Stanaland v. Stanaland ( 1988 )

365 S.E.2d 170 (1988)

Rita B. STANALAND
v.
Marcus D. STANALAND.

No. 8713DC710.

Court of Appeals of North Carolina.

March 1, 1988.

Anderson & McLamb by Sheila K. McLamb, Shallotte, for plaintiff-appellee.

Fairley, Jess & Isenberg by Elva L. Jess, Southport, for defendant-appellant.

WELLS, Judge.

By his first assignment of error, defendant contends that the trial court erred when it concluded as a matter of law that defendant had made no appearance in this action. We agree with defendant.

N.C.Gen.Stat. § 1A-1, Rule 55(b)(2), "Judgment: By the Judge" provides, in pertinent part:

... If the party against whom judgment by default is sought has appeared in the action, he ... shall be served with written notice of the application for judgment at least three days prior to the hearing on such application....

It has been held that an appearance within the meaning of Rule 55(b) is not always comprised of a direct response to a complaint. Roland v. Motor Lines, 32 N.C. App. 288, 231 S.E.2d 685 (1977). In some cases, an appearance may arise by implication as when "a defendant takes, seeks or agrees to some step in the proceedings that is beneficial to himself or detrimental to the plaintiff." Roland v. Motor Lines, supra; See also Williams v. Jennette, 77 N.C.App. 283, 335 S.E.2d 191 (1985).

Additionally, it has been held that negotiations for settlements or continuances whether by letter or by meeting, after the complaint is filed, constitute appearances within the meaning of Rule 55(b)(2). N.C. N.B. v. McKee, 63 N.C.App. 58, 303 S.E.2d 842 (1983); Webb v. James, 46 N.C.App. 551, 265 S.E.2d 642 (1980); Taylor v. Triangle Porsche-Audi, Inc., 27 N.C.App. 711, 220 S.E.2d 806 (1975), cert. denied, 289 N.C. 619, 223 S.E.2d 396 (1976).

In his Judgment dated 30 April 1987, Judge Gore made the following findings of fact and conclusions of law respecting the issue of defendant's appearance in the action:

FINDINGS OF FACT

. . . . .

4. The Defendant engaged in negotiations with his wife, the Plaintiff and the Attorney for the Plaintiff. During these negotiations, the Defendant acted for and in his behalf.

5. After being served with the complaint and prior to the Default, the Defendant sought the advice of counsel, Mr. Michael Ramos, Attorney in Shallotte, N.C. Mr. Ramos did not agree to represent Mr. Stanaland however, Mr. Ramos did advise him that he would need to file an answer or a judgment could be obtained against him.

6. The Defendant, at no time, filed an answer or any other responsive pleading....

. . . . .

8. That although the Defendant did engage in negotiations with his wife and the attorney for his wife, these negotiations on his part were an attempt to reconcile and to resolve the financial matters of the parties.

9. On the occasions that the Defendant went to the office of the Plaintiff's attorney, Mrs. McLamb advised him that she would proceed with the action against him and would bring the matter to court for a hearing if the parties did not settle all issues before trial.

10. The Defendant made no appearance pro se or by counsel nor did he file any pleadings in this action.

. . . . .

CONCLUSIONS OF LAW

. . . . .

2. The Defendant made no appearance in this action prior to the Default Judgment therefore notice was not required as set for [sic] in North Carolina Rules of Civil Procedure Rule 55.

. . . . .

While the testimony given at the 23 April 1987 hearing supports Judge Gore's findings of fact, we nonetheless disagree with his analysis and application of the law giving rise to Conclusion of Law No. 2. We believe that defendant's meeting with plaintiff and her attorney was sufficient to constitute an appearance within the meaning of Rule 55(b)(2).

Although the evidence tends to show that defendant was, at best, an unwilling negotiator with respect to the consent order and discussions respecting the parties' divorce, his meeting with plaintiff and her attorney on 21 January 1987 at least met the Roland test in that defendant agreed to a "step" (to discuss finances and the divorce) in the proceeding which was beneficial to himself (i.e., to suspend the criminal proceedings against him). We therefore hold that defendant's agreement to meet with plaintiff and her attorney, although one day late, was sufficient to constitute an appearance within the meaning of Rule 55(b)(2).

Defendant correctly contends that the Default Judgment should be vacated because plaintiff failed to provide the three days' notice of the default hearing required by Rule 55(b)(2). Miller v. Belk, 18 N.C. App. 70, 196 S.E.2d 44, cert. denied, 283 N.C. 665, 197 S.E.2d 874 (1973). As we have already held that defendant had made an appearance in the plaintiff's action for the purposes of Rule 55, it follows that plaintiff was required to provide the three days' notice.

The facts gleaned from the Record indicate that on 26 January 1987 plaintiff made a calendar request for the default hearing to be held 28 January 1987. Neither the request nor calendar was served on defendant.

Although plaintiff claims to have warned defendant during the 21 January 1987 meeting that she would go forward with her case, such did not comprise the written notice required by Rule 55(b)(2). Plaintiff having failed to comply with the notice requirements of Rule 55(b)(2), forces us to vacate the Default Judgment rendered below.

Judgment vacated.

ARNOLD and SMITH, JJ., concur.