{ "id": 8519470, "name": "EARL H. BYRD, JR. v. RODNEY A. MORTENSON, M.D., P.A., and RODNEY A. MORTENSON, M.D.", "name_abbreviation": "Byrd v. Mortenson", "decision_date": "1982-12-21", "docket_number": "No. 8110SC1263", "first_page": "85", "last_page": "92", "citations": [ { "type": "official", "cite": "60 N.C. App. 85" } ], "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": "239 S.E. 2d 715", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "35 N.C. App. 21", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547031 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/35/0021-01" ] }, { "cite": "271 S.E. 2d 58", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "63" } ], "opinion_index": 0 }, { "cite": "301 N.C. 123", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564391 ], "year": 1980, "pin_cites": [ { "page": "129" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0123-01" ] }, { "cite": "264 S.E. 2d 395", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "46 N.C. App. 107", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549306 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/46/0107-01" ] }, { "cite": "205 S.E. 2d 617", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "22 N.C. App. 40", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11298992 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc-app/22/0040-01" ] }, { "cite": "177 S.E. 2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1970, "pin_cites": [ { "page": "736" } ], "opinion_index": 0 }, { "cite": "10 N.C. App. 109", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551252 ], "weight": 2, "year": 1970, "pin_cites": [ { "page": "109" } ], "opinion_index": 0, "case_paths": [ "/nc-app/10/0109-01" ] }, { "cite": "181 S.E. 2d 794", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "798" } ], "opinion_index": 0 }, { "cite": "11 N.C. App. 504", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555821 ], "year": 1971, "pin_cites": [ { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/nc-app/11/0504-01" ] }, { "cite": "275 S.E. 2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 351", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565589 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0351-01" ] }, { "cite": "269 S.E. 2d 694", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1980, "pin_cites": [ { "page": "698" }, { "page": "700" }, { "page": "700" } ], "opinion_index": 0 }, { "cite": "48 N.C. App. 497", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551423 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "504-5" }, { "page": "507" }, { "page": "507" } ], "opinion_index": 0, "case_paths": [ "/nc-app/48/0497-01" ] }, { "cite": "192 S.E. 2d 835", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "282 N.C. 425", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565633, 8565602, 8565539, 8565699, 8565561 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0425-04", "/nc/282/0425-03", "/nc/282/0425-01", "/nc/282/0425-05", "/nc/282/0425-02" ] }, { "cite": "192 S.E. 2d 55", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "16 N.C. App. 392", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551294 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/16/0392-01" ] }, { "cite": "235 S.E. 2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "33 N.C. App. 581", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551126 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/33/0581-01" ] }, { "cite": "290 S.E. 2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "604" }, { "page": "604" }, { "page": "605" } ], "opinion_index": 1 }, { "cite": "305 N.C. 478", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571152 ], "year": 1982, "pin_cites": [ { "page": "484" } ], "opinion_index": 1, "case_paths": [ "/nc/305/0478-01" ] }, { "cite": "86 S.E. 1050", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1915, "pin_cites": [ { "page": "1050-51" } ], "opinion_index": 1 }, { "cite": "170 N.C. 365", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659292 ], "year": 1915, "pin_cites": [ { "page": "367" } ], "opinion_index": 1, "case_paths": [ "/nc/170/0365-01" ] } ], "analysis": { "cardinality": 747, "char_count": 15499, "ocr_confidence": 0.809, "pagerank": { "raw": 1.3405699526420988e-07, "percentile": 0.6310470224325819 }, "sha256": "43054848c78753c111c91081f965a940bc1951254fbf964feab315ffeb01fc0f", "simhash": "1:830b5d2e39a80802", "word_count": 2649 }, "last_updated": "2023-07-14T17:52:46.639047+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge WHICHARD concurs.", "Judge MARTIN dissents." ], "parties": [ "EARL H. BYRD, JR. v. RODNEY A. MORTENSON, M.D., P.A., and RODNEY A. MORTENSON, M.D." ], "opinions": [ { "text": "ARNOLD, Judge.\nDefendants\u2019 primary attack on appeal is on the trial judge\u2019s refusal to set aside the defaults against them.\nFor the entry of a default to be disturbed, as those entered by the Clerk of Superior Court on 3 and 6 April in this case, G.S. 1A-1, Rule 55(d) requires that \u201cgood cause\u201d be shown. That determination is in the trial judge\u2019s discretion and will not be disturbed absent an abuse of discretion. Frye v. Wiles, 33 N.C. App. 581, 235 S.E. 2d 889 (1977). Crotts v. Pawn Shop, 16 N.C. App. 392, 192 S.E. 2d 55, cert. denied 282 N.C. 425, 192 S.E. 2d 835 (1972).