Smith, In re, 798SC719

• Decision Date: 19 February 1980
• Docket Number: No. 798SC719,798SC719
• Citation: 45 N.C.App. 123,263 S.E.2d 23
• Parties: In re Contempt Procedure of Talbot Michael SMITH.
• Court: North Carolina Court of Appeals

Page 23

263 S.E.2d 23

45 N.C.App. 123

In re Contempt Procedure of Talbot Michael SMITH.

No. 798SC719.

Court of Appeals of North Carolina.

Feb. 19, 1980.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Charles M. Hensey, Raleigh, for the State.

Loflin, Loflin, Galloway & Acker by Thomas F. Loflin III and James R. Acker, Durham, for respondent-appellant.

HARRY C. MARTIN, Judge.

This appeal presents several questions for our consideration. First, does N.C.G.S. 84-4.1 contemplate Talbot Smith's being able to make his motion for admission for a limited purpose as an out-of-state attorney conditional upon a specific occurrence? We answer this question in the negative.

On 31 October 1978 Stephen Smith, a North Carolina attorney appearing in a limited representative capacity for defendant Atkinson, submitted to Judge Ferrell a motion signed by Talbot Smith, a Michigan lawyer, for admission for a limited purpose as an out-of-state attorney pursuant to N.C.G.S. 84-4.1. Supporting statements required by the statute accompanied the motion. Judge Ferrell announced he would rule on the motion "in due course." On 17 November 1978, Stephen Smith filed a renewed motion on behalf of Talbot Smith, with a request for immediate hearing. This motion, not signed by Talbot Smith, contained the following language:

11. . . . Stephen T. Smith is further informed by Talbot Smith and Richard Mazer that their renewed motions for limited practice are conditioned upon the court continuing the trial of this case for a minimum of eight weeks so that said attorneys may have an opportunity to properly prepare for the trial of this case after their admission to this case.

12. Furthermore, Stephen T. Smith is informed by Talbot Smith and Richard Mazer that if the court will not continue the trial of this case for a minimum of eight weeks from the date it rules on the renewed motions for limited practice, that said renewed motions for limited practice shall be deemed to have been withdrawn by Talbot Smith and Richard Mazer.

WHEREFORE, Defendant prays the Court that:

1. It reconsider its previously entered order denying the motions for limited practice by Talbot Smith and Richard Mazer and permit said attorneys to represent the defendant as trial counsel herein contingent upon the trial of this case being continued for a period of not less than eight weeks from the date the court grants the renewed motions for limited practice by out of state attorneys.

The inclusion of this condition was apparently prompted by testimony of counsel for codefendants in Atkinson's case, given at a hearing on 30 October 1978, to the effect that it would take eight weeks from the receipt of discovery materials to prepare for trial.

We do not think that N.C.G.S. 84-4.1 permits an out-of-state attorney to move for admission for a limited purpose in North Carolina on a conditional basis. Although the statute does not contain a specific prohibition against a conditional application, one of its requirements is that the movant "shall attach to his motion a statement that unless permitted to withdraw sooner by order of the court, he will continue to represent his client in such proceeding until the final determination thereof, . . .." N.C.Gen.Stat. 84-4.1(3). This requirement calls for a firm commitment from the movant which is contrary in spirit to a conditional application for admission for a limited purpose. We think the judge who considers such a conditional motion can treat the condition as a nullity, especially when the facts are similar to those in this case. Talbot Smith had already submitted a motion for admission for a limited purpose on 31 October. Judge Ferrell had not yet ruled on that motion when Stephen Smith filed a renewed, conditional motion on 17 November 1978. This conditional motion was not signed by Talbot Smith. Judge Ferrell was correct in disregarding the conditional motion and continuing to consider the motion of 31 October.

Our next inquiry is to determine whether Judge Ferrell's letter of 6 December 1978 was a sufficient "order" in response to Talbot Smith's motion of 31 October. For the following reasons we think that it was.

An order is a mandate, precept, command or direction authoritatively given by a court or judge. Black's Law Dictionary 1247 (4th ed. rev. 1968). As a general rule, some entry or record of an order is made. 56 Am.Jur.2d Motions, Rules, and Orders § 38 (1971). These fundamental requirements were complied with here.

