{
  "id": 8552107,
  "name": "ROBERT F. WATERS v. QUALIFIED PERSONNEL, INC.",
  "name_abbreviation": "Waters v. Qualified Personnel, Inc.",
  "decision_date": "1977-03-16",
  "docket_number": "No. 7618SC698",
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    "judges": [
      "Judges Parker and Martin concur."
    ],
    "parties": [
      "ROBERT F. WATERS v. QUALIFIED PERSONNEL, INC."
    ],
    "opinions": [
      {
        "text": "ARNOLD, Judge.\nThe rule is well settled in North Carolina that, \u201c[o]ne superior court judge cannot modify an order of another superior court judge, even if based upon an erroneous application of legal principles.\u201d Public Service Co. v. Lovin, 9 N.C. App. 709, 711, 177 S.E. 2d 448 (1970). This statement is in accord with Green v. Charlotte Chemical Laboratory, Inc., 254 N.C. 680, 120 S.E. 2d 82 (1961), wherein our Supreme Court said that one judge\u2019s \u201corder or judgment which affects some substantial right claimed by a party may not be modified or vacated by another judge on the ground that it is erroneous.\u201d Id. at 693.\nThis is not to say that a superior court judge never has authority to change the result reached by another superior court judge. A new judge can hear a party\u2019s motion for rehearing to set aside a judgment, provided that such is proper and authorized by G.S. 1A-1, Rule 60. Capital Corporation v. Enter prises, Inc., 10 N.C. App. 519, 179 S.E. 2d 190 (1971). Rule 60, entitled Relief from Judgment or Order, lists a number of grounds for granting relief from a judgment. All relate to what could be loosely called matters of fact. They include mistake, fraud, newly discovered evidence, and satisfaction and release. Two others are .arguably applicable here. Rule 60(b) (4) allows relief from a judgment which is void. Judge Long concluded that Judge McConnell\u2019s earlier judgment was void ab initio. That conclusion is wrong. Both parties were always within the jurisdiction of the court. The court, in the person of Judge McConnell, had the power to adjudicate the rights, duties and liabilities of the parties as they arose out of matters within the pleadings. Judge McConnell\u2019s judgment may have been erroneous (and as to this we express no opinion), but it certainly was not void.\nThe other possible ground for setting aside the summary judgment is provided by Rule 60(b) (6) which permits relief from a judgment for \u201c[a]ny other reason justifying relief from the operation of the judgment.\u201d This rule is not so broad as it first appears. As William A. Shuford says in North Carolina Civil Practice and Procedure, \u201cMotions under 60(b) (6), however, are not to be used as a substitute for appeal, and an erroneous judgment cannot be attacked under this clause.\u201d Id., \u00a7 60-11; Young v. State Farm Mutual Auto. Ins. Co., 267 N.C. 339, 148 S.E. 2d 226 (1966); In re Brown, 23 N.C. App. 109, 208 S.E. 2d 282 (1974). Even if Judge McConnell erred in answering the question of whether inadequate notice under Rule 56 is waived where an attorney, other than one who signs the pleadings, appears with the client at the hearing, and with knowledge of the attorney of record, argues the motion without objection to the inadequate notice (and again, we express no opinion on this), still plaintiff\u2019s only remedy from Judge McConnell\u2019s entry of summary judgment was by appeal to this Court.\nThe plaintiff has also attempted to file a \u201cconditional\u201d appeal from Judge McConnell\u2019s summary judgment. Plaintiff relies on Rule 10(d), Rules of Appellate Procedure, but his reliance is misplaced. Rule 10(d) permits an appellee, without taking appeal, to cross-assign as error an act or omission of the trial court \u201cwhich deprived the appellee of an alternative basis in law for supporting the judgment [or] order . . . from which appeal has been taken.\u201d (Emphasis added.) Plaintiff does not suggest an alternative reason for supporting Judge Long\u2019s order; he asks, instead, for the opportunity to attack Judge McConnell\u2019s judgment. He is too late. Rule 10(d) does not permit this. The \u201cconditional\u201d appeal is not allowed, and the order appealed from is\nReversed.\nJudges Parker and Martin concur.",
        "type": "majority",
        "author": "ARNOLD, Judge."
