In Re License of Delk , 336 N.C. 543 ( 1994 )

444 S.E.2d 198 (1994) 336 N.C. 543

In re LICENSE OF Mark T. DELK.

No. 249PA93.

Supreme Court of North Carolina.

June 17, 1994.

A. Root Edmonson, Raleigh, for petitioner-appellant, the North Carolina State Bar.

Mark T. Delk, pro se.

WEBB, Justice.

The first question posed by this appeal is whether the show cause order signed by Judge Downs in Mecklenburg County is sufficient to give the Superior Court, Graham County, jurisdiction to enter a judgment in Graham County. We believe this is a question of first impression.

The respondent, relying on several cases, State v. Boone, 310 N.C. 284, 311 S.E.2d 552 (1984); Baker v. Varser, 239 N.C. 180, 79 S.E.2d 757 (1954); Shepard v. Leonard, 223 N.C. 110, 25 S.E.2d 445 (1943); Ward v. Agrilo, 194 N.C. 321, 139 S.E. 451 (1927); Bisanar v. Suttlemyre, 193 N.C. 711, 138 S.E. 1 (1927); Gaster v. Thomas, 188 N.C. 346, 124 S.E. 609 (1924); and State v. Ray, 97 N.C. 510, 1 S.E. 876 (1887), says "except by consent, or unless authorized by statute, a judge of the Superior Court, even in his own district, has no authority to hear a cause or to make an order substantially affecting the rights of the parties, outside the county in which the action is pending." Shepard v. Leonard, 223 N.C. 110, 114, 25 S.E.2d 445, 448 (quoting Bisanar v. Suttlemyre, 193 N.C. 711, 712, 138 S.E. 1, 1).

None of the cases cited by the respondent involve the issuance of a show cause order. In each case a superior court judge either entered an order which determined the case, required some action by a party, or affected some right of a party. This is the first time, so far as we can determine, that a litigant has attempted to implicate, in regard to a show cause order, the rule that a judge, without the consent of the parties, may not make an order substantially affecting a right of a party unless he is in the county in which the case is to be heard. We hold that the rule upon which the respondent relies does not apply to show cause orders.

A show cause order does not substantially affect the rights of a party. It does require the person cited to appear and protect his rights or risk losing them. So long as the controversy is to be determined in the proper county, it should not matter that an ex parte show cause order was issued in another county. The party to whom the order is directed does not have the right to be present when the order is signed. No right of his is violated when a show cause order is signed in a county other than the county in which the matter is to be heard. We decline to extend the rule to apply to this situation. We believe it would exalt form over substance to do so.

The respondent brings forward several assignments of error which were not discussed by the Court of Appeals. He says first that Judge Downs as a senior resident judge has no more authority than any other superior court judge. Our decision in this case does not depend on Judge Downs being the senior resident superior court judge. This assignment of error is overruled.

The respondent next contends that after the Court of Appeals vacated the order of Judge Hyatt and remanded for further proceedings, the superior court did not follow the mandate of the Court of Appeals. He contends this voided the action taken in the superior court. On remand, the superior court issued what it considered to be a valid show cause order as required by the first opinion of the Court of Appeals. We have upheld the validity of the order. The respondent does not say in what way the court otherwise did not follow the mandate of the Court of Appeals and we do not find any such way. This assignment of error is overruled.

The respondent contends that the actions of Judge Hyatt in declining to order the respondent disbarred when he was convicted in June 1989 and later refusing to issue an order requiring him to show cause why he should not be disbarred are res judicata as to the issues in this case and the court could not disbar him. He bases this argument on the language of two cases, Gaither Corp. v. Skinner, 241 N.C. 532, 85 S.E.2d 909 (1955) and Kabatnik v. Westminster Co., 63 N.C.App. 708, 306 S.E.2d 513 (1983), which say:

It is to be noted that the phase of the doctrine of res judicata which precludes relitigation of the same cause of action is broader in its application than a mere determination of the questions involved in the prior action. The bar of the judgment in such cases extends not only to matters actually determined but also to other matters which in the exercise of due diligence could have been presented for determination in the prior action.

Gaither Corp. v. Skinner, 241 N.C. 532, 535-36, 85 S.E.2d 909, 911 (citations omitted). The respondent says Judge Hyatt could and should have ruled on the question of disbarment when the defendant was convicted in June 1989 and refused to do so. He says that matter is now res judicata and he cannot be disbarred by the court.

Assuming a criminal case could be the basis for res judicata or collateral estoppel, the respondent has given the doctrine an overbroad interpretation. The language upon which the respondent relies was used in the context of requiring parties to litigate the whole claim in one action. The question of disbarring the respondent was not a part of the criminal action against the respondent and did not have to be determined when the criminal case was tried. It could be determined at a later time. This prevents the matter from being res judicata. See King v. Grindstaff, 284 N.C. 348, 200 S.E.2d 799 (1973). This assignment of error is overruled.

