Theil v. Detering

315 S.E.2d 789 (1984)

Peter THEIL
v.
Henry A. DETERING.

No. 834SC562.

Court of Appeals of North Carolina.

June 5, 1984.

Gaylor, Edwards & McGlaughon by H. King McGlaughon, Jr., Jacksonville, for plaintiff-appellant.

Stith & Stith by F. Blackwell Stith, New Bern, for defendant-appellee.

WEBB, Judge.

The question presented by this appeal is whether the trial court erred in holding that plaintiff's complaint was a nullity because it was prepared and filed by an attorney not authorized to practice law in this state, and in dismissing plaintiff's action on that basis. If the complaint was, in fact, a nullity, then the court did not err in dismissing the action, and plaintiff has lost his claim for relief because the statute of limitations expired a few days after the complaint was filed. If the complaint was not a nullity, then plaintiff's action was instituted within the limitations period, and it was error for the court to dismiss it because plaintiff retained counsel licensed to practice in this state prior to the entry of the court's order.

While it does not appear that our courts have directly addressed the question whether a pleading filed by an attorney not authorized to practice law in this state pursuant to G.S. 84-4.1 is a nullity, we believe the Supreme Court's holding in N.C.N.B. v. Virginia Carolina Builders, 307 N.C. 563, 299 S.E.2d 629 (1983) settles the issue. In that case, a default judgment was entered for the plaintiff on the ground that the defendant's answer was filed by an out-of-state attorney who had not qualified under G.S. 84-4.1 to practice in North Carolina. The Court held that the default judgment was improperly entered because the answer, even though filed by an attorney not authorized to practice in this state, was on the record. Id. at 568, 299 S.E.2d at 632. The Court said that plaintiff's remedy was to move to strike the answer, and then to move for entry of default and default judgment. Id. Because the plaintiff had not moved to strike the answer, it remained of record, and the clerk did not have authority to enter a default judgment.

We interpret N.C.N.B. as impliedly holding that a pleading filed by an attorney not authorized to practice law in this state is not a nullity. If such a pleading was a nullity, then the default judgment in N.C.N.B. would have been properly entered. By stating that a motion to strike was necessary in this situation, the Court indicated that a lawful pleading was in existence. A pleading which is a nullity has absolutely no legal force or effect, and may be treated by the opposing party as if it had not been filed. See Black's Law Dictionary 963 (5th ed. 1979).

We are aware that the Supreme Court's decision in In re Smith, 301 N.C. 621, 272 S.E.2d 834 (1981) may be inconsistent with N.C.N.B. in that it could be interpreted as implying that any legal actions taken in the courts of this state by an attorney not authorized to practice in this state are null and void. In Smith, our Supreme Court held that an out-of-state attorney could not be held in and punished for willful contempt of court for his failure to comply with an order of the court directing him to appear as an attorney in a North Carolina case where the attorney had never acquired eligibility to appear in the case and therefore was never an attorney in the case admitted to limited practice in North Carolina. Id. at 633, 272 S.E.2d at 842. The Supreme Court said that because the attorney was not authorized to practice law in this state, the court was without power to order him to appear as an attorney in the North Carolina case, and the order to that effect was a nullity. Id. To the extent that Smith, is inconsistent with N.C.N.B. on this issue, we feel it was overruled by implication by the Court's decision in N.C. N.B.

In accordance with the Court's ruling in N.C.N.B., we hold that the complaint in the instant case was not a nullity, and that the trial court erred in dismissing the action on that basis. The judgment of the trial court is

Reversed.

BECTON and EAGLES, JJ., concur.