Brown v. AMERICAN MESSENGER SERVICES

• Decision Date: 07 April 1998
• Docket Number: No. COA97-560.,COA97-560.
• Citation: 129 NC App. 207,498 S.E.2d 384
• Court: North Carolina Court of Appeals
• Parties: Steven D. BROWN, Plaintiff, v. AMERICAN MESSENGER SERVICES, INC., and Herbert T. Ballard, Defendants.

498 S.E.2d 384

129 NC App. 207

Steven D. BROWN, Plaintiff, v. AMERICAN MESSENGER SERVICES, INC., and Herbert T. Ballard, Defendants.

No. COA97-560.

Court of Appeals of North Carolina.

April 7, 1998.

Black Rogers & Ruth, P.L.L.C. by George W. Wiseman, III, Concord, for defendants-appellants.

Blair Conaway Bograd & Martin, P.A. by Henry N. Pharr III, Charlotte, for plaintiff-appellee.

WYNN, Judge.

In this case, we decide whether a letter, filed with the Clerk of Superior Court, which offered partial payment of a claim and promised future payment in full was sufficient to constitute an answer so that the trial court could consider and grant a Rule 12(c) Motion for Judgment on the Pleadings. Viewed in the totality of the circumstances, the letter substantively answered the complaint's allegations and therefore we hold that the letter did constitute an answer.

Plaintiff Steven D. Brown filed suit against American Messenger Services, Inc. ("AMS") and Herbert T. Ballard on 6 February 1996. The complaint alleged that Ballard, as the primary and controlling shareholder of AMS, solicited Brown to invest in the company by representing the business "as a successful and growing package delivery service and a lucrative investment." In reliance on these representations, Brown agreed both to work for AMS and to loan the company $80,000.00. In return Ballard, as president of AMS, signed a promissory note dated 4 October 1993 agreeing to make quarterly interest payments on the loan beginning 28 December 1993 and repayment of the principal balance by 28 September 1996.

The complaint further alleged that after Brown voluntarily resigned from his employment with AMS, AMS was "chronically late and in default" on its payment obligation. Brown accelerated the balance due and demanded payment. AMS failed to pay its obligations under the note.

As a consequence of these events, the complaint raised three causes of action: an action against AMS for the $80,000.00 and for unpaid interest, an alternate action against AMS for a declaration that AMS was liable under the note and for entry of judgment for Brown in the amount due under the note, and a cause of action against Ballard seeking to hold him personally liable on the note.

Ballard was served with Summons and the Complaint on 8 February 1996. On 5 March 1996, Ballard filed a letter written on AMS stationery with the court. The letter, signed by Ballard and addressed to Brown's lawyer, stated in pertinent part:

Enclosed, please find a certified check made payable to Steven Brown for $2,512.59 for accrued interest due through the fourth quarter of 1995.

Let me further state that I will pay by certified funds all future interest payments as they become due.

I will also make arrangements to repay the principal of $80,000.00 on the due date of September 28, 1995.

AMS filed for bankruptcy on 7 June 1996 and in response Brown voluntarily dismissed his claims against AMS on 7 August 1996. Brown moved for judgment on the pleadings on 1 October 1996, asserting that Ballard's letter was an answer. On 2 December 1996, the trial court entered a judgment granting Brown's motion for judgment on the pleadings and entering judgment against Ballard for $84,050.00 and costs. Ballard appeals.

I.

Under N.C.R.Civ.P. 12(c), "[a]fter the pleadings are closed ... any party may move for judgment on the pleadings." In Yancey v. Watkins, 12 N.C.App. 140, 182 S.E.2d 605 (1971), this Court held that filing or hearing a motion under this rule prior to the filing of the defendant's answer was improper, and that a judgment rendered in such a circumstance will be vacated. See id. at 141-42, 182 S.E.2d at 606. The issue in this case is whether the letter was an answer.

Brown argues on appeal that although the letter does not fully comply with North Carolina's Rules of Civil Procedure, we should nonetheless uphold the trial court's ruling that the letter constituted an answer.

First, he points out that a pleading has served its purpose if it provides notice of the facts asserted by a party for his or her cause of action or defense. He cites Thorpe v. Wilson, 58 N.C.App. 292, 293 S.E.2d 675 (1982) and Jones v. Whitaker, 59 N.C.App. 223, 296 S.E.2d 27 (1982) for the proposition that errors or defects in a pleading that do not affect substantial rights are to be disregarded. Furthermore, he directs our attention to the comment of Rule 10, which states that the Rule was "designed ... to cause factual issues to clearly emerge." N.C.R.App.P. 10 cmt.

