Carcano v. JBSS, LLC (COA 23-685) 12/19/2023 Limitation on Renewing a Judgement
Chris Burti, Vice President and Senior Legal Counsel

This case looks at the application of the 10-year statute of limitations on renewing judgments in North Carolina as affected by an amendment to the judgment. After discussing the Court of Appeals' analysis of the issues of the case we will summarize with some observations on renewing judgments in North Carolina.

Plaintiffs, James R. Carcano and Carcano Realty Group appealed the trial court's order granting summary judgment in favor of the defendants arguing that the trial court erred in denying their motion for summary judgment and granting summary judgment in favor of the defendants because they had sufficiently pled and filed their complaint within the period of the statute of limitations, and the defendants failed to raise that affirmative defense. The Court of Appeals affirmed in part, reverse in part, and remanded to the trial court.

In a prior civil action, the trial court entered a money judgment (the "Initial Judgment") against Defendants on October 10, 2010, in favor of the plaintiffs in the amount of $95,000.00. That judgment, however, included an erroneous caption in the names of "James R. Carcano and the Carcano Family Trust, LLC." On May 23, 2012, the trial court amended the Initial Judgment (the "Amended Judgment"), listing the plaintiffs as "James R. Carcano and Carcano Realty Group LLC."

The plaintiffs received a $7,000.00 payment on the Amended Judgment from Jason Browder. On April 7, 2022, the plaintiffs filed a complaint (the "Complaint") to "obtain a new Judgment, renewing the [p]rior Judgment for an additional term of ten [] years." The plaintiffs sought to recover the remaining balance of the judgment as of April 1, 2022. The defendants JBSS, David Browder, and Lucy Browder filed a pro se answer asserting that the plaintiffs' claim is barred by the ten-year statute of limitations under N.C. Gen. Stat. § 1-47(1). Defendant Jason Browder was not included in this Answer to the Complaint. The plaintiffs filed a Motion for Summary Judgment (the "Motion") and the trial court entered an order denying the Motion.

In its order, the trial court found, inter alia:

3. The current action was filed on [7 April 2022], ten years after the [Initial J]udgment, but prior to the [A]mended [J]udgment.
4. There is nothing in [the Amended Judgment] to indicate that any motion was filed to amend the [Initial J]udgment, nor anything to indicate that [D]efendants were given notice or an opportunity to be heard about the amendment.
. . . .
6. [P]laintiffs have not set out the legal basis upon which the amendment to the judgment was made, nor cited any authority of the [c]ourt to make such an amendment nineteen months after the [Initial J]udgment. Rule 59(e) of the Rules of Civil Procedure provides that a motion to amend a judgment must be made within [ten] days after the entry of the judgment, which was not done. Rule 60(b)(1) may give authority to amend a judgment to correct the party, however, this provision is limited to one year after the judgment was entered. [P]laintiff[s] do[] not assert the correction was clerical in nature in that [P]laintiff[s] contend[] the statute of limitations should begin after the amended judgment, and the changing of the name of the party in a case, to which is entitled to judgment, would be substantive. Rule 60, however, provides: "A motion under this section does not affect the finality of a judgment or suspend its operation."
7. While it does not appear the case here, even if [P]laintiff[s] contend[] the correction is merely clerical and corrected under Rule 60(a), the amendment again would not affect the finality of the [Initial J]udgment or suspend its operation.
8. The Judge lacked any jurisdiction or authority to enter the amended judgment, [D]efendants were not given notice of its amendment nor the request to have it amended, the amendment was not timely, and the amendment had no affect [sic] on the finality of the original judgment nor suspend its operation.

The plaintiffs' appellate contention was that the entry of the Amended Judgment on May 23, 2012 is the date of entry for the purposes of the ten-year statute of limitations rendering their April 7, 2022 filing of the Complaint timely under N.C.G.S. Section 1-47(1) among the arguments in support of this contention, they contended that the trial court had authority and jurisdiction to enter the Amended Judgment nunc pro tunc. The Court of Appeals states:

As [this]argument is determinative of our statute of limitations analysis, we address this issue. In arguing the trial court had authority and jurisdiction to enter the Amended Judgment, Plaintiffs specifically contend that the trial court had the power to enter the Amended Judgment nunc pro tunc "to ensure the proper order of the court was reflected." Plaintiffs further contend the Initial Judgment did not reflect the order of the trial court because it did not name the proper Plaintiffs, and Plaintiffs therefore could not enforce or collect a judgment to which they were not parties. Plaintiffs' contentions are without merit. (emphasis added)

Under the North Carolina Rules of Civil Procedure, a party's motion to alter or amend a judgment "shall be served not later than [ten] days after the entry of the judgment." N.C. R. Civ. P. 59(e). Under Rule 60(b)(1) of the North Carolina Rules of Civil Procedure, a trial court may correct a party's name that was erroneously designated in the court's judgment or order, but this corrective action may be taken only upon a party's motion, to be brought "not more than one year after the judgment, order, or proceeding was entered or taken." N.C. R. Civ. P. 60(b). A motion made under Rule 60(b), however, "does not affect the finality of a judgment or suspend its operation." N.C. R. Civ. P. 60(b).

The opinion notes that under the Rules of Civil Procedure, a trial court may issue a corrective judgment or order nunc pro tunc without a motion. The Court of Appeals has opined concerning nunc pro tunc orders or judgments:

A nunc pro tunc order is a correcting order. The function of an entry of nunc pro tunc is to correct the record to reflect a prior ruling made in fact but defectively recorded. A nunc pro tunc order merely recites court actions previously taken, but not properly or adequately recorded. A court may rightfully exercise its power merely to amend or correct the record of the judgment, so as to make the court's record speak the truth or to show that which actually occurred, under circumstances which would not at all justify it in exercising its power to vacate the judgment. However, a nunc pro tunc entry may not be used to accomplish something which ought to have been done but was not done.

