Caudle v. Ray , 50 N.C. App. 641 ( 1981 )

274 S.E.2d 880 (1981)

Mattie CAUDLE and husband, Lancy Caudle, Sr., Kathryn H. Percell, and husband, Robert L. Percell, James Bullock, Theatrice Bullock, Lonnie Bullock, and W. H. Holding
v.
Herman RAY.

No. 8010SC694.

Court of Appeals of North Carolina.

February 17, 1981.

Shyllon, Shyllon & Ratliff by Mohamed M. Shyllon, Raleigh, for plaintiffs-appellants.

Parker, Sink & Powers by Henry H. Sink, Jr., and Henry H. Sink, Raleigh, for defendant-appellee.

WHICHARD, Judge.

The record contains no exceptions and no assignments of error. Because the scope of review on appeal is limited to "a consideration of those exceptions set out and made the basis of assignments of error in the record," Rule 10(a), Rules of Appellate Procedure, no alleged error is properly before us for review. We have, however, chosen to consider the contentions presented in appellants' brief by exercising the power vested in us by Rule 2, Rules of Appellate Procedure, to suspend the requirements of Rule 10(a) for purposes of this appeal "[t]o prevent manifest injustice to a party."

It is well-established that "[i]n this jurisdiction there is a presumption in favor of an attorney's authority to act for the client he professes to represent." Greenhill v. Crabtree, 45 N.C.App. 49, 51, 262 S.E.2d 315, 316 affirmed 301 N.C. ___, 271 S.E.2d 908 (1980) (affirmed by an equally divided court and therefore without precedential value). In Gardiner v. May, 172 N.C. 192, 196, 89 S.E. 955, 957 (1916), our Supreme Court stated:

A judgment entered of record, whether in invitum or by consent, is presumed to be regular, and an attorney who consented to it is presumed to have acted in good faith and to have had the necessary authority from his client, and not to have betrayed his confidence or to have sacrificed his right.

A presumption that Attorney Purser had authority to act for his clients here thus arose upon entry of the consent judgment, and "[i]t then [became] the burden of the client[s] to rebut this presumption and to prove lack of authority to the satisfaction of the court." Greenhill, 45 N.C.App. at 52, 262 S.E.2d at 317.

Plaintiffs offered eight affidavits for the purpose of rebutting the presumption that Attorney Purser had authority to act for them in consenting to the judgment which they now seek to vacate and set aside. Each affidavit unequivocally denied that Purser was vested with such authority. These affidavits constitute the only evidence in the record. The record is thus devoid of evidence tending in any way to indicate that Purser did have authority from plaintiffs to consent to the judgment on their behalf.

The trial court's "finding of fact" that Purser's actions "were within the scope of his authority as attorney of record for Plaintiffs" is "in reality, [a] legal [conclusion] determinative of the rights of the parties." Warner v. W & O, Inc., 263 N.C. 37, 40, 138 S.E.2d 782, 785 (1964). "The listing of what is in reality a legal conclusion as a fact, when ... not supported by the evidence, has no efficacy." Warner, 263 N.C. at 40, 138 S.E.2d at 785. The record here contains no evidence from which the trial court could have made findings of fact to support its legal conclusion that the attorney's actions were within the scope of his authority to act for plaintiffs. The presumption of authority, standing alone, was not sufficient to sustain the order when countered by plenary evidence in rebuttal. Hence, the court's legal conclusion is "not supported by the evidence, and has no efficacy."

We hold that on the facts contained in the record before us the order of 28 March 1980 was erroneous, and it is therefore vacated. We do not determine whether plaintiffs are entitled to have granted their motion to vacate and set aside the judgment of 18 May 1977. That determination is a proper function for the trial court upon our remand herewith for further proceedings consistent with this opinion.

Vacated and remanded.

WEBB and HARRY C. MARTIN, JJ., concur.