\nThis Court follows the principle that \u201c[i]nasmuch as the law generally disfavors default judgments, any doubt should be resolved in favor of setting aside an entry of default so the case may be decided on its merits.\u201d Peebles v. Moore, 48 N.C. App. 497, 504-5, 269 S.E. 2d 694, 698 (1980), modified 302 N.C. 351, 275 S.E. 2d 833 (1981). At the same time \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 Acceptance Corp. v. Samuels, 11 N.C. App. 504, 510, 181 S.E. 2d 794, 798 (1971).\nTwo decisions strongly support defendants\u2019 position here. In Whaley v. Rhodes, 10 N.C. App. 109, 177 S.E. 2d 735 (1970), the Court set aside entry of a default under Rule 55(d). The default had been entered after the defendant failed to answer plaintiffs complaint. Whaley found that the defendant showed \u201cgood cause\u201d for failure to file an answer because he had turned the plaintiff\u2019s complaint over to his insurance agent \u201cwho assured him that . . . the insurance company . . . would take care of the matter. . . .\u201d 10 N.C. App. at 109, 177 S.E. 2d at 736.\nIn the recent case of Peebles, the Court set aside entry of default on facts analogous to this case. That decision was based on the insurer\u2019s misplacing of the insured\u2019s file, which resulted in an answer being filed seven days late. Peebles concluded \u201cdefendant\u2019s failure timely to file his answer was due to an inadvertence on the part of defendant\u2019s insurer . . . .\u201d 48 N.C. App. at 507, 269 S.E. 2d at 700.\nAlthough defendant here did not turn over a copy of the complaint to his insurer, he took sufficient action to justify setting aside the defaults against him. First, he immediately contacted his insurer when he learned of the suit. Second, he forwarded all relevant medical and office records to the insurer in a timely manner. Third, he acted in conformity with his insurer\u2019s instructions, which was a reasonable response given the insurer\u2019s superior expertise in these matters. It should also be noted that his lawyer immediately contacted the Clerk of Superior Court\u2019s office to enter an appearance when he discovered that he was the defendant\u2019s counsel.\nThe cases cited by plaintiff do not appear to be dispositive on the default issue. For example, Howell v. Haliburten, 22 N.C. App. 40, 205 S.E. 2d 617 (1974), is distinguishable on the facts. In that case, the insurer waited ten months after receiving notice of the suit before contacting local counsel to take care of the matter. The time lapse was much shorter here. Britt v. Georgia-Pacific Corp., 46 N.C. App. 107, 264 S.E. 2d 395 (1980), is also not determinative since the delay there was caused by the defendant\u2019s in-house legal department misplacing the papers.\nIn Peebles, the court reversed the trial court\u2019s refusal to set aside an entry of default on facts similar to those in this case, where defendant\u2019s failure to file a timely answer was due to the insurer\u2019s inadvertence.\nOther similarities between Peebles and this case justify following its holding here. The court thought it important, for example, that an answer was filed promptly when the mistake was discovered. In the present case defendants sought \u201cother and further relief as to the court may seem just and proper\u201d in their 15 April motion and sought time to file an answer in a 13 July motion.\nPeebles also pointed to a lack of prejudice to the plaintiff and injustice to the defendant as factors in the default decision. The only prejudice to plaintiff here is in the sense that he may have to try a case that he has won without a trial. That, however, is not the type of prejudice that Peebles seeks to avoid. Thus, the injustice to the defendant in not having a review of his defense on the merits with the resultant harm to his reputation and ability to make a living outweighs any possible prejudice to the plaintiff. \u201c[W]e believe that justice will best be served by allowing this case to be tried on its merits.\u201d Peebles, 48 N.C. App. at 507, 269 S.E. 2d at 700.\nIn Clark v. Clark, 301 N.C. 123, 129, 271 S.E. 2d 58, 63 (1980), our Supreme Court said: \u201cA judge is subject to reversal for abuse of discretion only upon a showing by a litigant that the challenged actions are manifestly unsupported by reason.\u201d Based on the record before us, and in our advantage of hindsight, we cannot say that the trial court\u2019s refusal to set aside the defaults against defendants was not \u201cmanifestly unsupported by reason.\u201d As a result, we reverse the trial court\u2019s refusal to set aside the defaults against the defendants.\nThe defendants\u2019 second assignment of error is that they should have been allowed an extension of time to file an answer. Where a party seeks an extension of time to answer after the expiration of the 30-day limit, the judge may permit the answer if he finds that \u201cthe failure to act was the result of excusable neglect.\u201d G.S. 1A-1, Rule 6(b).