Able Outdoor, Inc. v. Harrelson

459 S.E.2d 626 (1995) 341 N.C. 167

ABLE OUTDOOR, INC.
v.
Thomas J. HARRELSON, as Secretary of Transportation of the State of North Carolina.

No. 115PA94.

Supreme Court of North Carolina.

July 28, 1995.

Wilson & Waller, P.A. by Betty S. Waller and Brian E. Upchurch, Raleigh, for petitioner-appellee.

Michael F. Easley, Atty. Gen. by Elizabeth N. Strickland, Asst. Atty. Gen., for respondent-appellant.

WEBB, Justice.

The first question we face in this appeal is whether Judge Cashwell had jurisdiction to interpret N.C.G.S. § 6-19.1 or N.C.G.S. § 1A-1, Rule 11 as to the award of attorney's fees. If he had jurisdiction to do so, it was error for Judge Bowen to strike this award. One superior court judge may not overrule another. Calloway v. Motor Co., 281 N.C. 496, 501, 189 S.E.2d 484, 488 (1972); Huffaker v. Holley, 111 N.C.App. 914, 433 S.E.2d 474 (1993); Madry v. Madry, 106 N.C.App. 34, 415 S.E.2d 74 (1992). If Judge Cashwell did not have jurisdiction to act under these sections of the statutes, his order was a nullity and Judge Bowen could strike it.

The superior court gained jurisdiction of this case when Able petitioned for review of the final agency decision pursuant to N.C.G.S. § 136-134.1. N.C.G.S. § 6-19.1 provides in pertinent part:

In any civil action ... brought by the State or brought by a party who is contesting State action pursuant to N.C.G.S. § 150A-43 [now N.C.G.S. § 150B-43] or any other appropriate provisions of law, unless the prevailing party is the State, the court may, in its discretion, allow the prevailing party to recover reasonable attorney's fees to be taxed as court costs against the appropriate agency if:

(1) The court finds that the agency acted without substantial justification in pressing its claim against the party; and

(2) The court finds that there are no special circumstances that would make the award of attorney's fees unjust.

The party shall petition for the attorney's fees within 30 days following final disposition of the case. The petition shall be supported by an affidavit setting forth the basis for the request.

N.C.G.S. § 6-19.1 (1986) (emphasis added).

The respondent Secretary of Transportation argues that N.C.G.S. § 136-134.1 does not provide for attorney's fees against the State. He says "[a]n attorney fee proceeding under Section 6-19.1 is a completely separate proceeding from a judicial review proceeding under Section 136-134.1. Consequently, jurisdiction under Section 136-134.1 does not automatically confer jurisdiction under Section 6-19.1." He argues further that N.C.G.S. § 6-19.1 waives sovereign immunity and must be strictly construed. Construction Co. v. Department of Administration, 3 N.C.App. 551, 165 S.E.2d 338 (1969). The respondent says N.C.G.S. § 6-19.1 requires that a petition for attorney's fees must be filed within thirty days following the final disposition of the case, and unless this is done, the superior court does not have jurisdiction to pass on the question of attorney's fees. The respondent contends, based on this argument, that Judge Cashwell did not have jurisdiction to award attorney's fees pursuant to N.C.G.S. § 6-19.1 and Judge Bowen could strike this order.

We do not agree with respondent's interpretation. When Able petitioned the superior court for review, this gave the superior court jurisdiction under N.C.G.S. § 136-134.1. The statute provides for a de novo hearing. We believe this gave the court jurisdiction to determine the whole case including the taxing of costs. N.C.G.S. § 6-19.1 provides for attorney's fees to be taxed as costs in some instances. The court had jurisdiction to interpret this section. We do not believe the General Assembly intended that N.C.G.S. § 6-19.1 would provide for a separate proceeding in which the court does not have jurisdiction until certain prerequisites are met. Judge Cashwell may have erred by allowing attorney's fees, but we do not have to decide that question in this case. He had jurisdiction to interpret N.C.G.S. § 6-19.1, and it was error for another superior court judge to overrule his order.

