Duke Power Co. v. Daniels

Annotate this Case

358 S.E.2d 87 (1987)


No. 8719DC21.

Court of Appeals of North Carolina.

July 21, 1987.

*88 Kluttz, Hamlin, Reamer, Blankenship and Kluttz by Richard R. Reamer, Salisbury, for plaintiff-appellee.

Marvel E. Daniels, pro se.


Even though plaintiff had the burden of proof, the order of summary judgment against defendant was properly entered and we affirm it, since the evidence as to defendant's indebtedness was not only uncontradicted it was highly credible. Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976); Blackwell v. Massey, 69 N.C. App. 240, 316 S.E.2d 350 (1984). For in answering plaintiff's interrogatories defendant admitted under oath that she received electrical service from plaintiff during the period involved and signed a document acknowledging that she owed the bill sued for; there was evidence that the meter at defendant's place worked properly and had been read correctly; and defendant offered no proof of payment, an affirmative defense. 10 Strong's N.C. Index 3d, Payment Sec. 4 (1977). Nevertheless, without the support of an assignment of error so maintaining, as Rule 10, N.C. Rules of Appellate Procedure requires, defendant pointlessly argued in the brief that there was an issue of fact for the jury to try. Another groundless contention, also unsupported by an assignment of error, is that plaintiff's action was not brought by "the real party in interest" as required by Rule 17, N.C. Rules of Civil Procedure, whereas the record indisputably shows that Duke Power Company is the real party in interest and that it, as the plaintiff, brought the action, rather than Trudy Wall, who merely signed the complaint upon plaintiff's behalf. The three assignments of error that defendant did file have no more merit. Indeed, the first one presents nothing for us to determine, since it is a broadside assignment that does not state the question it was intended to raise. Kleinfeldt v. Shoney's of Charlotte, Inc., 257 N.C. 791, 127 S.E.2d 573 (1962). The second assignment is that the case should have been dismissed because "plaintiff, not a natural person, suing in a representative capacity which did not indicate the capacity and authority of the parties bringing the action" violated Rule 9(a), N.C. Rules of Civil Procedure. If we understand the meaning of this indefinitely worded assignment, and we may not, it is based upon a misunderstanding of both Rule 9(a) and the nature of this action. For the action was not brought in a "representative capacity," either by Ms. Wall or plaintiff; it was brought on its own behalf by Duke Power Company, as the record indisputably shows, and Ms. Wall, an agent and employee, merely signed the complaint for plaintiff. *89 That she did not then indicate she was signing as the company's agent and employee was an harmless oversight with no legal consequences. Certainly such a slight discrepancy is not to be equated with the failure of an administrator, guardian, trustee or other representative suing for the benefit of an estate or beneficiary to affirmatively state that fundamental fact and the basis for his authority, as Rule 9(a) requires.

By her other assignment of error defendant contends that none of the courts in which this matter has been litigated ever acquired jurisdiction over it because plaintiff's complaint in the Magistrate's court was signed by its lay agent and employee, Trudy Wall. The argument is that by having its lay employee sign the complaint in the Small Claims Division of our court system, plaintiff corporation practiced law in violation of the provisions of G.S. 84-5; which strikes us as far-fetched and unsound for several reasons. First, we do not believe that a corporation that merely fills in and signs one of the simple complaint forms that the General Assembly itself devised, G.S. 7A-232, and that our clerks of court regularly supply to prospective plaintiffs in small claims actions, is practicing law within the contemplation of G.S. 84-5, the main purpose of which is to prohibit corporations from performing legal services for others. Second, even if such an innocuous act is deemed to technically violate the statute, it is not of such gravity, in our opinion, as to deprive the court of jurisdiction and justify the dismissal of plaintiff's action. Third, in enacting our small claims court system and in devising the simple forms and procedures that are used and followed therein, Article 19, Chapter 7A, N.C. General Statutes, the General Assembly apparently intended, it seems to us, to provide our citizens, corporate as well as individual, with an expedient, inexpensive, speedy forum in which they can process litigation involving small sums without obtaining a lawyer, if they choose to do so. See, Haemmel, The North Carolina Small Claims CourtAn Empirical Study, 9 W.F.L. Rev. 503 (1973). This decision, of course, has no bearing upon litigation in any court but the Magistrate's court, as plaintiff has been represented by counsel since defendant appealed to the District Court.

It is somewhat ironical that defendant largely bottoms her appeal upon plaintiff not being represented by counsel in the small claims court; for the foundationless and misguided course that defendant has followed since she was served with process strongly indicates the need for advice by learned counsel.


COZORT and GREENE, JJ., concur.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.