              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA19-581

                                 Filed: 21 July 2020

Harnett County, No. 16 CVS 1155

STEPHEN V. JUDD, Plaintiff,

             v.

TILGHMAN MEDICAL ASSOCIATES, LLC, Defendant.


      Appeal by plaintiff from order entered 8 February 2019 by Judge Vince Rozier

in Harnett County Superior Court. Heard in the Court of Appeals 8 January 2020.


      Ortiz & Schick, PLLC, by Heather E. Connor, for plaintiff-appellee.

      The Charleston Group, by Jose A. Coker and Daniel DiMaria, for defendant-
      appellant.


      TYSON, Judge.


      Tilghman Medical Associates, LLC (“Defendant”) appeals from the trial court’s

order denying its motion to set aside the default judgment in favor of Stephen V. Judd

(“Plaintiff”). We affirm.

                                   I. Background

      Plaintiff purchased three office buildings (“the properties”) from Defendant for

$1,800,000.00 on 3 February 2015. Plaintiff determined the properties’ effective

occupancy level at the time of sale was lower than Defendant and/or its agents had

allegedly represented to him.
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                                  Opinion of the Court



      Plaintiff filed a complaint, which alleged fraud against Defendant and its

broker on 2 June 2016. The broker filed a motion to dismiss and an answer, but

Defendant did not. Plaintiff filed an affidavit of service upon Defendant, and moved

for entry of default, which the court entered on 5 August 2016. Plaintiff moved to file

an amended complaint, which the trial court also granted.

      Plaintiff filed an amended complaint, which alleged fraud and negligent

misrepresentation against Defendant, the broker, and Capitol Properties I, LLC

(“Capitol”), and breach of contract against Defendant, on 6 September 2016. The

broker and Capitol jointly filed a motion to dismiss and an answer, but Defendant did

not. Plaintiff again filed an affidavit of service upon Defendant and moved for entry

of default against Defendant, which the trial court entered on 8 November 2016.

      Mediation was held on 10 April 2017. The broker and Capitol settled with

Plaintiff. All claims against them were dismissed with prejudice on 10 July 2017.

Plaintiff moved for default judgment against Defendant on 17 November 2017.

      The trial court conducted a hearing on 16 January 2018, which Defendant did

not attend.    The trial court entered default judgment against Defendant for

$840,000.00, plus interest at the legal rate, on 31 January 2018. Writs of execution

were issued to the Sheriff of Harnett County, who posted a notice of sale of lots owned

by Defendant on the same road as the properties on 14 August 2018. The sale was

set for 5 September 2018.



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       Defendant filed a verified emergency motion to stay the sale and a motion to

set aside the judgment on 29 August 2018. Defendant asserted its member/manager,

Dr. Ibrahim Naim Oudeh, “immediately provided the Amended Complaint to

[Defendant]’s then-counsel” upon its receipt on 8 September 2016. Defendant claimed

its then-counsel advised Dr. Oudeh they would move to dismiss the action, and Dr.

Oudeh “reasonably believed that this matter was being timely handled” by

Defendant’s then-counsel “and had no reason to doubt otherwise.”

       Dr. Oudeh and Defendant both asserted they “were unaware at any time” their

then-counsel “did not file an answer and failed to pursue any defense” on Defendant’s

behalf.   Defendant claimed to have become first aware of the default judgment

entered against it after Dr. Oudeh disclosed his real estate holdings in response to

complaints filed against him by the United States and the State of North Carolina,

which alleged false and fraudulent Medicare and Medicaid claims.

       Defendant moved to set aside the default judgment on the basis of excusable

neglect due to the non-action and negligence of its then-counsel. Defendant further

moved to set aside the entry of default for good cause. Defendant also sought a stay

of the sale.

       The trial court stayed the sale on 30 August 2018 and set a hearing on

Defendant’s motion to set aside the judgment. Following the hearing, the trial court




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entered its order denying Defendant’s motion on 8 February 2019. Defendant timely

filed its notice of appeal.

                                     II. Jurisdiction

       This appeal is properly before us pursuant to N.C. Gen. Stat. § 7A-27(b)(1)

(2019). Defendant’s brief fails to include a statement of the grounds for appellate

review, as is required by N.C. R. App. P. 28(b)(4). “Compliance with the rules . . . is

mandatory.” Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C.

191, 194, 657 S.E.2d 361, 362 (2008) (citations omitted).

       However, “noncompliance with the appellate rules does not, ipso facto,

mandate dismissal of an appeal.” Id. at 194, 657 S.E.2d at 363 (citation omitted).