      }
    ],
    "attorneys": [
      "Alspaugh, Rivenbark & Lively, by James B. Rivenbark, and Lawrence Egerton, Jr., for plaintiff appellee.",
      "Jordan, Wright, Nichols, Caffrey & Hill, by William L. Stocks and R. Thompson Wright, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "ROBERT F. WATERS v. QUALIFIED PERSONNEL, INC.\nNo. 7618SC698\n(Filed 16 March 1977)\n1. Rules of Civil Procedure \u00a7 60\u2014 summary judgment \u2014 ..inadequate notice\u2014 appearance by counsel not attorney of record \u2014 motion to set aside\nA superior court judge could not set aside another judge\u2019s summary judgment order under G.S. 1A-1, Rule 60(b)(4) on the ground that plaintiff had received inadequate notice of the hearing and such defect was not waived where an attorney who was not the attorney of record appeared and argued the motion for plaintiff, since the order was not void but was, at most, erroneous; nor could the summary judgment order, if erroneous, be set aside under the provision of G.S. 1A-1, Rule 60(b)(6) permitting relief from a judgment for \u201cany other reason justifying relief from the operation of the judgment.\u201d\n2. Rules of Civil Procedure \u00a7 10\u2014 conditional appeal \u2014 alternative basis for supporting order\nIn this appeal by defendant from an order setting aside a summary judgment order, plaintiff\u2019s purported \u201cconditional\u201d appeal from the summary judgment order under G.S. 1A-1, Rule 10(d) is not allowed where plaintiff does not suggest an alternate reason for sup- . porting the order appealed from but seeks the opportunity to attack the summary judgment order.\nAppeal by defendant from Long, Judge. Order entered 24 May 1976 in Superior Court, Guilford County. Heard in the Court of Appeals 8 February 1977.\nOn 12 March 1975 plaintiff filed suit for the balance due on a note purportedly made by defendant in his favor. Plaintiff\u2019s complaint was signed by Attorney Lawrence Egerton, Jr. On 19 May 1975 defendant answered, and on 5 June 1975 plaintiff filed motion for summary judgment. This motion was also signed by Attorney Egerton.\nOn 26 June 1975 plaintiff\u2019s deposition was taken, and at this deposition plaintiff was represented by Attorney Kent Lively. (Mr. Lively and Mr. Egerton were not members of the same firm.) Mr. Lively participated in the questioning and advised plaintiff not to answer certain questions raised at the deposition. On 6 August 1975 defendant moved, pursuant to G.S. 1A-1, Rule 37, for sanctions against plaintiff for his refusal to answer the questions.\nNothing happened in the matter for several months, and on 24 February 1976 defendant filed its own motion for summary judgment. Affidavits in support of the motion were filed 3 March 1976, and both the motion and affidavits were served on plaintiff through his attorney, Mr. Egerton.\nDefendant\u2019s motion for sanctions under Rule 37 was placed on the 8 March 1976 calendar of superior court. Attorney Eger-ton was not present in court, but Attorney Lively, was present and actively represented the plaintiff. On this same date, 8 March 1976, Attorney Lively filed a reply to defendant\u2019s motion for summary judgment. The reply was prepared and signed by Attorney Egerton.\nAt the 8 March 1976 hearing, Judge McConnell also considered defendant\u2019s motion for summary judgment. There was no objection by plaintiff at this time, and defendant\u2019s attorney, and Attorney Lively representing plaintiff, both argued defendant\u2019s motion for summary judgment. Judge McConnell granted summary judgment to defendant.\nOn 11 March 1976 plaintiff moved before Judge McConnell to set aside the summary judgment on grounds, first, that the March 8 hearing was held less than ten days after receiving notice in violation of G.S. 1A-1, Rule 56(c) ; and, second, that the March 8 hearing was only for the purpose of considering defendant\u2019s motion for sanctions (and not the motion for summary judgment).\nJudge McConnell found that while the motion for summary judgment had been properly calendared and fully argued he was of the opinion that there was a question as to whether plaintiff had been represented by his counsel of record. A hearing was ordered by Judge McConnell to determine \u201cwho is counsel of record for the plaintiff\u201d and to also hear \u201cplaintiff's motion to set aside the judgment.\u201d This hearing was set for 29 March 1976, but, for reasons not apparent in the record, it was not heard until 17 May 1976, by Judge Long.\nIn his order of 24 May 1976 Judge Long found that the summary judgment for defendant which Judge McConnell had entered was void ab initio. Judge Long found that plaintiff had not received adequate notice of the hearing, and that since plaintiff\u2019s counsel of record was not present plaintiff had not waived this defect. The summary judgment entered by Judge McConnell for defendant was set aside.\nDefendant appeals from Judge Long\u2019s order of 24 May 1976, purporting to set aside the summary judgment in its favor entered 8 March 1976 by Judge McConnell.\nAlspaugh, Rivenbark & Lively, by James B. Rivenbark, and Lawrence Egerton, Jr., for plaintiff appellee.\nJordan, Wright, Nichols, Caffrey & Hill, by William L. Stocks and R. Thompson Wright, for defendant appellant."
  },
  "file_name": "0548-01",
  "first_page_order": 576,
  "last_page_order": 580
}