\nIn Norris v. West, 35 N.C. App. 21, 239 S.E. 2d 715 (1978), the court upheld a finding of excusable neglect under Rule 6(b) on facts less compelling than these. Relying on a conversation with the deputy sheriff who served him with a copy of the summons and complaint, the defendant in Norris believed that he was only required to get the papers to his insurance agent within 30 days. As a result, the papers did not reach the insurer\u2019s attorney until after the expiration of the stated time to file an answer. If Norris found excusable neglect when the defendant waited 27 days to contact his insurance agent, the requisite excuse is certainly found here where defendant contacted his insurer as soon as he learned of the suit against him. Upon remand, defendant shall be allowed to file an answer in this case.\nReversed and remanded.\nJudge WHICHARD concurs.\nJudge MARTIN dissents.", "type": "majority", "author": "ARNOLD, Judge." }, { "text": "Judge Martin (Robert M.)\ndissenting.\nI am of the opinion that the record below does not disclose a manifest abuse of discretion entitling this Court to interfere with the trial judge\u2019s refusal to vacate the default entry.\nThe North Carolina Supreme Court, in Settee v. Electric Ry., 170 N.C. 365, 367, 86 S.E. 1050, 1050-51 (1915), attempted to shed some light on the meaning of \u201cabuse of discretion\u201d stating that\nThe discretion of the judge ... is not an arbitrary one to be exercised capriciously or according to his absolute will, but reasonably and with the object solely of presenting what may seem to him an inequitable result. The power is an inherent one, and is regarded as essential to the proper administration of the law. . . . While the necessity for exercising this discretion, in any given case, is not to be determined by the mere inclination of the judge, but by a sound and enlightened judgment in an effort to attain the end of all law, namely, the doing of even and exact justice, we will yet not supervise it, except, perhaps, in extreme circumstances, not at all likely to arise; and it is therefore practically unlimited.\nThat Court has been reluctant to find an abuse of discretion and in most instances has carefully guarded the trial courts\u2019 discretionary powers.\nWhile it has been recognized that it is \u201cpractically impossible to fashion a rule which could generally pinpoint where a trial judge\u2019s discretion in any matter ends and an abuse thereof begins,\u201d Worthington v. Bynum and Cogdell v. Bynum, 305 N.C. 478, 484, 290 S.E. 2d 599, 604 (1982), I do not feel this case deserves different treatment than those cited in the majority opinion in which the trial judges\u2019 decisions to deny or grant defendants\u2019 motions to vacate entry of default were upheld on appeal. Although the majority may disagree with the able and conscientious trial judge, there is sufficient evidence to warrant his denial of defendant\u2019s motion to vacate entry of default. First, defendant failed to include a copy of the complaint and summons with the medical records which he mailed to his insurer, a fact which may account for the improper placement of the medical records in the insurer\u2019s \u201cincidental\u201d file. Second, defendant did not check back with his insurer or his assigned counsel, even though he was never contacted once he had mailed the records to his insurer.\nIn my opinion the majority has \u201csubstituted what it considered to be its own better judgment . . . and did not strictly review the record for the singular cause of determining whether . . . [the judge] had clearly abused his discretion. . . .\u201d Id. at 486, 290 S.E. 2d at 604. Since I \u201cbelieve that our appellate courts should place great faith and confidence in the ability of our trial judges to make the right decision, fairly and without partiality,\u201d Id. at 487, 290 S.E. 2d at 605, I cannot participate in the majority\u2019s finding of an abuse of discretion on the part of the trial judge.", "type": "dissent", "author": "Judge Martin (Robert M.)" } ], "attorneys": [ "Cheshire, Manning & Parker, by Joseph B. Cheshire V, Thomas C. Manning and Barbara A. Smith, and Bode, Bode & Call, by Robert V Bode, attorneys for plaintiff-appellee.", "Perry C. Henson and Perry C. Henson, Jr., attorneys for defendant-appe Hants." ], "corrections": "", "head_matter": "EARL H. BYRD, JR. v. RODNEY A. MORTENSON, M.D., P.A., and RODNEY A. MORTENSON, M.D.\nNo. 8110SC1263\n(Filed 21 December 1982)\n1. Rules of Civil Procedure \u00a7 55.1\u2014 insurer\u2019s failure to obtain counsel \u2014 entry of default \u2014 abuse of discretion in failure to set aside\nThe trial court in a medical malpractice action abused its discretion in refusing to set aside an entry of default against defendant where defendant immediately contacted his insurer when he learned of the suit; defendant forwarded all relevant medical and office records to the insurer in a timely manner; defendant acted in conformity with his insurer\u2019s instructions, which was a reasonable response given the insurer\u2019s superior expertise in such a matter; the insurer failed to obtain counsel to defend the suit because of illness of its claims manager; and defendant\u2019s lawyer immediately contacted the office of the clerk of superior court to enter an appearance when he was contacted by the insurer to defend the suit. G.S. 1A-1, Rule 55(d).