Answers, Appearances, and General Appearances: Important Distinctions for Avoiding Default by Joseph Laizure

I have written before about entry of default and default judgments under G.S. 1A-1, Rule 55. My colleagues have also written about general appearances. But the word “appearance” in the default judgment context can be perplexing, so this post aims to untangle this and other often-confused terms. For simplicity, this post will refer to the party seeking default judgment as the plaintiff and the party against whom default has been entered as the defendant, but defendants can also seek default judgments against plaintiffs on counterclaims. Rule 55(e).

A refresher on answers and entry of default

An answer is the required responsive pleading to a complaint. G.S. 1A-1, Rule 7(a). It contains admissions and denials. G.S. 1A-1, Rule 8(b). It can also contain affirmative defenses. Rule 8(c); see also G.S. 1A-1, Rule 12(b). An answer must be served within thirty days of the defendant being served with the summons and complaint. Rule 12(a)(1). If the defendant fails to plead after thirty days, the plaintiff can move the clerk to enter default. G.S. 1A-1, Rule 55(a). After a clerk has entered default against a defendant, the plaintiff is entitled to seek default judgment.[1] In some situations, the clerk of superior court can enter the final judgment of the court. Rule 55(b) authorizes the clerk to do so when (i) the defendant has not appeared in the action, (ii) the defendant is not incompetent or an infant, and (iii) the judgment requested is for a sum certain. A sum certain means more than the plaintiff asking for a specific number—the case law requires that there be evidence that supports the calculation. See Unifund CCR Partners v. Loggins, 270 N.C. App. 805, 810 (2020) (plaintiff’s affidavit and verified complaint allowed the clerk to calculate the amount of the claim as a sum certain, including interest and attorney’s fees); see also Unifund CCR Partners v. Young, 282 N.C. App. 381, 390 (2022) (clerk’s judgment not void on “nearly identical facts” as in Loggins). Let’s assume the judgment would be for a sum certain and the defendant is not an infant or incompetent requiring the appointment of a guardian ad litem under G.S. 1A-1, Rule 17(b) or another representative. In that case, the clerk can enter default judgment if the defendant has not appeared.

What is an appearance and why does it matter?

An appearance in this context occurs when the defendant files pleadings, motions, or responses with the court, but also occurs when the “defendant takes, seeks, or agrees to some step in the proceedings that is beneficial to himself or detrimental to the plaintiff.” Roland v. W & L Motor Lines, Inc., 32 N.C. App. 288, 289 (1977). Once the defendant has appeared, the clerk of superior court no longer has jurisdiction to enter a default judgment. Instead, the default-judgment seeking plaintiff must bring the motion before a judge. This is important for litigants who want a trial on the damages or who want time to move the court to set aside entry of default. Here’s where litigants sometimes trip themselves up. An appearance for the purpose of the clerk’s jurisdiction regarding default judgments is not the same thing as a general appearance for the purpose of the court’s personal jurisdiction over the defendant. A general appearance, as I have written about in this post, is almost any request of the court other than a motion for extension of time to plead or a motion to dismiss that includes some objection to personal jurisdiction, sufficiency of process, or sufficiency of service of process. Slattery v. Appy City, LLC, 385 N.C. 726, 731 (2024). When a defendant makes a general appearance, they waive their objections to service of process and personal jurisdiction. Id. All general appearances are appearances: they are all steps in the litigation beneficial to the defendant that divest the clerk of superior court of jurisdiction to enter a default judgment. But not all appearances are general appearances. A motion to extend time to answer, for instance, will prevent a later default judgment from being entered by the clerk, but will not be a general appearance that waives the defendant’s objections to personal jurisdiction. It sometimes happens that a clerk will enter default against a party, and then that party, eager to avoid final judgment by the clerk, will file an answer to ensure that the motion for default judgment comes before a judge. When the party does so, they make both an appearance and a general appearance, waiving objections to personal jurisdiction if they do not raise them within the answer. While an appearance prevents final default judgment from being entered by the clerk, an appearance will not prevent entry of default. To prevent entry of default, a defendant must file an answer.

What counts as an answer?

Filing an answer, even if the answer is late, prevents entry of default. Peebles v. Moore, 302 N.C. 351 (1981). In some situations, even a deficient answer will do. For instance, an answer filed by an attorney not licensed in North Carolina makes entry of default inappropriate. N. Carolina Nat. Bank v. Virginia Carolina Builders, 307 N.C. 563, 567–68 (1983). That does not mean the answer itself is invulnerable to attack—it may still be challenged by a motion to strike, and if that motion is successful, default may be entered. Id. at 568. Answers also do not need to be formal: a letter written to the court denying the allegations in the complaint has been held to be an answer. Brown v. Am. Messenger Servs., Inc., 129 N.C. App. 207, 213 (1998) (holding the letter of a shareholder in response to a complaint seeking to establish his personal liability is an answer).

Corporate defendants cannot answer without an attorney

One important deficiency turns a filed document, even one labeled “Answer,” into a failure to respond: a corporation cannot file an answer without being represented by an attorney. This conclusion follows from the rule that, with narrow exceptions, corporations cannot represent themselves in North Carolina courts. G.S. 84-5. Instead, they must act through their agents. In court that means they must retain an attorney to represent the corporation. What happens, then, if a corporation attempts to file an answer without an attorney? Several recent cases have considered this question. In Sheng Yu Ke v. Heng-Qian Zhou, 256 N.C. App. 485 (2017), two defendants were served with the summons and complaint: an individual and the corporation owned by that individual. The individual defendant filed an answer and intended it to be effective both for himself and the corporation. The clerk entered default against the corporation, and on appeal, the corporation, now represented by an attorney, argued that language within Lexis-Nexis, Div. of Reed Elsevier, Inc. v. Travishan Corp., 155 N.C. App. 205 (2002), allowed corporations to avoid default by having a corporate officer appear in court. The North Carolina Court of Appeals in Sheng Yu Ke stated that Lexis-Nexis does not make that holding. Sheng Yu Ke, 256 N.C. App. at 489. The precise rule is that “an officer could make an appearance for a corporation in order to require that any default judgment be entered by a judge and not by the clerk of court.” Sheng Yu Ke, 256 N.C. App. at 489 (emphasis in original). A purported answer filed by someone other than an attorney on behalf of a corporation is “not a valid response” to the complaint. Id. at 490. In another case involving a non-attorney filing a document with the court that purported to be on behalf of a corporation, the North Carolina Court of Appeals characterized that document not as an answer but as an invalid response to a complaint that did not meet the requirements of an answer. Bodie Island Beach Club Ass’n, Inc. v. Wray, 215 N.C. App. 283, 290 (2011). The document therefore did not count as a pleading and did not prevent entry of default. In other words, a corporation without an attorney can appear but cannot answer.

Takeaways for litigants

To prevent entry of default, a defendant must file an answer. Corporate defendants must retain an attorney because any response they file without an attorney will not be considered an answer. If default has already been entered, a defendant can still make an appearance by taking some step in the proceedings that benefits their case or harms the plaintiff’s case. Even a non-attorney individual can make an appearance on behalf of a corporation. When a defendant makes an appearance, any motion for default judgment must be heard by a judge and not by the clerk of superior court. Finally, a defendant that wants to object to personal jurisdiction or service of process must do so at the first opportunity. Otherwise, that defendant makes a general appearance and waives those objections.     [1] Default judgment is not the only procedure available to the plaintiff at this stage in the litigation. The plaintiff could also seek summary judgment under G.S. 1A-1, Rule 56 or even a bench or jury trial on the issue of damages.