North Carolina State Bar v. DuMont

• Citation: 52 N.C.App. 1,277 S.E.2d 827
• Decision Date: 19 May 1981
• Docket Number: No. 8010NCSB920,8010NCSB920
• Court: North Carolina Court of Appeals
• Parties: The NORTH CAROLINA STATE BAR v. Harry DuMONT, Attorney.

Page 827

277 S.E.2d 827

52 N.C.App. 1

The NORTH CAROLINA STATE BAR v. Harry DuMONT, Attorney.

No. 8010NCSB920.

Court of Appeals of North Carolina.

May 19, 1981.

Harold D. Coley, Jr., Gen. Counsel, and A. R. Edmonson, Raleigh, for appellee.

Adams, Kleemeier, Hagan, Hannah & Fouts by Charles T. Hagan, Jr. and John P. Daniel, Greensboro, for appellant.

HARRY C. MARTIN, Judge.

At the outset, we note that the order appealed in this case was dated and filed by the Commission on 9 April 1980. Respondent gave immediate notice of appeal, both in the open hearing and in writing. Appeal entries were dated and filed 9 April 1980. On 14 May 1980, he again purported to give written notice of appeal. After having given notice of appeal in open hearing and appeal entries having been entered, respondent cannot thereafter extend the time for filing the record on appeal by giving another notice of appeal, albeit in compliance with Rule 18(d) of the North Carolina Rules of Appellate Procedure. See Rule 3, N.C.R.App.Proc., and Drafting Committee Note thereto; N.C.Gen.Stat. 1A-1, Rule 58. This appeal was filed with this Court on 29 September 1980, twenty-three days beyond the maximum of 150 days for filing appeals. See Rule 12(a), N.C.R.App.Proc. No order by this Court extending time for filing beyond 150 days is contained in the record on appeal. It thus appears from the record on appeal, stipulated to and agreed upon as the record on appeal by respondent's counsel, that this appeal should be dismissed. Rule 12(a), N.C.R.App.Proc.; Pruitt v. Wood, 199 N.C. 788, 156 S.E. 126 (1930); State v. Brown, 42 N.C.App. 724, 257 S.E.2d 668 (1979), disc. rev. denied, 299 N.C. 123, 261 S.E.2d 924 (1980). Nevertheless, an examination of the records of the clerk of this Court, of which we take judicial notice, discloses an order entered 31 July 1980, extending time to file record on appeal beyond 150 days. Appellant failed to include this order in the record on appeal. This is a violation of App.R. 9(b)(1)(ix). We, nevertheless, dispose of this appeal upon its merits.

I.

Respondent first urges that the Commission never obtained jurisdiction over the person of DuMont or over the subject matter of the proceeding. We recognize respondent's argument that as the events in question occurred prior to 1 July 1975, the effective date of the 1975 amendments to Chapter 84 of the General Statutes of North Carolina, his proceeding should be controlled and governed by N.C.G.S. 84-28 as it existed prior to the passage of Chapter 582 of the 1975 Session Laws. Respondent, however, has judicially alleged that this proceeding is governed by the amendments effective 1 July 1975. In his reply to the Commission's motion to consolidate, he alleged "case number 78 DHC 17 is governed by the provisions of Chapter 84 of the General Statutes of North Carolina in effect after 1 July 1975." A party is bound by an allegation contained in his own pleading and may not thereafter take a position contrary thereto. Watson v. Clutts, 262 N.C. 153, 136 S.E.2d 617 (1964); Davis v. Rigsby, 261 N.C. 684, 136 S.E.2d 33 (1964). Respondent cannot now challenge the applicability of the 1975 statute to this proceeding.

Regardless of the foregoing, we hold that the 1975 amendments were appropriately applied to this proceeding. Respondent relies upon the language of Section 13 of the Act: "This act shall become effective on July 1, 1975, and shall apply to all cases, actions and proceedings arising on and after said date." This reliance is misplaced. Had the legislature intended that the 1975 act be limited to causes that arose after 1 July 1975, it would have used such words as "claims," "causes" or "causes of action." Rather, it employed the words "cases, actions and proceedings," evidencing the intent that the act apply to all such lawsuits begun or instituted after 1 July 1975. "Arising," as respondent notes, means beginning, originating or commencing. Thus, it appears that the legislature intended that the act apply to disciplinary hearings commenced after 1 July 1975. It can be assumed that the General Assembly realized that proceedings regarding infractions by attorneys of the disciplinary standards of the profession are not barred by any statute of limitations, and intended that such violations occurring before 1 July 1975 would be addressed in actions, cases or proceedings instituted under the amendments.

This reasoning is supported by the amendments to the Rules and Regulations of The North Carolina State Bar adopted and approved as reported in 288 N.C. 743. There, at page 772, we find:

BE IT FURTHER RESOLVED that these amendments shall become effective upon their approval by the Supreme Court in accordance with Section 84-21 of the General Statutes of North Carolina and shall apply to any grievance pertaining to cases, actions or proceedings received in the office of the Secretary-Treasurer on or after that date.

