Moore v. Sullivan

473 S.E.2d 659 (1996)

Louis MOORE, Jr., Plaintiff-Appellee, v. Frank and Mary Lou SULLIVAN, Defendants-Appellants.

No. COA95-1075.

Court of Appeals of North Carolina.

August 20, 1996.

*660 Frank Cherry, Wilmington, for plaintiff-appellee.

Peterson & Becker by R. Glen Peterson, Leland, for defendants-appellants.

EAGLES, Judge.

Defendants first argue that the trial court erred in entering a default judgment against them because defendants' answer was filed before the trial court made an entry of default against them. We agree.

In its 8 July 1993 "Entry of Default," the trial court stated that it was entering a judgment by default against defendants. We have previously clarified that when one party fails to file an answer and the trial court enters a judgment determining the issue of liability but ordering a trial on the issue of damages, the judgment is only an entry of default rather than a default judgment. See Bailey v. Gooding, 60 N.C.App. 459, 461, 299 S.E.2d 267, 269, disc. review denied, 308 N.C. 675, 304 S.E.2d 753 (1983); Pendley v. Ayers, 45 N.C.App. 692, 694, 263 S.E.2d 833, 834 (1980). A judgment by default is a final judgment and the trial court's 8 July 1993 order was not a final judgment because the trial court retained jurisdiction of the case to determine the issue of damages.

Here, the record shows that defendants filed an answer to plaintiff's complaint on 6 July 1993. The trial court entered and filed its entry of default against defendants on 8 July 1993. (r at 32) After an answer has been filed, even if the answer is untimely filed, a default may not be entered. N.C.N.B. v. Virginia Carolina Builders, 307 N.C. 563, 567-68, 299 S.E.2d 629, 632 (1983); Peebles v. Moore, 302 N.C. 351, 356, 275 S.E.2d 833, 836 (1981). Accordingly, the trial court erred in entering default against Mary Lou Sullivan for failure to file an answer. We note that in the trial court's entry of default, the trial court stated that "the defendants, Frank and Mary Lou Sullivan have offered no justifiable excuse or explanation for their failure to comply with the Rules of Discovery and the Court finds that the failure to comply was wilful." Plaintiff addressed *661 his interrogatories to Frank Sullivan only. Accordingly, the trial court erred in imposing sanctions on Mary Lou Sullivan for failure to comply with the rules of discovery.

It appears that the trial court sanctioned Frank Sullivan for failure to answer the complaint and for failure to answer plaintiff's interrogatories. Rendering a judgment by default is an appropriate sanction for failure to answer interrogatories. G.S. 1A-1, Rule 37(d). However, in the default judgment situation when a plaintiff has alleged joint liability, a default judgment should not be entered against the defaulting defendant if one or more of the defendants do not default. Instead, "entry of judgment should await an adjudication as to the liability of the non-defaulting defendant(s)." Harris v. Carter, 33 N.C.App. 179, 182, 234 S.E.2d 472, 474 (1977). Because we have determined that entry of default against Mary Lou Sullivan was error, the trial court should have adjudicated Mary Lou Sullivan's liability before determining whether to enter a default judgment against Frank Sullivan. Accordingly, this case must be remanded for the trial court for a hearing regarding Mary Lou Sullivan's liability. We need not address defendants' remaining assignments of error.

Reversed and remanded.

WYNN and SMITH, JJ., concur.