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  "id": 11889686,
  "name": "BETH L. HOCKADAY, SHEPARD L. HOCKADAY, WILLIAM D. WOOD, SYLVIA L. WOOD, KENNETH M. LEE, AMELIA T. LEE, W. THEL JOHNSON, NELL W. JOHNSON, CHARLES B. THORNTON, JUAN D. SUAREZ, AND CONNIE SUAREZ, Plaintiffs v. EARL LEE AND DENNIS LEE, d/b/a LEE BROTHERS FARMS, Defendants",
  "name_abbreviation": "Hockaday v. Lee",
  "decision_date": "1996-11-05",
  "docket_number": "No. COA95-1379",
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    "judges": [
      "Judges JOHN and MARTIN, Mark D., concur."
    ],
    "parties": [
      "BETH L. HOCKADAY, SHEPARD L. HOCKADAY, WILLIAM D. WOOD, SYLVIA L. WOOD, KENNETH M. LEE, AMELIA T. LEE, W. THEL JOHNSON, NELL W. JOHNSON, CHARLES B. THORNTON, JUAN D. SUAREZ, AND CONNIE SUAREZ, Plaintiffs v. EARL LEE AND DENNIS LEE, d/b/a LEE BROTHERS FARMS, Defendants"
    ],
    "opinions": [
      {
        "text": "GREENE, Judge.\nBeth L. Hockaday, Shepard L. Hockaday, William D. Wood, Sylvia L. Wood, Kenneth M. Lee, Amelia T. Lee, W. Thel Johnson, Nell W. Johnson, Charles B. Thornton, Juan D. Suarez, and Connie Suarez (plaintiffs) appeal an order entered 11 July 1995 which denied their motion to set aside a previous order entered 19 June 1995 requiring them to pay Earl Lee and Dennis Lee, doing business as Lee Brothers Farms (defendants) deposition expenses and expert witness fees as part of the costs of the underlying action.\nThe Honorable D.M. McLelland (Judge McLelland), emergency superior court judge (retired), was commissioned to preside over a Special Session of Johnston County Superior Court, running from 8 May 1995 and continuing two weeks, \u201cor until the business is completed.\u201d On 23 May, during the special session, after the jury returned a verdict for the defendants, Judge McLelland stated in open court that the \u201caction ... is hereby dismissed and . . . the plaintiffs [are ordered to] pay the costs.\u201d He then instructed the defendants\u2019 attorney to \u201cprepare the necessary judgment.\u201d Finally, he noted in open court: \u201cAnd I take it there\u2019s no objection to its [sic] being mailed to me?\u201d Plaintiffs\u2019 attorney answered: \u201cNo.\u201d Judge McLelland then told the sheriff to announce \u201can adjournment, sine die, of this Court.\u201d On 23 May 1995, Judge McLelland signed a judgment dismissing the complaint and ordering that \u201cthe costs of this action [be] taxed against the [p]laintiffs.\u201d\nOn 26 May 1995, the defendants made a motion requesting that the order of costs include the deposition expenses and expert witness fees. A copy of this motion was served on plaintiffs\u2019 attorney by depositing it in the mail on 26 May 1995. This motion was also mailed to Judge McLelland at his home in Burlington along with a letter to him. The letter stated in pertinent part:\nI have served a copy of this Motion on [plaintiff\u2019s [sic] counsel along with a copy of the proposed Order so that you may receive their input before ruling on this Motion. If a hearing is required, [defendants would agree to a telephone hearing or, if necessary, to appearing in Johnston County.\nOn 19 June 1995, Judge McLelland signed an order taxing, \u201cas part of the costs of this action,\u201d deposition expenses in the amount of $4,160.30 and expert witness fees in the amount of $4,500.00. On that same date, Judge McLelland mailed the signed order to defendants\u2019 attorney along with a letter stating in pertinent part: \u201cAs I have had no indication from [plaintiffs\u2019 attorney] that they desire to be heard in opposition to your motion [with regard to deposition expenses and expert witness fees], I have signed your proposed order.\u201d On 26 June 1995 the plaintiffs filed a motion requesting a hearing on the defendants\u2019 26 May 1995 motion. The 19 June 1995 order was filed on 29 June 1995. On 30 June 1995, pursuant to Rule 60 of the North Carolina Rules of Civil Procedure, the plaintiffs filed a motion requesting that they be relieved from the 19 June 1995 order on the grounds that it was \u201cnull and void and of no legal effect because [Judge McLelland] had no jurisdiction to enter the order since it was signed out of term and without the consent of all the parties\u201d and on the grounds that they were entitled to and denied a hearing on the 26 May 1995 motion. Judge Napoleon Barefoot (Judge Barefoot) denied the plaintiffs\u2019 motion.\nThe dispositive issue is whether Judge McLelland had jurisdiction to sign the 19 June 1995 order.