“Noncompliance with [Appellate Rule 28(b)], while perhaps indicative of inartful

appellate advocacy, does not ordinarily give rise to the harms associated with review

of unpreserved issues or lack of jurisdiction.” Id. at 198, 657 S.E.2d at 365.

       Defendant’s non-jurisdictional failure to comply with Appellate Rule 28(b)(4)

does not mandate dismissal. See id. Counsel is admonished that our Appellate Rules

are mandatory, compliance is expected therewith, and multiple sanctions are

available for violation. Id.; N.C. R. App. P. 28(b)(4).

                                        III. Issues

       Defendant argues the trial court abused its discretion by denying its motion to

set aside either the entry of default pursuant to N.C. Gen. Stat. § 1A-1, Rule 55(d)



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(2019) or the default judgment pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b) (2019).

Defendant also challenges one finding of fact and one conclusion of law in the trial

court’s order as erroneous.

                                 IV. Entry of Default

      Defendant argues the trial court erred by denying his motion to set aside the

entry of default under Rule 55(d). Defendant cites the first portion of Rule 55(d): “For

good cause shown the [trial] court may set aside an entry of default[.]” N.C. Gen. Stat.

§ 1A-1, Rule 55(d). “This standard is less stringent than the showing of ‘mistake,

inadvertence, [surprise,] or excusable neglect’ necessary to set aside a default

judgment pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b).” Brown v. Lifford, 136 N.C.

App. 379, 382, 524 S.E.2d 587, 589 (2000) (citation omitted).

      Although Defendant moved “pursuant to Rules 55 [and] 60 . . . of the North

Carolina Rules of Civil Procedure for an order . . . setting aside the entry of default,”

the trial court analyzed the motion solely under Rule 60(b). “While entry of default

may be set aside pursuant to Rule 55(d) and a showing of good cause, after judgment

of default has been entered, the motion to vacate is governed by Rule 60(b).” Estate

of Teel by Naddeo v. Darby, 129 N.C. App. 604, 607, 500 S.E.2d 759, 762 (1998)

(citations omitted).

      The trial court appropriately declined to analyze Defendant’s motion under the

Rule 55(b) “good cause” standard, after default judgment had already been entered



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against Defendant. This ruling accords with the plain text of Rule 55(d), when read

in its entirety: “For good cause shown the court may set aside an entry of default,

and, if a judgment by default has been entered, the judge may set it aside in accordance

with Rule 60(b).” N.C. Gen. Stat. § 1A-1, Rule 55(d) (emphasis supplied).

      The cases Defendant cites, in which this Court reviewed a trial court’s denial

of a motion to set aside the entry of default using the Rule 55(d) “good cause”

standard, are inapposite upon closer examination. In Swan Beach Corolla, L.L.C. v.

Cty. of Currituck, this Court reversed the denial of a motion to set aside the entry of

default, in which case default judgment had subsequently been entered, but only after

this Court had previously held the defendants’ initial appeal from the denial of a

motion to set aside entry of default “was interlocutory because no default judgment

had been entered.” Swan Beach Corolla, L.L.C. v. Cty. of Currituck (Swan Beach III),

255 N.C. App. 837, 840, 805 S.E.2d 743, 746 (2017) (emphasis supplied), aff’d per

curiam, 371 N.C. 110, 110, 813 S.E.2d 217, 217-18 (2018); see also Swan Beach

Corolla, L.L.C. v. Cty. of Currituck (Swan Beach II), 244 N.C. App. 545, 781 S.E.2d

350, 2015 WL 8747777, at *2 (2015) (unpublished). In Swan Beach III, the issue of

the trial court’s denial of the motion to set aside the entry of default was

independently preserved upon remand, despite the subsequent entry of default

judgment after this Court’s decision in Swan Beach II.




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                                   Opinion of the Court



       In Jones v. Jones, also cited by Defendant, this Court affirmed the denial of a

motion to set aside the entry of default, but again no default judgment had been

entered in that case. __ N.C. App. __, __, 824 S.E.2d 185, 189 (2019), aff’d per curiam,

373 N.C. 381, 837 S.E.2d 872 (2020) (defendant appealed the trial court’s entry of

default, denial of motion to dismiss entry of default, and order for specific

performance, but no default judgment was ever entered).

       We need not consider Defendant’s arguments regarding the entry of default.

After default judgment was entered in this case and before Defendant filed his motion

to set aside either entry of default or default judgment, the trial court was bound by

the plain text of Rule 55(d) and precedents to analyze Defendant’s motion under the

standards set forth in Rule 60(b). “We proceed thusly as the propriety of the trial

court’s denial of [D]efendant’s motion to vacate entry of default is irrelevant, if the

trial court properly denied [D]efendant’s motion to vacate entry of default judgment.”

