{ "id": 8525233, "name": "NYE, MITCHELL, JARVIS & BUGG, a North Carolina General Partnership v. JOYCE R. OATES, a/k/a JOYCE OATES THOMAS", "name_abbreviation": "Nye, Mitchell, Jarvis & Bugg v. Oates", "decision_date": "1993-03-02", "docket_number": "No. 9214DC149", "first_page": "289", "last_page": "293", "citations": [ { "type": "official", "cite": "109 N.C. App. 289" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "329 S.E.2d 415", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "416-17" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 540", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525289 ], "year": 1985, "pin_cites": [ { "page": "543" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0540-01" ] }, { "cite": "118 S.E.2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1961, "pin_cites": [ { "page": "903" }, { "page": "905" }, { "page": "905" } ], "opinion_index": 0 }, { "cite": "254 N.C. 255", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625781 ], "weight": 2, "year": 1961, "pin_cites": [ { "page": "263" }, { "page": "265" } ], "opinion_index": 0, "case_paths": [ "/nc/254/0255-01" ] }, { "cite": "111 S.E.2d 700", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1959, "pin_cites": [ { "page": "702" } ], "opinion_index": 0 }, { "cite": "251 N.C. 351", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625648 ], "year": 1959, "pin_cites": [ { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/nc/251/0351-01" ] }, { "cite": "278 S.E.2d 575", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "577" } ], "opinion_index": 0 }, { "cite": "52 N.C. App. 299", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170179 ], "year": 1981, "pin_cites": [ { "page": "302" } ], "opinion_index": 0, "case_paths": [ "/nc-app/52/0299-01" ] }, { "cite": "254 S.E.2d 181", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "296 N.C. 740", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571176 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0740-01" ] }, { "cite": "250 S.E.2d 279", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "287" } ], "opinion_index": 0 }, { "cite": "39 N.C. App. 77", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550498 ], "year": 1978, "pin_cites": [ { "page": "89" } ], "opinion_index": 0, "case_paths": [ "/nc-app/39/0077-01" ] }, { "cite": "412 S.E.2d 327", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "330 N.C. 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2508834 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/330/0644-01" ] }, { "cite": "413 S.E.2d 800", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "330 N.C. 612", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2508928, 2511801, 2508713, 2510596 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/330/0612-02", "/nc/330/0612-01", "/nc/330/0612-04", "/nc/330/0612-03" ] }, { "cite": "408 S.E.2d 742", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "745" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 157", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520620 ], "year": 1991, "pin_cites": [ { "page": "161" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0157-01" ] }, { "cite": "358 S.E.2d 47", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 166", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4724867, 4729541, 4725739, 4731630, 4730074 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0166-04", "/nc/320/0166-05", "/nc/320/0166-02", "/nc/320/0166-01", "/nc/320/0166-03" ] }, { "cite": "354 S.E.2d 291", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "294" }, { "page": "294" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 138", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169671 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "141" }, { "page": "142" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0138-01" ] } ], "analysis": { "cardinality": 488, "char_count": 9115, "ocr_confidence": 0.753, "pagerank": { "raw": 1.0240062199271164e-07, "percentile": 0.546147671157662 }, "sha256": "b410a9c1286f6f085aaff4c21a8b0ebb36779242aa1ccf9832a167b0864e7010", "simhash": "1:470be76a74398474", "word_count": 1549 }, "last_updated": "2023-07-14T20:43:31.464788+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and MARTIN concur." ], "parties": [ "NYE, MITCHELL, JARVIS & BUGG, a North Carolina General Partnership v. JOYCE R. OATES, a/k/a JOYCE OATES THOMAS" ], "opinions": [ { "text": "GREENE, Judge.\nPlaintiff Nye, Mitchell, Jarvis & Bugg, a North Carolina general partnership, appeals from the trial court\u2019s order setting aside a consent judgment against defendant Joyce R. Oates.