Daniel v. Moore

BRYANT, Judge

dissenting.

Because I conclude the trial court did not err in not voiding the consent judgment and denying plaintiffs’ motion for a new trial, I respectfully dissent.

In the case sub judice, the trial court found Rhodes consented to the judgment pronounced by the court, and that

Rhodes[] did at one time after September 9, 2002, tell. . . defendants’ attorney that she was no longer representing the plaintiffs, but, thereafter, she continued to confer with ... defendants’ attorney concerning the details of the consent judgment and sent plaintiffs a proposed copy of the consent judgment, which indicates that her representation of them did, in fact, continue, and additionally shows that they, at that time, still consented to the judgment.

In the instant case, the trial court’s findings are supported by competent evidence and thus binding on appeal. See Ledford v. Ledford, 229 N.C. 373, 376, 49 S.E.2d 794, 796 (1948) (if supported by some evidence, the findings of fact made by the trial judge in determining whether a party gave consent to a judgment as entered are binding on appeal); Royal v. Hartle, 145 N.C. App. 181, 182, 551 S.E.2d 168, 170 (2001) (the trial court’s findings when supported by competent evidence are binding on appeal).

*541Moreover, the decision to grant or deny a motion for a new trial lies within the sound discretion of the trial court. Marley v. Graper, 135 N.C. App. 423, 433, 521 S.E.2d 129, 136 (1999). The trial court’s decision in this regard will not be overturned unless the decision was manifestly unsupported by reason. White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985); see Campbell v. Pitt County Mem’l Hosp., 321 N.C. 260, 265, 362 S.E.2d 273, 276 (1987) (‘“an appellate court should not disturb a discretionary Rule 59 order unless it is reasonably convinced by the cold record that the trial judge’s ruling probably amounted to a substantial miscarriage of justice’ ”) (citation omitted).

The record in this case, including the transcript and plaintiffs’ affidavits, indicates Rhodes was in the courtroom during the trial court’s pronouncement of the judgment and consented to it. Plaintiffs however later asserted they were not in the courtroom until the end of the proceeding and therefore did not have an opportunity to hear and object to the findings of fact. Assuming this assertion to be true, it is immaterial to the disposition of this appeal because Rhodes, as plaintiffs’ attorney at the time, consented on their behalf. See Howard v. Boyce, 254 N.C. 255, 263, 118 S.E.2d 897, 903 (1961) (an attorney is presumed to have apparent authority to make representations on behalf of his client). Moreover, the record indicates plaintiffs agreed to the settlement, albeit reluctantly, prior to the pronouncement of judgment.5

The record further shows: Rhodes received Lisa Daniel’s written communications prohibiting Rhodes from (1) approving any written consent judgment and (2) terminating Rhodes’ representation of them; defendants’ attorney was advised by Rhodes’ letter that she no longer represented plaintiffs; defendants’ attorney subsequently received Rhodes’ letter indicating she had reviewed the proposed consent judgment, objected to certain terms, and expressed her anticipation of receiving a modified judgment from defendants’ attorney; Rhodes’ letter (dated 4 October 2002, five days before the trial court signed the consent order) also indicated copies of it would be forwarded to the trial court and plaintiffs; and Rhodes eventually signed the proposed judgment. Plaintiffs however argue Rhodes acted without authority.

*542In North Carolina, a court must consider the following principles when determining whether a consent judgment should be voided:

(1) the general desirability that a final judgment not be lightly disturbed, (2) where relief is sought from a judgment of dismissal or default, the relative interest of deciding cases on the merits and the interest in orderly procedure, (3) the opportunity the movant had to present his claim or defense, and (4) any intervening equities.

Royal, 145 N.C. App. at 183-84, 551 S.E.2d at 171 (citations omitted).

Here, the judgment at issue stated it resolved all issues arising from the lawsuit between the parties and is a final judgment. See Janus Theatres of Burlington v. Aragon, 104 N.C. App. 534, 536, 410 S.E.2d 218, 219 (1991) (“ ‘[a] final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court’ ”) (citation omitted). In addition, the evidence indicates Rhodes acted with the apparent authority of an attorney for plaintiffs.

Apparent authority is that authority which the principal has held the agent out as possessing or which he has permitted the agent to represent that he possesses. “The determination of a principal’s liability in any particular case must be determined by what authority the third person in the exercise of reasonable care was justified in believing that the principal had[] under the circumstances conferred upon his agent.”

Bell Atlantic Tricon Leasing Corp. v. DRR, Inc., 114 N.C. App. 771, 774-75, 443 S.E.2d 374, 376 (1994) (citing Zimmerman v. Hogg & Allen, 286 N.C. 24, 31, 209 S.E.2d 795, 799 (1974)). Rhodes’ discussion with defendant’s attorney about modifications to the consent order and her signing it were acts within the scope of an attorney representing a party. See Howard, 254 N.C. at 263, 118 S.E.2d at 903 (an attorney is presumed to have apparent authority to make representations on behalf of his client). Cf. Heath v. Craighill, Rendleman, Ingle & Blythe, P.A., 97 N.C. App. 236, 243-45, 388 S.E.2d 178, 182-83 (holding the law firm was not liable for investments the client made through a member associate because the investments made were not related to the associate’s legal representation of the client, and the associate did not have apparent authority to make said investments), disc. review denied, 327 N.C. 428, 395 S.E.2d 678 (1990). Therefore, based on her continuing actions on behalf of plaintiffs despite her *543earlier statement to the contrary, defendants’ attorney was justified in believing Rhodes had continuing authority to represent plaintiffs.

By signing the consent order, Rhodes led the trial court to reasonably believe she had authority to enter the consent judgment. Furthermore, despite the allegations in their affidavits, plaintiffs have failed to overcome the presumption that Rhodes had requisite authority to agree to the consent judgment.

In light of the above facts and our legal principles as to consent judgments, I would hold the judgment in this case was properly entered by the trial court.

. In an affidavit, Lisa Daniel admitted that before the pronouncement of judgment, Rhodes twice asked her outside the courtroom to settle the action, and Lisa Daniel said “fine” or “whatever” each time in response to Rhodes. Paul Daniel also stated in his affidavit that at the time, he “shook [his] head up and down while shrugging [his] shoulders” in response to the same request from Rhodes.