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162 N.C. App. 545

594 S.E.2d 787

Monteith v. KOVAS

Court of Appeals of North Carolina

Decided February 3, 2004

Court of Appeals of North Carolina · decided 2004-02-03

Cited by 3 later decisions — most recently December 2013

3 state decisions

Relies on 123 N.C. App. 647 - Moore v. Sullivan

Good law ✅— No negative treatment on recordhow we know

Decided 2004-02-03

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ELMORE, Judge.

¶1This case arose out of an oral contract for the installation of a septic system and plumbing work on a cottage. The work was done but never paid for. The company that performed the work sued defendant cottage-owner William John Kovas for payment. Default judgment was entered against the defendant in the sum of $8,809.66, with interest at the legal rate of 8%. Defendant appeals from the order of the trial court striking defendant's Motion for Removal and defendant's Answer.

¶2After the complaint was filed, defendant obtained a thirty-day extension of time to answer. At the expiration of the thirty days, the parties stipulated to another extension of time to file an answer or other responsive pleading. On the date the extension was set to expire, 8 November 2001, the defendant filed a motion to remove the case. On 18 March 2002, plaintiff filed a motion to strike the motion to remove and a motion for entry of default judgment. Plaintiff served notice of hearing for 6 May 2002 on 21 March 2002. On 6 May 2002, defendant filed an answer and the hearing was held. The trial court ordered that the motion to remove and the answer be stricken as untimely filed, and entered a default judgment for the plaintiff. Defendant appeals.

¶3Defendant first assigns error to the trial court's granting of a default judgment in light of the fact that defendant had filed an answer prior to entry of default judgment. We agree.

¶4This case directly parallels the case of Moore v. Sullivan,123 N.C.App. 647, 473 S.E.2d 659 (1996), in which the defendants filed a late answer on the very morning of the hearing on the default judgment motion against them. The trial court in that case, as in this one, struck their answer and filed an entry of default against them, retaining jurisdiction to later determine damages. In the case at bar, the trial court entered a default judgment, a final order disposing of the case. Regardless of that distinction, the outcome is the same. "After an answer has been filed, even if the answer is untimely filed, a default may not be entered." Id. at 649, 473 S.E.2d *788at 660 (citations omitted). In accord with that decision, we reverse.

¶5Because this issue is dispositive, we do not reach the defendant's other assignments of error.

¶6Reversed and remanded.

¶7Judges TIMMONS-GOODSON and HUNTER concur.

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