summary judgment against defendant SRS. Because SRS filed no answer in response to plaintiffs\u2019 complaint, .SRS judicially admitted that the averments in the complaint were true and plaintiffs were entitled to summary judgment as there were no genuine issues of material fact. SRS\u2019s contention on appeal that the complaint failed to state a claim against SRS was untimely. SRS\u2019s arguments that the trial court erred in entering summary judgment because not all defendants were in default and that the summary judgment against it was based on misapprehensions of law were meritless.\nAppeal by SRS North Carolina Properties, LLC, from orders entered 14 June 2010, 30 July 2010, and 24 September 2010 by Judge John R. Jolly, Jr., in Dare County Superior Court. Heard in the Court of Appeals 11 May 2011.\nBradford J. Lingg for plaintiff-appellee.\nC. Everett Thompson, II, for defendant-appellant." }, "file_name": "0283-01", "first_page_order": 293, "last_page_order": 305 }