The Chief Justice stated: "(I)t is my opinion that the same are not inconsistent with Article 4, Chapter 84 of the General Statutes." Id. at 773.

Respondent's argument that application of the procedures contained in the 1975 amendment to his hearing constitutes an ex post facto application of the law is without merit. Constitutional prohibitions of ex post facto legislation apply only to criminal proceedings. Mazda Motors v. Southwestern Motors, 36 N.C.App. 1, 243 S.E.2d 793 (1978), rev'd in part on other grounds, 296 N.C. 357, 250 S.E.2d 250 (1979). See generally 3 Strong's N.C. Index 3d Constitutional Law § 33 (1976); 16A C.J.S. Constitutional Law § 437 (1956). Disciplinary proceedings against attorneys in North Carolina are civil proceedings, not criminal. In re Burton, 257 N.C. 534, 126 S.E.2d 581 (1962); In re Bonding Co., 16 N.C.App. 272, 192 S.E.2d 33, cert. denied, 282 N.C. 426, 192 S.E.2d 837 (1972). The doctrine of ex post facto laws does not apply to attorney disciplinary proceedings. In re Brown, 157 W.Va. 1, 197 S.E.2d 814 (1973); Braverman v. Bar Association of Baltimore City, 209 Md. 328, 121 A.2d 473, cert. denied, 352 U.S. 830, 77 S.Ct. 44, 1 L.Ed.2d 51 (1956); 16A C.J.S. Constitutional Law § 437 at 146 n. 14 (1956).

DuMont further argues that use of the 1975 amendments unlawfully interferes with his vested right to practice law in North Carolina. It is granted that the practice of law is a property right requiring due process of law before it may be impaired. In re Burton, supra; In re Bonding Co., supra. Here, however, the amendments in no way interfere with DuMont's right to practice law. They only establish procedures by which he may be disciplined in the event that he violates the standards of professional conduct. Without some wrongful action on the part of an attorney, the amendments (or the old statute) in no way interfere with an attorney's right to practice law. While the legislature may not destroy or interfere with vested rights, it may enact valid retroactive legislation affecting procedure. Spencer v. Motor Co., 236 N.C. 239, 72 S.E.2d 598 (1952); Byrd v. Johnson, 220 N.C. 184, 16 S.E.2d 843 (1941). There is no vested right in procedure. We find no merit in respondent's contentions that the Commission lacked personal jurisdiction over DuMont, or that there was a lack of subject matter jurisdiction.

II.

Respondent further contends that by the use of the 1975 amendments he was deprived of a jury trial. Under former N.C.G.S. 84-28 the Council of The North Carolina State Bar was to make provision by rules for an attorney to demand trial by jury in the superior court. N.C.Gen.Stat. 84-28(3)(d)(1) (amended 1975). Our Court has held that under this statute an attorney had a right to a jury trial in disciplinary proceedings. In re Bonding Co., supra. If this proceeding had been held prior to 1 July 1975, respondent would have been entitled to demand a jury trial. "It is almost universally held that in the absence of a statute so providing, procedural due process does not require that an attorney have a jury trial in a disciplinary or disbarment proceeding." Id. at 277, 192 S.E.2d at 36. Very few states provide a jury trial in disbarment proceedings. 14 N.C.L.Rev. 374 (1936). As found in Ex Parte Wall, 107 U.S. 265, 289, 2 S.Ct. 569, 589, 27 L.Ed. 552, 562 (1883), "it is a mistaken idea that due process of law requires a plenary suit and a trial by jury, in all cases where property or personal rights are involved." At the time of respondent's hearing, he had no right to jury trial. Due process of law was provided him by the procedure established by the 1975 amendments.

The question, what constitutes due process of law within the meaning of the Constitution, was much considered by this court in the case of Davidson v. New Orleans, 96 U.S. 97 (24 L.Ed. 616) (XXIV., 616); and Mr. Justice Miller, speaking for the court, said: "It is not possible to hold that a party has, without due process of law, been deprived of his property, when, as regards the issues affecting it, he has by the laws of the State, a fair trial in a court of justice, according to the modes of proceeding applicable to such a case."

107 U.S. at 289-90, 2 S.Ct. at 589-90, 27 L.Ed. at 562.

Had attorney DuMont been entitled to a jury trial, the record indicates that he waived it. His answer was filed 2 October 1978, without a demand for jury trial. Thereafter, notice of hearing before the Commission, dated 29 September 1978, was filed. On 2 November 1978, respondent filed motion for trial by jury. He did not request that the cause be transferred to the superior court for trial at regular term. Rule 38(b) of the North Carolina Rules of Civil Procedure requires that request for jury trial be made within ten days after the service of the last pleading directed to issues triable of right by jury. N.C.Gen.Stat. 1A-1, Rule 38(b). The last such pleading was respondent's answer, filed 2 October 1978. Ten days from that date respondent was precluded from demanding a...