Gentry v. Hill

290 S.E.2d 777 (1982)

A. E. GENTRY t/a A. E. Gentry Construction v. Daulton H. HILL and wife, Mrs. Daulton H. Hill, t/a Big D Lounge.

No. 8121DC834.

Court of Appeals of North Carolina.

May 4, 1982.

*779 Pettyjohn & Molitoris by Theodore M. Molitoris, Winston-Salem, for plaintiff-appellant.

Hutchins, Tyndall, Doughton & Moore by Thomas W. Moore, Jr. and H. Lee Davis, Jr., Winston-Salem, for defendant-appellee.

HARRY C. MARTIN, Judge.

Plaintiff offers the following arguments in support of his position:

1. Defendant Precious Hill failed to show that counsel of record lacked the requisite authority to consent to the entry of summary judgment against her.

2. Precious Hill failed to show excusable neglect in that she did not give her defense the attention which a person of ordinary prudence usually gives important business.

3. Precious Hill did not have a meritorious defense.

N.C.R.Civ.P. 60 states in pertinent part:

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) Mistake, inadvertence, surprise, or excusable neglect; .... (6) Any other reason justifying relief from the operation of the judgment.

Upon hearing of a Rule 60 motion, the findings of fact by the trial court are conclusive on appeal if supported by any competent evidence. Schloss v. Jamison, 258 N.C. 271, 128 S.E.2d 590 (1962). The granting of the motion is within the sound discretion of the trial court. Greenhill v. Crabtree, 45 N.C.App. 49, 262 S.E.2d 315, aff'd praesumitur pro negante, 301 N.C. 520, 271 S.E.2d 908 (1980); Trucks, Inc. v. Greene, 34 N.C.App. 279, 237 S.E.2d 862 (1977). Appellate review is limited to a determination of whether the court abused its discretion; that is, whether the facts found support the legal conclusion that the party is entitled to relief from judgment for one of the enumerated reasons set out under the rule. In re Snipes, 45 N.C.App. 79, 262 S.E.2d 292 (1980).

Upon the record before us, we find that the evidence amply supports the trial court's findings of fact. Nor has plaintiff excepted to the findings. Therefore, they are conclusive on appeal. Durland v. Peters, Comr. of Motor Vehicles, 42 N.C.App. 25, 255 S.E.2d 650 (1979).

The trial court found as a fact that neither Mr. Daulton nor attorney R. Lewis Ray were agents of Precious Hill and that she never consented to the entry of summary judgment against her. No presumption arises from the mere fact of the marital relationship that a husband is acting as the agent of his wife. Air Conditioning Co. v. Douglass, 241 N.C. 170, 84 S.E.2d 828 (1954). There is, in North Carolina, a presumption in favor of an attorney's authority to act for the client he professes to represent. Greenhill, supra. The burden is on the "client" to rebut the presumption, and if successful, she is entitled to relief *780 from judgment so entered. Bank v. Penland, 206 N.C. 323, 173 S.E. 345 (1934). In Penland, defendant offered evidence tending to show that she had not employed counsel to represent her in the matter of a consent judgment rendered against her; that the attorneys who signed the judgment had not been authorized to do so; that she was not present at the hearing; and that although she had filed an answer denying liability, she neither agreed nor authorized anyone to agree to the judgment. In the case sub judice, defendant's evidence, specifically her affidavit and that of attorney Ray compel the conclusion that Mr. Ray was not authorized to consent to entry of summary judgment against Precious Hill. By so holding, we are not required to rule on the merits of Precious Hill's defense. See Howard v. Boyce, 254 N.C. 255, 118 S.E.2d 897 (1961).

Affirmed.

ROBERT M. MARTIN and WHICHARD, JJ., concur.