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Gibby v. Lindsey3/19/2002
PUBLISHED
Appeal by defendant from order filed 15 September 2000 by Judge Dennis J. Winner in Swain County Superior Court. Heard in the Court of Appeals 19 February 2002.
Aaron Lindsey (Defendant) appeals an order filed 15 September 2000 denying his motion to set aside a default judgment against him in the amount of $3,000,000.00.
On 28 July 1999, Russell Gibby, individually and as the executor of the estate of Joshua J. Gibby (Joshua), and Nancy Gibby (collectively Plaintiffs) filed a complaint for the recovery of damages for the wrongful death of their son Joshua. On 26 August 1999, the Swain County Sheriff's Department served the summons and complaint on Defendant by leaving a copy of these documents at the residence of Vicki Craig (Craig), Defendant's mother, with whom Defendant was presumed to be living. The return of service noted the summons and complaint had been served " y leaving [them] at the dwelling house or usual place of abode of [Defendant] with a person of suitable age and discretion then residing therein." On 30 September 1999, the clerk of court signed an entry of default against Defendant. The trial court entered a default judgment in the amount of $3,000,000.00 on 9 February 2000, which it signed on 10 March 2000 and filed 22 March 2000. On 9 March 2000, Defendant filed a motion to set aside the default judgment based on N.C. Gen Stat. ยง 1A-1, Rules 55(d) and 60(b)(1) and (6), alleging Defendant was not served with process. Defendant and Craig submitted to depositions that were subsequently filed with the trial court.
In his deposition, Defendant testified he had moved to South Carolina on or about 1 August 1999 and no longer lived with Craig at the time she accepted the summons and complaint for Defendant at her residence on 26 August 1999. At this time, Defendant was eighteen years old. When Defendant left, he only took some of his clothes with him and did not tell Craig that he was leaving. Defendant stayed in South Carolina with his aunt and uncle and worked at a restaurant before returning to North Carolina several months later to respond to the default judgment against him. Defendant did not have his mail forwarded to South Carolina. In fact, he only received one piece of mail during this time, a birthday card from his grandfather.
Defendant did not have a bank account or any bills until November 1999 when he bought a truck. On 24 January 2000, Defendant obtained a South Carolina driver's license, replacing his North Carolina driver's license that listed Craig's address as his residence. Defendant indicated he considered Craig's residence his "home." He also admitted he had no intentions of staying with his relatives in South Carolina for any length of time.
Craig's deposition testimony revealed that when asked by the deputy serving the summons and complaint if her residence was considered Defendant's "primary residence," she responded "yes." The day after the summons and complaint were left with her, she telephoned the sheriff's department and spoke with Sheriff Bob Ogle (Ogle). Craig told him she was not comfortable having the papers delivered to her because she did not know her son's whereabouts. She asked Ogle what she should do, and Ogle directed her to mail them to the sheriff's department. Craig did not want to mail the papers, so she delivered them personally to the sheriff's department.
On 15 September 2000, the trial court filed an order denying Defendant's motion to set aside the default judgment.
The issues are whether: (I) Defendant presented sufficient evidence to rebut the presumption that he had been served at his "dwelling house or usual place of abode" pursuant to
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