East Carolina Oil Transport, Inc. v. Petroleum Fuel & Terminal Co. , 82 N.C. App. 746 ( 1986 )

348 S.E.2d 165 (1986)

EAST CAROLINA OIL TRANSPORT, INC.
v.
PETROLEUM FUEL AND TERMINAL COMPANY, doing business as Apex Oil Company and Apex Oil Company.

No. 8614SC274.

Court of Appeals of North Carolina.

September 16, 1986.

Eugene C. Brooks, III, Durham, and Bailey, Dixon, Wooten, McDonald, Fountain & Walker by Gary Parsons, Raleigh, for plaintiff-appellant.

Randall, Yaeger, Woodson, Jervis & Stout by John C. Randall, Durham, for defendant-appellee.

ARNOLD, Judge.

Plaintiff contends that the trial court erred in granting default judgment for defendant. The judgment entered against plaintiff does in fact state in its heading that it is a summary judgment and a default judgment. However, the wording within the body of the judgment itself only speaks in terms of a summary judgment and makes no mention of a default judgment. When it is unclear from looking at the judgment whether a default judgment or a summary judgment was intended, the wording of the body of the judgment itself controls, not the heading. The judgment entered in the case sub judice was a summary judgment. Thus we need not consider plaintiff's first contention.

Next plaintiff argues that the trial court erred in granting summary judgment for defendant. We disagree. Thirty days after service of defendant's counterclaim, plaintiff had not responded with an answer or other pleading of any nature. Time allowed by law for the plaintiff to answer had expired. As a result, the entry of default established certain items as proven facts. See Bell v. Martin, 299 N.C. 715, 264 S.E.2d 101, reh'g denied, 300 N.C. 380 (1980); First Union National Bank v. Wilson, 60 N.C.App. 781, 300 S.E.2d 19 (1983). It was established that defendant Apex Oil Company sold petroleum to plaintiff in the amount totalling $38,421.02 and that defendant had demanded payment from plaintiff and was refused. In addition to these facts, the court considered interrogatories and answers, requests for admission and responses, and requests for production of documents and replies. While defendant's motives in filing both a motion for summary judgment and a motion for entry of default on the same day may be questioned, no rules were violated. The trial court properly granted summary judgment in favor of defendant on its counterclaim.

Finally, plaintiff argues that the trial court erred in refusing to consider its motion for relief from judgment. Plaintiff contends that this Court should either vacate the trial court's order refusing to consider plaintiff's motion or, in the alternative, grant plaintiff's motion for relief from judgment filed with this Court.

In order for one to be entitled to relief under Rule 60(b) a party must show excusable neglect and a meritorious defense. In the Matter of Oxford Plastics v. Goodson, Jr., 74 N.C.App. 256, 328 S.E.2d 7 (1985). It also is well-established that a party served with a summons must give the matter the attention that a person of ordinary prudence would give to his important business. Failure to do so is not excusable neglect under G.S. 1A-1, Rule 60(b)(1). Ellison v. White, 3 N.C.App. 235, 164 S.E.2d 511 (1968); Meir v. Walton, 2 N.C.App. 578, 163 S.E.2d 403 (1968).

In the present case the facts show no excusable neglect on the part of the plaintiff. By affidavit and oral argument before this Court, plaintiff's counsel admitted that important information was requested from plaintiff by plaintiff's counsel. Plaintiff did not produce the information until well after the time for filing a response to the counterclaim and after the hearing on summary judgment. This was not prudent behavior. We hold that plaintiff has shown no excusable neglect and is not entitled to relief under G.S. 1A-1, Rule 60(b)(1).

Affirmed.

PHILLIPS and MARTIN, JJ., concur.