Hollerbach v. Hollerbach

368 S.E.2d 413 (1988)

Michael HOLLERBACH, Plaintiff,
v.
Monique HOLLERBACH, Defendant and Third-Party Plaintiff,
v.
CRAFTLINE CONSTRUCTION, INC., Third-Party Defendant.

No. 8711SC940.

Court of Appeals of North Carolina.

May 31, 1988.

Bailey & Dixon by Gary S. Parsons and Patricia P. Kerner, Raleigh, for petitioner-appellant.

Gerald E. Shaw and Moretz & Silverman by J. Douglas Moretz and Jonathan Silverman, Sanford, for receiver-appellee.

ORR, Judge.

Petitioner contends the trial court erred in considering evidence introduced at the hearing on 3 February 1987 as a basis in its order for denying petitioner additional compensation. We agree.

Where a trial court sitting without a jury makes findings of fact, the sufficiency of those facts to support the judgment may be raised on appeal. Little v. Little, 9 N.C. App. 361, 176 S.E.2d 521 (1970). The standard by which we review the findings is whether any competent evidence exists in the record to support them. Id.

Here the trial court made findings relating to an entirely different issue than that properly before the court. These unnecessary findings related to the validity of Casper's claim and the business dealings underlying them. As stated above, these business dealings came to light at the 3 February hearing, and were not in the record before that time.

Although petitioner was present at the 3 February hearing on the validity of Casper's claim, petitioner was not a party to that proceeding and had not been notified that evidence at this hearing would be considered by the trial court in deciding whether to grant his motion for additional compensation. Thus he had no motive to cross-examine witnesses or introduce rebuttal evidence.

When issues of fact are tried by the trial court, it must state its findings and conclusions separately. Knutton v. Cofield, 273 N.C. 355, 359, 160 S.E.2d 29, 33 (1968). It is the trial court's duty to consider all competent evidence before it. Id. (citation omitted). At the 23 January 1987 hearing the trial court had no evidence before it other than petitioner's report.

The trial court erred in considering evidence presented at the 3 February 1987 hearing because this evidence was not before it on 23 January 1987, and petitioner had no opportunity to rebut the evidence or present additional evidence. See N.C.G.S. § 1A-1, Rule 52 (1983); Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982) (Rule 52(a) requires that findings of fact be established by evidence, admissions, and stipulations determinative of the issues involved in the action).

The remaining assignments of error need not be addressed at this time pending the outcome of a new hearing. We vacate the trial court's order and remand this matter to the Lee County Superior Court and instruct it to conduct a new hearing on petitioner's claim for additional compensation not inconsistent with this opinion.

Remanded.

HEDRICK, C.J., and JOHNSON, J., concur.