\nPlaintiffs first argue Judge McLelland, an emergency judge, did not have jurisdiction to execute the 19 June order because the motion on which it was based \u201cwas made after the expiration of the special trial session\u201d to which he had been assigned. We disagree.\nAn emergency superior court judge has the same powers, \u201cin open court and in chambers,\u201d \u201cthat regular judges holding the same courts would have.\u201d N.C.G.S. \u00a7 7A-48 (1995). These powers, however, exist only during the period of their assignment. Id. In this case, Judge McLelland\u2019s period of assignment extended from 8 May 1995 \u201cuntil the business [of the court was] completed.\u201d The business of the court was not completed, in this case, until the execution of the judgment and the setting of the costs.\nEven if Judge McLelland\u2019s special assignment had not extended \u201cuntil the business [was] completed,\u201d he had authority under Rule 6(c) of our Rules of Civil Procedure to sign the judgment and determine the costs, after the jury rendered its verdict and the court was adjourned. Our Supreme Court has held that Rule 6(c) \u201cpermits a judge to sign an order out of . . . session ... so long as the hearing to which the order relates was held in... [session].\u201d Capital Outdoor Advertising v. City of Raleigh, 337 N.C. 150, 159, 446 S.E.2d 289, 294-95, reh\u2019g denied, 337 N.C. 807, 449 S.E.2d 566 (1994); N.C.G.S. \u00a7 1A-1, Rule 6(c) (1990). The Rule does not limit its applicability to regular judges and we read it as applying to all judges, including emergency judges. See Strickland v. Kornegay, 240 N.C. 758, 760, 83 S.E.2d 903, 904 (1954) (emergency judge has authority to sign judgment after termination of the session to which he had been assigned). In this case, Judge McLelland made and announced, in open court and before its adjournment, his decision to tax plaintiffs with the costs. The determination of the amount of those costs, made after the adjournment of the session, was merely an implementation of the decision rendered in session and thus \u201crelates\u201d (within the meaning of Rule 6(c)) to that decision. See Daniels v. Montgomery Mut. Ins. Co., 320 N.C. 669, 679, 360 S.E.2d 772, 778-79 (1987). Judge McLelland thus had jurisdiction to enter the 19 June 1995 order.\nThe plaintiffs also argue that, even if Judge McLelland had jurisdiction, the 19 June 1995 order nonetheless must be set aside because they were not given a hearing on the issue of the amount of the costs to be assessed. We need not address that question because, even assuming a right to a hearing, see 20 C.J.S. Costs \u00a7 150, at 126 (1990) (\u201cGenerally, a party is entitled to be heard on the question as to costs.\u201d), on this record the plaintiffs waived any such right. See Carrow v. Weston, 247 N.C. 735, 737, 102 S.E.2d 134, 136 (1958) (any right waivable \u201cunless forbidden by law or public policy\u201d); 20 C.J.S. Costs \u00a7 156, at 131 (irregularities in taxation of costs may be waived). They received notice of the 26 May 1995 motion and a copy of the letter forwarding that motion to Judge McLelland. The letter specifically solicited the plaintiffs\u2019 \u201cinput\u201d on the motion. It was not until some three weeks later that Judge McLelland signed the order, at which time he noted that he had not received any \u201cindication\u201d from the plaintiffs that they wished to be heard on the motion. The failure of the plaintiffs to contact Judge McLelland within the three week period to note their objections to the motion, under these circumstances, implies they had no objections and did not seek a hearing on the matter. See 28 Am Jur 2d Estoppel and Waiver \u00a7 160, at 846 (1966) (implied waiver arises where person pursues course of conduct \u201cas to evidence an intention to waive a right\u201d). Judge McLelland thus correctly proceeded with the execution of the order.\nAccordingly, Judge Barefoot did not err in denying the plaintiffs\u2019 Rule 60 motion.\nAffirmed.\nJudges JOHN and MARTIN, Mark D., concur.\n. The plaintiffs do not dispute that Judge McLelland had authority to determine the costs or that he abused his discretion in setting the amount of the costs. See N.C.G.S. \u00a7 6-20 (1986) (granting trial court discretion to award costs); N.C.G.S. \u00a7 7A-305 (1995) (listing expenses recoverable as costs in civil actions); N.C.G.S. \u00a7 7A-314 (setting out method for determining amount of witness fee); Sealey v. Grine, 115 N.C. App. 343, 347, 444 S.E.2d 632, 635 (1994) (permitting inclusion of deposition expenses as part of costs).",
        "type": "majority",
        "author": "GREENE, Judge."