Estate of Teel, 129 N.C. App. at 608, 500 S.E.2d at 762. Defendant’s argument is

overruled.

                                 V. Default Judgment

       Defendant argues the trial court abused its discretion by denying his motion

to set aside the default judgment under N.C. Gen. Stat. § 1A-1, Rules 60(b)(1) and

60(b)(6).

                                A. Standard of Review



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                    The decision whether to set aside a default judgment
             under Rule 60(b) is left to the sound discretion of the trial
             judge, and will not be overturned on appeal absent a clear
             showing of abuse of discretion.

                   Whether neglect is “excusable” or “inexcusable” is a
             question of law. The trial judge’s conclusion in this regard
             will not be disturbed on appeal if competent evidence
             supports the judge’s findings, and those findings support
             the conclusion.

Elliott v. Elliott, 200 N.C. App. 259, 261-62, 683 S.E.2d 405, 408 (2009) (citation

omitted).

                                B. Excusable Neglect

      “On motion and upon such terms as are just, the court may relieve a party or

his legal representative from a final judgment, order, or proceeding for . . . excusable

neglect[.]” N.C. Gen. Stat. § 1A-1, Rule 60(b)(1). “To set aside a judgment on the

grounds of excusable neglect under Rule 60(b), the moving party must show that the

judgment rendered against him was due to his excusable neglect and that he has a

meritorious defense.” Elliott, 200 N.C. App. at 262, 683 S.E.2d at 408.

             It is well settled that provisions relating to the setting
             aside of default judgments should be liberally construed so
             as to give litigants an opportunity to have a case disposed
             of on the merits. However, statutory provisions designed
             to protect plaintiffs from defendants who do not give
             reasonable attention to important business affairs such as
             lawsuits cannot be ignored.

Estate of Teel, 129 N.C. App. at 607, 500 S.E.2d at 762 (citations omitted).

      This Court has recognized:


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             the neglect of a litigant’s attorney will not be imputed to
             the litigant unless the litigant is guilty of inexcusable
             neglect. . . . When a litigant has not properly prosecuted his
             case because of some reliance on his counsel, the
             excusability of the neglect on which relief is granted is that
             of the litigant, not of the attorney.

N.C. State Bar v. Hunter, 217 N.C. App. 216, 228, 719 S.E.2d 182, 191 (2011) (citation

and alterations omitted).

      Defendant argues its reliance on its then-counsel was reasonable and has

demonstrated excusable neglect.       Defendant asserts it provided the amended

complaint immediately to its former counsel. Dr. Oudeh “reasonably believed that

this matter was being timely handled by his then law firm, and he had no reason to

doubt otherwise based on his prior dealings with the law firm,” which “handled nearly

all of the legal matters for [Defendant] in the preceding ten (10) years.”

      Defendant disputes Plaintiff’s assertions regarding documents he allegedly

mailed to Defendant at Dr. Oudeh’s place of business. Defendant, however, makes

no assertion it communicated further with its then-counsel about this matter after

providing counsel with the amended complaint.

      “The standard of care required of the litigant is that which a man of ordinary

prudence usually bestows on his important business.” Moore v. Deal, 239 N.C. 224,

227, 79 S.E.2d 507, 510 (1954) (citations omitted). Our Supreme Court has repeatedly

held: “the employment of counsel does not excuse the client from giving proper

attention to the case.” Hyde Cty. Land & Lumber Co. v. Thomasville Chair Co., 190


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N.C. 437, 438, 130 S.E. 12, 13 (1925) (citations omitted). “When a man has a case in

court the best thing he can do is to attend to it.” Pepper v. Clegg, 132 N.C. 312, 316,

43 S.E. 906, 907 (1903).

             Where a defendant engages an attorney and thereafter
             diligently confers with the attorney and generally tries to
             keep informed as to the proceedings, the negligence of the
             attorney will not be imputed to the defendant. If, however,
             the defendant turns a legal matter over to an attorney upon
             the latter’s assurance that he will handle the matter, and
             then the defendant does nothing further about it, such
             neglect will be inexcusable.

