Rossi v. Spoloric
| Decision Date | 05 January 2016 |
| Docket Number | No. COA15–728.,COA15–728. |
| Parties | Michael J. ROSSI and James D. Rossi, Plaintiffs, v. Robert J. SPOLORIC, Defendant. |
| Court | North Carolina Court of Appeals |
Gray & Lloyd, LLP, Kill Devil Hills, by E. Crouse Gray, Jr., for plaintiff-appellees.
Phillip H. Hayes, Kitty Hawk, for defendant-appellant.
Robert J. Spoloric ("Defendant") appeals from order granting enforcement of a foreign judgment rendered in favor of Michael J. Rossi and James D. Rossi ("Plaintiffs"). We affirm.
On 20 February 2014, Plaintiffs filed a complaint against Defendant in the Court of Common Pleas of Westmoreland County, Pennsylvania ("the Pennsylvania Complaint"). Plaintiffs alleged Defendant had failed to re-pay the sum of $49,000.00 plus interest as evidenced by two promissory notes allegedly executed by him.
The Pennsylvania Complaint listed a Kitty Hawk, North Carolina address for Defendant. The Pennsylvania Complaint and summons was sent via certified mail to Defendant at the North Carolina address. Defendant was sent a "Notice of Defend" concomitantly with the complaint and summons, advising him to take action within 20 days after service of the notice and complaint, or to risk a default judgment.
Defendant physically received the Pennsylvania Complaint and summons on 5 March 2014. Defendant failed to file any defenses or otherwise respond to the Pennsylvania Complaint. On 22 May 2014, Plaintiffs filed a "Praecipe to enter a default judgment" which directed the "Prothonotary of Westmoreland County, Pennsylvania ... to enter a Judgment in favor of [Plaintiffs] and against [Defendant]." Judgment was entered against Defendant in the amount of $68,499.26 plus the cost of the suit and interest on the principle debt at a rate of 10% per annum beginning on 22 May 2014 ("the Pennsylvania Judgment").
On 22 July 2014, Plaintiffs filed a "Notice of Filing of Foreign Judgment" with the Dare County Superior Court. This Notice of Filing was served on Defendant by the Dare County Sheriff's Department on 28 July 2014. More than thirty days later, on 28 August 2014, Defendant filed a motion for relief, notice of defenses to the foreign judgment, and motion for stay.
Defendant asserted three defenses to enforcement of the foreign judgment: (1) insufficiency of service upon Defendant of the pleadings in the case from which the foreign judgment originated; (2) lack of personal jurisdiction of Defendant in the foreign state and court; and (3) lack of competent evidence offered in support of the foreign judgment. Defendant did not file any affidavits in support of the motion.
On 20 November 2014, Plaintiffs noticed a hearing on Defendant's motion for relief, notice of defenses to foreign judgment and motion for stay. The notice set the hearing date over two months later for 26 January 2015.
Three days before the hearing, on 23 January 2015, Defendant served an amended motion for relief, notice of defenses to foreign judgment, and motion for stay on Plaintiff's counsel. The motion was filed with the court on 26 January 2015. The amended motion limited Defendant's defenses to the lack of personal jurisdiction over Defendant in the foreign state and court.
Also on 23 January 2015, Defendant served a motion to continue on Plaintiffs' counsel. The motion was filed with the court on the hearing date of 26 January 2015, the day of the scheduled hearing. In the motion, Defendant's counsel stated he anticipated offering the live testimony of Defendant, but asserted a "business conflict had arisen with Defendant" that required him to fly to Miami, Florida on the day of the hearing.
The motion to continue stated after he learned of the scheduling conflict, Defendant's attorney assisted Defendant in filing an affidavit in support of his motion for relief, notice of defenses and motion for stay. The affidavit was also served on Plaintiffs' counsel on 23 January 2015.
A hearing was held on Defendant's motion and defense on 26 January 2015. At the hearing, the trial court denied Defendant's motion to continue. Defendant made an oral motion to introduce the affidavit served on Plaintiffs' counsel on 23 January 2015 into evidence. The trial court denied Defendant's motion.
Defendant's counsel then argued the Pennsylvania Judgment was not entitled to full faith and credit, on the grounds the Pennsylvania court lacked personal jurisdiction over Defendant at the time the judgment was entered. Defendant presented no evidence to support this argument. Following arguments of counsel, the trial court found "there is a valid ... judgment, and that [Plaintiffs] ha[ve] met the presumption" of correctness in a foreign judgment.