By the same token, Judge Cashwell had jurisdiction to decide whether to impose sanctions under N.C.G.S. § 1A-1, Rule 11. N.C.G.S. § 1A-1, Rule 1 provides in part that the Rules of Civil Procedure "shall govern the procedure in the superior and district courts ... in all actions and proceedings of a civil nature except when a differing procedure is prescribed." N.C.G.S. § 1A-1, Rule 1 (1990). N.C.G.S. § 1A-1, Rule 11 provides in part: "If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose ... an appropriate sanction, which may include ... a reasonable attorney's fee." N.C.G.S. § 1A-1, Rule 11 (1990). Judge Cashwell found that certain acts of the respondent "were not well-grounded in fact and warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and caused unnecessary delay and increased cost of litigation." He imposed sanctions based on this finding.

This is a proceeding of a civil nature. The State has consented to be sued by N.C.G.S. § 136-134.1. The Rules of Civil Procedure apply to this case. There is no reason why Rule 11 should be excluded from the rules to be applied. Again, we need not determine whether the action of Judge Cashwell was erroneous in basing his order on a violation of Rule 11. He had jurisdiction to interpret the rule, and the State did not appeal from the order.

The respondent argues that Rule 11 has no express language which allows the granting of attorney's fees against the State. He says that absent such an express grant of authority, our doctrine of sovereign immunity does not allow sanctions against the State. This argument misses the point. The respondent may be correct in his argument that Rule 11 does not provide for sanctions against the State. That does not mean, however, that Judge Cashwell did not have jurisdiction to decide this question. When he decided it, he could not be overruled by another superior court judge.

The respondent argues further that because N.C.G.S. § 6-19.1 provides for the allowance of attorney's fees, there is no authority for Rule 11 sanctions. Again, this is not a jurisdictional question. It is a legal question, which Judge Cashwell had jurisdiction to determine.

The respondent argues further that Judge Bowen properly struck the order imposing sanctions under Rule 60(b)(6), which allows a court to grant relief from an order for "[a]ny other reason justifying relief from the operation of the judgment." N.C.G.S. § 1A-1, Rule 60(b)(6) (1990). The extraordinary circumstance upon which Judge Bowen relied in striking the sanctions imposed pursuant to Rule 11 was that N.C.G.S. § 6-19.1 more specifically addressed the situation in this case. This is not a sufficient reason for one superior court judge to overrule another.

We hold, however, that the Court of Appeals erred in affirming Judge Cashwell's orders allowing execution against the State. In Smith v. State, 289 N.C. 303, 222 S.E.2d 412 (1976), we held that when the State enters into a valid contract, it waives its sovereign immunity so that it may be sued for breach of the contract. We also held that if a plaintiff is successful in establishing his claim, he cannot obtain execution to enforce the judgment. We said, "[t]he judiciary will have performed its function to the limit of its constitutional powers. Satisfaction will depend upon the manner in which the General Assembly discharges its constitutional duties." Id. at 321, 222 S.E.2d at 424. Pursuant to Smith, we do not believe the Judicial Branch of our State government has the power to enforce an execution against the Executive Branch. See Garner v. Worth, 122 N.C. 250, 29 S.E. 364 (1898).

Able argues that N.C.G.S. § 7A-103 and N.C.G.S. § 1-313 authorize the clerk to issue orders for execution, and N.C.G.S. § 1-353 authorizes superior court judges to issue orders in aid of execution. It says the orders issued in this case were issued pursuant to these sections of the statutes and are valid. These sections were in effect when Smith was decided. We did not hold then that they provided for execution against the State and we decline to do so now.

For the reasons stated in this opinion, we affirm the holding of the Court of Appeals that it was error to strike Judge Cashwell's order awarding attorney's fees. We reverse that part of the decision of the Court of Appeals which holds the petitioner may have execution against the State, and remand to that court for further remand to the Superior Court, Wake County, for proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.