Waters v. Qualified Personnel, Inc.

• Decision Date: 24 January 1978
• Docket Number: Nos. 40,73,s. 40
• Court: North Carolina Supreme Court
• Parties: Robert F. WATERS v. QUALIFIED PERSONNEL, INC.

Page 338

240 S.E.2d 338

294 N.C. 200

Robert F. WATERS v. QUALIFIED PERSONNEL, INC.

Nos. 40, 73.

Supreme Court of North Carolina.

Jan. 24, 1978.

Jordan, Wright, Nichols, Caffrey & Hill by William L. Stocks and R. Thompson Wright, Greensboro, for defendant appellee.

EXUM, Justice.

The threshold question in case No. 40, although not argued by either party, is whether an appeal lies from Judge Long's order. If an appealing party has no right of appeal, an appellate court on its own motion should dismiss the appeal ¹ even though the question of appealability has not been raised by the parties themselves. Dickey v. Herbin, 250 N.C. 321, 108 S.E.2d 632 (1959); Rogers v. Brantley, 244 N.C. 744, 94 S.E.2d 896 (1956); Morse v. Curtis, 6 N.C.App. 620, 170 S.E.2d 491 (1969). Concluding that Judge Long's order is not appealable, we hold that the Court of Appeals erred by entertaining and not dismissing on its own motion the purported appeal from the order. ² Concluding further that we improvidently issued our writ of certiorari in Case No. 73, we set aside the writ and deny plaintiff's petition therefor.

The facts are these: On 12 March 1975 plaintiff filed in Guilford Superior Court a complaint, signed by Attorney Lawrence Egerton, Jr., in which he claimed a balance due him of $23,160 with interest on a promissory note executed by defendant. He also claimed defendant corporation was insolvent or in danger of becoming insolvent so that the interests of general creditors would be served by the appointment of a receiver. A purported copy of the note, signed by J. Leon Turner individually and for defendant Qualified Personnel, Inc., was attached to the complaint as Exhibit "A". Plaintiff sought recovery of the amount due on the note and an order directing defendant to show cause why a receiver should not be appointed. Defendant answered denying these allegations and averring by way of defense that the alleged note was neither a corporate obligation nor supported by consideration.

On 5 June 1975 plaintiff moved in a writing signed by Mr. Egerton for summary judgment pursuant to Rule 56. On 10 June 1975 Judge Robert A. Collier, Jr., ordered, over plaintiff's objection, that plaintiff's deposition be taken before the court heard plaintiff's motion for summary judgment. Plaintiff appeared for his deposition on 26 June represented by Attorney Kent Lively, who was not a member of Mr. Egerton's firm. Mr. Lively instructed plaintiff not to answer certain questions, and on 6 August 1975 defendant moved for the imposition of Rule 37 sanctions. Some time thereafter plaintiff requested that this motion for sanctions be set for hearing at the 8 March 1976 Session of Guilford Superior Court. For several months no further action was taken by either party.

On 24 February 1976 defendant moved for summary judgment. Defendant's counsel served this motion on plaintiff by mailing a copy to Mr. Egerton on 25 February 1976. On 3 March 1976 defendant filed in support of the motion an affidavit of Lacy M. Henry to the effect that the by-laws of Qualified Personnel, Inc., required a resolution of the board of directors for the issuance of any evidence of indebtedness and that the note sued on by plaintiff had not been authorized by such resolution. A copy of defendant corporation's by-laws was attached to this affidavit as Exhibit "A". Copies of the affidavit and exhibit were served by mailing them to Mr. Egerton on 3 March 1976.

As originally requested by plaintiff following defendant's motion for Rule 37 sanctions, a hearing had been calendared for the 8 March 1976 Session of Guilford Superior Court. At Judge McConnell's calendar call on 8 March Mr. Lively answered for plaintiff and Mr. William L. Stocks for defendant. Judge McConnell announced that "the case" would be heard later that morning. At 11:43 a.m. on 8 March Mr. Lively filed with the court a reply to defendant's motion for summary judgment, which was signed by Mr. Egerton as "Attorney for Plaintiff." A reply to defendant's Rule 37 motion, signed by Mr. Egerton, was also filed at some time on 8 March.

Although defendant had filed no notice of hearing on its motion for summary judgment, Judge McConnell proceeded to hear this motion at approximately 11:45 a.m. on 8 March. Mr. Lively argued the motion for plaintiff and Mr. Stocks for defendant. Mr. Lively raised no question and made no objection concerning whether plaintiff had received adequate notice of hearing on defendant's summary judgment motion. At the conclusion of the hearing Judge McConnell granted defendant's motion. Summary judgment for defendant was signed and entered at 4:00 p.m. on 8 March.

