Gualtieri v. Burleson

353 S.E.2d 652 (1987)

C. Thomas GUALTIERI
v.
William A. BURLESON.

No. 8615DC722.

Court of Appeals of North Carolina.

March 17, 1987.

James T. Bryan, III and Chris Kremer, Chapel Hill, for plaintiff-appellee.

Northen, Blue, Little, Rooks, Thibaut & Anderson by David M. Rooks, III, Chapel Hill, for defendant-appellant.

PHILLIPS, Judge.

Defendants assignments of error contending that the evidence is insufficient to support the judgment against him are without merit and we overrule them. The court's decisive findings of fact—to the effect that plaintiff agreed with defendant to provide the services involved and that plaintiff told defendant he would charge him the per diem and hourly fees above stated—are amply supported by evidence, and clearly support the court's conclusion that defendant personally contracted to pay plaintiff for the services admittedly rendered in the Kirby case. Defendant's argument is not that the court's findings have no evidentiary foundation; it is, instead, that he is not liable because he "identified himself as an attorney representing Mrs. Kirby," thereby making "it clear that he acted in a representative capacity for a disclosed principal." This argument is rejected. Trial lawyers are always making contracts with court reporters, investigators, and experts of various kinds and the evidence clearly indicates defendant so contracted in this instance. Contrary to defendant's argument, there is no inhibition in the law against a lawyer contracting to pay for services needed in a case he is handling. Rule 5.3 of the Rules of Professional Conduct of The North Carolina State Bar authorizes a lawyer to advance or guarantee litigation expenses for his clients, provided the client remains ultimately liable to him for such expenses. This proviso was adopted, no doubt, because litigation is usually conducted, managed and prepared by lawyers, not clients; knowing when court reporters, investigators and expert witnesses are needed and obtaining them is part of a trial lawyer's job; and lawyers, not clients, usually select, contact, negotiate with, engage and pay such persons. Whether payment is made with the lawyer's money or the client's, or whether the client has agreed to reimburse the lawyer, is of no concern to the recipient; but rare, indeed, is the expert, medical or otherwise, who helps in the preparation or trial of a lawsuit without being assured by someone apparently capable of paying that he will be paid. All these things are known by trial lawyers, which is why they usually assure experts vital to their cases that they will be paid and make the best arrangements they can with the clients to repay them. Furthermore, nothing in the evidence suggests that Mrs. Kirby was known to plaintiff or anyone else as a hirer of expert services; or indeed that she had ever hired any such services or authorized defendant to do so upon her credit. Thus, identifying himself as a lawyer with a disabled client, all that defendant did according to the evidence, was not sufficient in our opinion to establish that he was not the one contracting to pay for plaintiff's services. For when a lawyer hiring an expert to help on a case says or does nothing to indicate that the obligation to pay is not his, the expert can reasonably assume, it seems to us, that the lawyer is acting openly and in good faith, rather than evasively, and that he is the contracting party, rather than a stranger he has had no contact with.

Defendant also assigns as error Judge Peele's order denying his motion to dismiss the action on the ground that the court has no jurisdiction over his person. Though not mentioned in the brief of either party, defendant has no right to present this contention because he did not appeal from Judge Peele's order; he only appealed from the judgment that was entered several months later. The first indispensible step in appealing from a judgment or order, as G.S. 1-279 makes plain, is to give notice of appeal in the manner provided and within the time stated therein. Defendant did not take that first step and thus lost his right to contest the validity of that order because the statutory requirements are jurisdictional. Booth v. Utica Mutual Insurance Co., 308 N.C. 187, 301 S.E.2d 98 (1983). Nor is the order's validity reviewable under G.S. 1-278 because he did appeal from the judgment. While G.S. 1-278 does provide that interlocutory orders affecting a judgment appealed from can be reviewed with the judgment, that statute applies only to interlocutory orders that are not appealable, Veazey v. City of Durham, 231 N.C. 357, 57 S.E.2d 377 (1950); and the order upholding the court's jurisdiction over defendant's person was immediately appealable under the express provisions of G.S. 1-277(b). Holt v. Holt, 41 N.C.App. 344, 255 S.E.2d 407 (1979). This does not mean, of course, that defendant had to pursue an appeal from the order at that time; he could have preserved his exception for determination later as G.S. 1-277(b) permits. But it does mean that having the right to appeal he was obliged to exercise that right, if at all, by first giving timely notice of appeal in accord with the provisions of G.S. 1-279.

Even so, it is quite clear that under the two-step determination that must be made when the exercise of in personam jurisdiction over a nonresident defendant is challenged, Dillon v. Numismatic Funding Corp., 291 N.C. 674, 231 S.E.2d 629 (1977), that the trial court had jurisdiction over defendant's person, and his contention to the contrary is overruled. First, we determine that there is statutory authority for exercising in personam jurisdiction over defendant in this case. Subparagraphs (a) and (b) of G.S. 1-75.4(5) give the courts of this state personal jurisdiction over a foreign defendant who contracts to pay for services, any substantial part of which are performed in this state; and the most significant services that plaintiff performed for the defendant in Mrs. Kirby's case were to analyze her medical records, arrive at an opinion concerning her condition, and report his findings and opinion to defendant, all of which were done in his office at Chapel Hill. Second, we determine that defendant's contacts with this state have been enough that requiring him to defend the case here is not incompatible with traditional notions of fairness inherent in the concept of due process under International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945). In addition to defendant contacting plaintiff in this state and soliciting him to perform professional services here, defendant also carried the name and address of a North Carolina lawyer on his letterhead, thereby indicating an ability and willingness to do business in this state through that lawyer; he asked the court, through the counterclaim filed in this case, to exercise its jurisdiction over the non-resident Kirbys; he owned land in this state when the suit was filed and had for several years prior thereto. Under all the circumstances recorded there is nothing unfair about requiring defendant to defend the case in our courts; for the unfairness would be in requiring plaintiff to sue defendant in Washington.

Affirmed.

ARNOLD and ORR, JJ., concur.