Meir v. Walton, 2 N.C. App. 578, 582-83, 163 S.E.2d 403, 406 (1968) (citing Moore,

239 N.C. at 228, 79 S.E. 2d at 511; Pepper, 132 N.C. at 316, 43 S.E. at 907).

      In the case of Estate of Teel, the record was “devoid of any evidence of follow-

up by [the defendant] once he turned this matter over to his attorney.” Estate of Teel,

129 N.C. App. at 611, 500 S.E.2d at 764. While the defendant in Estate of Teel “may

have depended on counsel . . . to answer the complaint,” this Court found “nothing to

prevent the imputation of the inexcusable negligence” of the defendant’s agents in

that case. Id.   “The trial court, therefore, properly found and concluded [the

defendant] had failed to show excusable neglect.” Id. The analysis and holding in

Estate of Teel controls the outcome here.

      The Supreme Court of North Carolina observed over 115 years ago: “A lawsuit

is a serious matter. He who is a party to a case in court must give it that attention

which a prudent man gives to his important business. That was not done in this


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case.” Pepper, 132 N.C. at 315, 43 S.E. at 907 (citations and internal quotation marks

omitted).

      “In the absence of a sufficient showing of excusable neglect, the question of a

meritorious defense becomes moot and is immaterial.” Estate of Teel, 129 N.C. App.

at 611, 500 S.E.2d at 764 (citing Stephens v. Childers, 236 N.C. 348, 351, 72 S.E.2d

849, 851 (1952)). “We, therefore, need not address defendant’s argument in this

regard.” Id. Defendant has failed to demonstrate the trial court abused its discretion

by denying its motion under Rule 60(b)(1) for excusable neglect to reverse the

judgment.

                                    C. Rule 60(b)(6)

      Defendant also argues the trial court abused its discretion by denying its

motion pursuant to Rule 60(b)(6). In lieu of a showing of any of the other reasons for

relief listed in Rule 60(b), a trial court may also grant relief from a judgment or order

to a party for “[a]ny other reason justifying relief from the operation of the judgment.”

N.C. Gen. Stat. § 1A-1, Rule 60(b)(6).

      “To qualify for relief under Rule 60(b)(6), a movant must satisfy a three-part

test: (1) extraordinary circumstances exist, (2) justice demands the setting aside of

the judgment, and (3) the defendant has a meritorious defense.” Wiley v. L3 Commc’ns

Vertex Aerospace, LLC, 251 N.C. App. 354, 361, 795 S.E.2d 580, 586 (2016) (citation

and internal quotation marks omitted). “This Court previously has recognized that



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the size of a default judgment award is a relevant factor to consider when determining

whether extraordinary circumstances exist and whether justice would be best served

by affording relief from judgment.” Id.

      If the evidence and findings supports the conclusion that a party’s “failure to

appear was due to its own inexcusable neglect of its business affairs rather than to

extraordinary circumstances[,] . . . the trial court’s conclusion that extraordinary

circumstances did not exist will not be disturbed.” Partridge v. Associated Cleaning

Consultants & Services, Inc., 108 N.C. App. 625, 632-33, 424 S.E.2d 664, 669 (1993).

Defendant cannot show entitlement to relief under Rule 60(b)(6). These arguments

are overruled. See id.

                           VI. Finding of Fact Number 39

      Defendant challenges the trial court’s finding of fact number 39: “Defendant[’s]

sole argument is that the Default Judgment should be set aside under North Carolina

Rule of Civil Procedure 60(b) for excusable neglect, because the neglect of counsel

rendered Defendant Tilghman’s neglect excusable.”

                               A. Standard of Review

      “Findings of fact made by the trial judge are conclusive on appeal if supported

by competent evidence, even if there is evidence to the contrary.” Sisk v. Transylvania

Cmty. Hosp., Inc., 364 N.C. 172, 179, 695 S.E.2d 429, 434 (2010) (citation and

alterations omitted).



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                                      B. Analysis

      “A trial court is not required to make written findings of fact when ruling on a

Rule 60(b) motion, unless requested to do so by a party.” Monaghan v. Schilling, 197

N.C. App. 578, 582, 677 S.E.2d 562, 565 (2009) (citations omitted). Defendant does

not assert it requested the trial court to make written findings of fact. Instead,

Defendant argues that, because the court elected to make findings of fact in its own

discretion, it abused its discretion by not making any findings of fact regarding

Defendant’s asserted justifications of excusable neglect and a meritorious defense.

      Defendant argues, “the trial court in essence did not consider any of those facts

presented to the trial court.” Defendant then cites assertions of fact it presented to

the trial court below. Defendant’s argument boils down to: if the trial court elects to

make findings of fact, in its own discretion, on a Rule 60(b) motion, then it must make

findings of fact on all facts presented to it by each party. This assertion is neither

required nor supported by our rules or precedents.