(citation omitted).

Further, before a court order or judgment may be ordered nunc pro tunc to take effect on a certain prior date, there must first be an order or judgment actually decreed or signed on that prior date. If such decreed or signed order or judgment is then not entered due to accident, mistake, or neglect of the clerk, and provided that no prejudice has arisen, the order or judgment may be appropriately entered at a later date nunc pro tunc to the date when it was decreed or signed.

(citation omitted).

Here, the opinion states that there is no record evidence that the plaintiffs filed a timely motion to amend the Initial Judgment without which the trial court did not have jurisdiction to enter its Amended Judgment under Rule 59(e). Nor was there is anything in the record showing that the plaintiffs moved to amend the Initial Judgment under Rule 60(b), and the Court observes that even if they had, such amended judgments do not affect the finality of the prior judgment. In other words, it can't change the effective date of the original to the date of the amendment.

The Court of Appeals determined that as the trial court had no jurisdiction under Rules of Civil Procedure to enter the Amended Judgment, the only way the trial court could properly enter the Amended Judgment was by entering it nunc pro tunc, "to correct the record to reflect a prior ruling made in fact but defectively recorded. However, the trial court's order included no language indicating it was nunc pro tunc. For an amended judgment to be nunc pro tunc, the prior judgment "must not have been entered 'due to accident, mistake, or neglect of the clerk,' and there is nothing in the Record here that indicates the Initial Judgment was not, in fact, entered."

The Court doubles down on this point:

Even if the trial court did enter the Amended Judgment nunc pro tunc, however, this would actually be to the detriment of Plaintiffs' ultimate argument regarding the statute of limitations. "The function of an entry of nunc pro tunc is to correct the record to reflect a prior ruling made in fact but defectively recorded" and "to make the court's record speak the truth or to show that which actually occurred[.]" See K&S Res., LLC, 284 N.C. App. at 83, 875 S.E.2d at 542 (cleaned up). This function is reflected in this Court's articulation of what is required in a nunc pro tunc judgment - when appropriately entered, a nunc pro tunc judgment is entered "to the date when it was decreed or signed." Whitworth, 222 N.C. App. at 778-79, 731 S.E.2d at 713 (emphasis added). It is therefore evident Plaintiffs misapprehend the function of a nunc pro tunc judgment; if the Amended Judgment here had been entered nunc pro tunc, it would have been dated to 12 October 2010, the date of the Initial Judgment. Although Plaintiffs' argument is that, by filing the Complaint on 7 April 2022, they conformed to the ten-year statute of limitations, their contention concerning nunc pro tunc defeats their argument in its effect. In fact, to have complied with the statute of limitations, Plaintiffs had to file the Complaint by 11 October 2020, and they failed to do so. See N.C. Gen. Stat. § 1-47(1).

The opinion also concludes that even if the trial court had jurisdiction to enter an amended judgment, the plaintiffs' argument that the Initial Judgment did not reflect the order of the court because it did not properly name Plaintiffs was unpersuasive. With ample citation in the opinion, the Court observes that where the identity of a party is clear in a judgment, whether it is a person or corporation, non-confusing misnomer in the party's name is immaterial. This is consistent in other areas of North Carolina law. See; Tomika Inv. v. Macedonia True Vine, 524 S.E.2d 591, 136 NC App. 493 (N.C. App. 2000). This analysis lead the Court of Appeals to determine that since the trial court had no jurisdiction to enter the Amended Judgment, and "the Initial Judgment did not prejudice Plaintiffs' ability to enforce or collect the monetary judgment, the ten-year statute of limitations ran from the date of entry of the final, Initial Judgment - 12 October 2010. See N.C. Gen. Stat. § 1-47(1). Plaintiffs filed the Complaint on 7 April 2022, which was more than ten years following the entry of the Initial Judgment and therefore, after the running of the statute of limitations." This determination led to its conclusion that summary judgment was proper.

As to the plaintiffs' argument that the granting of summary judgment in favor of Defendants Jason Browder and JBSS, as Jason Browder did not file an answer and raise the affirmative defense of statute of limitations, and JBSS is a corporation and may not proceed pro se, the Court agreed only as to Defendant JBSS because the record revealed that they had released their claims as to Jason Browder.

There are several important points to be made with respect to renewing judgments in North Carolina.

1. First, "renewing" the judgment should be considered a poor choice of words as the judgment is not truly renewed. The original judgment itself is an obligation or debt and the action brought to preserve that judgment is actually a new action to enforce that debt. Our North Carolina Court of Appeals citing Reid v. Bristol, 241 N.C. 699, 86 S.E.2d 417 (1955) stated that "there is no procedure now recognized in this State by which a judgment may be 'renewed'" rather, "the only procedure now recognized by which the owner of a judgment may obtain a new judgment for the amount owing thereon is by an independent action on the prior judgment, which independent civil action must be commenced and prosecuted as in the case of any other civil action brought to recover judgment on a debt." Raccoon Valley Inv. Co. v. Toler, 32 N.C. App. 461, 463, 232 S.E.2d 717, 718 (1977).
2. Second, the lien of the new judgment does not relate back to the docketing of the original judgment, does not attach to the property if it has been conveyed to a third party and does not have priority over intervening liens. Springs v. Pharr, 131 N.C. 191, 42 S.E.590 (1902).
3. Third, a partial payment on the judgment does not toll the statute of limitations. Hughes v. Boone, 114 N.C. 54, 19S.E. 63 (1984).
4. Fourth, a renewal action can be brought only once. N.C.G.S. Section1-47(1) (2019)