The respondent next contends Judge Allen, in the order of disbarment, incorrectly found the effective date of the order of disbarment entered by Judge Hyatt. Judge Allen made 25 June 1990 the effective date of the order he signed based on the effective date of the order signed by Judge Hyatt. The effective date of the order might become important in calculating the time when the respondent is eligible to apply for readmission to the bar.

We believe the respondent is correct in this contention. The order of Judge Hyatt was signed on 25 May 1990. It contains no provision making its effective date 25 June 1990. The State Bar argues that it has a practice of making the effective date of a disbarment order thirty days from the date the order is signed. This is done to let the disbarred attorney wind down his affairs. For this reason, says the State Bar, the respondent would have kept his license until 25 June 1990 although the order of disbarment was signed on 25 May 1990.

The difficulty with the State Bar's argument is that this is a judicial disbarment. When Judge Hyatt issued the order disbarring the respondent, the State Bar had no power to let the respondent keep his license for thirty days. It is clear from reading the order of Judge Allen that he intended the effective date of the order he signed to coincide with the order of Judge Hyatt. On remand, we order that the order signed by Judge Allen be amended to make 25 May 1990 its effective date.

The respondent next assigns error to the procedure by which he was disbarred. He says the State Bar violated its own rules when it asked the court to disbar him. In this state there are two methods by which an attorney may be disbarred. One method is statutory under which the State Bar proceeds against an attorney. The other method is one in which the court exercises its inherent power to discipline attorneys. In re Burton, 257 N.C. 534, 126 S.E.2d 581 (1962); McMichael v. Proctor, 243 N.C. 479, 91 S.E.2d 231 (1956). In this case, the court proceeded against the respondent using its inherent power to discipline attorneys. It was not bound by the rules of the State Bar. Adequate notice was given to the respondent to comply with due process.

The respondent argues under this assignment of error that N.C.G.S. § 84-28(d) prohibits disbarment while the criminal charge for which a person is to be disbarred is on appeal. He says this rule was violated when he was disbarred by Judge Hyatt. This appeal is from the disbarment by Judge Allen which occurred after the Court of Appeals had found no error in the respondent's conviction. This assignment of error is overruled.

Under his next assignment of error, the respondent contends the court did not make adequate findings of fact and conclusions of law to support the order of disbarment. The court found

that the records of this Court disclose that Mark T. Delk, then an Attorney at Law... was convicted on June 15, 1989 of a criminal charge of extortion ... and a criminal charge of conspiracy ... which are criminal offenses demonstrating unfitness to practice law and act as an officer of this Court; and concluding that conviction of said charges is grounds for discipline pursuant to N.C.Gen.Stat. Section 84-28(b)(1).

The court then ordered that the respondent be disbarred.

The respondent says the findings of fact do not support the order disbarring him. He argues that the order states no basis for the application of N.C.G.S. § 84-28 to a disbarment by a court. He contends this section of the statutes applies only to disbarment proceedings brought by the State Bar. N.C.G.S. § 84-28 provides for disbarment for the conviction of a criminal offense showing professional unfitness. It does not limit this penalty to cases brought by the State Bar. If the court was not given the power to disbar the respondent by N.C.G.S. § 84-28, it had the inherent power to disbar him for the conviction of the two felonies. State v. Spivey, 213 N.C. 45, 195 S.E. 1 (1938).

The respondent contends that there was not a finding that he was convicted of any crime but that the order only says "the records of this Court disclose" that he was convicted. If a court finds that the records of the court disclose a person has been convicted of a crime showing he is unfit to practice law, this is a sufficient finding of fact to support disbarment.

The respondent finally contends that there should have been some finding of his "actual character at the time of the hearing." When the court found that the records disclosed the respondent had been convicted of the crimes, it had the power to disbar the respondent without regard to his character. This assignment of error is overruled.

In his last assignment of error, the respondent contends that this is a civil action which required that all the rules of civil procedure be applied, including the filing of a complaint and the issuance of a summons. He contends the failure of the court to follow its own rules deprived him of due process of law.

The superior court has the inherent power to discipline members of the bar. It can require attorneys to appear and answer charges based on records of the court. There is not a plaintiff in such a proceeding and a complaint does not have to be filed. The show cause order notified the respondent of the nature, date, time and place of the hearing. This protected the respondent's due process rights. See In re Robinson, 37 N.C.App. 671, 247 S.E.2d 241 (1978). This assignment of error is overruled.

For the reasons given in this opinion, we reverse the Court of Appeals and remand for remand to superior court for the reinstatement of Judge Allen's order with the amendment we have mandated.

REVERSED AND REMANDED.