concurring.
I concur with the result reached by the majority, but write separately because I disagree with the majority’s conclusion that the entry of the default judgment is the appropriate time to consider timeliness in a Rule 60(b)(6) motion under these circumstances. I would find that the appropriate measuring point occurs when the defendant has first notice of the excess relief unsupported by the complaint.
This Court has held that individual circumstances define “reasonable time” under Rule 60(b)(6). See Nickels v. Nickels, 51 N.C. App. 690, 692, 277 S.E.2d 577, 578 (1981); McGinnis v. Robinson, 43 N.C. App. 1, 8, 258 S.E.2d 84, 88 (1979). This Court has held that a defendant’s filing of a Rule 60(b) motion 15 months after first notice of the judgment and 19 months after filing of the default judgment was reasonable where defendant was unaware that a default judgment had been entered. J & M Aircraft Mobile T-Hangar, Inc. v. Johnston County Airport Auth., 166 N.C. App. 534, 536-38, 603 S.E.2d 348, 350-51 (2004). In J & M Aircraft, this Court found that the defendant’s response was within a “reasonable time” when the defendant “immediately retained counsel, tried to attack the judgment... and filed the Rule 60 motion within 15 months of having notice for the first time *289that there was a. . . judgment against [the defendant].” Id. at 538, 603 S.E.2d at 351.
This Court’s measuring point in J & M Aircraft, is appropriate in instances where a defendant chooses not to respond to a complaint. For example, if a defendant receives plaintiff’s complaint, the contents of which he knows are true, a defendant may choose not to respond and avoid the associated time and expense. In that circumstance the measuring point would be upon service of the entry of default as the defendant is fully aware of the consequences of his or her inaction. However, if the default judgment following the entry of default contains relief in excess of the relief supported by the plaintiff’s case, time should accrue when the defendant becomes aware of the excess relief. As the entry of default is entered before the default judgment, defendant could not possibly be aware of the default judgment’s excess relief. Whether a defendant’s Rule 60(b) motion is timely would be based upon the time between when the defendant becomes aware of the excess relief granted and the filing of defendant’s 60(b) motion.
This Court’s rationale in J & M Aircraft, can be applied in the instant case. In that case, this Court did not focus on the amount of time between the entry of default and the defendant’s response. Instead, the Court focused on the time between when defendant first knew of the contents of the judgment and the defendant’s motion under Rule 60(b) in determining timeliness. Similarly, in the instant case, Vericomm was unaware that the trial court’s judgment provided relief in excess of the relief supported by plaintiff’s complaint upon entry of default. Vericomm learned of the North Carolina judgment, which contained the excess relief, when it was served with “Notice of Entry of Judgment on a Sister State Judgment” on 7 September 2007. On 21 September 2007, Vericomm filed its Motion for Relief from Judgment. Following the rationale from J & M Aircraft in determining reasonable time under these circumstances, a defendant’s first notice of the excessive relief unsupported by the complaint is the appropriate point in time to consider the timeliness of the defendant’s response.
Accordingly, I concur with the majority that under these particular circumstances, Vericomm’s Rule 60(b)(6) motion was timely; however, I would hold that the point of actual notice of the excess relief is the appropriate point in time to consider the timeless of the 60(b) motion in such situations, not the entry of the default judgment as the majority holds.