Dollar v. Tapp

404 S.E.2d 482 (1991) 103 N.C. App. 162

E.A. DOLLAR, Jr. and Foye S. Dollar, Plaintiffs,
v.
Bess B. TAPP, Defendant.
E.A. DOLLAR, Jr., Foye S. Dollar, and Archie Dollar, Plaintiffs,
v.
Bess B. TAPP, Defendant.

No. 9015DC1096.

Court of Appeals of North Carolina.

June 4, 1991.

Bayliss, Hudson & Merritt by Ronald W. Merritt, Chapel Hill, for plaintiffs-appellees.

Levine, Stewart & Davis by Donna Ambler Davis, Chapel Hill, for defendant-appellant.

WELLS, Judge.

Defendant assigns error to the trial court's conclusions that she was given proper notice of plaintiffs' request that the matter be set for trial and that she failed to show a meritorious defense to plaintiffs' action. We agree with defendant and award a new trial.

Defendant contends that the trial court erred in failing to set aside the judgment and grant her a new trial pursuant to N.C. Gen.Stat. § 1A-1, Rule 60(b)(6) of the North Carolina Rules of Civil Procedure. This subsection serves as a "grand reservoir of equitable power" by which a court may grant relief from a judgment whenever extraordinary circumstances exist and there is a showing that justice demands it. Oxford Plastics v. Goodson, 74 N.C.App. 256, 328 S.E.2d 7 (1985).

The trial court concluded that defendant received notice of plaintiffs' request "that the matter be set for trial at the March, 1990 session according to the local practice." The Rules of Practice require more than this, however. Rule 2(b) of the General Rules of Practice for the Superior and District Courts provides:

The civil calendar shall be prepared under the supervision of the Senior Resident Judge or Chief District Court Judge. Calendars must be published and distributed by the Clerk of Court to each attorney of record (or party where there is no attorney of record) and presiding judge no later than four weeks prior to the first day of court.

Rule 3.1 of the Rules of Practice for Civil District Court in Judicial District 15-B provides:

Request for the setting of cases on the trial calendar shall be made in writing no later than four (4) weeks prior to the beginning of the session of court. Copies of all requests shall be sent to opposing counsel. The calendar shall be set and mailed out.

Defendant received a calendar request four days prior to the session of court at which the trial was set, rather than a trial calendar four weeks prior, as is required by the General Rules of Practice. While we recognize that no formal trial date is set in District 15-B until the day of calendar call, this does not alter the requirement that a party receive notice that a trial on the merits has been set for a particular session of court. A calendar request received four days before the start of the session is not sufficient.

We recognize that the law imposes certain affirmative duties on parties to a lawsuit to keep abreast of the proceedings in that suit. A party once served with a summons has a duty to give the matter the attention a person of ordinary prudence would give to important business. Anderson Trucking Service, Inc. v. Key Way Transport, Inc., 94 N.C.App. 36, 379 S.E.2d 665 (1989). This duty does not negate the notice requirements of Rule 2, however. "Rule 2 of the Rules of Practice, by requiring notice of the calendaring of a case, secures to a party the opportunity to prepare his case for trial and to be present for trial or to seek a continuance." Laroque v. Laroque, 46 N.C.App. 578, 265 S.E.2d 444, disc. review denied, 300 N.C. 558, 270 S.E.2d 109 (1980). Defendant did not receive the requisite notice that a trial on the merits would take place during the 5 March 1990 session of court. On these facts, "a reasonable application of the provisions of Rule 60(b)(6)" requires that defendant's failure to appear at the trial be excused. Oxford Plastics, supra.

These procedural deficiencies are not sufficient, however, to require granting relief under Rule 60. The defendant also must forecast a meritorious defense to plaintiffs' action. Id. A meritorious defense is a real or substantial defense, and a mere denial of indebtedness is not sufficient. PYA/Monarch, Inc. v. Ray Lackey Enterprises, Inc., 96 N.C.App. 225, 385 S.E.2d 170 (1989). Defendant filed an answer in which she admits the original loans (although challenging which one of the plaintiffs actually loaned her the money) but contends that the money was repaid as part of a separate transaction between the parties. She also attached a check which she contends is evidence of that transaction. Plaintiffs' contention that the transaction defendant relies on makes little business sense is not dispositive. The trial court should not attempt to resolve the factual dispute but should determine only if the movant has sufficiently forecast a meritorious defense. Chaparral Supply v. Bell, 76 N.C.App. 119, 331 S.E.2d 735 (1985). We also disagree with plaintiffs' contention that defendant's answer merely shows a business deal through which the debt could be repaid at a later date. We think it equally reasonable to infer from the language used that the debt was considered repaid at that time.

Defendant has sufficiently forecast a meritorious defense—repayment. Whether she can properly establish that this transaction in fact took place and what the parties intended to accomplish through it are matters properly to be resolved at a trial on the merits. For the reasons stated, we hold that the trial court erred in denying defendant's motion and remand for a new trial.

The order denying defendant's Rule 60(b) motion is Reversed.

The judgment entered for plaintiff is Vacated.

This matter is remanded for trial on the merits.

ARNOLD and PHILLIPS, JJ., concur.