      “Where the trial court does not make findings of fact in its order denying the

motion to set aside the judgment, the question on appeal is whether, on the evidence

before it, the court could have made findings of fact sufficient to support its legal

conclusion.” Id. (citations and alteration omitted). The challenged finding of fact in

this case is supported by competent evidence in the record, as well as the preceding

thirty-eight findings of fact, even if Defendant presented evidence to the contrary. See



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Sisk, 364 N.C. at 179, 695 S.E.2d at 434. “Although it is clearly the better practice

for trial courts to make explicit findings of fact with respect to the elements of Rule

60(b)(1), . . . the trial court’s failure to do so here does not require reversal.” Parris v.

Light, 146 N.C. App. 515, 519, 553 S.E.2d 96, 98 (2001). Defendant’s argument is

overruled.

                           VII. Conclusion of Law Number 10

       Lastly, Defendant challenges the trial court’s conclusion of law number 10:

              Based upon the foregoing findings of fact, and given that
              Defendant . . . was served with over eighteen pleadings,
              motions, notices of hearing and other documentation
              related to the case over a two year period, Defendant has
              not established excusable neglect to set aside the Default
              Judgment entered against it under North Carolina Rule of
              Civil Procedure 60(b).

                                  A. Standard of Review

       “Conclusions of law drawn by the trial court from its findings of fact are

reviewable de novo on appeal.” Carolina Power & Light Co. v. City of Asheville, 358

N.C. 512, 517, 597 S.E.2d 717, 721 (2004) (citation omitted).

                                        B. Analysis

       Defendant argues conclusion of law number 10 was erroneous because: (1) it is

unsupported by the findings of fact, specifically the challenged finding of fact number

39; (2) it does not address the elements of Rule 60(b) or the evidence presented below

by Defendant; and, (3) it contains bare conclusions or mere recitations of the evidence.

As discussed above, we disagree with Defendant’s arguments challenging the findings

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of fact in this case, and so find that argument here unpersuasive. The arguments

concerning the elements of Rule 60(b) and the other evidence presented below by

Defendant is similarly repetitive of arguments previously discussed and resolved.

      Defendant argues the trial court failed to make conclusions of law regarding

the remaining elements of Rule 60(b) or the other evidence presented below. This

argument is: “A conclusion of law is the court’s statement of the law which is

determinative of the matter at issue and must be based on the facts found by the

court[.]” Williamson v. Williamson, 140 N.C. App. 362, 365, 536 S.E.2d 337, 339

(2000) (emphasis supplied) (citation, alteration, and internal quotation marks

omitted). The findings referred to in the trial court’s conclusion of law number 10 are

not mere recitations. Rather, the trial court references the evidence and findings of

fact upon which it concludes Defendant’s neglect was inexcusable.

      The trial court’s conclusion of law was supported by its findings of fact and the

competent evidence in record in this case. Defendant’s arguments are overruled.

                                   VIII. Conclusion

      The trial court appropriately declined to analyze Defendant’s motion to set

aside entry of default under Rule 55(b)’s “good cause” standard after default judgment

had already been entered against Defendant in this case. See N.C. Gen. Stat. § 1A-1,

Rule 55(d); Estate of Teel, 129 N.C. App. at 607, 500 S.E.2d at 762.




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      Defendant failed to show excusable neglect under Rule 60(b)(1), when its

member/manager provided Plaintiff’s amended complaint to its then-counsel and the

record is “devoid of any evidence of follow-up by [Defendant] once he turned this

matter over to his attorney.” Estate of Teel, 129 N.C. App. at 611, 500 S.E.2d at 764.

Competent evidence supports the conclusion that Defendant’s “failure to appear was

due to its own inexcusable neglect of its business affairs rather than to extraordinary

circumstances.” Partridge, 108 N.C. App. at 632, 424 S.E.2d at 669. As a result, “the

trial court’s conclusion that extraordinary circumstances did not exist [under Rule

60(b)(6)] will not be disturbed.” Id. at 633, 424 S.E.2d at 669.

      The finding of fact Defendant challenges was supported by competent evidence

in the record, despite Defendant’s evidence to the contrary. See Sisk, 364 N.C. at 179,

695 S.E.2d at 434. The trial court’s conclusion of law number 10 was supported by

findings of fact and the evidence in this case.           This conclusion was not a mere

recitation, but rather referenced the facts upon which it concluded Defendant’s

neglect was inexcusable.

      The trial court properly denied Defendant’s motion to set aside the default

judgment. We affirm the trial court’s rulings. It is so ordered.

      AFFIRMED.

      Judges DILLON and MURPHY concur.




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