\n2. Pleadings \u00a7 9.1; Rules of Civil Procedure \u00a7 6\u2014 failure to file answer in time \u2014 excusable neglect \u2014 extension of time\nDefendant\u2019^ failure to file answer was the result of excusable neglect, and the trial court should have granted defendant an extension of time to file answer after the time for filing had expired, where defendant immediately contacted his insurer when he learned of the suit, defendant forwarded relevant information to the insurer in a timely manner, and the insurer failed to obtain counsel to defend the suit until after time for filing answer had expired. G.S. 1A-1, Rule 6(b).\nJudge Martin (Robert M.) dissenting.\nAppeal by defendants from Bailey, Judge. Judgment entered 14 September 1981 in Superior Court, WAKE County. Heard in the Court of Appeals 15 September 1982.\nPlaintiff brought this claim for relief for medical malpractice on 24 February 1981 against the individual defendant, an orthopedic surgeon, and the professional association that the defendant was employed by. The suit was based on a tendon transfer operation that defendant performed on plaintiffs left forearm and subsequent treatment of that arm. Although this case deals with medical malpractice, its resolution on appeal depends primarily on the North Carolina Rules of Civil Procedure.\nThe defendant association was served with a copy of the summons and complaint through its registered process agent on 26 February. The individual defendant was served on 3 March.\nAfter being informed of the action against him on 26 February, defendant contacted his insurance carrier, who instructed him to forward medical documents and notes relevant to the case. The carrier\u2019s claims manager informed defendant on that date that the carrier would retain attorney Perry C. Henson for him. The relevant documents were forwarded to the carrier on 11 March and received the following day. They were placed in the carrier\u2019s \u201cincidental\u201d file rather than the pending suit file pursuant to the claims manager\u2019s instructions given by telephone on 12 March.\nA default was entered against the defendant association on 3 April because it filed no responsive pleading within 30 days as required by G.S. 1A-1, Rule 12(a)(1). Default was entered pursuant to G.S. 1A-1, Rule 55(a) by the Wake County Assistant Clerk of Superior Court. A similar default was entered against the individual defendant for the same reason on 6 April.\nImmediately after learning of the 3 April default, the process agent for the defendant association notified the carrier on 8 April of the default against the association and demanded that the carrier retain a lawyer for the defendants. The carrier\u2019s prior inaction on the matter was explained to the process agent as resulting from the claims manager\u2019s illness. The claims manager was out of work from 9 March to 16 March and was admitted to the hospital on 4 April. The carrier contacted attorney Henson on 8 April.\nAfter being contacted by the carrier, Henson immediately notified the Deputy Clerk of Superior Court of Wake County by telephone and informed her that he was making an appearance for the defendants. The court file was marked to reflect that fact. Henson was first informed of the 6 April default against the individual defendant in this conversation. The Deputy Clerk then informed the plaintiff\u2019s attorney of Henson\u2019s actions.\nOn the same day, Henson sent a letter to the Deputy Clerk confirming their conversation. Copies were sent to the attorneys for the plaintiff and received by them on 10 April. The letter was placed in the court file when it was received on 9 April at 2:08 p.m.\nOn 9 April at 3:27 p.m., Superior Court Judge A. P. Godwin, Jr. entered judgment by default in this action.\nPursuant to G.S. 1A-1, Rules 55 and 60, the defendants moved in a motion filed on 16 April to vacate the defaults and default judgment previously entered. Affidavits in support of the motion were filed on 28 April.\nThis action was heard on 10 July. The trial judge vacated the 9 April default judgment because the defendants made an appearance on 8 April and did not receive the three days notice required prior to a hearing on a default judgment as G.S. 1A-1, Rule 55(b)(2) mandates.\nDefendants\u2019 motion to set aside the defaults was not ruled upon. An oral motion in court to be permitted to file an answer or to have an extension of time to answer was denied.\nIn motions filed on 13 July, defendants sought to vacate the entries of default and to extend the time for an answer. On 14 July, plaintiff filed a motion to strike from the record of the 10 July hearing the defendants\u2019 motion for extension of time.\nThe matter was heard on 14 September in Wake County Superior Court. The trial judge denied defendants\u2019 motions and entered a default judgment on 23 September. Defendants gave notice of appeal to this Court on the same day.\nCheshire, Manning & Parker, by Joseph B. Cheshire V, Thomas C. Manning and Barbara A. Smith, and Bode, Bode & Call, by Robert V Bode, attorneys for plaintiff-appellee.\nPerry C. Henson and Perry C. Henson, Jr., attorneys for defendant-appe Hants." }, "file_name": "0085-01", "first_page_order": 117, "last_page_order": 124 }