Broughton v. McClatchy Newspapers, Inc., COA02-1034.

CourtCourt of Appeal of North Carolina (US)
Citation588 S.E.2d 20,161 NC App. 20
Decision Date04 November 2003
Docket NumberNo. COA02-1034.,COA02-1034.
PartiesCeleste G. BROUGHTON, Plaintiff, v. McCLATCHY NEWSPAPERS, INC.; The News and Observer Publishing Co.; et al., Defendants.

Celeste G. Broughton, pro se.

Everett Gaskins Hancock & Stevens, LLP, by Hugh Stevens and C. Amanda Martin, Raleigh, for defendants-appellees.

STEELMAN, Judge.

This appeal arises from a lawsuit initiated by plaintiff, Celeste G. Broughton, against defendants, McClatchy Newspaper, Inc., The News and Observer Publishing Company, Frank A. Daniels, Jr., individually and as president of the News and Observer Publishing Company and as publisher of the News and Observer (N & O), Anders Gyllenhaal, individually and as editor of the N & O, and Sarah Avery, individually and as a staff writer for the N & O. This action was dismissed by Judge Howard E. Manning, Jr. For the reasons discussed herein, we affirm.

Plaintiff and Robert Broughton were married on 5 December 1964. The Broughtons separated on 25 November 1968. Since that time, they have been involved in litigation. In 1995, defendant Sarah Avery (Avery) became interested in the Broughtons' protracted litigation. Avery researched court files and conducted interviews for an article to be published in the N & O. On 3 December 1995, the article was published in the N & O. It was titled "Lawsuit in Superior Court Latest Volley in Broughtons' War," and included references to the Broughtons' marriage, plaintiff's financial status, and ongoing and past litigation. On 2 December 1996, plaintiff filed a complaint alleging libel per se, invasion of privacy, fraud and misrepresentation, slander of title, and obstruction of justice.

On 4 February 1997 defendants filed a motion for a more definite statement, a motion to strike portions of plaintiff's complaint, and a provisional answer. The trial court granted both of defendants' motions on 21 April 1997 and directed plaintiff to file and serve an "amended complaint" on or before 19 May 1997. On 12 May 1997, plaintiff obtained an ex parte order granting an extension of time to serve her "amended complaint" until 3 June 1997. Plaintiff filed a document designated as an "amended complaint" on 3 June 1997. Defendants filed an answer to the amended complaint on 3 July 1997. On 7 July 1997, plaintiff moved to strike defendants' answer and for entry of default. Both of these motions were denied by Judge Orlando F. Hudson, Jr. on 23 October 1997.

Following contentious discovery, all parties moved for summary judgment. Judge Howard E. Manning, Jr. denied plaintiff's motion for summary judgment on 11 August 1999. He granted defendants' motion for summary judgment on 8 June 2001 in an order that set forth, in detail, the rationale of the court's ruling.

On 18 June 2001, plaintiff filed a motion under Rules 52 and 59(a)(7) requesting that the trial court reconsider its 8 June 2001 decision. The motion alleged that the trial court's order, which granted defendants' motion for summary judgment, contained errors of law and fact. On 3 July 2001, Judge Manning denied the motions under Rules 52 and 59(a)(7). Plaintiff's motion for reconsideration was allowed, but the trial court declined to change its decision. Plaintiff appeals all of these orders, but does not discuss the 21 October 1998 order by Judge Robert Farmer, the 18 December 1998 order by Judge B. Craig Ellis, or the 20 April 1999 order by Judge E. Lynn Johnson in her brief. Assignments of error as to these orders are deemed abandoned and are not addressed further. See N.C. R.App. P. 28(b)(6). Plaintiff sets forth four assignments of error.

In her first assignment of error, plaintiff argues that the trial court erred by denying her motion to strike defendants' answer and motion for entry of default. She contends that because defendants' answer was not filed in a timely manner, the trial court was required to enter default. We disagree.

Plaintiff filed her complaint on 2 December 1996. Defendants moved for a more definite statement on 4 February 1997. The trial court's 5 May 1997 order granted defendants' motion and directed that plaintiff serve an "amended complaint" upon defendants. "If the court grants a motion for a more definite statement, the responsive pleading shall be served within 20 days after service of the more definite statement." N.C.R. Civ. P. 12(a)(1)(b). Plaintiff served her amended complaint by mail on 3 June 1997. Defendants, therefore, had until 26 June 1997 to file a response. See N.C.R. Civ. P. 6(e). Defendants did not file an answer to the amended complaint until 3 July 1997.

