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NO. COA12-416 NORTH CAROLINA COURT OF APPEALS Filed: 18 December 2012 DEYLAN T. GRIER by and through his guardian ad litem, LESLIE A. BROWN and LESLIE A. BROWN, individually, Plaintiffs-Appellees, v. DONNA L. GUY, ROBIN JENKINS and LEROY JENKINS, JR., Defendants-Appellants. Mecklenburg County No. 08 CVS 1723

1.

Judgments -- refusal to set aside default judgment excusable neglect -- service of process

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no

The trial court did not abuse its discretion by denying defendant Robin Jenkin's (defendant's) motion to set aside a default judgment under Rule 60(b) on the ground of excusable neglect. The complaint and summons were hand delivered to Guy, defendant's mother, with a copy for defendant, at the home in which they both lived. Though Guy informed defendant that she believed the papers were intended for defendant's stepfather (Leroy Jenkins), defendant was on notice that the sheriff had brought legal papers to the home. Ignorance of the judicial process or confusion about the nature of the action is not excusable neglect under Rule 60(b). 2. Appeal and Error -- preservation of issues -- failure to set aside default judgment -- motion on other grounds Defendant's argument on appeal that plaintiff did not state a claim and that the trial court erred by entering a default judgment against her was dismissed where her motion in the trial court was on other grounds. Defendant moved in the trial court to set aside the default judgment on the grounds that service of process was improper rather than any argument that plaintiffs' complaint failed to state a claim against her.

3.

Judgments -- refusal to set aside default judgment for all parties -- judgment not illogical or unjust The trial court did not err by not setting aside a default judgment against defendant when it set aside a default judgment against a co-defendant, Leroy Jenkins. Defendant and Jenkins were jointly and severally liable, not jointly liable, and the eventual summary judgment in favor of Jenkins did not necessarily render judgment against defendant illogical or unjust. Even assuming arguendo the Frow principle, Frow v. De La Vega, 82 U.S. 552, 554(1872), could apply on these facts, defendant failed to show any error.

NO. COA12-416 NORTH CAROLINA COURT OF APPEALS Filed: 18 December 2012 DEYLAN T. GRIER by and through his guardian ad litem, LESLIE A. BROWN and LESLIE A. BROWN, individually, Plaintiffs-Appellees, v. DONNA L. GUY, ROBIN JENKINS and LEROY JENKINS, JR., Defendants-Appellants. Appeal by Defendant Robin Jenkins from judgment entered 19 February 2009 and order entered 19 January 2010 by Judge Robert P. Johnston and judgment entered 21 December 2011 by Judge H. William Constangy in Mecklenburg County Superior Court. in the Court of Appeals 11 September 2012. Price, Smith, Hargett, Petho & Anderson, by Wm. Benjamin Smith; Archibald Law Office, by C. Murphy Archibald, for Plaintiffs-Appellees. Allen, Kopet & Associates, P.L.L.C., by Glenn E. Miller, Jr., for Defendants-Appellants. McGEE, Judge. Only Defendant Robin Jenkins (Defendant) appeals from a Heard Mecklenburg County No. 08 CVS 1723

default judgment and an order denying her Motion to Set Aside

-2Default Judgment. For the reasons stated below, we affirm in

part and dismiss in part. On or about 17 February 2006, Plaintiff Deylan T. Grier (Grier) allegedly suffered severe burns to his person while in the care of Defendant Donna L. Guy (Guy). Plaintiffs allege

that the injury occurred at 9400 Lake Spring Avenue, Charlotte, North Carolina, Leroy Rp 31. a home owned Jr. by Defendant and her husband, is Guy's

Defendant mother.

Jenkins,

(Jenkins).

Defendant

Jenkins is Guy's stepfather.

Grier, through

his mother, Leslie A. Brown (Brown), as his guardian ad litem, filed a complaint in Mecklenburg County Superior Court on 25 January 2008. Plaintiffs alleged negligent and willful and

wanton injury by Guy. alleged Jenkins' a claim home.1 of In

Against Defendant and Jenkins, Plaintiffs negligent her entrustment of Defendant's Brown sued and to

individual

capacity,

recover medical expenses incurred on behalf of Grier. A sheriff's deputy hand-delivered a copy of Plaintiffs'

complaint and summons to Guy at the Lake Spring Avenue home on 1

1

We note that we can find no case where the negligent entrustment of real property has been recognized as a cause of action in North Carolina. However, because Defendant does not argue on appeal that there is no such cause of action in North Carolina, she has abandoned this argument. N.C.R. App. P. 28(b)(6). For the purposes of this appeal we assume, without deciding, that such a cause of action does exist.

-3February complaint 2008. and The deputy for also left a and copy of Plaintiffs' with Guy.

summons

Defendant

Jenkins

Defendant and Guy both resided at the Lake Spring Avenue home at the time of service. Avenue home at the Jenkins did not reside at the Lake Spring time she of service. According of to Guy's for

affidavit,

although

accepted

service

process

Defendant, she did not remember giving Defendant the documents. Guy did, however, inform Defendant that someone from the

sheriff's office had stopped by the house looking for Jenkins, and had left some papers. After Defendants failed to file a responsive pleading

within the time allowed, the Clerk of Superior Court entered an entry of default against Guy, Jenkins, and Defendant on 24

September 2008. against Guy,

The trial court granted a judgment by default and Defendant on 19 February 2009,

Jenkins,

awarding medical expenses, compensatory damages, and punitive damages to Plaintiffs. Counsel for all three Defendants filed a motion to set

aside the default judgment pursuant to Rule 60 of the North Carolina Rules of Civil Procedure on 1 December 2009. On 19

January 2010, without objection from Plaintiffs, the trial court set aside the default judgment as to Jenkins due to the failure

-4to properly serve process upon Jenkins. the motion as to Guy and Defendant, The trial court denied finding no mistake,

inadvertence, or excusable neglect. Jenkins, through an attorney different from the one who had argued the Rule 60 motion, filed an answer to Plaintiffs'

complaint on 5 August 2010.

Jenkins subsequently filed a motion The trial court granted on 21 December 2011.

for summary judgment on 9 May 2011. summary judgment in favor of Jenkins

Defendant appeals. I. Defendant first argues that the trial court erred in

denying Defendant's motion to set aside the default judgment under Rule 60(b) on the grounds of mistake, inadvertence,

surprise, or excusable neglect.

We disagree.

Since Defendant's

brief discusses only the ground of excusable neglect, we confine our analysis to this ground. See N.C.R. App. P. 28(a) ("The

scope of review on appeal is limited to issues so presented in the several briefs."). N.C. Gen. Stat.

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