      }
    ],
    "attorneys": [
      "Morgan & Reeves, by Robert B. Morgan and Eric Reeves, for plaintiff-appellants.",
      "Ward and Smith, P.A., by Kenneth R. Wooten, for defendant-appellees."
    ],
    "corrections": "",
    "head_matter": "BETH L. HOCKADAY, SHEPARD L. HOCKADAY, WILLIAM D. WOOD, SYLVIA L. WOOD, KENNETH M. LEE, AMELIA T. LEE, W. THEL JOHNSON, NELL W. JOHNSON, CHARLES B. THORNTON, JUAN D. SUAREZ, AND CONNIE SUAREZ, Plaintiffs v. EARL LEE AND DENNIS LEE, d/b/a LEE BROTHERS FARMS, Defendants\nNo. COA95-1379\n(Filed 5 November 1996)\n1. Judgments \u00a7 38 (NCI4th)\u2014 taxing of costs by emergency superior court judge \u2014 order signed after adjournment\nAn emergency superior court judge had jurisdiction to enter an order requiring plaintiffs to pay deposition expenses and expert witness fees as part of the costs of the underlying action where the judge made and announced his decision to tax plaintiffs with costs in open court and before adjournment, although the order taxing specific amounts was signed later. The judge\u2019s period of assignment extended from 8 May 1995 \u201cuntil the business [of the court was] completed\u201d and the business of the court was not completed in this case until the execution of the judgment and the setting of the costs. Also, the determination of the amount of the costs, made after the adjournment of the session, was merely an implementation of the decision rendered in session and thus relates within the meaning of N.C.G.S. \u00a7 1A-1, Rule 6 (c) to that decision. Capital Outdoor Advertising v. City of Raleigh, 337 N.C. 150, held that Rule 6(c) permits a judge to sign an order out of session so long as the hearing to which the order relates was held in session. The Rule does not limit its applicability to regular judges and applies to all judges, including emergency judges.\nAm Jur 2d, Judgments \u00a7 81.\n2. Costs \u00a7 10 (NCI4th)\u2014 costs of action \u2014 setting of amount\u2014 hearing waived\nA superior court judge did not err by denying plaintiffs\u2019 motion under N.C.G.S. \u00a7 1A-1, Rule 60 for relief from an order requiring them to pay certain costs of an action without a hearing where plaintiffs waived any right to a hearing. The failure of the plaintiffs to contact the judge to note their objections within the three week period between their receipt of notice of the motion (and a copy of the letter forwarding the motion to the judge specifically soliciting their input) and the judge\u2019s signing of the order under these circumstances implies that plaintiffs had no objections and did not seek a hearing on the matter.\nAm Jur 2d, Costs \u00a7\u00a7 15, 94.\nAppeal by plaintiffs from order entered 11 July 1995 in Johnston County Superior Court by Judge Napoleon Barefoot. Heard in the Court of Appeals 12 September 1996.\nMorgan & Reeves, by Robert B. Morgan and Eric Reeves, for plaintiff-appellants.\nWard and Smith, P.A., by Kenneth R. Wooten, for defendant-appellees."
  },
  "file_name": "0425-01",
  "first_page_order": 463,
  "last_page_order": 467
}