\nJoyce R. Oates (Mrs. Oates) and Timothy E. Oates (Mr. Oates), an attorney, were married in 1970 and separated in 1981. On 3 March 1981, Mr. and Mrs. Oates deeded two condominium units to plaintiff. Mr. and Mrs. Oates were divorced on 5 August 1982.\nAt the time of the delivery of the deed to plaintiff, the plaintiff alleges that the parties agreed that the city and county ad valorem taxes on the two units for the year 1982 would be prorated between them. Plaintiff later learned that city and county ad valorem taxes for the years 1979, 1980, and 1981 had not been paid. Plaintiff paid the taxes for these years and also the full amount of the taxes for 1982. Plaintiff filed a complaint against Mr. and Mrs. Oates on 4 November 1983, seeking as damages the amount of the delinquent taxes plaintiff was forced to pay and the prorated share of the 1982 taxes which plaintiff alleges that Mr. and Mrs. Oates refused to pay. Plaintiff attempted to serve Mrs. Oates, but the summons and complaint were returned unserved and she was not subsequently served with process. On 27 June 1985, Mr. Oates and another attorney, B. J. Sanders (Sanders), signed a consent judgment, each signing as \u201cAttorney for Defendants.\u201d Under the terms of the consent judgment Mr. Oates and Mrs. Oates agreed, jointly and severally, to pay plaintiff the sum of approximately $5,400.00. In that judgment the trial court found as a fact that \u201c[t]his court has jurisdiction over all the parties . . . [to] this action.\u201d Mrs. Oates did not sign the consent judgment.\nOn 14 November 1991, Mrs. Oates filed a motion to set aside the judgment pursuant to N.C.G.S. \u00a7 1A-1, Rule 60(b)(4). In that motion she asserted that the trial court did not have personal jurisdiction over her and that she had not consented to the entry of the judgment. In support of her claim that she never consented to the judgment, Mrs. Oates presented her own and Mr. Oates\u2019 affidavits denying that consent was ever given by Mrs. Oates to the attorneys who signed the consent decree on her behalf. The trial court set aside the judgment against Mrs. Oates after determining that the court entering the consent judgment \u201cdid not have jurisdiction over Joyce R. Oates because she was never served with the summons and complaint in the original cause and she never accepted service of process.\u201d The trial court made no determination on the question of whether the attorneys who signed the consent judgment on behalf of Mrs. Oates had authority to do so.\nThe issues presented are (I) whether defendant\u2019s Rule 60(b)(4) motion to set aside the judgment was timely filed; (II) whether the trial court correctly concluded that plaintiffs failure to serve defendant rendered the court without personal jurisdiction over defendant; and (III) whether the trial court erred in failing to address the issue of the authority of Mrs. Oates\u2019 attorneys to consent to the judgment.\nI\nN.C.G.S. \u00a7 1A-1, Rule 60(b) provides, in pertinent part:\n(b) .... 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:\n(4) The judgment is void;\nThe motion shall be made within a reasonable time . . . .\nN.C.G.S. \u00a7 1A-1, Rule 60(b) (1990). The requirement that the motion be made within a reasonable time is not enforceable with respect to motions made pursuant to Rule 60(b)(4) to set aside a judgment as void, \u201cbecause a void judgment is a legal nullity which may be attacked at any time.\u201d Allred v. Tucci, 85 N.C. App. 138, 141, 354 S.E.2d 291, 294, disc. rev. denied, 320 N.C. 166, 358 S.E.2d 47 (1987); 7 James W. Moore & Jo Desha Lucas, Moore\u2019s Federal Practice \u00b6 60.25[4] (2d ed. 1992).\nMrs. Oates\u2019 motion to set aside the consent judgment, although made more than six years after its entry, is based on the argument that the trial court did not have personal jurisdiction over her. Because a judgment entered without personal jurisdiction over a party is void, In re Finnican, 104 N.C. App. 157, 161, 408 S.E.2d 742, 745 (1991), cert. denied, disc. rev. denied, 330 N.C. 612, 413 S.E.2d 800 (1992), and overruled on other grounds by Bryson v. Sullivan, 330 N.C. 644, 412 S.E.2d 327 (1992), Mrs. Oates\u2019 motion was not untimely.\nII\nIt is undisputed that Mrs. Oates neither accepted service of process nor was served with process. Nothing else appearing, the trial court would be correct in setting aside the judgment because where there is no jurisdiction over the parties, the judgment is void. Allred, 85 N.C. App. at 142, 354 S.E.2d at 294. Because, however, there is an issue of whether she consented to the jurisdiction of the court, the fact that she was not served with process is not dispositive.