North Carolina State Bar v. Combs

261 S.E.2d 207 (1980)

44 N.C. App. 447

The NORTH CAROLINA STATE BAR v. William T. COMBS, Jr.

No. 7910NCSB581.

Court of Appeals of North Carolina.

January 8, 1980.

*210 McElwee, Hall, McElwee & Cannon by John E. Hall, North Wilkesboro, for defendant-appellant.

H. D. Coley Jr., Raleigh, for plaintiff-appellee.

HILL, Judge.

The defendant attempts to bring forward nine questions for review on appeal.

Rule 10(b)(1) of the Rules of Appellate Procedure provides that:

Any exception which was properly preserved for review by action of counsel during the course of proceedings in the trial tribunal by objection noted or which by rule or law was deemed preserved or taken without any such action, may be set out in the record on appeal and made the basis of an assignment of error.

Absent proper preservation of exceptions, the only questions which may be presented for review in this case are whether the judgment is supported by the findings of fact and conclusions of law and whether the court had subject matter jurisdiction. Rule 10(a), North Carolina Rules of Appellate Procedure.

Ordinarily, any objection to the admission of evidence must be made at the time such evidence is introduced. 1 Strong's N.C. Index 3d, Appeal and Error § 30.1, p. 259. Any objection not taken at *211 the time a question is asked and the answer given is waived, and failure to raise timely objection to such testimony will result in a waiver of the right to contest its admissibility. State v. Hensley, 29 N.C.App. 8, 222 S.E.2d 716 (1976), cert. denied, 290 N.C. 95, 225 S.E.2d 325 (1976); State v. Hunt, 223 N.C. 173, 25 S.E.2d 598 (1943).

The defendant failed to appear at the disciplinary hearing either in person or by counsel, although timely notice was given. Since no objections were made at the hearing below, alleged errors in admission or exclusion of evidence are not assignable as error on appeal unless the evidence sought to be excluded is forbidden by statute. Eaton v. Klopman Mills, Inc., 2 N.C.App. 363, 163 S.E.2d 17 (1968); State v. McKethan, 269 N.C. 81, 88, 152 S.E.2d 341 (1967). Admittedly, there may be rare instances when the appellate court ex mero motu may review a case on its merits, overlooking procedural defects. This case does not come within any of the exceptions.

Appellant Combs contends the judgment of disbarment entered by the Disciplinary Hearing Committee should be reversed, in any event, contending that "the complaint filed in this cause fails to state a claim upon which relief may be granted when the complaint attempts to allege a cause for fraud and deceit when there are no allegations as to specific acts of alleged fraud and/or deceit"; and that, therefore, it was error to enter the judgment upon a complaint which fails to state a cause of action. Appellant was tried for misconduct as defined by Disciplinary Rule 1-102 of the Code of Professional Responsibility.

The complaint filed against the defendant appellant states substantially that said defendant negotiated to sell certain lands to Janice G. Shreve, et vir; that at no time during said negotiations did the defendant advise Janice G. Shreve of the liens and encumbrances against the property; that believing the defendant was acting in good faith, Janice G. Shreve paid and delivered to the defendant the sum of $15,000 in June, 1976; that defendant thereafter in October, 1976 delivered a deed including the property offered to Janice G. Shreve to Anthony R. Combs; that on 10 January 1977, Anthony R. Combs delivered to Janice G. Shreve the tract contracted for by Janice G. Shreve with the defendant; that said tract was subject to liens and encumbrances totalling $448,644.32, of which the defendant had knowledge; that such conduct involved dishonesty, fraud, deceit or misrepresentation that adversely reflects on his fitness to practice law in violation of Disciplinary Rule 1-102(A)(4) and (6) of the Code of Professional Responsibility of the N.C. State Bar. Based on these allegations, we hold the complaint stated a claim upon which relief may be granted.

The "broadside" objection presents only questions of whether the facts, as found, support the judgment and whether errors of law appear on the face of the record. Mayhew Electric Co. v. Carros, 29 N.C.App. 105, 223 S.E.2d 536 (1976). Unless the facts are unsupported by any competent evidence, the court is bound by the findings of fact and will review only the trial court's application of the law to those facts. Hinson v. Jefferson, 287 N.C. 422, 215 S.E.2d 102 (1975).

In this case, the parties stipulated that the defendant failed to file answer to the complaint served on him. The record reflects that the defendant did not appear in person or through counsel at the hearing. Under Rule 14(6) of the Rules and Regulations of the North Carolina State Bar, the allegations of the complaint were deemed admitted.

The committee at the time of hearing, in an abundance of precaution, received evidence in support of the complaint, which evidence was uncontroverted at that time and may not be the subject of exception now. We hold that the findings of fact were based on competent evidence and that there were no errors of law. The conclusions entered subsequent to the hearing support the order of suspension.

For the reasons set out above, the decision of the Hearing Committee is

Affirmed.

MORRIS, C. J., and PARKER, J., concur.