Following the hearing, the court issued a written order on 3 February 2015: (1) denying Defendant's motion to continue; (2) denying Defendant's oral motion to allow Defendant's affidavit; and (3) ordering the Pennsylvania Judgment to be entered and entitled to full faith and credit, and as enforceable under the laws of the State of North Carolina in the same manner as any judgment in this State.
Defendant gave timely notice of appeal on 24 February 2015.
Defendant argues the trial court erred by: (1) denying his motion to continue; (2) denying his motion to introduce his affidavit; and (3) concluding as a matter of law the foreign judgment is entitled to full faith and credit and is enforceable pursuant to the laws of the State of North Carolina. We address each of Defendant's arguments seriatim.
Defendant argues the trial court erred by denying his motion to continue. He asserts the denial of his motion deprived him of the opportunity to be heard, resulting in a violation of substantial justice. We disagree.
"We review a trial court's resolution of a motion to continue for abuse of discretion." State v. Morgan, 359 N.C. 131, 143, 604 S.E.2d 886, 894 (2004) (citation omitted). Before ruling on a motion to continue, "the judge should hear the evidence pro and con, consider it judicially and then rule with a view to promoting substantial justice." Shankle v. Shankle, 289 N.C. 473, 483, 223 S.E.2d 380, 386 (1976). The moving party has the burden of proof of showing sufficient grounds to justify a continuance. Id. at 482, 223 S.E.2d at 386.
An abuse of discretion "results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988) (citation omitted).
On 20 November 2014, Plaintiffs filed a notice to bring Defendant's motion for relief, notice of defenses and motion for stay for a hearing, to be held over two months later on 26 January 2015. Three days before the scheduled hearing, Defendant served a motion to continue on 23 January 2015. The motion was not filed until 26 January 2015, the day of the hearing. At the 26 January 2015 hearing, the trial court considered Plaintiffs' and Defendant's arguments regarding the relative merits of continuing the hearing to accommodate Defendant's flight schedule.
Evidence tends to show Defendant knew the hearing would be held on 26 January 2015 on or about 20 November 2015, when Plaintiffs sent notice of the hearing. Defendant was provided more than two month's advance notice to schedule his attendance at the hearing. Viewed within the timeline of this case, Defendant has failed to show, and we do not find, the denial of his motion to continue was "so arbitrary that it could not have been the result of a reasoned decision." Hennis, 323 N.C. at 285, 372 S.E.2d at 527.
Defendant made his decision of the relative priorities and risks of either attending the long scheduled and previously noticed hearing or attending to his out of state business. Defendant's assignment of error is overruled.
Defendant contends the trial court erred in denying his motion to introduce his affidavit. We disagree.
As with a motion to continue, a trial court's evidentiary rulings "are subject to appellate review for an abuse of discretion, and will be reversed only upon a finding that the ruling was so arbitrary that it could not be the result of a reasoned decision." Lord v. Customized Consulting Specialty, Inc., 182 N.C.App. 635, 644–45, 643 S.E.2d 28, 32, disc. review denied, 361 N.C. 694, 652 S.E.2d 647 (2007) (citation omitted).
The North Carolina Rules of Civil Procedure control actions to enforce foreign judgments. N.C. Gen.Stat. § 1C–1705(b) (2013). Pursuant to Rule 6(d), a party filing an affidavit in support of his or her motion shall serve it contemporaneously with the motion:
A written motion ... and notice of the hearing thereof shall be served not later than five days before the time specified for the hearing, unless a different period is fixed by these rules or by order of the court.... When a motion is supported by affidavit, the affidavit shall be served with the motion[.]
N.C. Gen.Stat. § 1A–1, Rule 6(d) (2013) (emphasis supplied).
Any motion for the enlargement of time in which an act, such as the filing of an affidavit, is to be done must be made prior to the expiration of the period originally prescribed:
When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed [.] ... Upon motion made after the expiration of the specified period, the judge may permit the act to be done where the failure to act was the result of excusable neglect.
N.C. Gen.Stat. § 1A–1, Rule 6(b) (2013) (emphasis supplied).
"Clearly, Rule 6(b) gives the trial court wide discretionary authority to enlarge the time within which an act may be done." Nationwide Mut....
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