Amick v. Shipley , 43 N.C. App. 507 ( 1979 )

259 S.E.2d 329 (1979) 43 N.C. App. 507

Robert G. AMICK, and wife, Martha S. Amick
v.
Martha M. SHIPLEY, Administratrix of the Estate of Jimmy Shipley, Samuel McKarem and SMB Management Co., Inc.

No. 7818SC1128.

Court of Appeals of North Carolina.

November 6, 1979.

Wilson & Redden by Charles R. Redden, Winston-Salem, for plaintiffs-appellees.

Womble, Carlyle, Sandridge & Rice by Allan R. Gitter, James C. Frenzel, and Chris A. Rallis, Winston-Salem, for defendants-appellants.

ERWIN, Judge.

Defendants contend that the trial court erred in making findings of fact without any evidence introduced by the plaintiffs in support of those findings. We agree for a different reason. In entering its judgment, the trial court relied on the purported stipulation of facts contained in the pretrial order and based its findings of fact thereon. It does not appear of record that the stipulations reduced to writing were signed by respective counsel, and the alleged stipulations appear only in the findings of fact. In a similar instance, our Supreme Court held that the stipulations as reported were subject to challenge. See Crowley v. McDougald, 241 N.C. 404, 85 S.E.2d 377 (1955). In Crowley v. McDougald, supra, the plaintiff had excepted to purported stipulation of facts contained in a referee's report, and it had not been made to appear that the stipulations were reduced to writing and signed by the plaintiff or her counsel.

G.S. 1A-1, Rule 16, of the Rules of Civil Procedure provides in pertinent part:

"If a conference is held, the judge may make an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel; and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice."

While the rule allows the court to enter an order reciting action taken at the conference, present custom and better practice require that admissions, agreements, or stipulations entered into by counsel at the pretrial stage be evidenced by a signed writing. Cf. Crowley v. McDougald, supra. (Stipulations entered into in reference proceeding should be evidenced by signed writing to be binding.) See also 73 Am.Jur.2d, Stipulations, § 2, p. 536. We are well aware that the pretrial conference is a mechanism intended to resolve those issues which are not genuinely in dispute, but nothing in the rule affords a basis for forcing the parties into admissions or stipulations where there is a genuine dispute.

Had the trial court merely relied on other evidence before it, we would be compelled to uphold its findings of fact. However, in the preface to its judgment, the court stated that it was relying "upon stipulation of facts as contained in the Pretrial Order filed in this proceeding." Thus, the record affirmatively discloses that the trial court's findings of fact were based in part on the disputed stipulation of facts. In such a circumstance, the judgment below must be and is

Reversed and remanded.

CLARK and WELLS, JJ., concur.