Plaintiff presented an affidavit and a proposed order entering default to the Clerk of Superior Court of Wake County on 2 July 1997. The clerk did not enter default against defendants. Defendants filed an answer to the amended complaint on 3 July 1997. Plaintiff moved to strike the answer and for entry of default on 7 July 1997. Defendants responded to plaintiff's motions, contending that under Rule 15(a), they were allowed 30 days to answer an "amended pleading."

Rule 15(a) provides that "[a] party shall plead in response to an amended pleading within 30 days after service of the amended pleading, unless the court otherwise orders." N.C.R. Civ. P. 15(a). However, Rule 15 applies to amended and supplemental pleadings in general. Rule 12(a)(1)(b) specifically applies to responses to a more definite statement. N.C.R. Civ. P. 12(a)(1)(b). When a more generally applicable statute conflicts with a more specific, special statute, the "special statute is viewed as an exception to the provisions of the general statute[.]" Domestic Electric Service, Inc. v. City of Rocky Mount, 20 N.C.App. 347, 350, 201 S.E.2d 508, 510,aff'd,285 N.C. 135, 203 S.E.2d 838 (1974). Accordingly, we conclude that the specific requirements of Rule 12(a)(1)(b) control where in conflict with the general requirements of Rule 15(a).

Plaintiff moved to strike defendants' answer pursuant to Rule 55, which provides:

When a party against whom a judgment for affirmative relief is sought has failed to plead or is otherwise subject to default judgment as provided by these rules or by statute and that fact is made to appear by affidavit, motion of attorney for the plaintiff, or otherwise, the clerk shall enter his default.

N.C.R. Civ. P. 55(a) (Emphasis added).

Default judgments are disfavored in the law, and therefore any doubts should be resolved in favor of allowing the case to proceed on the merits. North Carolina Nat'l Bank v. McKee, 63 N.C.App. 58, 303 S.E.2d 842 (1983). In Peebles v. Moore, 302 N.C. 351, 275 S.E.2d 833 (1981), the defendant filed an untimely answer. After the answer was filed, the clerk entered a default against the defendant. The trial court refused to set aside the entry of default. Our Supreme Court reversed, holding that once an answer has been filed, default may not be entered, even though the answer was late. The court further stated that:

We believe that the better reasoned and more equitable result may be reached by adhering to the principle that a default should not be entered, even though technical default is clear, if justice may be served otherwise.... Without considering the questions of just cause, excusable neglect or waiver, we conclude that justice will be served by vacating the entry of default and permitting the parties to litigate the joined issues.

Id. at 356, 275 S.E.2d at 836.

In the instant case, unlike Peebles, there was never an entry of default. Clearly, defendants' answer was not timely filed. However, when an answer is filed before default is entered, the clerk is no longer authorized to enter default against defendants. See Peebles, supra; Fieldcrest Cannon Employees Credit Union v. Mabes, 116 N.C.App. 351, 447 S.E.2d 510 (1994)

.

A motion to strike an answer is addressed to the sound discretion of the trial court and its ruling will not be disturbed absent an abuse of discretion. Byrd v. Mortenson, 308 N.C. 536, 302 S.E.2d 809 (1983). Defendants had previously filed a provisional answer to plaintiff's complaint on 4 February 1997. It is clear from the record that defendants believed that since plaintiff filed an "amended complaint," they had 30 days to file a response. Defendants did, in fact, file an answer, albeit late by several days. Further, there was no showing that plaintiff was prejudiced by the late answer. The denial of plaintiff's motion to strike was not an abuse of discretion.

It is preferable for matters to be resolved on their merits rather than upon a procedural defect. Hardison v. Williams, 21 N.C.App. 670, 205 S.E.2d 551 (1974). The interests of justice in this case were served by the trial court's denial of plaintiff's motion to strike. See Peebles, supra. This assignment of error is without merit.

In plaintiff's second and third assignments of error, she argues that the trial court erred in denying her motion for summary judgment and granting defendants' motion for summary judgment concerning her claims for libel per se, invasion of privacy, slander of title, fraud and misrepresentation, trespass and obstruction of justice. We disagree.

Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen.Stat. § 1A-1, Rule 56(c) (2001). The moving party bears the burden of demonstrating the lack of triable issues of fact. Koontz v. City of Winston-Salem, 280 N.C. 513, 518, 186 S.E.2d 897, 901 (1972). Once the movant satisfies its burden of proof, the burden then shifts to the non-movant to present specific facts showing triable issues of material fact. Lowe v. Bradford, 305 N.C. 366, 369-70, 289 S.E.2d 363, 366 (1982). On appeal from summary judgment, "we review the record in the light most favorable to...

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