Fieldcrest Cannon Employees Credit Union v. Mabes

• Decision Date: 06 September 1994
• Docket Number: No. 9317DC244,9317DC244
• Citation: 447 S.E.2d 510,116 N.C.App. 351
• Parties: FIELDCREST CANNON EMPLOYEES CREDIT UNION, Plaintiff v. Kathy M. MABES, Defendant.
• Court: North Carolina Court of Appeals

Page 510

447 S.E.2d 510

116 N.C.App. 351

FIELDCREST CANNON EMPLOYEES CREDIT UNION, Plaintiff v. Kathy M. MABES, Defendant.

No. 9317DC244.

Court of Appeals of North Carolina.

Sept. 6, 1994.

C. Orville Light, Eden, for defendant appellant.

No brief filed for plaintiff appellee.

COZORT, Judge.

Plaintiff Fieldcrest Cannon Employees Credit Union repossessed and sold the car of defendant Kathy M. Mabes. Plaintiff filed a complaint asking for a deficiency judgment on 23 July 1991. Defendant filed a motion for enlargement of time to answer on 23 August 1991; the motion was granted that same day. On 30 September 1991, defendant filed an answer with a counterclaim demanding a jury trial. On 11 August 1992, plaintiff made a motion to strike defendant's answer and counterclaim. That same day, plaintiff filed a motion for entry of default judgment. On 31 August 1992, the trial court entered an order striking defendant's answer and counterclaim. A separate order was entered granting an entry of default and default judgment. Defendant appeals, arguing the trial court erred in granting plaintiff's motion to strike defendant's answer and counterclaim. We agree with defendant and reverse the trial court's order.

In the case below, the defendant received an enlargement of time for which to file her answer extending the time to 25 September 1991. The answer and counterclaim were not filed until 30 September 1991, five days past the due date. Defendant's attorney filed an affidavit on 14 August 1992 in opposition to plaintiff's motion for the default judgment, stating that defendant had typed the document into his word processor and believed the answer had been filed before he left town for a week. He was surprised to discover the answer had not been served. Defendant did not file a motion alleging that failure to timely file the answer or otherwise plead was the result of excusable neglect. The trial court determined the failure to file was not the result of excusable neglect and granted plaintiff's motion to strike.

In Newton v. Tull, 75 N.C.App. 325, 328, 330 S.E.2d 664, 666 (1985), this Court determined the plaintiff had waived its rights to entry of default pursuant to N.C.Gen.Stat. § 1A-1, Rule 55(a), since plaintiff had waited until after the defendant had tardily filed an answer to make a motion for entry of default. The defendants in Newton sought, and were granted, an extension of time to file an answer until 6 September. On 19 September, defendants filed an answer and counterclaim. Plaintiff had not moved for entry of default prior to the filing of the answer and counterclaim, but on 12 October, plaintiff moved that the answer be stricken because it was "untimely" filed. On 31 October, the defendants filed a motion for summary judgment. This Court held the plaintiff had waived the right to an entry of default by waiting until the answer had been filed before seeking to obtain an entry of default. "Default may not be entered after an answer has been filed, even if the answer is tardily filed." Id. at 328, 330 S.E.2d at 666 (citing Peebles v. Moore, 302 N.C. 351, 275 S.E.2d 833 (1981)).

Our decision reversing the trial court's order is supported by Peebles v. Moore, 302 N.C. 351, 275 S.E.2d 833 (1981). In Peebles, the North Carolina Supreme Court stated:

The portion of G.S. 1A-1, Rule 55, applicable to the facts of the case before us, requires a clerk to make an entry of default "when a party ... has failed to plead...." When a party has answered, it cannot be said that he "has failed to plead...." We are unable to perceive anything in this language or in the language of the entire rule, G.S. 1A-1, Rule 55, which...