Guilford County v. Eller

• Decision Date: 16 October 2001
• Docket Number: No. COA00-1155.,COA00-1155.
• Court: North Carolina Court of Appeals
• Parties: GUILFORD COUNTY, Plaintiff-Appellee, v. Benjamin Samuel ELLER and wife, Brenda Dennis Eller, Defendant-Appellant.

553 S.E.2d 235

146 NC App. 579

GUILFORD COUNTY, Plaintiff-Appellee, v. Benjamin Samuel ELLER and wife, Brenda Dennis Eller, Defendant-Appellant.

No. COA00-1155.

Court of Appeals of North Carolina.

October 16, 2001.

Office of the Guilford County Attorney, by Assistant County Attorney Mercedes O. Chut, for plaintiff appellee.

Mary K. Nicholson, Greensboro, for defendant appellants.

McCULLOUGH, Judge.

Defendants appeal from a memorandum of judgment entered 22 May 2000 and judgment and injunction entered 21 September 2000. The parties stipulated that no evidence was introduced at the trial level, and also that Brenda Eller was not present at the hearing on 22 May 2000. This case involves several properties owned by defendants in Guilford County where defendants maintained junked motor vehicles as defined and prohibited by the respective zoning designation of each of the several properties. Defendants admitted receiving numerous notices of violations and civil penalty citations. A hearing was calendared for 22 May 2000 by plaintiff for summary judgment and to dismiss defendant's counterclaims. By the time of this hearing defendants owed Guilford County over $300,000 in civil penalties.

The parties entered into a consent judgment on 22 May 2000. Defendant Benjamin Eller, the Ellers' attorney, and the County Attorney were present. Defendant Brenda Eller was not present. Defendant Benjamin Eller was placed under oath by the court and read the handwritten memorandum of judgment. When asked if he understood what was happening in the proceedings, defendant answered in the affirmative. All those present signed the memorandum of judgment. The assistant clerk of superior court made the following notation on the docket for 22 May 2000:

Parties advise Court that settlement has been reached. Mr. Eller sworn; Memo of Judgment handed up and read over by Court to Mr. Eller to make sure he has a clear understanding as to what was going on. Memo of Judgment signed and taken downstairs.

The memorandum stated that it constituted an entry of judgment and that further signatures were not necessary. It provided for the County Attorney to hand up a formal written version within three days.

Defendants filed notice of appeal on 21 June 2000 from the memorandum of judgment and a motion to stay the execution of the judgment on 28 June 2000. On 21 September 2000, a formal written judgment of the memorandum of judgment was signed by the court. Defendants again gave notice of appeal on 3 October 2000, specifically from this entry of judgment.

Defendant makes three assignments of error: (1) that the trial court erred in entering a consent judgment without consent of all defendants; (2) that the trial court erred in entering a judgment in which defendants did not receive proper notice; and (3) that the trial court signed the written judgment and thus erred by entering a further judgment not consented to by all the parties and in allowing the appellee's motion to dismiss and for summary judgment.

Defendants' first assignment of error is that the trial erred in entering the consent judgment without consent of all defendants. Our discussion of this assignment of error also applies to defendants' third assignment of error, asserting that it was error for the trial court to sign and enter the written judgment not consented to by all parties.

In Milner v. Littlejohn, 126 N.C.App. 184, 484 S.E.2d 453, disc. reviews denied, 347 N.C. 268, 493 S.E.2d 458 (1997), this Court reviewed the law on consent judgments:

A consent judgment is a contract of the parties entered upon the records of a court of competent jurisdiction with its sanction and approval. It is well-settled that "`[t]he power of the court to sign a consent judgment depends upon the unqualified consent of the parties thereto; and the judgment is void if such consent does not exist at the time the court sanctions or approves the agreement and promulgates it as a judgment.'" "[A] consent judgment is void if a party withdraws consent before the judgment is entered." If a consent judgment is set aside, it must be set aside in its entirety. The person who challenges the validity of a consent judgment, bears the burden of proof to show that it is invalid.

Id. at 187, 484 S.E.2d at 455 (citations omitted).

The record in the present case reveals that only one attorney represented both Mr. and Mrs. Eller at the trial level. Their attorney filed an answer for the Ellers, and filed a motion to dismiss on behalf of Mrs. Eller. He appeared in court on 22 May 2000 and entered into a consent judgment stating, "An Order of Abatement is entered against the Defendants, Mr. and Mrs. Eller ...." and further referred to "The Ellers" throughout the memorandum. It is stipulated by the parties that those present on 22 May 2000 included the County Attorney, the Ellers' attorney and Mr. Eller. Mrs. Eller was not present at the time the consent judgment was entered. On appeal, defendants base their argument that the consent judgment is void solely on the facts that Mrs. Eller was not present and did not sign the memorandum. We hold that these facts alone are insufficient to reverse the trial court's entry of the consent judgment.

In North Carolina, when an attorney acts on behalf of his client, a presumption arises that the attorney so acts within his authority and with the consent of the client. Howard v. Boyce, 254 N.C. 255, 118 S.E.2d 897 (1961). A more precise definition of the presumption can be found in Ledford v. Ledford, 229 N.C. 373, 49 S.E.2d 794 (1948), where the North Carolina Supreme Court said:

"A judgment entered of record, whether in invitum or by consent, is presumed to be regular, and an attorney who consented to it is presumed to have acted in good faith and to have had the necessary authority from his client, and not to have betrayed his confidence or to have sacrificed his right. The law does not presume that a wrong has been done. It would greatly impair the integrity of judgments and destroy the faith of the public in them if the principles were different."

Id. at 375, 49 S.E.2d at 796 (quoting Gardner v. May, 172 N.C. 192, 196, 89 S.E. 955, 957 (1916)). See also Royal v. Hartle, ___ N.C.App. ___, 551 S.E.2d 168 (2001)

("Without his client's consent, an attorney has no inherent authority to enter into a settlement agreement that is binding on his client.").

The case of Nye, Mitchell, Jarvis & Bugg v. Oates, 109 N.C.App. 289, 426 S.E.2d 291 (1993) is instructive. In that case, Mrs. Oates denied that she was bound by a consent judgment on the basis that she had not received proper service and the fact that she had not signed the consent judgment. Id. at 290-91, 426 S.E.2d at 292-93. The Court noted that "the dispositive question is whether the attorneys who signed the consent judgment, representing themselves as the attorneys for Mrs....