Rossi v. Spoloric

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA15-728

Filed: 5 January 2016

Dare County, No. 14 CVS 390

MICHAEL J. ROSSI and JAMES D. ROSSI, Plaintiffs,

ROBERT J. SPOLORIC, Defendant.

Appeal by defendant from order entered 5 February 2015 by Judge J. Carlton

Cole in Dare County Superior Court. Heard in the Court of Appeals 3 December 2015.

Gray & Lloyd, LLP, by E. Crouse Gray, Jr., for plaintiff-appellees.

Phillip H. Hayes for defendant-appellant.

TYSON, Judge.

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.

I. Background

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.
ROSSI V. SPOLORIC

Opinion of the Court

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

-2-
ROSSI V. SPOLORIC

Opinion of the Court

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

-3-
ROSSI V. SPOLORIC

Opinion of the Court

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.

II. Issues

-4-
ROSSI V. SPOLORIC

Opinion of the Court

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.

III. Motion to Continue

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.

A. Standard of Review

“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

-5-
ROSSI V. SPOLORIC

Opinion of the Court

reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)

(citation omitted).

B. Analysis

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.

-6-
ROSSI V. SPOLORIC

Opinion of the Court

IV. Motion to Introduce Defendant’s Affidavit

Defendant contends the trial court erred in denying his motion to introduce his

affidavit. We disagree.

A. Standard of Review

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).

B. Analysis

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).

-7-
ROSSI V. SPOLORIC

Opinion of the Court

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. Ins. Co. v. Chantos, 21

N.C. App. 129, 130, 203 S.E.2d 421, 423 (1974). In this case, Defendant made no

request for enlargement of time within to file and serve the affidavit prior to or along

with the filing of his motion for relief, notice of defenses and motion for stay. “If the

request for enlargement of time is made after the expiration of the period of time

within which the act should have been done, there must be a showing of excusable

neglect.” Id. at 131, 203 S.E.2d at 423.

Defendant’s oral motion to allow consideration of his affidavit asserted an

“unanticipated sequence of events” transpired, which required the filing of an

affidavit in lieu of live testimony. Presuming, without deciding, this assertion shows

excusable neglect, the decision to enlarge the time still rested within the sound

-8-
ROSSI V. SPOLORIC

Opinion of the Court

discretion of the trial court, which will not be disturbed absent a showing of an abuse

of discretion.

Defendant argues the trial court failed to follow this Court’s decision in Gillis

v. Whitley’s Disc. Auto. Sales, Inc., 70 N.C. App. 270, 319 S.E.2d 661 (1984) which

would compel the trial court to allow the introduction of his late-filed affidavit. In

Gillis, a contract dispute arose between plaintiff and defendant. Id. at 272, 319 S.E.2d

at 662. The defendant moved for partial summary judgment and a hearing was

scheduled. Id. On the day of the hearing, the plaintiff filed an affidavit, which was

relied upon by the trial court in making its findings of fact and conclusions of law. Id.

at 275, 319 S.E.2d at 665.

On appeal, the defendant contended the affidavit was inadmissible under N.C.

R. Civ. P. 56(c), and admission of the affidavit was error. Id. This Court disagreed

and noted a “trial court may exercise its discretionary powers under [N.C. Gen. Stat.]

§ 1A-1, Rule 6(b) [] to order the time within which to file and serve the affidavits

enlarged if the request is made prior to making the motion[.]” Id. at 276, 319 S.E.2d

at 665 (emphasis supplied). The court held that while the filing of the affidavit on

the day of the hearing “violated the technical requirements” of Rule 6(d), defendant

was not prejudiced and the affidavit was admissible. Id.

Gillis is distinguishable from these facts. In Gillis, the trial court exercised its

discretion to allow the admission of the late-filed affidavit. Id. In this case, however,

-9-
ROSSI V. SPOLORIC

Opinion of the Court

the trial court exercised its discretion to deny the admission of the late-filed affidavit.

As noted supra, the decision to enlarge the time allowed to take an act after the time

prescribed has past, such as the filing of an affidavit, is addressed to the sound

discretion of the trial court and will not be disturbed on appeal absent a showing of

an abuse of discretion. Id. Defendant has not shown, and we do not find, the trial

court’s refusal to allow Defendant’s motion to introduce his affidavit “was so arbitrary

that it could not be the result of a reasoned decision.” Lord, 182 N.C. App. at 644-45,

643 S.E.2d at 32. Defendant’s argument is overruled.

V. Enforceability of the Foreign Judgment

Defendant argues the trial court erred by concluding the Pennsylvania

Judgment is entitled to full faith and credit and is enforceable as any judgment

rendered in this State. He argues Pennsylvania lacked personal jurisdiction over

him, barring enforcement of the judgment in this State.

A. Standard of Review

In questions of personal jurisdiction, this Court “considers only ‘whether the

findings of fact by the trial court are supported by competent evidence in the record;

. . . we are not free to revisit questions of credibility or weight that have already been

decided by the trial court.” Deer Corp. v. Carter, 177 N.C. App. 314, 321, 629 S.E.2d

159, 165 (2006) (citation omitted). “If the findings of fact are supported by competent

evidence, we conduct a de novo review of the trial court’s conclusions of law and

- 10 -
ROSSI V. SPOLORIC

Opinion of the Court

determine whether, given the facts found by the trial court, the exercise of personal

jurisdiction would violate defendant’s due process rights.” Id. at 321-22, 629 S.E.2d

at 165. Objections to personal jurisdiction may be waived by agreement, neglect or

failure to timely object. See Nat’l Equip. Rental, Ltd. v. Szukhent, 375 U.S. 311, 315,

11 L.Ed.2d 354, 358 (1964) (“[P]arties to a contract may agree in advance to the

jurisdiction of a given court”); Montgomery v. Montgomery, 110 N.C. App. 234, 238-

39, 429 S.E.2d 438, 440 (quoting Jones v. Brinson, 238 N.C. 506, 509, 78 S.E.2d 334,

337 (1953)) (“Essentially, a defendant’s consent constitutes his waiving personal

jurisdiction where the courts would not otherwise be able to exercise personal

jurisdiction. The defendant ‘may consent to the jurisdiction of the court without

exacting performance of the usual legal formalities as to service of process’ because

those legal formalities are a personal privilege which the defendant is free to

relinquish.”).