When Judge Ferrell wrote to Atkinson on 6 December 1978, he sent a copy of the letter to Talbot Smith and filed a copy for the record 8 December 1978. The letter contained the following response to Talbot Smith's motion for admission for a limited purpose:

I am concerned that your Sixth Amendment Constitutional rights and Due Process guarantees are protected to the fullest extent. Since you told me in open court that you desire Mr. Talbot Smith and Mr. Richard Mazer to represent you, and due to the nature and seriousness of the charges against you, and, since Mr. Talbot Smith obviously has expended considerable efforts over a long period of time in preparing your cases for trial, I am, in my discretion, now waiving the requirements of North Carolina counsel, and do now hereby allow the Motion of Mr. Talbot Smith and Mr. Richard Mazer to appear for you and represent you in the trial of your cases.

As you are aware, the cases are scheduled for trial in Wayne County, North Carolina, beginning January 3, 1979. You are hereby advised, therefore, that the cases will stand for trial at that time with counsel of your choice, Mr. Talbot Smith and Mr. Richard Mazer now being formally admitted to the North Carolina court for the general purpose of representing you at the trial of your cases, and any subsequent proceedings.

The following instruction to Talbot Smith was also included:

I am by copy of this letter addressed to your counsel at the addresses listed in their petitions advising them of the ruling of the court, and instructing them that the cases will be called for trial at the appointed session of court beginning January 3, 1979.

The court, in writing, ordered Talbot Smith to appear on 3 January 1979. Furthermore, in a letter to Talbot Smith dated 19 December 1978 and also filed in the case, the judge informed him that any motion to continue Atkinson's case would be determined in open court 3 January 1979. The letter concluded: "Should the cases not be continued, you and Mr. Smith, pursuant to your affidavit to remain in the case, will be expected to represent Mr. Atkinson on the trial of his cases commencing January 3, 1979."

Having decided that Judge Ferrell's letter was a sufficient order, we must make a further inquiry into its nature. This is crucial, for Talbot Smith's duty to obey Judge Ferrell's order to appear for Atkinson's trial on 3 January 1979 depended upon whether it was lawful. Willful disobedience of an order which is void for lack of jurisdiction cannot be made the basis for contempt proceedings. In re Burton, 257 N.C. 534, 126 S.E.2d 581 (1962); Patterson v. Patterson, 230 N.C. 481, 53 S.E.2d 658 (1949). But disobedience of an order made by a court within its jurisdiction and power is a contempt, although the order may be clearly erroneous. State v. Sawyer, 223 N.C. 102, 25 S.E.2d 443 (1943).

We hold that Judge Ferrell's order to Talbot Smith was not void. It was a response to Smith's original motion for admission for a limited purpose which the judge had deferred ruling on. Respondent takes no exception to the judge's conclusion:

(4) That the Court deferred ruling on the original application for limited practice for the sole reason that local counsel had not been retained for the entire trial as required by GS 84-4.1.

Clearly Judge Ferrell had jurisdiction and power to respond to that motion.

Respondent argues that Judge Ferrell had no "lawful authority" to direct Talbot Smith to appear on 3 January 1979 to represent Atkinson while he did not have the benefit of assistance of North Carolina counsel. This argument raises directly the question whether a judge can, within his discretion, waive the requirement of local counsel found in subsection (5) of N.C.G.S. 84-4.1.

It is true that the statute contains the strict admonition that an out-of-state attorney may be admitted to practice on a limited basis in North Carolina "only upon compliance with the following conditions precedent." Five conditions are then listed, and one of these reads:

(5) He shall attach to his motion a statement to the effect that he has associated and has personally appearing with him in such proceeding an attorney who is a resident of this State and is duly and legally admitted to practice in the General Court of Justice of North Carolina, upon whom service may be had in all matters connected with such legal proceedings, or any disciplinary matter, with the same effect as if personally made on such foreign attorney within this State.

Subsection (6) then grants the court discretionary power to allow or reject the application even after all the conditions have been complied with. The statute is silent as to whether the court may, within its discretion, waive any of the conditions.

In State v. Scarboro, 38 N.C.App. 105, 247 S.E.2d 273, Disc. rev. denied, 295 N.C. 652, 248 S.E.2d 256 (1978), Cert. denied, 440 U.S. 938, 99 S.Ct. 1286, 59 L.Ed.2d 497 (1979), the trial court did not require written motions under N.C.G.S. 84-4.1 and, more pertinently, defense counsel from Alabama did not associate local counsel for the trial. Defendant argued on appeal that the court erred in allowing out-of-state counsel to appear without strictly complying with the statute. This Court held that there was no error, finding that defendant had desired Alabama counsel and did not object to their competency. The Court stated that the statute upon which defendant relied was not designed for his protection.

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