Kimzay Winston-Salem, Inc. v. Jester

404 S.E.2d 176 (1991) 103 N.C. App. 77

KIMZAY WINSTON-SALEM, INC., Plaintiff,
v.
Christine L. JESTER, d/b/a Make Mine Yogurt and Harrell Andrews, d/b/a Make Mine Yogurt, Defendants.

No. 9021DC425.

Court of Appeals of North Carolina.

May 21, 1991.

House & Blanco, P.A. by Peter J. Juran, Winston-Salem, for plaintiff-appellee.

Chester C. Davis, Winston-Salem, for defendant-appellant Christine L. Jester.

PHILLIPS, Judge.

Though defendant's appeal is dismissible since it is from an interlocutory order that does not affect a substantial right, G.S. 1-277; G.S. 7A-27; Veasey v. City of Durham, 231 N.C. 354, 57 S.E.2d 375 (1950), to prevent manifest injustice to the appellant, and to expedite the end of this overly litigated matter, which was legally set at rest more than nineteen months ago when the default judgment was satisfied, we suspend the rules under the provisions of Rule 2 of our appellate rules and treat the appeal as a petition for certiorari made pursuant to Rule 21(a) and grant it. For the order undertaking to relieve plaintiff from the amount of the judgment and reopen the case for hearings is erroneous for several reasons, plaintiff is not entitled to recover anything further of defendant, and if the case is not terminated now she, the trial court and this Court will be further burdened and inconvenienced by it to no purpose.

The first reason the order is erroneous is because the court had no authority to enter it. The order neither set aside the default judgment nor relieved plaintiff of it as Rules 55(d) and 60(b), N.C. Rules of Civil Procedure, authorize upon good cause being shown; instead, it keeps the judgment in effect and permits it to be enlarged, which no rule or statute authorizes. Though the only basis for the default judgment was that a "sum certain" was then due plaintiff from defendant, Rule 55(b)(1), N.C. Rules of Civil Procedure, the order left the default judgment standing while permitting its base to be destroyed by the recovery of future debts. This contradictory, incongruous directive is in the nature of permitting plaintiff to retain its cake after eating it, which is no more possible in court than elsewhere. Under similar circumstances our Supreme Court said: "Neither Rule 60(b)(6) nor any other provision of law authorizes a court to nullify or avoid one or more of the legal effects of a valid judgment while leaving the judgment itself intact." Howell v. Howell, 321 N.C. 87, 91, 361 S.E.2d 585, 588 (1987).

The second reason the order is erroneous is because our law does not permit a party to claim that a judgment is defective after relying upon its validity and accepting its benefits. Draughon v. Draughon, 94 N.C.App. 597, 380 S.E.2d 547 (1989). In this case, after petitioning the court to enter the very judgment involved, plaintiff relied upon its validity and force not once but thrice—by executing on it; by retaining the money collected by execution; and by suing defendant in a separate action for future rents.

Another reason the order is erroneous is that by deciding to obtain a final judgment for the sum certain that was then owed, rather than to have the damages determined later by a trial, plaintiff waived any right it might have had to obtain judgment for a larger amount. Chrisalis Properties, Inc. v. Separate Quarters, Inc., 101 N.C.App. 81, 398 S.E.2d 628 (1990).

Finally, the order is also erroneous because plaintiff's affidavits do not support the court's finding that the judgment was entered as a result of mistake, inadvertence or excusable neglect, as the inadvertence, mistake, or neglect that they show are of a kind that the law does not excuse. For all the affidavits show, when sifted down, is that in signing the court papers which enabled the default judgment to be entered plaintiff's treasurer and counsel were unaware that they had sued for future rents—a matter that they could have known through the exercise of due diligence and reasonable care, and that they were required to know by Rule 11 of our civil procedure rules.

Reversed.

ORR and GREENE, JJ., concur.