Wachovia Bank & Trust Co., N.A. v. Bounous

281 S.E.2d 712 (1981)

WACHOVIA BANK AND TRUST COMPANY, N.A., Trustee Under the Will of Louis Bounous, Appellee,
v.
Frank L. BOUNOUS, Individually and Frank L. Bounous, Executor of Justine Bounous, Appellant.

No. 8025DC1206.

Court of Appeals of North Carolina.

September 15, 1981.

Patton, Starnes & Thompson by Robert L. Thompson, Morganton, for plaintiff-appellee.

Brewer & Brady by Robert M. Brady, Lenoir, for defendant-appellant.

ARNOLD, Judge.

Appellant argues that Judge Noble erred by failing to conduct an independent hearing to ascertain the existence of actual consent on the part of all parties to the consent judgment, and that Judge Crotty in turn erred by failing to grant relief under Rule 60 based upon the lack of such investigatory hearing. The argument is meritless.

Judge Noble was presented with a document purporting to be a negotiated settlement of the parties' lawsuit. It was signed by all parties. The evidence before Judge Crotty was that the only person present when Judge Noble signed the judgment was appellee's attorney. There is no evidence that Judge Noble was ever aware of appellant's alleged lack of consent to the judgment.

"It is a settled principle of law in this State that a consent judgment is the contract of the parties entered upon the records of a court of competent jurisdiction with its sanction and approval." Highway Comm. v. Rowson, 5 N.C.App. 629, 631, 169 S.E.2d 132, 134 (1969). "Persons sui juris have a right to make any contract not contrary to law or public policy." Construction Co. v. Contracting Co., 1 N.C.App. 535, 538, 162 S.E.2d 152, 154 (1968). "It is the general rule that one who signs a contract is presumed to know its contents ...." Ellis v. Mullen, 34 N.C.App. 367, 370, 238 S.E.2d 187, 189 (1977).

We believe that it is beyond question that, absent any circumstances to put the court on notice that one of the parties does not actually consent thereto, a judge may properly rely upon the signatures of the parties as evidence of consent to a judgment. There was no evidence at the hearing on appellant's Rule 60(b) motion that Judge Noble had any reason to doubt the genuineness of appellant's consent. We refuse to impose upon the trial courts of this State the onerous responsibility of holding investigatory hearings to determine the genuineness of the consent of every party who signs a consent judgment. Whether appellant's advanced age and hearing impairment constitute circumstances which alter the general rule stated above will not be considered on this appeal since it does not appear that Judge Noble was ever apprised of these circumstances.

Appellant's reliance on the cases of Owens v. Voncannon, 251 N.C. 351, 111 S.E.2d 700 (1959); Lee v. Rhodes, 227 N.C. 240, 41 S.E.2d 747 (1947); Lalanne v. Lalanne, 43 N.C.App. 528, 259 S.E.2d 402 (1979); et al., is misplaced. In all those cases the lack of assent of one of the parties to the judgment was manifested to the trial court before the judgment was signed or one of the parties failed to sign the judgment. This not being so in the case sub judice, these cases have no applicability to the present situation. Appellant's first argument must be overruled.

Appellant next attacks the basis in competent evidence upon which the findings and conclusions of the Order of 31 July 1980 were based. The findings of the court will not be reviewed if there is any competent evidence in the record to support them. Transit, Inc. v. Casualty Co., 285 N.C. 541, 206 S.E.2d 155 (1974). An exception to a finding of fact not supported by evidence must be sustained and the finding of fact disregarded. Harrelson v. Insurance Co., 272 N.C. 603, 158 S.E.2d 812 (1968).

Appellant excepts to every material finding of fact in the Order. We have examined all of appellant's exceptions and believe that three of them must be sustained.

In finding of fact No. 7 the court found that Attorney Robinson had a reputation for being painfully honest. No reputation evidence was offered at the hearing. There was no evidence upon which the court could properly base a finding as to Robinson's reputation for honesty. This portion of finding of fact No. 7 must be disregarded.

In its conclusions of law, the court made the additional finding that the significance of the quitclaim deed was explained to appellant "by two competent and reputable attorneys." Again, there was no evidence before the court that the attorneys were either competent or reputable. This portion of the court's conclusions must also be disregarded.

In finding of fact No. 10 the court found that appellant's wife signed the quitclaim deed "to insure that valid non-warranty title would be conveyed by said deed." The evidence of the movant was that Mrs. Bounous did not know what she had signed. The only evidence for the non-movant was Robinson's statement that he "did not advise Mrs. Bounous that she would be signing a quitclaim deed that would give up any right that she may have in the property." There was, therefore, no evidence to support this finding and it must be disregarded.

The only issue before Judge Crotty on this motion was whether appellant was entitled to relief from the consent judgment. It was therefore immaterial whether the lawyers who explained the contents of the judgment were "painfully honest," "competent," or "reputable." It was similarly immaterial whether Mrs. Bounous was advised of the significance of the quitclaim deed. It was the judgment that was before the court, and Mrs. Bounous did not sign the judgment nor was she a party to the action. We hold that, even disregarding these three erroneous factual findings, there were sufficient findings of fact based on competent evidence to support the trial court's conclusions of law and order.

That portion of the proceedings at the hearing of appellant's Rule 60(b) motion contained in the record reflects no evidence or argument that appellee's action exceeded the jurisdictional amount for cases tried in District Court. At any rate, no argument is brought forward on appeal and we deem this ground for relief from judgment abandoned at this point, if not earlier abandoned at the hearing.

Affirmed.

ROBERT M. MARTIN and HILL, JJ., concur.