State ex rel. North Carolina State Bd. of Registration for Professional Engineers and Land Surveyors v. Testing Laboratories, Inc., 8010SC937

• Decision Date: 02 June 1981
• Docket Number: No. 8010SC937,8010SC937
• Citation: 52 N.C.App. 344,278 S.E.2d 564
• Parties: STATE of North Carolina ex rel. NORTH CAROLINA STATE BOARD OF REGISTRATION FOR PROFESSIONAL ENGINEERS AND LAND SURVEYORS v. TESTING LABORATORIES, INC.
• Court: North Carolina Court of Appeals

Page 564

278 S.E.2d 564

52 N.C.App. 344

STATE of North Carolina ex rel. NORTH CAROLINA STATE BOARD OF REGISTRATION FOR PROFESSIONAL ENGINEERS AND LAND SURVEYORS v. TESTING LABORATORIES, INC.

No. 8010SC937.

Court of Appeals of North Carolina.

June 2, 1981.

Bailey, Dixon, Wooten, McDonald & Fountain by Wright T. Dixon, Jr., Raleigh, for plaintiff-appellee.

Clark, Wharton & Sharp by David M. Clark and David R. Maraghy, Greensboro, for defendants-appellants.

VAUGHN, Judge.

By their appeal, defendants seek to have this Court reverse the 3 June 1980 contempt order and vacate the 20 August 1979 consent judgment upon which the contempt was based. In support of their position, defendants have presented arguments that various provisions of General Statutes Chapter 55B and Chapter 89C are unconstitutional, void and unenforceable. They therefore contend that their agreement to restrict their activities in compliance with these statutory provisions is a legal nullity from which no contempt may arise.

The issues raised by defendants are not before us on this appeal. The law of this State is well-settled that a consent judgment cannot be modified or set aside, absent fraud or mutual mistake, without the consent of the parties. King v. King, 225 N.C. 639, 35 S.E.2d 893 (1945). Even with the consent of the parties, a consent judgment may not be later opened, changed or set aside unless the appropriate legal proceeding is instituted. Complex, Inc. v. Furst and Furst v. Camilco, Inc. and Camilco, Inc. v. Furst, 43 N.C.App. 95, 258 S.E.2d 379 (1979). The proper procedure to vacate a consent judgment for fraud or mutual mistake is by an independent action. Hazard v. Hazard, 35 N.C.App. 668, 242 S.E.2d 196 (1978). The proper procedure to set aside the judgment for reasons of want of consent is by a motion in the cause. Overton v. Overton, 259 N.C. 31, 129 S.E.2d 593 (1963). In none of the proceedings below nor on this appeal have defendants made an attempt to allege that they were induced to enter the 20 August 1979 consent order through fraud or mistake or that they did not freely consent to the provisions of the consent judgment at the time of its entry.

We note that the contempt order itself contains a finding of fact that failure to raise questions of constitutionality earlier in the case was due to excusable neglect and the trial judge regarded the constitutional issues argued to the same extent as if initially presented to the court in the answer of defendant corporation or otherwise. The trial court then overruled all objections based upon the United States Constitution or the North Carolina Constitution.

Without deciding the propriety of the trial judge's action, this finding in no way compels an appellate court to adjudge the constitutional questions now raised by defendants. Even were we to declare the statutory provisions to be unconstitutional, this would be of no avail to the defendants' position. Our ...