Forman and Zuckerman, P. A. v. Schupak

• Decision Date: 05 September 1978
• Docket Number: No. 7718SC850,7718SC850
• Citation: 38 N.C.App. 17,247 S.E.2d 266
• Court: North Carolina Court of Appeals
• Parties: FORMAN & ZUCKERMAN, P. A. v. Donald SCHUPAK, Eric D. Rosenfeld, and Peter D. Fischbein, Individually and partners trading as Schupak, Rosenfeld & Fischbein.

Page 266

247 S.E.2d 266

38 N.C.App. 17

FORMAN & ZUCKERMAN, P. A. v. Donald SCHUPAK, Eric D. Rosenfeld, and Peter D. Fischbein Individually and partners trading as Schupak Rosenfeld & Fischbein.

No. 7718SC850.

Court of Appeals of North Carolina.

Sept. 5, 1978.

William Zuckerman, Greensboro, for plaintiff-appellee.

Peter D. Fischbein, New York City, pro se and for defendants-appellants.

MITCHELL, Judge.

The defendants' sole assignment of error is directed to the failure of the trial court to remove the plaintiff's motion for judgment by default from the 16 May 1977 calendar. The defendants contend that they were thereby denied due process and rights provided by local court rules.

Due process, of course, requires adequate notice and opportunity to be heard. As the Supreme Court of the United States has specifically stated:

An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. . . . The notice must be of such nature as reasonably to convey the required information . . . and it must afford a reasonable time for those interested to make their appearance . . .. But if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met the constitutional requirements are satisfied.

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314-15, 70 S.Ct. 652, 657, 94 L.Ed. 865, 873 (1950) (citations omitted).

The defendants were originally given notice of the pendency of this action on 6 October 1975. They obviously received this notice as they came into court to contest jurisdiction. A year and a half later, the defendants were given thirteen days' notice of the hearing on the plaintiff's motion for judgment by default. The record on appeal clearly reflects that the defendants had actual notice, as they responded by letter to the clerk raising what they perceived to be violations of the local rules of court. Given these facts, we hold that the notice given the defendants provided them with a reasonable period of time in which to prepare and present their contentions with regard to the plaintiff's motion.

We do not find the defendants' absence from the hearing to have been excused by their purported reliance on their letter to the clerk raising issues concerning the local rules or by their receipt of the plaintiff's later letter to the clerk by way of response. The defendants assumed the dual position of attorneys and clients and were required to give both their personal and professional attention to their business on the docket. They, like other parties to actions before the courts, were required to remain alert in protecting their rights and interests and could not sleep on those rights. School v. Peirce, 163 N.C. 424, 79 S.E. 687 (1913). By failing to appear or to make reasonable inquiry of the court as to whether the matter would be heard on 16 May 1977, the defendants failed to exercise the care and attentiveness required of parties and attorneys in an action before the courts. We hold that the defendants were not denied due process, and this assignment is without merit.

The defendants additionally contend that the trial court committed reversible error by calendaring the plaintiff's motion in violation of local court rules. We find this contention also without merit.

It is true that a judicially evolved rule of administrative law requires executive agencies of...