B. Analysis

The Uniform Enforcement of Foreign Judgments Act (“the Act”), N.C. Gen.

Stat. § 1C-1701 et seq., provides “one method whereby plaintiffs may seek the

enforcement in North Carolina of judgments from other states.” Lust v. Fountain of

Life, Inc., 110 N.C. App. 298, 300, 429 S.E.2d 435, 436 (1993) (citation omitted).

Pursuant to the Act, a judgment creditor must file with the clerk of superior court a

“copy of [the] foreign judgment authenticated in accordance with an act of Congress

- 11 -
ROSSI V. SPOLORIC

Opinion of the Court

or the statutes of this State.” N.C. Gen. Stat. § 1C-1703(a) (2013). The introduction

into evidence of a copy of the foreign judgment, authenticated pursuant to Rule 44 of

the Rules of Civil Procedure, establishes a presumption that the judgment is entitled

to full faith and credit. Lust, 110 N.C. App. at 300, 429 S.E.2d at 436.

“In challenging a foreign judgment a defendant has the right to interpose

proper defenses. He may defeat recovery by showing want of jurisdiction either as to

the subject matter or as to the person of defendant. However, jurisdiction will be

presumed until the contrary is shown.” Thomas v. Frosty Morn Meats, Inc., 266 N.C.

523, 525, 146 S.E.2d 397, 400 (citations omitted). “In the absence of such proof, the

judgment will be presumed valid.” Wachovia Bank & Trust Co., N.A. v. Chambless,

44 N.C. App 95, 100, 260 S.E.2d 688, 692 (1979) (citing Dansby v. Insurance Co., 209

N.C. 127, 134, 183 S.E. 521, 525 (1936)).

Here, Plaintiffs filed a properly authenticated copy of the Pennsylvania

Judgment with the Clerk of Superior Court of Dare County on 22 July 2014. This

filing established a presumption for Plaintiffs that the judgment is valid and entitled

to full faith and credit. At the hearing, Defendant’s attorney conceded Plaintiffs had

complied with the statutory requirements for filing and service of the Pennsylvania

Judgment.

After the initial showing by Plaintiffs and the presumption was raised, the

burden rested on Defendant to interpose defenses and present proof to show the

- 12 -
ROSSI V. SPOLORIC

Opinion of the Court

judgment was invalid. Thomas, 266 N.C. at 525, 146 S.E.2d at 400. Defendant

“needed to present evidence to rebut the presumption that the judgment is

enforceable by asserting a defense under [N.C. Gen. Stat.] § 1C-1705(a).” Seal

Polymer Indus.-Bhd v. Med-Express, Inc., USA, 218 N.C. App. 447, 448, 725 S.E.2d

5, 6-7 (2012). Defendant failed to file an affidavit with his motion for relief from

judgment, notice of defenses and motion for stay in compliance with Rule 6(d) of the

Rules of Civil Procedure, failed to seek an enlargement of time to file the affidavit,

and failed to present any evidence at the 26 January 2015 hearing to rebut the

presumption of validity.

At the 26 January 2015 hearing, Defendant’s counsel argued the Pennsylvania

courts lacked personal jurisdiction over Defendant. However, it “is axiomatic that

the arguments of counsel are not evidence.” Basmas v. Wells Fargo Bank, N.A., ___

N.C. App. ___, ___, 763 S.E.2d 536, 539 (2014) (quoting State v. Roache, 358 N.C. 243,

289, 595 S.E.2d 381, 411 (2004)). These “conclusory statement[s] alone [are]

insufficient to establish the affirmative defense of lack of personal jurisdiction.” Seal

Polymer Indus.-Bhd, 218 N.C. App. at 449, 725 S.E.2d at 7.

Defendant failed to present any evidence, either through a properly and timely

filed sworn affidavit, or through evidence or testimony under oath at the hearing, to

overcome the presumption that the Pennsylvania Judgment was entitled to full faith

and credit. Defendant’s argument is overruled.

- 13 -
ROSSI V. SPOLORIC

Opinion of the Court

VI. Conclusion

Defendant failed to show the trial court abused its discretion by denying

Defendant’s motion to continue. Defendant failed to proffer, and we do not find, any

showing that the trial court’s decision was “manifestly unsupported by reason or is

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 was provided more than two months

prior notice of the scheduled hearing on his motions and defenses and chose not to be

present at the hearing.

Defendant’s proposed affidavit failed to comply with Rule 6(d) of the North

Carolina Rules of Civil Procedure. Defendant has failed to show the trial court

abused its discretion in denying Defendant’s oral motion to introduce his late-filed

affidavit in the absence of his personal appearance.

Defendant’s counsel’s arguments regarding Pennsylvania’s lack of personal

jurisdiction over Defendant were not evidence. Defendant failed to present any

evidence to overcome the presumption that the properly filed Pennsylvania Judgment

is entitled to full faith and credit. The hearing was free from errors Defendant

preserved and argued. The judgment of the trial court is affirmed.

AFFIRMED.

Judges STROUD and DIETZ concur.

- 14 -