{
  "id": 8526551,
  "name": "STATE OF NORTH CAROLINA, DAN MILES, IV-D AGENT, EX REL. v. LARRY DONNELL MITCHELL",
  "name_abbreviation": "State v. Mitchell",
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    "judges": [
      "Judges Arnold and Wells concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA, DAN MILES, IV-D AGENT, EX REL. v. LARRY DONNELL MITCHELL"
    ],
    "opinions": [
      {
        "text": "EAGLES, Judge.\nThe defendant assigns as error the trial court\u2019s denial of his motion to set aside entry of default and default judgment. To prevail on a Rule 60(b) motion, the burden is on the movant to show that his neglect in failing to answer or otherwise appear was excusable and that he has a meritorious defense to the action of the plaintiff. Menache v. Atlantic Coast Management Corp., 43 N.C. App. 733, 260 S.E. 2d 100 (1979), cert. denied 299 N.C. 331, 265 S.E. 2d 396 (1980). We find no error in the trial judge\u2019s determination that the defendant did not show excusable neglect or a meritorious defense.\nThe facts support the trial judge\u2019s conclusion that there was no excusable neglect in the instant case. It is clear from the record that the summons and complaint were personally served on defendant. The trial judge found that defendant was under no disability and, in fact, had retained counsel to represent him in other matters. The fact that defendant believed that the 1980 dismissal of criminal charges in the bastardy action meant that \u201cthe matter was over with\u201d does not excuse his failure to respond to the subsequent summons and complaint. This court has found that a party served with a summons must give it the \u201cattention which a person of ordinary prudence gives to his important business, and failure to do so is not excusable neglect under G.S. 1A-1, Rule 60(b)(1).\u201d Boyd v. Marsh, 47 N.C. App. 491, 492, 267 S.E. 2d 394, 395 (1980). This defendant failed to show that he gave the summons and complaint the attention that an important business matter deserves and failed to show why he could not do so. Total disregard of a summons and complaint which were personally served is not the action of a person of ordinary prudence and thus is not excusable neglect, no matter what that person\u2019s belief is concerning the propriety of the summons and complaint.\nWhere there is excusable neglect, there must then be a showing of prima facie meritorious defense to the complaint in order for the movant to prevail in a motion to set aside entry of default and default judgment. Wynnewood v. Soderquist, 27 N.C. App. 611, 615, 219 S.E. 2d 787, 790 (1975). The trial court, while concluding that defendant failed to make a showing of excusable neglect, also made a finding that defendant did not present a meritorious defense. Defendant\u2019s motion to set aside entry of default and default judgment presents the 1980 dismissal of the criminal charges and the statute of limitations in G.S. 49-14 as defenses. Defendant\u2019s belief that dismissal of the criminal charges meant that \u201cthe matter was over with\u201d is not a basis on which to excuse a defendant for ignoring a summons and complaint. The statute of limitations defense must also fail. This court has held G.S. 49-14 unconstitutional when applied to civil paternity actions. Cogdell v. Johnson, 46 N.C. App. 182, 264 S.E. 2d 816 (1980). Thus, there was no meritorious defense presented.\nThe trial court\u2019s order denying defendant\u2019s motion to set aside entry of default and default judgment is\nAffirmed.\nJudges Arnold and Wells concur.",
        "type": "majority",
        "author": "EAGLES, Judge."
      }
    ],
    "attorneys": [
      "Gillam, Gillam and Smith, by Lloyd C. Smith, Jr., and Roswald B. Daly, Jr., for plaintiff-appellee.",
      "Carter W. Jones by Carter W. Jones, Kevin M. Leahy, and Charles A. Moore, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA, DAN MILES, IV-D AGENT, EX REL. v. LARRY DONNELL MITCHELL\nNo. 826DC1067\n(Filed 20 September 1983)\nRules of Civil Procedure \u00a7 60.2\u2014 denial of motion to set aside entry of default and default judgment \u2014 proper\nThe trial court\u2019s denial of defendant\u2019s motion to set aside entry of default and default judgment pursuant to Rule 60(b) was proper where defendant failed to show either excusable neglect or a meritorious defense. The fact that defendant believed a 1980 dismissal of criminal charges in a bastardy action meant that \u201cthe matter was over with\u201d did not excuse his failure to respond to the subsequent summons and complaint.\nAPPEAL by defendant from Williford, Judge. Order entered 21 July 1982 in District Court, HERTFORD County. Heard in the Court of Appeals 30 August 1983.\nIn 1978, defendant was charged with willful nonsupport of an illegitimate child. The defendant was represented by counsel in this criminal matter, and the charges were dismissed in February of 1980 in Superior Court of Hertford County.\nOn 7 April 1982, the State filed a complaint, seeking to have defendant adjudged the father of the child, to establish his support obligations, and to recover AFDC funds paid by the State for support of the child. Defendant was personally served with the complaint on 14 April 1982. Defendant failed to file an answer or otherwise respond to the summons and complaint. Default judgment was entered on 19 May 1982.\nOn 29 June 1982, defendant, through counsel, filed a motion pursuant to Rule 55 to have entry of default and judgment by default set aside. The motion was incorrectly designated, but the trial court, in its discretion, treated the motion as a Rule 60(b) motion. At the hearing on the motion, the defendant\u2019s evidence consisted of testimony that the criminal action for bastardy had been dismissed in 1980. The defendant\u2019s motion was not verified and defendant did not testify at the hearing. The trial court found that defendant had failed to make a showing of excusable neglect and did not have a meritorious defense so as to allow the court to set aside the default judgment. From the order denying defendant\u2019s motion to set aside entry of default and default judgment, defendant appeals.\nGillam, Gillam and Smith, by Lloyd C. Smith, Jr., and Roswald B. Daly, Jr., for plaintiff-appellee.\nCarter W. Jones by Carter W. Jones, Kevin M. Leahy, and Charles A. Moore, for defendant-appellant."
  },
  "file_name": "0202-01",
  "first_page_order": 234,
  "last_page_order": 236
}