Brown further contends that this Court has on two previous occasions, in North Carolina State Bar v. Wilson, 74 N.C.App. 777, 330 S.E.2d 280 (1985) and O'Herron v. Jerson, 82 N.C.App. 434, 346 S.E.2d 298 (1986), held that letters from a pro se defendant filed with the Court and served upon opposing counsel could constitute an answer within the meaning of the Rules of Civil Procedure. Finally, he contends that this position is supported by the decisions of other states with provisions similar to Rule 10. He cites as examples Barrell v. Gibson, 153 Ga.App. 621, 266 S.E.2d 308 (1980) and Frank Ulmer Lumber Co., Inc. v. Patterson, 272 S.C. 208, 250 S.E.2d 121 (1978).

Although the issue of whether a letter can constitute an answer to a complaint has arisen in several of this Court's decisions, the parties have cited no case and our research has revealed no North Carolina case that clearly decides the issue in this context.

In Roland v. W & L Motor Lines, Inc., 32 N.C.App. 288, 231 S.E.2d 685 (1977), the plaintiff filed a complaint asserting that the defendant, his former employer, owed him for back pay and a bond refund. Id. at 288, 231 S.E.2d at 686. The company's vice-president wrote a letter responding to the complaint's allegations to the plaintiff's attorney and sent a copy to the clerk of court. Id. Shortly thereafter plaintiff moved for and was granted a default judgment, and the defendant's subsequent motion to set aside the default judgment was denied. Id. at 288-89, 231 S.E.2d at 686. The defendant's "principal contention on appeal [was] that the... letter [mailed to the clerk of court] should be treated as an answer." However, this Court, "[w]ithout deciding whether the defendant's 11 July letter constitute[d] an answer, ... concluded that the case ... should be decided on other grounds." Id. at 289, 231 S.E.2d at 686-87. We went on to hold that the letter constituted an appearance which foreclosed entry of a default judgment. Id. at 290-91, 231 S.E.2d at 687-88.

In N.C. State Bar v. Wilson, 74 N.C.App. 777, 330 S.E.2d 280 (1985), we considered an appeal from a disciplinary order of the Disciplinary Hearing Commission of the North Carolina State Bar. Id. at 778, 330 S.E.2d at 281. Among other things, the Commission had determined that letters sent by a pro se defendant to an attorney seeking a divorce for her client constituted an answer to a complaint within the meaning of N.C.R.Civ.P. 12. Id. at 780, 330 S.E.2d at 282. On appeal to this Court, the attorney raised as an issue "whether the [disciplinary] committee erred in finding that the letters from [defendant] were answers within the meaning of the rules." Id. at 781, 330 S.E.2d at 283. However, again we did not directly address the issue, holding that even if the committee was in error on that issue, there was other sufficient evidence to support its findings and order. Id. at 781-83, 330 S.E.2d at 283-84.

In O'Herron v. Jerson, 82 N.C.App. 434, 346 S.E.2d 298 (1986), we simply assumed without deciding that letters "may have constituted an answer within the meaning of the North Carolina Rules of Civil Procedure." Id. at 437, 346 S.E.2d at 300.

In short, there is not within our case law a holding that a letter can constitute an answer. However, the outside authorities cited by Brown do seem to support his argument.

In Barrell v. Gibson, 153 Ga.App. 621, 266 S.E.2d 308 (1980), the Court of Appeals of Georgia affirmed the trial court's denial of the plaintiff's motion for default judgment, holding in a terse opinion that a short, signed letter from the defendant denying the debt alleged in the plaintiff's complaint was sufficient to constitute a general denial. Id. 266 S.E.2d at 309. In Frank Ulmer Lumber Co., Inc. v. J.D. Patterson, 272 S.C. 208, 250 S.E.2d 121 (1978), the South Carolina Supreme Court reviewed the setting aside of a default judgment by the trial court, stating that the "issue [was] whether ... an unverified letter delivered by [defendant] to counsel for [plaintiff] was a sufficient answer to the complaint." Id. 250 S.E.2d at 122. The Court accepted the letter as an answer despite the fact that it was not verified because the defect was waived when the plaintiff's counsel accepted it without objection. Id. at 123. The Court also addressed the failure of the pleading to contain a caption and the fact that it was not promptly filed, but stated that "suffice it to say that the proper sanction to be imposed for failure to comply with [those requirements was] not judgment by default" and affirmed the trial court's decision to set aside default. Id.

Turning back to North Carolina law, the general policy of the Rules of Civil Procedure is to disregard technicalities of form and determine the rights of litigants on the merits. See, e.g., Smith v. City of Charlotte, 79 N.C.App. 517, 528, 339 S.E.2d 844, 851 (1986), Johnson v. Johnson, 14 N.C.App. 40, 42, 187 S.E.2d 420, 421 (1972). Furthermore, in Jones v. Whitaker, 59 N.C.App. 223, 225-26, 296 S.E.2d 27, 29 (1982), we pointed out that "errors or defects in the pleadings not affecting substantial rights...