On 11 March 1976 plaintiff moved to set aside the judgment on the grounds (1) that he was not served with defendant's summary judgment motion at least ten days before the time fixed for hearing as required by Rule 56(c) and (2) that the hearing on 8 March had been calendared for the purpose of considering defendant's motion for Rule 37 sanctions and not its motion for summary judgment. Plaintiff's motion was signed by Robert S. Hodgman of the firm of Egerton & Hodgman.

Plaintiff's motion to set aside the judgment came on for hearing on 11 March 1976 before Judge McConnell with attorneys James B. Rivenbark and Mr. Lively appearing for plaintiff. At this hearing a question, quite a natural one in view of the proceedings just related, arose as to who was in fact plaintiff's attorney of record. Mr. Egerton was not present at this hearing and could not be reached. Following the hearing Judge McConnell found facts and entered the following order on 12 March 1976:

"NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED as follows:

"(1) This case shall be calendared as the first case on the motion portion of the calendar for the March 29, 1976 Civil Session of Superior Court of Guilford County.

"(2) In the event that James B. Rivenbark, Kent Lively and Lawrence Egerton all appear in Court on March 29, 1976 at 10:00 A.M. such hearing as may be appropriate to resolve the question of who is counsel of record for the plaintiff shall be held and such further hearing as may be appropriate may be held on the plaintiff's motion to set aside the judgment.

"(3) Upon the failure of James B. Rivenbark, Kent Lively or Lawrence Egerton to appear before the Court at 10:00 A.M. on March 29, 1976, the plaintiff's motion to set aside the judgment which was entered on March 8, 1976, shall be denied pursuant to this order and without the necessity of further hearing."

The matter was continued by consent until the 17 May 1976 Session when it came on for hearing before Judge Long. Although he heard no evidence, Judge Long made findings of fact substantially as stated above and entered the following order on 24 May 1976:

"THAT UPON THE FOREGOING FINDINGS OF FACT, THE COURT CONCLUDES AS A MATTER OF LAW:

"1. That the undersigned by the order of Judge John D. McConnell dated March 11, 1976, has jurisdiction to hear this matter.

"2. That through and including March 8, 1976, the attorney of record for the plaintiff was Lawrence Egerton, Jr.

"3. That the defendant's Motion for Summary Judgment filed and mailed on February 25, 1976 to the attorney of record for the plaintiff, Lawrence Egerton, Jr., by the defendant's attorney, and the affidavit of Lacy M. Henry in support thereof filed on March 3, 1976 and mailed to the attorney of record for the plaintiff, Lawrence Egerton, Jr., on March 3, 1976, could not have been heard until March 16, 1976 under the provisions of Rule 6 and 56 of the North Carolina Rules of Civil Procedure.

"4. That the plaintiff's attorney of record, Lawrence Egerton, Jr., was not present in Court on March 8, 1976; therefore, there could have been no waiver of notice of hearing of the defendant's Motion for Summary Judgment.

"5. That the Court should not have heard the defendant's Motion for Summary Judgment on March 8, 1976, and the Judgment granting the defendant's Motion for Summary Judgment should be set aside without prejudice to the parties.

"IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED, that the Judgment of the Court by the Honorable John D. McConnell dated March 8, 1976 granting the defendant's Motion for Summary Judgment is set aside and void ab initio without prejudice to the parties to have said matter heard as by law provided, and the Court, pursuant to the responsibility of the Court to see that justice is done, in its discretion, also sets aside the Order of the Honorable John D. McConnell dated March 8, 1976."

From this order defendant attempted to appeal to the Court of Appeals. That court, treating the matter as having been appealed to it as a matter of right, proceeded to consider defendant's attacks on Judge Long's order. In this we think the court erred. We also think there was error in the Court of Appeals' characterization of Judge Long's order as one which, in effect, overruled a decision made by Judge McConnell.

Defendant offered in the Court of Appeals several arguments attacking Judge Long's order of 24 May 1976. Primarily it contended that the order purported to correct errors of law in Judge McConnell's prior rulings and thus violated the rule that one superior court judge cannot modify or vacate for legal error an order or judgment entered by another superior court judge. Defendant also argued that the grounds stated by Judge Long are not sufficient to set aside judgment under Rule 59(e) or Rule 60(b) of the Rules of Civil Procedure. Finally, defendant contended that the appearance and argument of Attorney Kent Lively at the hearing on defendant's summary judgment motion constituted a waiver of the Rule 56(c) requirement that such a motion must be served at least ten days before hearing, and that Judge Long erred in concluding that there was no waiver because counsel of record was not present at the hearing.

In reversing Judge Long's order of 24 May 1976, the Court of Appeals reasoned that Judge Long...