\nIII\nIf Mrs. Oates consented to the jurisdiction of the court \u201csuch consent operates to prevent the invalidity of the judgment on the ground of absence of jurisdiction over the person.\u201d 46 Am. Jur. 2d Judgments \u00a7 27 (1969); see Swenson v. Thibaut, 39 N.C. App. 77, 89, 250 S.E.2d 279, 287 (1978), disc. rev. denied, 296 N.C. 740, 254 S.E.2d 181 (1979). The fact that Mrs. Oates\u2019 signature does not appear on the consent judgment is not conclusive on the issue of her consent. There is a presumption that the attorneys, who signed the consent judgment and represented themselves to the court as the attorneys for Mrs. Oates, did so with authority and with her consent. In re Certain Tobacco, 52 N.C. App. 299, 302, 278 S.E.2d 575, 577 (1981). Unless this presumption is rebutted, the consent of the attorney to a judgment of the court precludes any challenge by the represented party to the validity of the judgment on the ground of absence of jurisdiction over the person. See 46 Am. Jur. 2d Judgments \u00a7 27. The party challenging the actions of the attorney as being unauthorized has the burden of rebutting the presumption, Owens v. Voncannon, 251 N.C. 351, 354, 111 S.E.2d 700, 702 (1959), and absent estoppel by that party, a determination by the trial court that the presumption is rebutted destroys the essential element upon which the validity of the judgment depends. See Howard v. Boyce, 254 N.C. 255, 263, 118 S.E.2d 897, 903 (1961). The party attacking the validity of a judgment for want of consent is not required to show a meritorious defense as a prerequisite to vacating the judgment. Howard, 254 N.C. at 265, 118 S.E.2d at 905. Although \u201cpositive acts amounting to ratification, or unreasonable delay after notice, resulting in prejudice to innocent parties would under certain circumstances work an estop-pel,\u201d mere lapse of time between the entry of the consent judgment and the motion to set it aside will not. Id. at 266, 118 S.E.2d at 905.\nAccordingly, in this case the dispositive question is whether the attorneys who signed the consent judgment, representing themselves as the attorneys for Mrs. Oates, had the authority to appear and approve a judgment on behalf of Mrs. Oates. The trial court did not address that issue, even though it was properly before that court. This was error and requires reversal and remand for determination of this issue. Lynch v. Lynch, 74 N.C. App. 540, 543, 329 S.E.2d 415, 416-17 (1985).\nReversed and remanded.\nJudges JOHNSON and MARTIN concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Nye, Pkears & Davis, by William J. Wolf and C. Howard Nye, for plaintiff-appellant.", "Poe, Hoof & Reinhardt, by G. Jona Poe, Jr., for defendant-appellee." ], "corrections": "", "head_matter": "NYE, MITCHELL, JARVIS & BUGG, a North Carolina General Partnership v. JOYCE R. OATES, a/k/a JOYCE OATES THOMAS\nNo. 9214DC149\n(Filed 2 March 1993)\n1. Rules of Civil Procedure \u00a7 60.1 (NCI3d)\u2014 consent judgment entered six years earlier \u2014motion timely \u2014lack of personal jurisdiction alleged\nDefendant\u2019s motion to set aside a consent judgment, although made more than six years after its entry, was not untimely, since it was based on the argument that the trial court did not have personal jurisdiction over her, and a judgment entered without personal jurisdiction over a party is void and may be attacked at any time.\nAm Jur 2d, Judgments \u00a7\u00a7 753, 765, 1081.\n2. Judgments \u00a7 399 (NCI4th)\u2014 consent judgment signed by attorneys \u2014authority of attorneys at issue \u2014 question not addressed by trial judge \u2014setting aside of consent judgment improper\nThe trial court erred in setting aside a consent judgment against defendant on the ground that the court entering the consent judgment did not have jurisdiction over defendant, since the dispositive question was whether the attorneys who signed the consent judgment, representing themselves as the attorneys for defendant, had the authority to appear and approve a judgment on behalf of defendant, and the trial court did not address that issue, even though it was properly before that court.\nAm Jur 2d, Judgments \u00a7 724.\nAppeal by plaintiff from order entered 20 December 1991 in Durham County District Court by Judge Carolyn D. Johnson. Heard in the Court of Appeals 12 January 1993.\nNye, Pkears & Davis, by William J. Wolf and C. Howard Nye, for plaintiff-appellant.\nPoe, Hoof & Reinhardt, by G. Jona Poe, Jr., for defendant-appellee." }, "file_name": "0289-01", "first_page_order": 317, "last_page_order": 321 }